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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tessa M. v. State, Dept. of Health & Social Services, Office of Children's Services (05/09/2008) sp-6258
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
| TESSA M., | ) |
| ) Supreme Court No. S- 12802 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-05- 00038 CN | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, DEPARTMENT | ) |
| OF HEALTH & SOCIAL SERVICES, | ) No. 6258 May 9, 2008 |
| OFFICE OF CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: Robert R. Polley, Kodiak, for
Appellant. Megan R. Webb, Assistant Attorney
General, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
WINFREE, Justice.
I. INTRODUCTION
A mother appeals from an order terminating her parental
rights. She argues that the trial courts findings that (1) she
had failed to remedy her conduct, and (2) terminating her
parental rights was in the childs best interests, are clearly
erroneous and therefore the court had no legal basis to terminate
her parental rights. The trial courts findings are supported by
the evidence presented at trial, and we affirm the termination of
parental rights.
II. FACTS AND PROCEEDINGS
Tammy is the daughter of Tessa and Tom.1 Tammy was
almost three years old when in April 2005 she suffered severe
immersion burns from scalding water at the familys home.2 Tessa
had been at work but returned home when Tom called for help.
Tessa and Tom then took Tammy to Fort Wainwrights Basset Army
Hospital emergency room; the next day she was transferred to the
Trauma Burn Unit at Harborview Hospital in Seattle, Washington.
Tammy was treated at Harborview for life-threatening burns and
related complications for two and one-half months.
Tom claimed that Tammy climbed into a tub of hot water
while he was in another room. The treating physician at Basset
did not believe that explanation because of Tammys burn patterns,
and instigated a criminal investigation. The Harborview doctors
noted that Tammys burn pattern was consistent with being forcibly
restrained for a prolonged period of time in scalding water.
Basset and Harborview doctors also noted dozens of marks on
Tammys thighs and indicated that they likely represented prior
whipping incidents.
The day after Tammy was burned, the State of Alaska,
Department of Health and Social Services, Office of Childrens
Services (OCS) filed an emergency petition for temporary custody
of Tammy and for an adjudication that she was a child in need of
aid. The petition referred to a previous domestic violence
incident involving Tessa and Tom and the doctors statements about
Tammys burns and prior scarring. Superior Court Judge Randy M.
Olsen granted OCS temporary custody of Tammy.
Tammy returned to Fairbanks in mid-June 2005 with a
foster mother and began living with her, but saw Tessa and Tom
during supervised one-hour visits twice weekly. In July 2005
Tessa and Tom stipulated that Tammy was a child in need of aid
under AS 47.10.011(6) and (8),3 and Tammy was placed in OCSs
custody for one year.
OCS had created a case plan for Tessa while she was in
Seattle with Tammy. After her return, Tessa completed initial
parenting classes with Fairbanks Counseling and Adoption (FCA)
and her visits with Tammy were increased. Tessa obtained
substance abuse, behavioral, and psychological evaluations and
attended individual counseling sessions. Tessa and Tom also
began marriage counseling at FCA in July 2005, but this ended
after two sessions due to domestic violence concerns. In August
2005 Tom deployed to Iraq.
Tessa continued individual counseling with FCA until
the services ended for lack of funding. FCA counselor Randy
Lewis reported (and later testified) that Tessa seemed to believe
her circumstances were caused by external forces and she did not
need to learn stress reduction, anger management, or conflict
resolution techniques, and that she had made little progress
toward recognizing her problems. FCA referred Tessa to the
Resource Center for Parents and Children (RCPC) family
reunification program.
In December 2005 RCPC family service worker Rachael
Coady supervised twice-a-week visits between Tessa and Tammy and
met separately with Tessa weekly to work on parenting skills.
Coady testified at the termination trial that Tessa failed to
recognize that she might be contributing to unhealthy or unsafe
parenting methods at home. . . . [Tessa] stated there was nothing
that she needed to work on; that she was a good mother. RCPC
discontinued Tessas services in February 2006 due to her lack of
interest in improving specific parenting skills and her lack of
motivation for change.
