| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thomas H. v. State, Dept of Health & Social Services, Office of Children's Services (05/16/2008) sp-6262
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
| THOMAS H., | ) |
| ) Supreme Court No. S- 12847 | |
| Appellant, | ) |
| ) Superior Court Nos. 3AN-04-00378 CN | |
| v. | ) 3AN- 05-00276 CN |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF HEALTH & | ) |
| SOCIAL SERVICES, OFFICE OF | ) No. 6262 May 16, 2008 |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Stephanie E. Joannides, Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. James E.
Cantor, Assistant Attorney General,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Thomas H. appeals the superior courts decision to
terminate his parental rights. He argues that the superior court
erred in finding (1) that he failed to remedy the conditions that
placed his children at risk of harm within a reasonable time
period; (2) that the Office of Childrens Services (OCS) made
active efforts to prevent the breakup of the family; and (3) that
placing the children in his custody would likely result in
serious harm to them. Because the record supports the trial
courts decision and the trial court acted within its discretion,
we affirm its judgment.
II. FACTS AND PROCEEDINGS
A. Facts
Thomas H. and Ana J. have two daughters together,
Amelie and Ariel.1 The children qualify as Indian children under
25 U.S.C. 1903(4). The elder daughter, Amelie, tested positive
for marijuana at birth in 2002. The younger daughter, Ariel,
tested positive for cocaine at birth in September 2005. As a
result of the instability in her life, Amelie has been diagnosed
with post-traumatic stress disorder. By the time of trial, Ariel
had lived in three different foster homes. Ana cut off contact
with her attorney a year prior to trial, and the superior court
issued an order terminating her parental rights on May 16, 2007.
By his own admission, Thomas has never served as his
daughters primary caregiver because he was in and out of jail
during the time the children were in OCS custody. Thomas had
been arrested twelve times between November 22, 2001 and March 2,
2007, the date his trial commenced. Six of those arrests
occurred after December 2004, when the children were placed into
OCS custody.
Thomas has not visited with his older daughter Amelie
since May 2006, when he reentered prison. Thomas sought to
reinstate visitation with Amelie after his release but that
request was denied upon the recommendation of Amelies counselor.
A superior court later upheld the decision to deny visitation
privileges. Thomas maintained weekly supervised visits with his
younger daughter Ariel beginning in January 2007. He cancelled
four of the twenty-two scheduled one-hour visits.
From a young age, Thomas has struggled with substance
abuse problems. At the time of his termination trial, Thomas had
pending felony charges of drug possession and eluding a police
officer. And before the trials conclusion, Thomas entered a plea
deal requiring him to serve a prison term of at least one year
and twenty days. Thomas claims, however, that his sobriety
demonstrates success in remedying the underlying conduct that led
to OCSs involvement with his children. Thomas reports that he
has been sober since May 2006, notwithstanding his allegedly
accidental use of opiates, which an October 2006 urinalysis
detected.2 During his future incarceration, Thomas has proposed
that his new wife Sophia care for the children.
Currently, Amelie and Ariel are cared for by their
maternal great aunt and uncle, Sean and Lisa J. Sean and Lisa
J. have served in this capacity intermittently since September
2004, and they have been the primary caregivers for the girls
without interruption since April 27, 2006. The couple, with the
facilitation of OCS, plans to adopt the girls.
B. Proceedings
OCS involvement with Thomass family began when Amelie
tested positive for marijuana at birth. OCS created a safety
plan on August 8, 2002, and Amelie returned home with Ana. OCS
became involved in the case again on September 13, 2004, when
Sean and Lisa J., who had been taking care of Amelie, filed for a
temporary restraining order against Ana. OCS filed a report
recommending that Amelie remain with her great aunt and uncle.
OCS also created the first of multiple case plans for both Ana
and Thomas, recommending treatment for substance abuse, parenting
skills classes, and mental health therapy.
