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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doug Y. v. State, Dept. of Health & Social Services, Office of Children't Services (12/3/2010) sp-6527
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
DOUG Y., )
) Supreme Court No. S-13701
Appellant, )
) Superior Court No. 3AN-07-00279 CN
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 6527 - December 3, 2010
SOCIAL SERVICES, OFFICE )
OF CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter A. Michalski, Judge.
Appearances: Dianne Olsen, Law Office of Dianne Olsen,
Anchorage, for Appellant. Laura C. Bottger, Assistant
Attorney General, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for Appellee. Anita L. Alves,
Assistant Public Advocate, Anchorage, and Rachel Levitt,
Public Advocate, Anchorage, for Guardian Ad Litem.
Before: Fabe, Winfree, and Christen, Justices. [Carpeneti,
Chief Justice, and Stowers, Justice, not participating.]
CHRISTEN, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
This is a case involving the termination of parental rights of Damien's
father, Doug.1 Doug does not contest that Damien is a child in need of aid under
AS 47.10.011(6) and (8) resulting from his excessive punishment; he does contest that
Damien is a child in need of aid under AS 47.10.011(10). Doug also argues that the
Office of Children's Services did not sufficiently assist him in complying with his case
plan. Having reviewed the record, we affirm the superior court's judgment terminating
Doug's parental rights.
II. FACTS AND PROCEEDINGS
Damien was born on November 8, 2000. He is the only child of Abigail and
Doug. Damien is not an "Indian child" under the Indian Child Welfare Act.2 Abigail
relinquished parental rights on August 18, 2009 and is not a party to this case.
Abigail and Doug never married. During their relationship, Doug was
arrested and jailed for domestic violence, including one incident of domestic violence
when Damien was present in the room. In August 2004 Abigail filed for a protective
order against Doug alleging that he assaulted her physically and mentally. At that time
the court ordered OCS to investigate allegations of child abuse.3
A. Doug's First Interaction With OCS
Damien was first placed under the protection of OCS after a Head Start
report in September 2005; he was four years old. Head Start contacted OCS after
Damien complained that his bottom hurt. The OCS investigator examined Damien and
1 Pseudonyms are used to protect the privacy of family members.
2 25 U.S.C. § 1903(4) (2006).
3 The record does not reflect any results of the investigation.
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found raised red and purple bruises on his bottom. Damien reported that Doug used a
wooden spoon to beat him as a form of discipline. OCS immediately took Damien into
emergency custody. After contacting his family, OCS placed Damien with his paternal
step-grandmother, Joan.
OCS developed a case plan for Doug directing him to services including
anger management and parenting classes. OCS also recommended that Damien begin
counseling, making a referral for Damien and attempting to enroll him with a counselor.
Doug refused to agree to counseling for Damien. He told the social worker that he would
not agree for Damien to go to counseling unless Abigail went to counseling. Family
counseling was presented as an option and Abigail agreed to engage in the sessions, but
Doug never followed through. However, Doug completed his parenting classes and
anger management classes and in July 2006 Damien was released to Doug's custody.
B. Doug's Second Interaction With OCS
Just over a year later, on August 30, 2007, OCS again became involved with
Doug when Chester Valley Elementary School contacted the Anchorage Police
Department (APD) and reported that Damien had suffered injuries. The responding APD
officer took photographs of Damien showing extensive welts and bruises on his back,
torso, bottom, and arms. Doug admitted that he used a leather belt to repeatedly hit
Damien as punishment for receiving a disciplinary note at school. Damien told the OCS
social worker "he wanted his dad to go to jail so his dad would quit beating him."
Doug was arrested and charged with domestic violence assault and child
abuse. He pled no contest to the domestic violence assault charge and stipulated that
Damien was a child in need of aid under AS 47.10.011(6). The stipulation was adopted
by the superior court in April 2008.
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Damien was taken into OCS custody on September 5, 2007 for the second
time in less than two years, and he was again placed in the custody of his grandmother
Joan. Upon returning to his grandmother's care, Damien expressed excitement that his
father would no longer be able to beat him. He said he was happy his father was in jail.
In the months that followed, Damien remained in fear and exhibited
separation anxiety. Joan noticed that she "literally could not go to the restroom without
him sitting outside the door crying and saying someone is going to get him." Damien
had nightmares about his father coming to beat him again. The nightmares were severe
enough that he would wake his grandmother to have her check that the burglar alarm was
on. At other times, Damien approached his grandmother and asked her to beat him like
his father would, once looking for a belt to bring to her. Damien had behavioral
problems at school and at home during this period.
In September 2007 Damien was given a mental health examination by Staci
Miller, LPC. Miller did not diagnose Damien with post-traumatic stress disorder (PTSD)
but she opined that Damien might receive this diagnosis if more information became
available. Miller referred Damien to the Anchorage Community Mental Health Services
Trauma Center (Trauma Center) for individual and family therapy. She also
recommended continued therapeutic support through On Target, a cooperative program
between his school and a local mental health center.
Miller recommended against Doug visiting Damien. She noted Doug's
"disregard for appropriate parenting help and not taking responsibility for removals."
