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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Winston J. v. State, Dept. of Health & Social Services, Office of Children's Services (04/28/2006) sp-6008
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
| WINSTON J., | ) |
| ) Supreme Court No. S- 12002 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-03-79 CP/4FA-03- 80 CP |
| ) | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH AND | ) |
| SOCIAL SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6008 - April 28, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Lori M. Bodwell, Conflict
Counsel, Fairbanks Section, Office of Public
Advocacy, Fairbanks, for Appellant. Dan N.
Branch, Assistant Attorney General, and David
W. M rquez, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Twins Tanya and Wilfred G.1 were born while their
father was incarcerated for assaulting their mother. They were
immediately taken into state custody and placed with their
mothers aunt. Two years later, the Office of Childrens Services
(OCS) brought a petition to terminate the parental rights of both
parents. The superior court terminated the parental rights of
both parents and approved the permanent placement of the twins
with their great aunt. The father appeals. Because the superior
court did not err in finding (a) that OCS made reasonable efforts
to reunite the father with his children, (b) that the children
were in need of aid, and (c) that the father did not remedy his
conduct, we affirm the order terminating the fathers parental
rights.
II. FACTS & PROCEEDINGS
A. Facts
Twins Tanya and Wilfred G. were born in Fairbanks to
Tricia G. on April 12, 2003. The children were born prematurely
and spent the first month of their lives in intensive care at
Fairbanks Memorial Hospital. On May 8, 2003 the state brought a
petition requesting that the children be adjudicated in need of
aid and that they be taken into state custody. The petition
noted that Tricia was reportedly a chronic drug abuser and was
failing to show up at appointed times to feed the twins. Their
father was not present at all. The twins tested positive for
Hepatitis C at birth but negative for any drugs. It was later
established that both children were exposed to cocaine during the
pregnancy.
In May 2003 Superior Court Judge Richard D. Savell
found the children to be in need of aid and placed them in the
custody of the state. The court stated that the father was
identified as [Winston J.]. He is currently incarcerated. He is
not listed on the birth certificates, so paternity must be
established. Winston was incarcerated for a domestic assault on
Tricia which occurred when she was eight months pregnant. He
chas[ed] her around [a] truck and kicked at her. Winston has a
long history of domestic assaults. In 1993 a restraining order
was obtained against him in Fairbanks by a former girlfriend on
her complaint that he had choked her and slammed her head several
times against a wall. He was incarcerated for a domestic assault
in Yakima, Washington in 1998. He was later incarcerated for
domestic assault in Spokane, Washington. All of these assaults
involved different women. He was also convicted of driving under
the influence in Seattle in 1990.
The superior court committed the children to state
custody for a period of up to two years in September 2003. The
court found that Winston
was incarcerated until early August, and
indicated that he did not wish to participate
in a case plan or services until his criminal
case had been resolved. Since being released
from custody, the father has not engaged in
services, nor has he identified himself to
the social worker so that services and visits
between the father and the children could
commence.
Rather than attempting to establish a relationship with his
children, Winston went to Seattle after his release. Tricia
apparently lived with him there from time to time. In January
2004 Winston took a paternity test which definitively established
him to be the twins father.
Winston returned to Alaska for a week-long visit in
March 2004. While in Fairbanks he met with a social worker and
signed a case plan aimed at allowing the children to live with
him. During the visit Winston underwent parenting skills and
anger management assessments. As a result of the assessment in
Fairbanks, OCS recommended that Winston complete a full-year
Alternatives to Violence program. The social worker recommended
a specific program in Seattle in a letter of April 15, 2004.
Following substantial delays because Winston was out of touch
with OCS, Winston started the program in or around November
2004, but stopped after attending two classes.
B. Proceedings
On December 23, 2004 OCS filed a petition to terminate
Tricias and Winstons parental rights to the twins.2 The petition
was tried before Judge Savell in May 2005. Judge Savell found
that Winston and Tricia had failed to remedy the conduct or
conditions that made the children in need of aid. The court
cannot return children to the parents without substantial risk of
physical and mental injury. The court found by a preponderance
of the evidence that the state made reasonable efforts to reunite
the children with their parents and found it to be in the best
interests of the children to terminate the parental rights of
Winston and Tricia. The termination order was issued on June 23,
2005.3 Winston appeals the termination of his parental rights,
arguing that the superior court erred in finding (1) that OCS had
made reasonable efforts to reunite him with his children, (2)
that the twins were in need of aid, and (3) that he had failed to
remedy the conditions that caused the children to be in need of
aid. Tricia does not appeal.
III. STANDARD OF REVIEW
It is a question of law whether the superior courts
findings are consistent with child-in-need-of-aid rules and
statutes.4 We review questions of law using our independent
judgment.5 Factual findings underlying the superior courts
termination decision are reviewed for clear error.6 Clear error
exists when we are left with a definite and firm conviction that
the superior court has made a mistake.7
IV. DISCUSSION
A. The Superior Court Did Not Err in Finding that OCS Made
Reasonable Efforts To Reunite Winston with his
Children.
