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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Karrie B. ex rel. Reep v. Catherine J. (4/4/2008) sp-6247

Karrie B. ex rel. Reep v. Catherine J. (4/4/2008) sp-6247, 181 P3d 177

     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

KARRIE B. and CRYSTAL B., )
minor children, by their Guardian ad ) Supreme Court No. S-12675
Litem, JANINE REEP,)
) Superior Court Nos. 1JU- 02-118/119 CP
Appellants,)
) O P I N I O N
v. )
) No. 6247 April 4, 2008
CATHERINE J., and STATE OF )
ALASKA, OFFICE OF CHILDRENS)
SERVICES, )
)
Appellees.)
)

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:   Guy M. Kerner, Anchorage,  for
          Appellants.   Kirsten  Swanson,  Juneau,  for
          Appellee  Catherine J.  Michael G.  Hotchkin,
          Assistant Attorney General, Anchorage,  Talis
          J.  Colberg,  Attorney General,  Juneau,  for
          Appellee State of Alaska, Office of Childrens
          Services.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          MATTHEWS, Justice.
I.   INTRODUCTION
          The Guardian ad Litem (GAL) for two children in need of
aid, Karrie and Crystal,1 appeals a superior court order, arguing
that  the  superior  court  erred as  a  matter  of  law  in  not
terminating the parental rights of their mother, Catherine.
II.  FACTS
          Catherine  was born in 1978 in Juneau and is an  Alaska
Native.  Catherine met Thomas B. shortly after she graduated from
high  school.  Catherine and Thomas never married, but  they  had
two children together: Karrie, born in 1998, and Crystal, born in
2001.   The  troubled story of Catherine and Thomass relationship
with  their  children, and with the Office of Childrens  Services
(OCS),  was  set  out in detail in the July 25,  2005  permanency
report authored by the GAL2 and Court Appointed Special Assistant
(CASA)  for  Karrie and Crystal.  The report covered  the  period
from 1998-2005.3
               Although   the   Office   of   Childrens
          Services did not assume custody of Karrie and
          Crystal  until  2002, OCS  .  .  .  has  been
          involved    with   the   family   for    many
          years. . . .
          
               The first report of harm was received by
          OCS  when Karrie was only two months old,  on
          August  21,  1998.  At that time, the  police
          had taken Catherine and Karrie to her mothers
          home because of fighting in the home.  Thomas
          became    suicidal   and   was   subsequently
          hospitalized.   In November of  1998,  police
          again  were  sent  to  the  home  because  of
          partying.  Referrals were made for the family
          to  .  .  .  [a] parenting/family center  and
          Thomas was reportedly working with [a] Juneau
          .  .  .  [h]ospital.  The OCS  social  worker
          noted  that  although they were  cooperative,
          Catherine  and Thomas also stated  that  they
          felt they were being harassed by OCS . . . .
          
               Problems escalated in 1999 with numerous
          police  contacts due to partying and drinking
          at  the  familys apartment .  .  .  .   Three
          reports  of  harm were made to OCS  regarding
          domestic  violence and drinking.  Thomas  was
          arrested and charged for assault in April  of
          1999 when he pushed Catherine and knocked her
          to  the  floor  during an argument  at  their
          home.   In  May  of  1999, Catherine  stabbed
          three holes in a door in their apartment with
          a  knife  in anger while she was intoxicated.
          At  first, Catherine steadfastly denied these
          actions, but finally admitted the truth after
          an  OCS social worker located the stab  marks
          in the door.
          
               Catherine  was  arrested for  assaulting
          another woman in September of 1999, again  in
          the  home.  When the police arrived to arrest
          Catherine  they found her lying on  the  bed,
          intoxicated, with Karrie, who was only 1 year
          and  3  months  old  at the  time.   Although
          Catherine  was ordered to attend [counseling]
               for anger management in September of 1999,
          her  probation was revoked in early  December
          of   1999  for  failure  to  follow  through.
          Catherine was also arrested for driving while
          intoxicated in late December of 1999.
          
               Catherine and Thomas both agreed to work
          a  OCS  case plan in early 2000.  The  family
          was  reportedly engaged in couples counseling
          through  [a]  Juneau  . .  .  [h]ospital  and
          Catherine was participating in counseling . .
          .  .   However, in May of 2000, Catherine was
          arrested   at   [a]  .  .  .   [l]ounge   for
          noncompliance  with conditions of  probation.
          In  June of 2000, the family was evicted from
          their housing . . . .
          
               The  family moved into [a] shelter where
          extensive  family services and  support  were
          put  in  place.   However, in July  of  2000,
          Catherine   was  again  arrested   for   non-
          compliance with her court ordered counseling.
          Thomas was arrested for furnishing alcohol to
          minors in July of 2000.
          