In March 2006 Judge Olsen held a permanency hearing and
found that Tessa and Tom had not made substantial progress in
remedying the conduct and conditions that harmed Tammy. The
permanency plan remained reunification, with a concurrent plan of
adoption; OCS explained it would wait for military authorities to
decide whether to bring criminal charges before making its own
decision about filing a petition to terminate parental rights.
OCS referred Tessa to Carol Brice, an expert in early
child development, child abuse and neglect, and bonding and
attachment. Tessa worked with Brice for two months. After
observing Tessa and Tammy together and working with Tessa in
individual sessions, Brice concluded that Tessa and Tammy shared
a reciprocal emotional attachment bond. Brice reported that
Tessa was receptive to parenting education and committed to
raising Tammy in a safe, healthy, stimulating and nurturing
environment that will ensure her potential for success in all
arenas[.] Based on this assessment, OCS modified the visitation
schedule in May 2006 to include unsupervised visits to begin
Tammys transition back to Tessa.
In June 2006 OCS filed a petition to extend its custody
of Tammy. The petition referred to the transition process then
underway to expand Tessas visitation to include overnight visits
and a trial six-month home visit. Judge Olsen entered an order
extending custody for up to one year, making findings that Tammys
permanency plan was family reunification with a concurrent plan
of adoption, but that it was contrary to Tammys welfare to return
her to Tessa at that time.
Tammy showed signs of regression after the unsupervised
off-site visits. Her foster mother reported that Tammy was not
talking as much, did not want to eat, was becoming less
independent, was crying more, and had less motivation. She also
reported that after her visits with Tessa, Tammy was withdrawn,
would not interact with other children, and often would sleep for
long periods.
After an unsupervised visit in July 2006, the foster
mother noticed that Tammys eyes were swollen and she was having
trouble focusing. The social worker supervising Tammys return to
the foster mother told her that Tessa had explained it was due to
an allergic reaction to cats. The foster mother reported (and
later testified) that when she questioned Tammy, Tammy responded
that her mother had hit her in her eye. OCS case worker Susan
Desrosiers reported (and later testified) that two days later,
she also asked Tammy about the incident and that Tammy indicated
that her mother had hit her.
In August 2006 OCS initiated counseling for Tammy with
therapist Heather Monberg. Tom returned from Iraq in September
2006 but was restricted from visiting Tammy due to a military no-
contact order. When Tammy was informed that Tom had returned
home, she asked to visit him as long as Monberg was present. The
military allowed this conditional visitation, but Monberg became
concerned about the stress Tammy experienced while visiting her
parents and recommended that visits be reduced in frequency.
Tammy then visited with Tessa and Tom once each week for two
hours.
In Fall 2006 OCS notified Tessa that it was considering
a petition to terminate parental rights based in part on Tessas
refusal to acknowledge that Tammy had been abused or to learn how
to address the impact of that abuse on Tammy. In November 2006
Carol Brice conducted a re-assessment of the bond between Tammy
and Tessa. Brice reported that Tammy exhibited signs of
disrupted attachment relationship with her mother and that their
relationship was anxious, disorganized, and insecure. Brice also
reported that Tammys remaining positive emotional attachment with
her mother emerged and resulted from the secure attachment
relationships she was experiencing in her foster home.
In early January 2007 OCS filed a petition to terminate
Tessa and Toms parental rights. Days later, a military tribunal
convicted Tom of maiming Tammy and sentenced him to four years of
incarceration.4
In March 2007 Tessa began counseling sessions with Dr.
Claudia French and started exploring issues about her marriage
and her initial response to Tammys burns. French later testified
that Tessa had been very reflective and was in a position to
examine things more clearly, but she also testified that Tessa
did not mention the scars on Tammys legs.