1. We need not determine whether OCS was required to
make reasonable efforts until paternity was
definitively established.
OCS argues that it was not required to make reasonable
efforts until it was definitively established that Winston was
the twins father.8 OCS analogizes to child welfare cases in the
context of the Indian Child Welfare Act (ICWA).9 We have held
that ICWA did not obligate the State to provide such efforts
until . . . paternity had been established.10 As OCS
acknowledges, however, ICWA defines parent much more
restrictively than do the Alaska statutes; ICWA excludes the
unwed father where paternity has not been acknowledged or
established.11 In Alaska custody proceedings, however, parent
means the biological or adoptive parent of the child.12 But we
need not decide this question now. As we conclude in the
following section, OCS met its reasonable efforts burden in any
event.
2. OCS made reasonable efforts.
OCS was required to demonstrate, by a preponderance of
the evidence, that it had made reasonable efforts to prevent the
breakup of the family.13 Under AS 47.10.086(a), OCS is required
to make timely, reasonable efforts to provide family support
services . . . to the parents . . . of the child that are
designed to . . . enable the safe return of the child to the
family home, when appropriate. We have stated that we allow the
state to consider the amount of time available for reunification,
considering how long the child has been in foster care and
whether allowing more time for reunification would not be in the
childs best interests.14
At trial, the superior court rejected Winstons argument
that not enough services were provided. The court stated:
It is ironic that in Mr. [J.]s case were told
that not enough services were entered. The
normal argument which has been well received
from this court and has some weight to it is,
Judge, you put too much on this persons
plate, they couldnt do it all, it wouldve
been more appropriate, Judge, for . . . OCS
to triage these needs and give [the] person
one task and one step at a time. . . . Under
the circumstances here and given Mr. [J.]s
response . . . I cant fault the state for not
. . . load[ing] these services on Mr. [J.]s
plate.
The courts implied finding that OCS had made reasonable efforts
is supported by the record: OCS provided parenting and anger
management assessments to Winston, and directed him to parenting
classes and alternatives to violence counseling. OCS also
brought Winston to Alaska at state expense to see his children.
Winston argues on appeal that in failing to provide a recommended
mental health evaluation for Winston, OCS failed to make
reasonable efforts to reunify the family.
The courts ruling indicates that it believed OCS
provided an appropriate level of services under the
circumstances. Winston initially informed OCS, when OCS
contacted him in prison, that he did not want to be contacted
regarding the children until his criminal case was resolved.
Upon his release, he did not . . . identif[y] himself to the
social worker so that services and visits between the father and
the children could commence. We have indicated that reasonable
efforts should be reasonably calibrated to the interest in
parenting demonstrated by the parent.15 When Winston initially
demonstrated no interest, the states efforts were appropriately
less. As Winston became more involved, then the state offered
more services. It seems clear from the record that Winston
eventually showed a substantial interest in raising his twins.
Unfortunately, he was not able to make enough progress in the
short time that he had allowed himself.
Not only Winstons level of interest but also his
actions must be considered.16 Upon his release from prison he
returned to Washington rather than contact OCS or his children.
While he eventually did participate in assessments required by
OCS, visited the children multiple times, and took anger
management classes, Winston failed to complete the case plan he
signed. The state initiated an interstate placement review under
AS 47.70.010 while Winston was in Washington, sending a social
worker to visit him in Seattle. Interstate placement was denied,
however, due to Winstons lack of participation.
Most significantly, he attended only two sessions at a
one-year program set up for him in Seattle by OCS. This despite
Winstons understanding that if he went to this program, he would
likely have his kids back. The social worker assigned to Winston
testified that she reiterated to him that if you just show an
effort, . . . that youre trying, thats the only thing, just as
long as youre trying to get your children back. As the childrens
guardian ad litem testified, Winston had only one major hurdle to
overcome, but did not make the effort, attending only two
sessions of the year-long class.
Finally, he ceased making efforts completely when OCS
notified him in December 2004 that it intended to file a
termination petition in fairly short order. The superior court
correctly found that the states termination petition was a
warning: that Winstons failure to obtain the services he needed
would lead to termination. At this point the children were
twenty months old but had never lived with Winston and had no
prospects of doing so. The superior court indicated that it
viewed the filing of the termination petition as the last chance
allowing the parents time to demonstrate that conditions had been
remedied.
Considered as a whole, the record indicates that OCS
made reasonable efforts to reunite Winston with his twins. The
state flew Winston up to Fairbanks from Seattle for the
evaluations it conducted. It arranged for him to see his
children while in Fairbanks. It arranged, long-distance, for
Winston to attend a comprehensive, year-long anger management
counseling program in Seattle. It appears from the record that
the social workers on the case were reasonably diligent in
attempting to follow up on Winstons progress. Furthermore,
Winston was directed to attend parenting classes by the court as
a condition of his probation. Winston failed to attend the
classes. We take into account the actions of the parent involved
and look at the states efforts in their entirety,17 including
actions taken by other state agencies.18 While the states actions
here might not have been a model of efficiency,19 the law does not
require perfect efforts, just reasonable ones, and the record
indicates that the state made reasonable efforts.