On September 6, 2005, the state removed Thomas and Anas
second child, Ariel, from their custody two days after she was
born with cocaine in her system. The next day, OCS met with Ana
and Thomas to discuss objectives for a case plan, which again
included substance abuse treatment, parenting classes, and mental
health assessments. Thomas initiated substance abuse treatment
and parenting classes under the new case plan. After just one
day of substance abuse treatment in October 2005, however, Thomas
led police on a high-speed chase while high on ecstasy. Soon
after his release from custody, he was again arrested for
possession of ecstasy. Meanwhile, Ana entered the Family CARE
Court,3 which handled her treatment plans.
OCS developed a final case plan for Thomas on November
20, 2006, requiring treatment for substance abuse, parenting
classes, and mental health treatment. This time, Thomas largely
complied with the substance abuse treatment and parenting class
requirements, and although he did not meet his case plans
requirement that he undergo mental health treatment, OCS
apparently failed to refer him to a facility that could conduct a
mental health assessment. By the time of Thomass ultimate case
plan, however, OCS had shifted its permanency goals for Amelie
and Ariel to adoption, with the concurrent goal of reunification.
OCS sought to terminate Thomas and Anas parental rights
at trial on March 2, 2007. Ana failed to appear and the
remaining parties agreed to engage in a family group conference
with the adoptive parents regarding visitation benchmarks for the
children. When these talks proved unproductive, the termination
trial recommenced on May 30, 2007.
At trial, OCS presented testimony from Kristi Fuller, a
clinical neuropsychologist who had interviewed Thomas and
diagnosed him as having antisocial personality disorder. The
state also presented testimony from Thomass OCS caseworker,
Jennifer Hernandez. Thomas presented testimony from Jessica
Burdick, the case manager for Cook Inlet Tribal Councils
supervised visitation program, and from Anna Baughman, the
outpatient clinician at Genesis House Recovery Center, where
Thomas had been receiving treatment. Dr. Baughman testified that
during six months of treatment, Thomas did not exhibit symptoms
of antisocial personality disorder. Thomas and his new wife,
Sophia, also testified as to their ability to take care of the
girls.
Following oral argument on June 26, 2007, Superior
Court Judge Stephanie E. Joannides presented her findings from
the bench. The superior court did not find clear and convincing
evidence to support Dr. Fullers diagnosis of antisocial
personality disorder. Nevertheless, the superior court
terminated Thomass parental rights, reasoning that his
unavailability due to incarceration and his insufficient track
record meant that placing the children with him would be likely
to . . . result in serious emotional or physical damage to the
children.
The superior court reasoned that subsections (2)
(incarceration) and (10) (substance abuse) of AS 47.10.011
supported the decision to terminate Thomass parental rights.4
With respect to the former, the superior court found that Thomas
had been unable to provide a stable home for his daughters during
his previous incarcerations.5 The superior court also noted that
Thomass wife Sophia is a new spouse, with whom the children have
had little or, in Amelies case, no contact, and thus in light of
their current placement and the courts evaluation for [their]
best interest, I would not find that the suggestion for [Thomass]
present wife to be their custodian is an adequate arrangement for
their care.
Under subsection (10) of AS 47.10.011, the superior
court found by clear and convincing evidence that substance abuse
has substantially impaired Thomass ability to parent, and that
has placed his children at substantial risk of harm. The
superior court again acknowledged that Thomas appeared to have
succeeded in his latest substance abuse treatment but found that
Thomas had delayed too long in becoming sober, and that because
of the circumstances that are interwoven in one of the other
factors, it is impossible for him to really successfully complete
all his treatment and prove that the treatment has been
successfully completed. In other words, the superior court
concluded, Thomas hasnt really, truly been able to remedy the
conduct because he is going to be unavailable and incarcerated.
The superior court went on to find beyond a reasonable
doubt that placing the children with Thomas would be likely to .
. . result in serious emotional or physical damage to the
children. Finally, the superior court turned its attention to
OCS, and found that the agency had made active efforts to provide
support services and treatment services to Thomas, other than the
mental health component. The superior court found that OCSs
failure to make a referral for Thomass mental health assessment
was the only component lacking in the states active efforts,
however, and that this shortcoming was not legally significant in
light of [his] status.
Thomas appeals.