Trial was held in May and June 2007.5 Judge Olsen
found clear and convincing evidence that Tessa had not remedied
her conduct or home conditions, elaborating that he did not
believe Tessa demonstrated an understanding of Tammys needs or a
desire to provide for those needs. He similarly found by clear
and convincing evidence that returning [Tammy to Tessa] would
place [Tammy] at a substantial risk of further physical and
mental injury. Finally, he found beyond a reasonable doubt that
it was in Tammys best interests for Tessas parental rights to be
terminated.6 Judge Olsen therefore terminated Tessas parental
rights.
III. DISCUSSION
A. Standard of Review
In a case involving the termination of parental rights,
we review a trial courts findings of fact for clear error.7
Findings are clearly erroneous only if, after reviewing the
record in the light most favorable to the prevailing party, we
are left with a definite and firm conviction that a mistake has
been made.8 When reviewing factual findings we ordinarily will
not overturn a trial courts finding based on conflicting
evidence,9 and we will not re-weigh evidence when the record
provides clear support for the trial courts ruling;10 it is the
function of the trial court, not of this court, to judge
witnesses credibility and to weigh conflicting evidence.11 Whether
a trial courts findings are consistent with the child in need of
aid statutes 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.12
B. Tessa Failed To Remedy Her Conduct Within a Reasonable
Time and Returning Tammy to Tessa Would Place Her at
Substantial Risk of Harm.
Under AS 47.10.088(a)(2),13 the termination of parental
rights requires a finding by clear and convincing evidence that
either the parent has not remedied harmful conduct or conditions
or the parent has failed to make enough progress within a
reasonable time so that there still is a substantial risk of harm
to the child if returned to the parent. Here, Judge Olsen found
by clear and convincing evidence that Tessa had not remedied her
conduct and that regardless of any progress, there still was a
substantial risk of harm to Tammy if she were returned to Tessa.
Tessa argues that this court should take a more
objective view of her actions rather than utilize the subjective
and arbitrary standards applied by OCS and, presumably, the trial
court.14 For example, Tessa points out that she engaged in
parenting education and also agreed to pay for some of Carol
Brices services, which is above and beyond what is normally
expected from OCS clients. She also notes that she consistently
attended visitation with Tammy. To contrast her stated objective
conduct to what she views as OCSs inappropriate subjective
standards for evaluating her parenting ability, Tessa gives
specific examples of trial testimony: Carol Brices disapproval
of Tessa using sessions to braid Tammys hair; Carmen Brooks (OCS)
criticism of Tessas insistence that Tammy speak with her
relatives on the phone; Beth Gambrells (FCA) comment that Tessa
did not offer Tammy a drink when Tammy was thirsty; and Rachael
Coadys (RCPC) testimony that Tessa was bribing Tammy with treats
from McDonalds at the end of scheduled visits.
We agree with Tessa that these criticisms are not
determinative of her parenting ability, but we conclude that they
were unnecessary to OCSs case. We also conclude that, despite
the objective evidence supporting Tessas arguments, when all of
the evidence is viewed in the light most favorable to OCS there
is ample support for Judge Olsens findings that Tessa failed to
remedy her conduct and that Tammy would be at substantial risk of
harm if she were returned to Tessa.15
Carol Brice testified that Tessa failed to comprehend
Tammys needs. Brice first had a positive outlook for Tammy and
Tessas relationship, but her hope for reunification deteriorated
as Tessa failed to develop an understanding of Tammys needs and
to change her behavior to meet them. Brice stated, Most of the
time [Tessa] could not allow herself to understand or comprehend
or meet her childs needs at the level the child was expressing
the needs. Brice testified that there was [n]o empathy, no
concern about the extent of these injuries, how it happened, how
it affected [Tammy]. Counselors from both FCA and RCPC testified
that Tessa failed to recognize that she needed to work on her
parenting skills. Moreover, Tessa conceded at trial that she had
not always focused on Tammys needs and had not realized that her
approach to situations with Tammy was a problem. The trial
testimony as a whole shows that Tessa failed to make the changes
required to meet Tammys needs, which supports the findings that
Tessa failed to remedy her conduct and that Tammy still was at
substantial risk of harm.