               Crystal was born [i]n . . . 2001.   Less
          than  one  month  later . . .  Catherine  was
          arrested for disorderly conduct . .  .  after
          she spit on another woman and raised her fist
          in  a  hostile manner.  Catherine  was  again
          arrested in October of 2001 for noncompliance
          with  her  alcohol screening recommendations.
          The  family  was  evicted from  [the  shelter
          where  they  were  staying] through  a  court
          action filed in March of 2002.  Catherine and
          Thomas were delinquent on their reduced rent,
          visibly   intoxicated  on  the  premises   in
          violation of shelter rules and had refused to
          comply with requests for alcohol/drug testing
          and treatment or AA meeting attendance.
          
               A   police  report  of  Catherine  being
          intoxicated  downtown was  made  on  May  31,
          2002, and another report regarding a domestic
          violence  incident was received on  June  28,
          2002.   The  family  was then  living  at  [a
          hotel] under stressful conditions.  On August
          28,  2002,  the police were called by  Thomas
          regarding    another    domestic     assault.
          Catherine was arrested because she had become
          angry with Thomas and punched him on his face
          and  broke his cell phone.  The present  case
          was  initiated  in  November  of  2002  after
          Juneau  Police officers found  one  year  old
          Crystal  and four year old Karrie  unattended
          in  their  room  at  the [hotel]  while  both
          parents were out drinking.  The children were
          placed in emergency foster care.
          
               Thomas  failed  to follow  through  with
          most  of the recommendations in his OCS  case
          plan.    Catherine   participated   in    the
          Naltrexone  program for substance abuse,  and
          worked  with [a] therapist . . . on a  weekly
          basis   focusing  on  substance   abuse   and
          relationship   issues.   Finding   affordable
          housing  was  a struggle due to  the  familys
          prior  evictions due to non-payment  of  rent
          and domestic violence and drinking.
          
               However,  unbeknownst  to  OCS  and  the
          CASA/GAL,  it now appears that Catherine  was
          still actively drinking.  On August 10, 2003,
          a taxi cab driver reported to the police that
          Catherine  and  another woman  did  not  have
          money  for their fare and were passed out  in
          the  vehicle.  Another police report reflects
          that  on  September  9, 2003,  Catherine  and
          another  male  were engaged in  a  protracted
          altercation involving yelling, screaming, and
          scuffling . . . .
          
               With the help of OCS, the CASA/GAL,  and
          the  vigorous  advocacy of the  girls  foster
          parents  .  .  . affordable safe housing  was
          finally  secured  for  Catherine  .  .  .   .
          Crystal   and   Karrie   were   returned   to
          Catherines  care in October of 2003.   For  a
          period  of  approximately  six  months,   the
          household appeared to run smoothly.  However,
          again,  unbeknownst to OCS and the  CASA/GAL,
          reports regarding drinking and violence  were
          made to the police as early as April of 2004.
          On  April  21,  2004,  Catherine  called  the
          police  because  an  intoxicated  Thomas  had
          barged into her residence, (although she  had
          attempted  to  block the door with  a  chair)
          pushed  her  down  and took her  cell  phone.
          Catherine  stated that both of  her  children
          were   home,   but   did  not   witness   the
          altercation.
          
               Additional police reports reveal that on
          May   23,  2004,  Thomas  called  the  police
          because   of  a  domestic  violence  incident
          between  he  and Catherine  .  .  .  .   Both
          parties  accused  the other  of  causing  the
          problem.  Catherine stated that Thomas kicked
          her  and  pushed her down in the presence  of
          Karrie.   (It is not clear where Crystal  was
          at  the time).  Catherine also relayed to the
          police  officer that she and Thomas had  both
          been  drinking.   Five year  old  Karrie  was
          interviewed by the police and confirmed  that
          she saw her father push her mom down and kick
          her.
          
               On  August 15, 2004 a report was made to
          police   that  the  residents  in  Catherines
          apartment  fight  all the  time  and  that  a
          female  was heard saying, get off of  me.   A
          verbal  altercation  involving  alcohol   was
          confirmed.  Police records state that a  copy
          of  the report would be sent to [the Division
          of   Family  and  Youth  Services4]   because
          Catherines  two young children  were  in  the
          residence, although this does not  appear  to
          have happened.
          
               On   August  17,  2004,  Catherine   was
          arrested  for  violently  attacking   Thomas.
          Both  parties  were intoxicated  and  alleged
          mutual  combat.  Catherine was  placed  under
          arrest  for domestic assault and then had  to
          be  physically restrained on the floor of her
          home  because she resisted being  handcuffed.
          Karrie  and  Crystal  were  reportedly   fast
          asleep and wakened up and taken to Catherines
          sisters home.  OCS was not called.
          