III. STANDARD OF REVIEW
We review a trial courts factual findings for clear
error.6 Findings are clearly erroneous if a review of the entire
record in the light most favorable to the prevailing party leaves
us with a definite and firm conviction that a mistake has been
made.7 We review the trial courts application of the law to
factual findings de novo.8 Whether the state has complied with
the active efforts requirement of the Indian Child Welfare Act9
(ICWA) presents a mixed question of fact and law.10
IV. DISCUSSION
Thomas argues that he has overcome his substance abuse
problems and made adequate arrangements for the children during
his upcoming incarceration. Consequently, he maintains that the
trial court erred in finding that he failed to remedy the conduct
that placed the children at substantial risk of harm within a
reasonable period of time. Thomas claims that OCS did not make
the required active efforts to prevent the breakup of his family
because it failed to properly refer him for the mental health
assessment included in his case plan, hence depriving him of
therapy that might have led to his earlier compliance with OCS
case plan objectives. Finally, Thomas maintains that the
superior court erred when it found that placing the children with
him would likely result in substantial harm to them. We dispose
of each of these arguments in turn.
A. The Superior Court Did Not Err in Finding that Thomas
Failed, Within a Reasonable Time, To Remedy the Conduct
that Put Amelie and Ariel at Substantial Risk.
Alaska Statute 47.10.088 provides for involuntary
termination of parental rights where a child qualifies as a child
in need of aid under AS 47.10.011 and 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[.][11]
In answering the question whether the parent has remedied or will
remedy within a reasonable time the conditions in the home that
place the child at substantial risk, the court may consider any
fact relating to the best interests of the child,12 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.[13]
The superior court found that Thomass history of incarceration
and substance abuse, as well as his pending incarceration, put
the children in need of aid and that Thomas had failed, within a
reasonable time, to remedy the conduct or conditions that placed
Amelie and Ariel at substantial risk of physical or mental
injury. Accordingly, the superior court terminated Thomass
parental rights.
As a preliminary matter, Thomas points out that the
superior courts written order cites AS 47.10.011(10) (substance
abuse of the parent) and AS 47.10.011(1) (abandonment) for its
child in need of aid determination while the superior courts oral
findings cite AS 47.10.011(10) and AS 47.10.011(2)
(incarceration). Thomas theorizes that, because he was not
incarcerated at the time of termination and had not been
incarcerated for over a year, the trial court erred or possibly
misspoke during its oral findings. He goes on to argue that the
superior court erred in relying on subsection (1) of AS
47.10.011, because his conduct including his successful
completion of substance abuse treatment and parenting classes,
his visitations with his younger daughter, and his efforts to
visit with his older daughter demonstrates that he did not
disregard his responsibilities towards his children. We need not
consider, however, whether the abandonment prong of AS 47.10.011
applies to Thomas because the superior court clearly based its
decision on Thomass history of substance abuse and incarceration
under AS 47.10.011(10) & (2).14
Thomas argues that, regardless of the legal grounds on
which the superior court purported to base its ruling, it is
clear from the courts statements and the courts written order
that it was Thomass impending incarceration that ultimately led
the court to its decision. That interpretation, however, does
not withstand scrutiny. The superior court recognized that
Thomass pending incarceration would likely lead to continued
instability for the children should they be placed in the custody
of Thomass new wife. But the court primarily relied on Thomass
pending incarceration to support its conclusion that Thomass
history of substance abuse and resulting incarceration remained
all too recent.
Turning to AS 47.10.011(10), the superior court based
its finding on Thomass long struggle with substance abuse and his
record in treatment, rather than any future incarceration. The
superior court noted that in Thomass most recent treatment,
[t]here were periods of time and concern over his compliance.
Indeed, as recently as October 4, 2006, Thomas tested positive
for opiates. And even accepting Thomass assertion that he
inadvertently consumed the opiates that caused him to fail the
October 2006 test and has in fact been sober since May 2006, as
the superior court pointed out, all of this has happened in a
somewhat artificial setting, meaning that hes on third-party . .