Judge Olsen found that even prior to the burn injury
Tammy had been systematically abused.16 Susan Desrosiers
testified that in order to make progress after the burns Tammy
suffered, the parents would have to acknowledge what happened to
their child. Desrosiers stated that Tessa did not really begin
to make this acknowledgment until December 2006, and then more
fully in April 2007. This was two years after OCS created a case
plan for Tessa, and just before trial. Even this belated
acknowledgment of abuse was not complete Tessa failed to
acknowledge Tammys scars during her counseling sessions with
Dr. French, Tessa testified at trial that she did not remember
how Tammy obtained the unusual scarring on her thighs,17 and at
trial Tessa continued to deny hitting Tammy in July 2006.18
Judge Olsen stressed that Tammy was incredibly
emotionally damaged and endured emotional and physical abuse and
that Tessa either did not protect Tammy or contributed to Tammys
harm, or both. To remedy her conduct and demonstrate that Tammy
would not be at substantial risk of harm if returned to her,
Tessa would have had to end the abuse, address Tammys severe
emotional damage caused by the prior abuse, come to an
understanding of Tammys needs, and develop a desire and an
ability to respond to those needs. Judge Olsen found by clear
and convincing evidence that Tessa failed to do so. That finding
is adequately supported by the record.
C. Termination of Tessas Parental Rights Was in Tammys
Best
Interests.
When terminating parental rights, a court shall
consider the best interests of the child.19 [T]he best interests
of the child, not those of the parents, are paramount.20 The
court may order termination only if OCS proves by a preponderance
of the evidence that termination of parental rights is in the
best interests of the child.21 Judge Olsen found not merely by a
preponderance of the evidence, but . . . beyond a reasonable
doubt that it was in Tammys best interests to terminate Tessas
parental rights.
Tessa argues that she has a vital bond and attachment
with Tammy that continued despite the disruption of foster care.
Tessa further argues that the differences in Tammys behavior
while in her foster mothers care, compared to Tessas care, cannot
be attributed to failures on Tessas part and should not be seen
as a demonstration that Tammys best interests are served by being
in a foster home rather than with her mother. Tessa thus argues
that the trial courts finding is clearly erroneous. The evidence
presented at trial belies this argument; when viewed in the light
most favorable to OCS, it adequately supports the courts finding.
Tammys therapist, Heather Monberg, testified that
Tammys lack of emotional connectedness with Tessa seems to be
reflected in [Tammys] behavior. Monberg testified that Tammy
appears to feel safe with her foster mother and that she is the
person with whom Tammy has the most potential. Finally, Monberg
stated her opinion that it was not in Tammys best interests to
return to Tessas household because it was not an environment in
which Tammy could thrive.
Carol Brice described Tessas bond with Tammy as based
on possession. It was Brices opinion that she had not seen the
changes that we need to see . . . to assure us that this child
would grow up in a stress-free, a violence[-]free . . .
environment. Brice also said that Tammy never fully engaged in
what I would hope to see as a happy, rejoicing reunion with her
mother.
OCSs Susan Desrosiers testified that if Tammy were
returned to her mother she would not develop in a healthy way
because of stress and anxiety and would be at risk for additional
physical and emotional abuse, and that Tammy needs to be in a
safe, nurturing, loving environment and [Tessa] hasnt
demonstrated that she can provide that for her child. Tammys pre-
school teacher testified that Tammy continued to experience very
significant developmental delays in speech and communication, and
that she refused to engage in gross motor activities despite the
fact that she had the physical ability to move around like a
typical child.
Given this testimony Judge Olsen easily could find by
at least the necessary preponderance of the evidence, if not
beyond a reasonable doubt, that the termination of Tessas
parental rights was in Tammys best interests.