               In  October of 2004, Crystal and  Karrie
          were   placed  in  [a]  .  .  .  foster  home
          temporarily  while Catherine was incarcerated
          for her assault conviction.  Thomas moved  to
          Oregon  and Catherine struggled to  care  for
          the children on her own.  In December, it was
          discovered  that  Catherine  in  anger,   had
          pulled  Karries arm hard enough  to  leave  a
          large  purple  bruise  and  fingernail  cuts.
          Catherine agreed to voluntarily place Crystal
          and   Karrie  with  [a  foster  home]   while
          arrangements  were  made  for  her  to  enter
          inpatient  treatment  with  the  children  in
          Sitka in January of 2005.
          
               After Catherine returned from treatment,
          concerns  arose about conditions in the  home
          and  Catherines  ability to provide  for  the
          children.   Karries teacher made a report  of
          harm  to  OCS based on her observation  of  a
          drastic    negative   change    in    Karries
          personality  and  behavior.  Karrie  reported
          that  her mother was dragging [them]  by  the
          hair  and grabbing [them] by the arm  and  it
          hurt[].   Catherine had stopped communicating
               with the school and sending in homework for
          Karrie  as  she  had  previously  done,   and
          Karries   progress   in  school   drastically
          declined.
          
               When  efforts were made to address these
          concerns   Catherine  demonstrated  paranoid,
          volatile, angry behavior by yelling and using
          profanity  towards  her  OCS  social  worker.
          Catherine  also  indicated that  she  was  no
          longer interested in allowing the children to
          visit  with [the foster family] or CASA Susan
          Ashton  who had all been steadfast supporters
          of Catherines reunification with the children
          and basically the familys safety network.  In
          addition Catherine stated that she no  longer
          wanted Karrie to work with her counselor from
          AWARE,  but wanted her to see a new counselor
          at  SEARHC [SouthEast Alaska Regional  Health
          Consortium].   Catherine  came  to   an   OCS
          meeting  sharing her plans to  move  down  to
          Oregon with the girls to be near Thomas.
          
               When  OCS  social workers took steps  to
          investigate  the  report of  concern,  Karrie
          blurted out that her mother was being mean to
          them and had poured stuff in her and Crystals
          hair  (later  described to be something  like
          salad  dressing)  and rubbed  it  in.   Given
          Karries state of fear and anxiety, Catherines
          refusal  to  acknowledge valid concerns,  her
          lack of emotional control, and her refusal to
          work with her identified support system,  the
          decision  to  remove Karrie and Crystal  from
          their mothers home was made.[5]
          