. his wife is with him every minute making sure he follows
through, and theres the threat of jail and of an increased jail
sentence. The superior court thus concluded that Thomas had an
insufficient track record, with only sporadic and spotty success
in light of his substantial impairment by the addictive or
habitual use of an intoxicant.15
Time was a determinative factor in the superior courts
finding. Although the trial court clearly believed that Thomas
had made progress in his most recent treatment effort, it
concluded that Thomas could not adequately demonstrate that he
would remain sober:
[Thomas] has struggled with substance abuse
for some period of time. He has attempted to
complete treatment and, to his credit, has
completed treatment, but . . . aftercare
really is the true indicator of success, and
after hes off third-party, and because of the
circumstances that are interwoven in one of
the other factors, it is impossible for him
to really successfully complete all his
treatment and prove that the treatment has
been successfully completed.
Indeed, the period of time during which Thomas appears to have
succeeded at treatment corresponds exactly with his third-party
supervision. In short, the record supports the trial courts
conclusion that Thomas waited too long to begin to remedy his
conduct.
This case presents a fact pattern similar to the one we
considered in Sherry R. v. State, Department of Health & Social
Services, Division of Family & Youth Services.16 In Sherry R., we
upheld the termination of a mothers parental rights despite her
success in completing substance abuse treatment prior to trial.
Like Thomas, Sherry R. had a lengthy history of substance abuse
and failed treatment experiences.17 She also succeeded in staying
sober for over a year prior to her termination proceeding.18
Nevertheless, we held that even though Sherry may have made
strides towards remedying her conduct, the trial court could
properly find that Sherry failed to address her substance abuse
problem within a reasonable time.19
Thomas seeks to distinguish this case from Sherry R.,
emphasizing our observation in Sherry R. that even since
sobriety, Sherry has continued to make choices that affect her
childrens lives adversely, including her continued relationship
with a man convicted of child sexual assault.20 Thomas also
argues that Sherry R. had a more prolonged history of completing
long-term treatment programs and relapsing, and therefore this
court should not consider Sherry R. as support for the states
argument that Thomass successful treatment should be discounted
due to his prior failures.
But Thomas has attempted to overcome his substance
abuse problems with little success since the age of fourteen.
Those problems have severely limited his capacity to act as a
loving father to the children, if for no other reason than the
consequence that he has been incarcerated during much of their
lives.
Thomas has attempted and failed to complete numerous
substance abuse treatment programs. In late 2004, after being
charged with selling cocaine, Thomas was assessed by Genesis
Recovery Services, where he refused to enter into the recommended
long-term residential treatment. In January 2005 the Salvation
Army Clitheroe Center provided a second assessment to Thomas, but
he failed to return for treatment. Clitheroe staff succeeded in
contacting Thomas and he briefly resumed treatment, but in June
2005 OCS reported in a predisposition report that Thomas was not
participating in his urine analysis program and that he was
unable to participate in a treatment program due to pending
criminal charges. In October 2005 Thomas discontinued treatment
at Clitheroe after just one day of treatment. He did so again in
March 2006 after another single session at Clitheroe. Thomas
finally began his most recent, successful treatment program at
Genesis Recovery Services in November 2006, but only after the
superior court denied him visitation with his elder daughter
Amelie. As in Sherry R., for Thomas sobriety is a relatively new
phenomenon in . . . life.21
Thomass history of incarceration and pending
incarceration further complicated his attempts to persuade the
superior court that he has remedied his harmful conduct towards
the children. Reviewing Thomass history, the superior court
noted that he had been arrested approximately 12 times since
2001, and that he had spent a significant amount of time in
prison, including most of 2003, a majority of '04, over six
months, less time in '05, but . . . for a significant period in
2006. The superior court observed that because the children are
very young, Thomass frequent incarcerations put Amelie and Ariel
in a state of limbo for all of their lives.
The extent of Thomass drug use and criminal behavior,
from the very beginning of both of his daughters lives, has
created conditions that he cannot easily remedy. We have
previously observed that children under six years of age suffer
tremendously when their bonding processes are interrupted, as
evidenced by the legislative imperative to provide for an
expedited placement procedure to ensure that all children,
especially those under the age of six years, who have been
removed from their homes are placed in permanent homes
expeditiously.22 Thomass pending incarceration at the time of
trial frustrated the prospect for such an expeditious, permanent
placement. More importantly for our analysis here, Thomass
pending incarceration belies his claim that he has remedied his
conduct within a reasonable time. We therefore affirm the
superior courts determination that he has failed to remedy his
conduct within a reasonable time.