IV. CONCLUSION
The record contains sufficient evidence to support
Judge Olsens findings that Tessa failed to remedy the conduct
that placed Tammy at risk, that returning Tammy to Tessa would
place Tammy at substantial risk of harm, and that it was in
Tammys best interests to terminate Tessas parental rights. We
therefore AFFIRM the order terminating Tessas parental rights.
_______________________________
1 Pseudonyms are used for the family members.
2 Tom was serving in the United States Army and the
family was living in military housing on Fort Wainwright, near
Fairbanks.
3 AS 47.10.011 Children in need of aid. [T]he
court may find a child to be a child in need
of aid if it finds by a preponderance of the
evidence that the child has been subjected to
any of the following:
. . . .
(6) the child has suffered substantial
physical harm, or there is a substantial risk
that the child will suffer substantial
physical harm, as a result of conduct by or
conditions created by the childs parent,
guardian, or custodian or by the failure of
the parent, guardian, or custodian to
supervise the child adequately; [or]
. . . .
(8) conduct by or conditions created by
the parent, guardian, or custodian have
(A) resulted in mental injury to the
child; or
(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; or
(ii) exposure to [certain domestic
violence]; or
(iii) repeated exposure to [certain
domestic violence.]
4 The record does not reflect when the militarys charging
decision was made or how that related to OCSs decision to file
the petition for termination of parental rights, nor does the
record reflect when the military trial actually took place. OCS
noted Toms conviction in amended petition paperwork filed in late
January.
5 Tom appeared briefly at trial (telephonically) and
waived his continuing presence. Tom agreed that he was in no
position to dispute termination of his parental rights, but
expressed support for Tessas efforts to retain her parental
rights. Toms parental rights were terminated at the conclusion
of the trial and he is not a party to this appeal.
6 Judge Olsen also found that Tammy still was a child in
need of aid under AS 47.10.011, and that OCS had made reasonable
(but unsuccessful) efforts to provide family support to enable
Tammy to return home as required by AS 47.10.088(a)(3) and AS
47.10.086. Judge Olsen thus made all of the findings necessary
for the termination of Tessas parental rights, but only the
findings noted above are at issue in this appeal.
7 Martin N. v. State, Dept of Health & Soc. Servs., 79
P.3d 50, 53 (Alaska 2003).
8 Brynna B. v. State, Dept of Health & Soc. Servs., 88
P.3d 527, 529 (Alaska 2004) (quoting A.B. v. State, Dept of
Health & Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
9 Martin N., 79 P.3d at 53 (citing In re Friedman, 23
P.3d 620, 625 (Alaska 2001)).
10 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 214 (Alaska 2000).
11 In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska
2001) (citing Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska
1999)).
12 E.g., Brynna B., 88 P.3d at 529.
13 AS 47.10.088. Involuntary termination of
parental rights and responsibilities. (a)
Except as provided in AS 47.10.080(o), the
rights and responsibilities of the parent
regarding the child may be terminated for
purposes of freeing a child for adoption or
other permanent placement if the court finds
by clear and convincing evidence that
. . . .
(2) the parent
(A) has not remedied the conduct or
conditions in the home that place the child
at substantial risk of harm; or
(B) 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; and
(3) the Department has complied with
the provisions of AS 47.10.086 concerning
reasonable efforts.
14 Tessa relies on E.J.S. v. State, Department of Health &
Social Services, 754 P.2d 749, 750 (Alaska 1988), which describes
an objective test to determine whether or not a child has been
physically abandoned by a parent. In the abandonment context,
courts look at parental conduct rather than wishful thoughts and
hopes because the parents subjective intent ignores the reality
of the childs existence in a foster home while the absent parent
retains parental rights. D.M. v. State, 515 P.2d 1234, 1236-37
(Alaska 1973). The determination before us here, by its very
nature, requires not just an evaluation of objective conduct, but
also broader and more subjective considerations and judgments.