          The  September 23, 2005 permanency report by OCS  noted
that  Catherine  had  been  involved in two  additional  alcohol-
related  incidents.  As for Thomas, OCS reported that he was  not
in  compliance with the case plan developed for him and continues
to lead a nomadic lifestyle, has not maintained contact with OCS,
and  has  infrequent telephone contact with  his  children.   The
report  concluded  that OCS had decided to file  a  Petition  for
Termination of Parental Rights for Thomas and Catherine and would
do so within the next two months.6
          In  February 2006 Catherine relocated to Kenai as  part
of  a  treatment plan recommended both by OCS and SEARHC.  Karrie
and  Crystal joined her in March 2006.  As part of her  treatment
in Kenai, Catherine participated in a chemical dependency program
administered  by the Kenaitze Indian Tribe.  A report  dated  May
25,  2006, from the center administering the program stated  that
Catherine was doing fantastic.
          The  expectation was that Catherine would live in Kenai
for  a  year.   But  as  early  as April  2006,  Catherine  began
inquiring about returning to Juneau.7  On July 9, 2006, Catherine
          was found intoxicated and passed out  at home with her children.
Karrie  and  Crystal were returned to Juneau on  July  14,  2006,
after  briefly  being placed in foster care in Kenai.   Catherine
returned  to  Juneau  on  August 7,  2006,  and  enrolled  in  an
inpatient  program  at  the  Rainforest  Recovery  Center.8   She
completed  this  program in early September and  participated  in
Rainforests   ongoing   care  program   afterwards.    Catherines
substance  abuse counselor at Rainforest described her  prognosis
as  guarded.  The discharge statement from the outpatient program
stated  that it seemed the client was blaming the system for  her
problems  and had some difficulty taking full responsibility  for
her drinking and past choices.
          The  latest permanency report indicated that Thomas was
still  not  complying with his case plan and ha[d] not  made  OCS
aware of any active efforts to seek out services.9
III. PROCEEDINGS
     A.   The Termination Hearing
          The  termination hearing for Thomas and Catherine  took
place over six days in 2007 (January 10, 11, 12, 19; March 8; and
April 3).  Thomas was telephonically present for the hearing only
on  March  8  and  April 3; he was told that the next  permanency
hearing   was  scheduled  for  October  11.10   He  opposes   the
termination  of his parental rights, but is not a party  to  this
appeal  and  was  not the subject of the courts final  order.   A
representative  from Catherines tribe was present  telephonically
at the hearing.
          The  hearing  dealt almost entirely with Catherine  and
her  behavior and the well-being of Karrie and Crystal.  Although
several  witnesses and experts testified that there was a  strong
bond between Catherine and her children, they also testified that
Catherine  consistently  exhibited bad  judgment  and  repeatedly
placed her own needs before the needs of her children.  Katheryne
Calloway,  who  worked with Catherine and her  children  at  OCS,
stated,  I  believe that [Catherine] tries.  I believe she  loves
her children.  She wants to parent her children . . . .  [But]  I
think  that  there are certainly limitations in her  capacity  to
develop the skills necessary to do that consistently.
          One  theme repeatedly pressed by the State and the  GAL
was  that  Catherine was prone to cycles, where  she  would  show
signs  of  improvement, yet then slip back to her  old  behavior.
Julie Harbers, who worked on Catherines case at OCS from February
2005 to July 2006, remarked that Catherine was able to make short-
term  commitments  . . . [and was] very, very  proactive  in  the
beginning  but was not able to sustain . . . that positive  drive
to  continue  to  be  clean and sober and follow  the  advice  of
providers.   A particular focus of the hearing was on  Catherines
time  in  Kenai and her return to Juneau.  The State and the  GAL
portrayed  this  as  further  evidence  of  Catherines  cycle  of
apparent  improvement and then devastating  relapse  despite  the
best efforts of OCS and related service providers.  Catherine and
her  counsel  argued that the move to Kenai was a poorly  planned
attempt  to help Catherine, which took her away from her cultural
and social support network and set her up for failure.
          There  was  also extensive testimony about  Karrie  and
          Crystals anxiety and depression.  A mental health expert
testified  that  Karries concerns about maternal deprivation  and
safety  .  .  .  .  [were] taking up so much psychic  energy  and
emotional  energy that her attention and concentration  in  other
areas  could  be easily disrupted.  A therapist for the  children
testified  that when the girls were with Catherine  there  was  a
deterioration of their behavior but when they were in foster care
in  a  structured, stable environment, they did better.  A social
worker  testified  that  she  saw  yearly  patterns  of  repeated
behavior  in  Karrie and Crystal and that she was concerned  that
[Karrie] is self-harming . . . [and] concerned that [Crystal]  is
running  out into the street and hitting and biting and spitting.
Catherine  testified on her own behalf at the hearing, expressing
that  she  would like to see that [her children] have  a  loving,
caring  parent, something that is healthy, and not  have  any  of
these  issues be addressed to [her] children again, the  domestic
violence, the alcohol abuse thats been in their lives.
          It  became evident during the hearing that there was no
clear  long-term placement plan for the children if  Thomass  and
(especially)  Catherines parental rights were terminated.   There
were  discussions at the hearing about awarding  guardianship  to
Catherines  sister and her brother-in-law, with whom  Karrie  and
Crystal  briefly  resided.   But  by  February  28,  2007,   that
placement  had failed,11 and the children were transferred  to  a
foster  family with whom they previously had stayed.  The  foster
parents  later  indicated  that they could  not  keep  Catherines
children  long-term.   On the final day of  the  hearing  it  was
suggested that possibly a permanent placement could be made  with
a school teacher of Karries.
     B.   The Courts Remarks at the Hearing and Its Final Order
          At  the  hearing,  Superior  Court  Judge  Patricia  R.
Collins expressed her belief that the case was a difficult one to
decide.  I have a hard decision to make, she said on January  19,
2007,  and  also: [S]eldom have I had a case that really  was  so
difficult.  The court stated that the State has met its burden on
virtually  every  element that must be proved  to  terminate  the
legal  power  of  a parent to act, in other words  what  we  call
parental  rights.   The  court said that  the  children  deserved
stability in their lives and to know that their parent  would  be
sober and stable.  The court also observed that the children were
children in need of aid and that Catherine had committed acts  of
assaultive behavior toward the children and . . . threatened them
with bad things if they related that to others.  The court opined
that  Catherines behavior showed disturbing patterns,  especially
with regard to anger and alcoholism, and viewed the Kenai episode
(Catherine going and then wanting to return to Juneau) as part of
a  pattern  of  Catherine being unable or unwilling  to  put  her
childrens  needs  before her own.  At the same  time,  the  court
stated  that it was clear that [t]hese children love [Catherine],
she  loves  them, and shes always going to be their  parent.   On
January  19  the  court  decided to wait forty-five  days  before
making its final order.
          On  March 8, 2007, the court again emphasized how close
a  question . . . this case presents.  Given how incredibly close
          the question was, the court issued a qualified denial of the
States petition to terminate Catherines parental rights, adopting
what it referred to as the recommendation by the tribe, which was
denying  the  petition  to terminate but  leaving  the  State  to
reapply basically any time after July.  The court elaborated that
its position allowed the State to petition for termination should
any  circumstances arise that would suggest a continued  pattern,
such as the one that has existed for many years of actions by the
mother that led to instability for the children.  The court added
that  if  the  State filed another petition for termination,  the
court would not expect the state to start from ground zero.
          This  position  found expression  in  the  final  order
issued  by  the  court on April 2, 2007.  The  court  found  that
Catherine  had  failed, within a reasonable time, to  remedy  the
conduct  that placed her children at risk and that returning  the
children to her care would place the children at substantial risk
of  physical  or  mental injury.  The court  further  found  that
efforts  had  been  made to enable the children  to  return  home
safely  but  that  those efforts had failed.   The  courts  final
finding  was  that  there was evidence beyond a reasonable  doubt
that  return of the children to the parents custody is likely  to
result in serious emotional and/or physical damage to them.   The
order   spared   few  words  in  expressing  the   courts   grave
reservations  about Catherines problems with anger and  drinking,
and  its  concern  that Catherines children are  already  showing
signs of problems similar to those suffered by Catherine.
          But the court wrote in its legal conclusions that [t]he
state  ha[d]  met its burden of proof with respect to termination
of  parental rights in every respect except whether it is in  the
childrens  best  interests  to  terminate  [Catherines]  parental
rights  at  this  point.  (Emphasis added.)  The court  gave  its
reasons  for  its decision to deny/delay decision on  termination
(emphasis added) as follows:
          (1) [T]he children are bonded to their mother
          and  want  to  be with her; (2) the  children
          are/were living with their maternal aunt .  .
          . at the time of hearing and determination of
          the  appropriateness of this placement  as  a
          potential  long-term placement is  premature;
          (3)  [Catherine] has (apparently) been  sober
          for   more  than  six  months  and  at  least
          expresses  determination to make the  changes
          necessary to effectively parent her children;
          (4)  the  Tribe has asked the court to  delay
          decision for six months to essentially see if
          [Catherine]  can demonstrate sobriety  for  a
          full   year  and  will  participate  in   the
          programs  necessary  to  address  her   anger
          issues  and parenting skills; (5)  while  the
          children   need  stability,  termination   of
          parental   rights  does  not  guarantee   the
          children     stability       no     long-term
          placement/potential  adoption   options   are
          clearly  apparent  at  this  point  and   the
          childrens  closest  ties appear  to  be  with
          their  mother and maternal relatives;  former
          long-term  foster  care  providers  for   the
          children   have  indicated  they  cannot   be
          considered for a permanent placement.
          