B. The Superior Court Did Not Err in Finding that OCS Made
Active Efforts To Prevent the Breakup of the Family.
Thomas argues that OCS cannot meet ICWAs requirement
that active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of
the Indian family and that these efforts have proved
unsuccessful.23 Thomas contends that OCS failed to meet even its
obligation under AS 47.10.086 to make timely, reasonable efforts
to provide family support services to the child and to the
parents, which are designed to enable the safe return of the
child to the family home, when appropriate.24 Alaska law imposes
a duty upon OCS to identify family support services that will
assist the parent or guardian in remedying the conduct or
conditions in the home that made the child a child in need of
aid, and to actively offer the parent or guardian, and refer the
parent or guardian to, the services identified.25 Thomas contends
that while OCS identified the necessary services, it never made
the requisite referrals for Thomas to obtain a mental health
assessment. Thomas additionally alleges that OCS failed to
provide services to him when Amelie and Ariels mother, Ana,
entered Family CARE Court.
Thomas cites N.A. v. State, DFYS26 in support of his
argument that OCS failed to make active efforts. In N.A., we
clarified that [a]ctive efforts occur where the state caseworker
takes the client through the steps of the plan rather than
requiring that the plan be performed on its own.27 But we
rejected a parents claim that the state failed to make active
efforts because it did not provide her with an adequate mental
health and substance abuse dual-treatment program.28 And while
unlike Thomas, the parent in N.A. received psychiatric treatment,
we made a point of noting that the states efforts were more than
active; they were exemplary.29 OCSs failure here to provide a
mental health referral to Thomas throughout the history of his
case falls short of exemplary, but the agency nonetheless
satisfied the active efforts requirement based upon its overall
handling of the case.30
We find a more apt analogy to this case in E.A. v.
State, Division of Family & Youth Services,31 where we upheld a
finding that OCS made active efforts even though it failed to
obtain an updated psychological evaluation of the mother
following her childs allegation that she had abused him.32 We
reasoned that an update would not likely have increased the
mothers chances for reunification,33 and that the inaction was
insignificant in light of the extensive remedial efforts the
state has provided throughout its involvement with E.A.s children
apart from this seven-month period.34 Here, while the trial court
acknowledged that OCS should have referred Thomas to a mental
health provider following its November 20, 2006 case plan, the
court also found that Thomass own actions in particular his
frequent incarceration would have frustrated the success of any
OCS services. Furthermore, like E.A., Thomas received a number
of referrals from the state for services, including multiple
substance abuse treatment programs and parenting classes. In
light of these services, we cannot accept the argument that the
agencys failure to make a mental health referral imposed a
roadblock on subsequent termination proceedings.
And we see no fault in the states efforts aside from
its failure to make the mental health referral. Thomas alleges
that OCSs lack of active efforts is further evidenced by the
complete failure to provide services to Thomas when Ana J., the
childrens mother, entered Family [CARE] court. But as the state
points out, Thomas received services during the time that the
case was in CARE court. In sum, nothing in the record before us
suggests that the superior court erred in finding that OCS made
active efforts to provide remedial services to Thomas.
Finally, Thomas argues that even if active efforts were
made, the superior court erred in finding that the efforts made
were unsuccessful as required by ICWA. The analysis following in
Part IV.C, coupled with our holding from Part IV.A that Thomas
failed to remedy his conduct within a reasonable time, disposes
of this argument.
C. The Superior Court Did Not Err in Finding that the
Return of the Children to Thomass Custody Would Likely
Result in Serious Emotional Damage to Amelie and Ariel.
Thomas argues that the qualified expert testimony, in
combination with substantial evidence in the record, failed to
support the superior courts determination that Amelie and Ariel
would likely be harmed if placed in Thomass care. We disagree.