B. The Superior Court Did Not Err in Finding the Twins To
Be in Need of Aid and in Finding that Winston Had
Failed To Remedy the Conditions that Caused Them To Be
in Need of Aid.
Winston argues that the superior court erred in finding
the twins to be in need of aid under AS 47.10.011(8). That
statute provides, in relevant part, that a child can be adjudged
to be 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. At trial, the
superior court found that this statute was satisfied: [t]he
domestic violence . . . placed the children in risk of exposure
that we know causes mental harm, that could cause physical harm.
Winston argues that the court misread the statute because the
children had not been born when the incident of domestic violence
against their mother occurred and that the statute does not allow
the court to make findings based on prospective acts of domestic
violence. We disagree: The court still could reasonably find
that Winstons commission of domestic violence against the twins
mother coupled with his history of violence against other women
created a substantial risk of harm to them should they be placed
with him.
As the state notes, we rejected an argument similar to
Winstons in Martin N. v. State.20 That case involved a father
who, like Winston, was shown to have committed several acts of
violence against the childs mother and others, but none against
the child.21 Also like Winston, Martin committed one of the acts
of violence against the mother when she was pregnant.22 Martin N.
argued that because he had never directed violence against his
child, the state had not shown that the child faced a substantial
risk of mental injury under AS 47.10.011(8)(B)(i).23 We firmly
rejected that argument:
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. . . . We have previously held
that witnessing domestic violence is mentally
harmful to children. There was clear and
convincing evidence that Martins acts toward
[the mother] create a significant risk of
mental injury to [the child] if continued.[24]
Judge Savells conclusion in the present case is
perfectly consistent with our holding in Martin N. Winstons
argument focuses on the fact that the children never witnessed
domestic violence, but this is because they were in utero when it
first occurred and Winston was incarcerated (for committing the
domestic violence) when the twins were born. In order to remedy
the potentially injurious circumstances in the home environment,
Winston was obligated to address his repeated problems with
domestic violence. As he did not do so, the superior court was
justified in holding that he had not remedied the conditions that
caused the children to be in need of aid. As the superior court
noted in its findings, the law and society have recognized [that]
the priority [is] these two little kids, not the parents
feelings.
Especially when young children are involved, it is
important that a parent with a history of violent behavior
particularly one as long and serious as Winstons address the
causes of the behavior. As noted, Judge Savell found that the
domestic violence . . . placed the children in risk of exposure
that we know causes mental harm [and] that could cause physical
harm. This finding was starkly supported by the family
assessment: [Winston] reported the intent to use spanking and
slapping the hand to discipline his children and believes that
they are already at an age where this would be appropriate to
implement. At the time of this statement the children were
barely a year old.
V. CONCLUSION
Because the superior court did not err in finding that
OCS made reasonable efforts to ensure that the children could be
returned to Winston, and it did not err in finding that the twins
were in need of aid and that Winston had failed to remedy the
conditions that caused them to be in need of aid, we AFFIRM the
judgment of the superior court.
_______________________________
1 Pseudonyms have been used throughout this opinion to
protect the identity of the parties.
2 OCS was required to file a petition at this point
because the children had been in state custody for more than
fifteen of the previous twenty-two months. AS 47.10.088(d)(1).
3 Since Judge Savell retired on the day the trial ended,
the termination order was signed by Superior Court Judge Robert
Downes.
4 Jeff A.C., Jr. v. State, 117 P.3d 697, 702 (Alaska
2005).
5 Id.
6 Id.
7 Id.
8 Alaska Statute 47.10.086(a) directs OCS to make
reasonable efforts to provide family support services to the
child and parents or guardian of the child.
9 25 U.S.C. 1901-1963 (2000).
10 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 262 (Alaska 1999).
11 25 U.S.C. 1903(9) (2000).
12 AS 47.10.990(19).
13 CINA Rule 18(c)(2)(A); AS 47.10.086.
14 Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska
2005).
15 Id. at 707.
16 See id. ([T]he state, in determining what efforts to
reunite parent and child are reasonable, may consider the parents
actions.).
17 Frank E. v. State, Dept of Health & Soc. Servs., 77
P.3d 715, 720 (Alaska 2003).
18 See T.F. v. State, Dept of Health & Soc. Servs., 26
P.3d 1089, 1095-96 (Alaska 2001); A.M. v. State, 945 P.2d 296,
305 (Alaska 1997) (considering efforts made by Department of
Corrections). Although T.F. and A.M. are ICWA cases, their
reasoning on this point is applicable to non-ICWA cases because
the active efforts requirement of ICWA is more demanding than the
reasonable efforts requirement of AS 47.10.086.
19 For example, OCS did not arrange paternity testing for
eight months after the children were born, despite Judge Savells
comment that paternity must be established, and even though
Winston was incarcerated and available.
20 79 P.3d 50 (Alaska 2003).
21 Id. at 54.
22 Id. at 51.
23 Id. at 54.
24 Id. at 55 (footnote omitted).
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