          Immediately after this, the order added that the  State
may  reapply  for termination after six months from  the  hearing
date.   The order did not discuss terminating the parental rights
of Thomas, and he is not a party to this appeal.
          The GAL appeals from the April 2, 2007 order.
          The  State of Alaska, Office of Childrens Services also
challenges the decision not to terminate the parental  rights  of
Catherine.   However,  the  State enters  this  case  not  as  an
appellant but as an appellee.  The State could have entered  this
case as an appellant12 but failed to do so.  As an appellee,  the
State  may support the points on appeal argued by the  GAL.   But
the  State  attempts to do more.  It advances arguments attacking
the  judgment that are not presented by the GAL.  This it may not
do.13   Catherine, rightly, does not reply to the  States  brief.
Likewise,  we do not consider the States arguments  that  do  not
address points on appeal argued by the GAL.
IV.  STANDARD OF REVIEW
          In  child-in-need-of-aid (CINA) cases,  we  affirm  the
findings  of the trial court unless they are clearly erroneous.14
Whether the courts findings comport with the Indian Child Welfare
Act or with CINA statutes is a question of law that we review  de
novo.15   We  also  bear  in mind at all times  that  terminating
parental rights is a drastic measure. 16
V.   DISCUSSION
          The  GAL  does  not attack as clearly  erroneous  as  a
matter of fact the superior courts conclusion that the State  had
not  met its burden of proof with respect to whether it is in the
childrens  best  interests to terminate  their  mothers  parental
rights.  Instead, the GAL points to three specific claimed errors
of  law  that underlie the courts conclusion.  In the  paragraphs
that  follow we discuss these claims in the order that  they  are
presented.
          In her brief, Catherine argues that this appeal is moot
since  the State will go forward on October 10, 2007 and  request
termination  of parental rights.  The State has filed  a  renewed
petition  for the termination of parental rights, and  a  hearing
has been scheduled for April 24, 2008.17
          According to AS 47.10.088(k), the court shall issue  an
order on the petition to terminate within 90 days after the  last
day  of  the trial on the petition to terminate parental  rights.
In   compliance  with  this  subsection,  Judge  Collinss   order
unambiguously  ORDERED  that the petition to  terminate  parental
rights   and   responsibilities   of   [Catherine]   is   denied.
Accordingly, the order was a final, appealable order  under  CINA
Rule  21(a) and Appellate Rule 218.  The GAL is correct that  the
appeal  is not moot because the order has not been supplanted  by
subsequent proceedings and whether it will be is uncertain.
     A.   The  Superior Court Did Not Err as a Matter of  Law  in
     Considering  the  Lack  of  Adoptive  Placement  Options  as
          Part  of  Its  Analysis of the Best  Interests  of  the
          Children.
          