In order to terminate a parents rights to an Indian
child, the trial court must find, based on evidence beyond a
reasonable doubt, including testimony of qualified expert
witnesses, that the continued custody of the child by the parent
. . . is likely to result in serious emotional or physical damage
to the child.35 In reviewing ICWAs legislative history, we have
observed:
[T]he primary reason for requiring qualified
expert testimony in ICWA termination
proceedings was to prevent courts from basing
their decisions solely upon the testimony of
social workers who possessed neither the
specialized professional education nor the
familiarity with Native culture necessary to
distinguish between cultural variations in
child-rearing practices and actual abuse or
neglect.[36]
ICWA requires that expert testimony support a decision to
terminate parental rights, based upon the particular facts and
issues of the case, but ICWA does not require that the experts
testimony provide the sole basis for the courts conclusion.37
Here, Dr. Fullers expert testimony, coupled with the lay
testimony and evidence on the record, satisfies ICWA and
adequately supports the trial courts decision.
Thomas argues that the trial court clearly erred when
it determined, beyond a reasonable doubt, that returning the
children to him was likely to result in serious emotional and
physical damage to them. Thomas maintains that the superior
court unreasonably relied on the testimony of Dr. Fuller. He
further claims that the court exaggerated the harm that Thomass
future incarceration would cause the children, and minimized the
qualifications of Sophia, Thomass new wife, as a caretaker for
the children. He asserts that Sophia would be particularly well
suited to care for Ariel, whom Sophia had met during Thomass
visitations.
Thomass arguments are unavailing. The superior courts
oral findings demonstrate that it gave weight to the testimony of
Dr. Baughman, who testified on behalf of Thomas and disputed Dr.
Fullers diagnosis of antisocial personality disorder. The court
noted the discrepancy between the two experts and concluded that
it could not find by clear and convincing evidence that you do
have an antisocial personality disorder. Theres enough other
information to suggest that you are able to make positive steps
in your life. Nevertheless, the superior court made clear that
it had relied on Dr. Fullers testimony to reach its conclusion,
noting that Dr. Fullers report does provide me clear and
convincing evidence . . . at a minimum that the risk of returning
the children home is great. The trial court further explained:
I did consider the evidence under the proof-
beyond-a-reasonable-doubt standard and did
consider the testimony of the experts that if
the children were returned, that it would be
likely to . . . result in serious emotional
or physical damage to the children because of
[Thomass] unavailability, the continued
issues that at least [Amelie] has faced with
respect to an ability to visit with him. . .
. And also the concern is over his substance
abuse and unavailability and the impact those
factors would have on the children.
The evidence at trial supports the reasoning that led the
superior court to its judgment. As the superior court
noted in its written findings, Dr. Fullers evaluation indicated
that [Thomas] exhibited a persistent pattern of negative
behavior, and that Thomass high likelihood of repeated
incarceration within the next couple of years threatened to
damage any bond formed with the children while he was out of
custody. The court emphasized Dr. Fullers opinion that Thomas is
not a candidate to be a custodial parent, and that he is unlikely
to be able to meet the childrens needs for security and safety
over the long term.
Dr. Fullers own testimony, based on her knowledge of
the family and tests performed by Thomas, sheds light on her
assessment:
The harm that I do see is . . . I imagine his
children, given contact with him, would adore
that time . . . and . . . it could disrupt
their ability to form attachments later when
youre having a visitation thats fun and
games. But particularly with an adult who is
good with children and then youre having to
go back into a living environment where you
might be at a phase where limits are being
set . . . that can cause problems with
children. And I guess it could cause short-
term problems from the standpoint of their
ability to function . . . in an adoptive
home.
Dr. Fuller also traced the connection between Thomass prior
conduct and his likely inability to conform his conduct over the
long term to appropriately parent his daughters. She noted the
chronicity of [Thomass] past behavior, and the fact that Thomas
had only begun his reforms at the last-possible-minute, after the
children had already spent years in OCS custody.
As the superior court noted, other evidence supports
Dr. Fullers prediction that failure to terminate Thomass parental
rights would pose an unacceptable risk to his daughters. A
mental health assessment of Amelie in October 2006 similarly
concluded that Thomas represented an undesirable presence in his
daughters life:
In terms of visitation with the father, the
multi-volume case file shows that he has been
given many opportunities to fulfill the role
of father and surfacing again now to enter
the life of his children, as if it were
another fresh start for him, just creates the
specter that the child will again respond
with hope. She will likely think her dad
will be able to sustain an interest in her
and become a real father. If her hopes are
proven again to be misplaced as they have
many times in the past the eventual result
is damage to the childs capacity for
attachment.