We particularly note AS 47.10.088(b), which provides that in
determining whether a parent has remedied conduct, the trial
court may consider any fact relating to the best interests of the
child, including:
(1) the likelihood of returning the child to
the parent within a reasonable time based on
the childs age or needs;
(2) the amount of effort by the parent to
remedy the conduct or the conditions in the
home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct
will continue; and
(5) the history of conduct by or conditions
created by the parent.
15 Tessa also suggests that OCS and the various service
providers were biased against her, and therefore did not
recognize her actual progress, because of their suspicions that
she was involved in Tammys burning. This seems a valid basis for
vigorous cross-examination during trial and artful persuasion
during closing argument, but lends little to Tessas appeal in
light of the applicable standard of review. Moreover, Judge
Olsen expressly noted that OCS initially presumed that the father
was the problem and attempted to restore the child to her mother.
If this were not the case, it is unlikely that OCS would have
made such impressive attempts to assist Tessa with reunification
efforts. As Judge Olsen noted, [OCS] devoted a huge amount of
resources to this family and provide[d] many opportunities to the
parents to provide for return of [Tammy] to her family. Lots of
services were offered including multiple parenting programs,
individual and marital counseling, visits, various assessments
for substance abuse and anger management. A great deal of effort
was made to assist the parents in remedying their behavior but it
was not successful. As we noted earlier, Tessa does not appeal
Judge Olsens finding (by clear and convincing evidence) that OCS
made reasonable efforts to assist the family. See supra note 6.
16 Specifically, in his July 17, 2007, findings and order,
Judge Olsen stated:
The court finds there was systematic, on
going, emotional and physical abuse . . . .
With regard to the non-burn injuries to
[Tammy] it appears, from the photos admitted
into evidence, that someone struck [Tammy]
with [a] coat hanger and left scars on her
thighs. The jackstraw scars also found on
her thighs were due to repeated instances of
being struck by a thin object such as a
ruler, cord, or belt. [Tessa] acknowledged
that [Tammy] had scar[r]ing on her face near
her eye. While the mother blamed the father
for these various whipping scars to [Tammy],
the court notes at the time of the burn
injuries and observations of the whipping
scars, [Tom] had only recently returned to
the home, having been out of the home for two
months shortly before the date [Tammy] was
burned. [Tessa] acknowledged having
arguments with [Tom] regarding his use of
corporal punishment of [Tammy]. This
testimony verifies to the court that the
scar[r]ing was noticeable and the father was
abusive. The court finds that the injuries
which le[]d to the whipping scars occurred
either before the father left for training in
January 2005 or were committed in his absence
by the mother.
17 Despite this memory lapse, Tessa concedes on appeal
that Tammy was subjected to inappropriate discipline amounting to
physical abuse and that she had inappropriately struck Tammy with
a belt on rare occasions. Tessa claimed she had learned new and
appropriate forms of discipline, but Judge Olsen found that Tessa
was not credible about her lack of knowledge of the extent of the
harm Tammy suffered before the burns and thus her other testimony
was suspect: The court clearly, and unequivocally, finds
portions of the mothers testimony unbelievable, at times not
truthful, and frequently hedging. Because of this finding the
court considers [Tessas] testimony with suspicion. We defer to
Judge Olsen on this credibility determination.
18 Tessa argues that OCS did not produce sufficient
evidence to prove that she hit Tammy in July 2006. Two different
people testified that Tammy communicated to them that Tessa had
hit her, while Tessa testified that she did not hit Tammy. As we
already have noted, Judge Olsen found that Tessa was not a
credible witness and we defer to his credibility determination.
See supra note 17. Judge Olsens finding that Tessa hit Tammy in
July 2006 is not clearly erroneous and will not be set aside.
19 AS 47.10.088(c).
20 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 260 (Alaska 1999).
21 CINA Rule 18(c)(3).
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