          The  GAL  first argues that the superior court made  an
error  of law by considering the fact that OCS lacked an adoptive
placement  in  making  its decision not to  deny  termination  of
Catherines  rights.   The court made two points  in  relation  to
permanent placement for Karrie and Crystal:  first, that it would
be  premature to decide whether placement with Catherines  sister
would  be  appropriate  for the children, and  second,  that  the
childrens   stability  would  not  be  assured   by   terminating
Catherines     parental    rights    because     no     long-term
placement/potential adoption options are clearly apparent at this
point.
          The GAL cites Carl N. v. State, Department of Health  &
Social Services18 in support of her claim that it was an error of
law  to consider placement options as part of the childrens  best
interests.   But Carl N. at best provides weak support  for  this
claim.   In  Carl N., the father argued that termination  of  his
rights  was  not in the childs best interests because termination
would  not  lead  to a permanent placement for the  child.19   We
rejected  his  argument  and  affirmed  the  termination  of  his
parental rights.  But we credited the fact that the foster parent
for  the  child was committed to caring for [the] child until  he
turned  eighteen.20   Thus, the court in  Carl  N.  did  look  at
placement  options for the child, albeit not permanent placement.
Relatedly,  we  have held that the fact that a child  has  bonded
with her foster parent can be a factor in considering whether  it
is  in the childs best interests to terminate a parents rights.21
Thus,  a  court  may consider favorable present placements  as  a
factor in a best interests analysis.  It follows that a court can
also  consider  the  fact that there are no  favorable  permanent
placement  options for a child (as in this case) as a  factor  in
determining whether terminating a parents rights would  be  in  a
childs best interests.  The GALs use of Carl N. is unpersuasive.
          Somewhat more on point is S.H. v. State, Department  of
Health & Social Services,22 also cited by the GAL.  In S.H.,  the
father  argued  that it was extremely unlikely that  one  of  his
children  would  find adoptive placement because  of  the  childs
severe behavioral problems.23  We affirmed the termination of the
fathers  parental rights in spite of the conceded  difficulty  in
finding permanent placement for the child and the need for  [his]
children  to be placed immediately in a permanent stable  home.24
But  the fact that a lack of permanent placement options did  not
prevent  the termination of the fathers rights in S.H.  does  not
support  the  proposition  that, as a  matter  of  law,  lack  of
permanent  placement  can never be a factor in  deciding  whether
termination would be in the childs best interests.  At most, S.H.
suggests that lack of permanent placement will not necessarily be
a  decisive  factor  in  deciding whether to  terminate  parental
rights  not that it can never be a consideration.
          There  is  thus no basis for holding that the  superior
court erred in considering in part the absence of favorable long-
          term placement options when it reached its conclusion concerning
the childrens best interests.
     B.   The  Superior Court Did Not Err as a Matter of  Law  in
          Considering the Mothers Determination To Change as Part
          of Its Analysis of the Best Interests of the Children.
          
          The GALs second argument is that it was an error of law
on  the part of the Superior Court to rule that it was not in the
best  interests of Karrie and Crystal to terminate their  mothers
parental  rights due to the expressed determination of  Catherine
to  change her behaviors.  This is on its face a puzzling  claim.
The  superior  court  in  issuing its  final  order  stated  that
Catherine  has (apparently) been sober for more than  six  months
and   at  least  expresses  determination  to  make  the  changes
necessary  to  effectively parent her children.  The  court  also
held  out  the  hope that Catherine might be able to  demonstrate
sobriety  for  a full year and would participate in the  programs
necessary  to address her anger issues and parenting skills.   In
considering the best interests of a child in non-CINA cases,  the
legislature  has directed courts to consider the  capability  and
desire  of  each  parent to meet the childs needs.25   Certainly,
Catherines ability to stay sober and her determination to  remain
sober  were relevant factors to consider as part of the childrens
best interests under AS 47.10.088(c).
          The  GALs argument seems to be that because the  amount
of effort by the parent to remedy the conduct is a best interests
factor  under AS 47.10.088(b)(2),26 then as a matter of  law  the
court  could  not consider Catherines determination to  make  the
changes necessary to parent her children under the best interests
analysis  of  AS  47.10.088(c).   But  AS  47.10.088(c)  is  more
capacious    than    AS    47.10.088(b)(2).     Alaska    Statute
47.10.088(b)(2)  only  requires a court to consider  whether  the
parent has failed to remedy, in a reasonable time, the conditions
that  have placed her child at substantial risk of harm.  It does
not  require  a comprehensive judgment as to whether  the  childs
best  interests favor the termination of parental rights,  as  AS
47.10.088(c) does.
          It  is  true that when a court finds that a parent  has
not  remedied  her poor behavior in a reasonable  time  under  AS
47.10.088(b)(2),  it  also may readily find that  termination  of
parental  rights  is  in the childrens best  interests  under  AS
47.10.088(c).27  But if finding that a parent has not remedied the
conditions  that  put her child at risk within a reasonable  time
meant that it was always in the childs best interest to terminate
parental  rights,  then subsection (c) of the  statute  would  be
redundant, because the best interests of the child already  would
have  been  settled by the analysis of AS 47.10.088(a)  and  (b).
Intuitively, and as set forth by statute28 and by our case law,29
factors  such  as  the mothers determination to  change  and  her
capability to do so are relevant to what is in the best interests
of the child.  We conclude that the superior court did not err as
a  matter  of  law  in considering these factors  in  making  its
decision.
     C.   The  Superior Court Did Not Err as a Matter of  Law  in
     Considering   the   Mother-Child  Bond  as   Part   of   Its
          Analysis of the Best Interests of the Children.
          