The social worker went on to express concern that Thomas seems
intent on pressing his place as father inserting himself
emotionally between [Amelie] and her uncle, potentially leading
Amelie to feel wrong and not to accept her potential adoptive
parents as her real family. Superior Court Judge Mark Rindner
later upheld the decision to deny Thomass visitation privileges
with Amelie.
Like Amelie, Ariel has spent her life in the care of
people other than her father. Thomas has maintained contact with
Ariel, attending eighteen of twenty-two scheduled weekly
visitations, but he admitted that because the visits were only an
hour long, he never tried to exercise the skills that were taught
in his parenting classes. We have held that a trial court must
find both proof that the parents conduct is likely to harm the
children, and proof that it is unlikely that the parent will
change [his] conduct,38 in order to terminate parental rights
under 25 U.S.C. 1912(f). The trial court made findings on both
counts, and the testimony of expert and lay witnesses provides
sufficient evidence to support those findings.
V. CONCLUSION
Thomass long history of substance abuse and frequent
incarceration has placed Amelie and Ariel in need of aid.
Although OCS made active efforts to prevent the breakup of
Thomass family, he did not take advantage of those efforts until
it was too late, when granting him custody over the children
posed an unacceptable risk of harm. Accordingly, we AFFIRM the
decision of the superior court.
_______________________________
1 We use pseudonyms for all family members to protect
their privacy.
2 Thomas maintains that he slipped in the shower and
afterwards his mother gave him two pills for pain that he thought
were aspirin.
3 The Family CARE Court is a therapeutic court program
for child in need of aid cases, designed to address the needs of
parents with identified substance abuse problems. It combines
intensive judicial supervision and monitoring with treatment and
the coordinated delivery of assessments and services.
4 AS 47.10.011 provides in part:
Subject to AS 47.10.019, the 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:
. . . .
(2) a parent, guardian, or custodian is
incarcerated, the other parent is absent or
has committed conduct or created conditions
that cause the child to be a child in need of
aid under this chapter, and the incarcerated
parent has not made adequate arrangements for
the child;
. . . .
(10) the parent, guardian, or custodians
ability to parent has been substantially
impaired by the addictive or habitual use of
an intoxicant, and the addictive or habitual
use of the intoxicant has resulted in a
substantial risk of harm to the child[.]
5 See id. at (2).
6 Brynna B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004).
7 Id.
8 Id.
9 25 U.S.C. 19011963 (2008).
10 Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006).
11 AS 47.10.088(a)(2)(A)(B).
12 Sherry R. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 74 P.3d 896 (Alaska 2003).
13 AS 47.10.088(b).
14 OCS had sought to apply the abandonment provision, AS
47.10.011(1), to Ana, which may have led to a typographical error
in the trial courts written order. The trial courts oral
findings provide a much more thorough explanation of its
analysis, however, and leave us with no doubt that it did not
intend to rely on AS 47.10.011(1).
15 AS 47.10.011(10).
16 74 P.3d at 902-03.
17 Id. at 898-900.
18 Id. at 899.
19 Id. at 902-03.
20 Id. at 903.
21 Id. at 902.
22 Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 56 (Alaska 2003) (quoting
AS 47.05.065(5)).
23 25 U.S.C. 1912(d).
24 AS 47.10.086(a).
25 Id. at (a)(1)(2).
26 19 P.3d 597 (Alaska 2001).
27 Id. at 602-03 (internal citations omitted).
28 Id. at 604.
29 Id. at 603.
30 See E.A. v. State, Div. of Family & Youth Servs., 46
P.3d 986 (Alaska 2002).
31 46 P.3d 986.
32 Id. at 988.
33 Id.
34 Id. at 990.
35 25 U.S.C. 1912(f).
36 L.G. v. State, Dept of Health & Social Servs., 14 P.3d
946, 952-53 (Alaska 2000) (emphasis omitted).
37 E.A., 46 P.3d at 991-92.
38 L.G., 14 P.3d at 950.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