          An important reason for the courts decision to deny the
petition  to  terminate Catherines parental rights was  that  the
children are bonded to their mother and want to be with her.  The
GALs  opening  brief  argues that Karries and Crystals  adoptions
could  be  open, meaning that Catherine would still  be  involved
with  the  children even if her parental rights were  terminated.
It  also notes the possibility of a tribal adoption, which  would
also  be  open.   Failing  that, the GAL  states  that  under  AS
47.10.089(h)  Catherine can petition the court for redress  prior
to  adoption  of  the children.30  Catherine replies  that  these
options  make  the likelihood of a continued involvement  between
[her] and her children after termination slim at best.  Catherine
also argues that considering the bond existing between parent and
child  is  appropriate in determining the best interests  of  the
child.
          Catherines  argument is plainly correct on  this  point
and  the GALs argument that the bond between parent and child may
not  be  permissibly considered because some level of  continuing
contact is possible after termination lacks merit.31
VI.  CONCLUSION
          For  these  reasons,  we AFFIRM  the  judgment  of  the
superior court.
_______________________________
     1     Pseudonyms are used throughout the opinion to  protect
the privacy of the parties.

     2     The GAL listed as the co-author of the report is  also
the one who appeals in this case, Janine Reep.

     3     The  report  did not use pseudonyms; all proper  names
have  been replaced with pseudonyms in this reproduction  of  the
report.

     4    Now the Office of Childrens Services.

     5     The superior court judge gave a summary of these facts
that is substantially similar.

     6     The  July 25, 2005 report recommended that a  petition
for  termination of parental rights . . . should  be  pursued  so
that  Karrie and Crystal could be freed for adoption.  OCS  first
recommended  adoption  over reunification  in  a  June  13,  2005
report.

     7     Testimony from an employee at the treatment center  in
Kenai indicated that Catherine was having trouble adjusting being
away  from  her community and culture and had difficulty  finding
transportation and daycare for her children.

     8     This  appears  to have been with the  consent  of  the
treatment center in Kenai.

     9     At  the  termination hearing on January 10, 2007,  the
court stated that Thomas

          has  essentially dropped from sight since  at
          least, as best as I can recall, 2004 and  has
          had  .  . . to my knowledge, little, if  any,
          contact  with  the children or the  childrens
          mother  since some time in late 2004 and  has
          not provided for them . . . in any meaningful
          way for far more than a year.
          
None of the parties took issue with this summary.

     10     It  later  was continued to November  19,  2007,  and
findings  and an order were issued on January 16,  2008.   In  re
K.B.  &  C.B., Nos. 1JU-02-118A CP, 1JU-02-119A CP, at 1  (Alaska
Super.,  January  16,  2008)  (Amended  Findings  and  Order   on
Extension of Custody and Permanency).

     11     According to the hearing transcript, there  had  been
either a domestic violence incident or a mere verbal disagreement
(according   to   Catherines  attorney)  in  Catherines   sisters
household.   Catherines sister and her brother-in-law  no  longer
were living together.

     12    The State was a party in the case below.  See Alaska R.
App.  P.  204(g) (All parties to the trial court proceeding  when
the  final  order  or  judgment was entered are  parties  to  the
appeal.   A  party  who files a notice of appeal  .  .  .  is  an
appellant under these rules.  All other parties are deemed to  be
appellees, regardless of their status in the trial court.).

     13     Alaska Brick Co. v. McCoy, 400 P.2d 454, 457  (Alaska
1965)  ([O]rderly procedure will not permit an appellee to attack
a  judgment  for  the first time in his brief in  the  appellants
appeal.).

     14    Carl N. v. State, Dept of Health & Soc. Servs., Div. of
Family  &  Youth Servs., 102 P.3d 932, 935 (Alaska 2004) (quoting
Brynna  B. v. State, Dept of Health & Soc. Servs., Div. of Family
& Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).

     15    Id.

     16    Martin N. v. State, Dept of Health & Soc. Servs., Div.
of  Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003)  (quoting
R.J.M. v. State, Dept of Health & Soc. Servs., 946 P.2d 855,  861
(Alaska 1997)).

     17    In re K.B. & C.B., Nos. 1JU-02-118A CP, 1JU-02-119A CP,
at  4  (Alaska  Super., January 16, 2008) (Amended  Findings  and
Order  on  Extension  of Custody and Permanency)  (The  continued
termination trial to address the best interest of the children is
scheduled for two days beginning April 24, 2008 at 9:00.).

     18    102 P.3d 932 (Alaska 2004).

     19    Id. at 937.

     20    Id.

     21     See  M.W. v. State, Dept of Health & Soc. Servs.,  20
P.3d  1141,  1147  (Alaska 2001) (Moreover, the  state  correctly
points  out  evidence indicating that it is in [the childs]  best
interests to remain with her foster family because she had bonded
to  them.); see also A.H. v. State, Dept of Health & Soc. Servs.,
10  P.3d 1156, 1166 (Alaska 2000) (Given the significant needs of
the  children, their attachment to their foster mother, and A.H.s
failure  to improve his behavior, substantial evidence exists  to
support the superior courts best interests finding.).

     22    42 P.3d 1119 (Alaska 2002).

     23    Id. at 1124-25.

     24    Id. at 1125.

     25    AS 25.24.150(c)(2).

     26     In deciding whether a parent has failed to remedy the
conditions that put her children at substantial risk,  the  court
can consider any fact relating to the best interests of the child
including  the amount of effort by the parent to remedy  her  bad
behavior.  AS 47.10.088(b)(2).

     27     See, e.g., Sherry R. v. State, Dept of Health &  Soc.
Servs.,  Div.  of  Family & Youth Servs.,  74  P.3d  896,  902-03
(Alaska  2003) (Judge Lohff found that the children were in  need
of  aid and that Sherry had failed, within a reasonable time,  to
remedy  the conduct or conditions that placed the R. children  at
substantial  risk  of  physical or mental  injury.   Accordingly,
Judge  Lohff terminated Sherrys parental rights.); S.H., 42  P.3d
at 1126; J.H. v. State, Dept of Health & Soc. Servs., 30 P.3d 79,
87  (Alaska  2001) (The same evidence of emotional risk  to  [the
child]  from an unstable relationship, combined with the evidence
indicating  that [mother] was relapsing . . . also supported  the
superior courts finding that termination of . . . parental rights
would be in [the childs] best interests.).

     28     AS  25.24.150(c)(2)  (in  determining  custody,  best
interests includes capability and desire to meet childs needs).

     29     The GALs brief cites several cases in which the  fact
that  a parent did not show progress or a determination to change
is  relevant to assessing whether it would be in the childs  best
interests to terminate parental rights.  See, e.g., Erica  A.  v.
State,  Dept  of  Health & Soc. Servs., Div. of  Family  &  Youth
Servs.,  66  P.3d 1, 8-9 (Alaska 2003) (mothers slow  improvement
supports  termination of parental rights); J.H., 30  P.3d  at  87
(mothers  relapse supports judgment that termination  of  mothers
rights would be in childs best interests).  It follows from these
cases  that  signs indicating improvement would be germane  to  a
decision  that  it  was  in  the childs  best  interests  not  to
terminate parental rights.

     30      This  seems  to  be  an  incorrect  reading  of   AS
47.10.089(h),  which applies only when a parent  has  voluntarily
relinquished her parental rights.

     31     See  AS 25.24.150(c)(4) (love and affection  existing
between  child  and parent relevant to best interests  analysis);
see,  e.g.,  Pinneo v. Pinneo, 835 P.2d 1233, 1238  n.12  (Alaska
1992) (affirming decision awarding custody to father because  the
superior  court  found it in the best interests of  the  children
that  the bonds of love and affection between [the children]  and
their father not only be preserved, but that they be rebuilt).

          The  GALs reply brief asserts that preserving the  bond
between Catherine and her children will cause them emotional  and
mental  harm.   It  concludes that the bond  between  mother  and
children  standing alone does not overcome the multiple treatment
attempts  of  the mother that all failed in dramatic  and  heart-
breaking  ways.  The claim in the GALs reply brief thus seems  to
be  that  the  factual finding regarding the  best  interests  of
Karrie and Crystal is a clearly erroneous finding of fact and not
just  premised on a legal error.  This is a new argument that  we
will  not consider because new arguments presented for the  first
time  in  reply briefs are considered waived.  Danco Exploration,
Inc.  v.  State,  Dept of Natural Res., 924  P.2d  432,  435  n.1
(Alaska 1996).

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