She also highlighted Damien's "fear of his father." Miller was concerned that visitation
would be detrimental to any progress that Damien would hopefully make in "a stable,
non-abusive environment and therapy."
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Based on Miller's recommendation, Damien began therapy with Kristin
Howard, LPC at the Trauma Center. Howard, like Miller, recommended that Doug not
have visitation with Damien because it was against Damien's best interest. During
therapy sessions, Damien repeatedly expressed fear of his father, fear of being sent back
to live with his father, and fear that he would be subjected to beatings.4 Damien was
plagued by "nightmares of his father drowning him, killing him, hurting him, [and]
beating him." During therapy sessions he often manifested classic signs of PTSD
including physiological arousal (rapid heartbeat and shaking) and avoidant behavior
(lowering his head in shame and refusing to talk). Howard diagnosed Damien with
PTSD and attention deficit hyperactivity disorder (ADHD).5
Howard noted that Damien showed progress and improvement during her
sessions but was prone to return to problem behavior when confronted with abuse
triggers. Damien's triggers included Doug's facial expressions or seeing Doug's belt.
Damien told Howard that "every time he closed his eyes he would see his father beating
him." By April 30, 2009, Howard assessed that Damien still did not feel safe around his
father.
Howard focused on developing a sense of security and stability in Damien.
She worked on family therapy with Joan and Damien to increase his sense of security and
attachment. Focus was also placed on developing "routines and rituals in his life to help
him feel safe." Work was done to "help create physical and emotional safety in the
home, and school, and in the clinic and the community." Howard helped Damien
4 He continued to express these fears as late as May 2009.
5 North Star Behavioral Health later adjusted his diagnosis to include bipolar
disorder not otherwise specified on June 22, 2009. Howard seemed skeptical of the
addition of bipolar disorder to Damien's diagnosis.
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develop coping strategies for moments when his PTSD was triggered. The overarching
goal was to help Damien attain a sense of safety and stability.
In addition to individualized therapy, Damien received school and social
services. He participated in On Target to help reduce anxiety at school, and received
psychiatric services to help with his PTSD and ADHD. Alaska Children's Services
provided intensive rehabilitation, including case management and family skill
development. All of these services were aimed at dealing with Damien's mental health
issues and sense of security and stability.
C. Doug's Case Plan
Following the September 2007 removal, Doug received a psychological
evaluation as part of his OCS case plan. The stated permanency goal of the case plan
was "reunification." In November 2007 Dr. Michael Rose conducted a psychological
evaluation of Doug as part of the case plan. His report was provided to OCS in
February 2008.
Dr. Rose reviewed mental health records, interviewed Doug twice, and
administered a battery of diagnostic testing. He ultimately diagnosed Doug as meeting
the diagnostic criteria for child abuse and personality disorder not otherwise specified
with antisocial features. His assessment indicated that Doug did "not appear to be in a
position to independently care for [Damien] . . . and it is difficult to know if he will be
able to make changes that will allow him to appropriately parent his son in the future."
He observed that Doug "has had multiple opportunities to make changes in his parenting
practices and to enter family therapy to address problems between [Damien] and himself
but has apparently made few if any [changes]." Dr. Rose linked Damien's PTSD to
Doug's abusive practices, concluding that "exposing [Damien] again to the possibility
of further physical or psychological abuse by [Doug] may be entirely too risky."
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Based on his evaluation Dr. Rose concluded that it was "doubtful [Doug]
will be able to make the changes necessary to effectively parent [Damien] in the future."
He nonetheless provided five recommendations to help Doug "get into a position to care
for [Damien]." Dr. Rose's first recommendation was that Doug address financial and
housing issues. Doug was unemployed and living with his father at the time. The second
recommendation was that Doug "enter individual psychotherapy to address his
Personality Disorder with antisocial features, anger management difficulties, and low
frustration tolerance." He cautioned that Doug would "require a considerable treatment
period to properly address [these issues]." He also warned that "individuals with
[Doug's] diagnoses are difficult to successfully treat, and they are typically resistant to
virtually any form of psychological intervention." He concluded that "[u]nless [Doug]
can make significant progress toward addressing his psychological and life adjustment
problems, it is unlikely he will be able to satisfactorily meet [Damien's] needs." The
third recommendation was that Doug needs to appreciate "the nature and extent of
[Damien's] psychological problems" and therole he played in contributing to them. The
fourth was that Doug "abstain from the use of all substances since he may be addiction-
prone." Finally, Dr. Rose recommended that once Doug made "demonstrable and
consistent progress" with the first four objectives that he be allowed supervised visitation
with Damien.
Dr. Rose's recommendations were incorporated into a revised case plan
dated February 2008. The revised case plan continued to set a goal of reunification, and
made clear that Doug needed to make "substantial progress with his mental health
therapy" before he could progress to reunification. A revised May 2008 case plan
continued with the goal of reunification. By August 2008 OCS's recommendation for
Damien's permanency plan shifted to the concurrent goals of adoption and reunification,
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with an observation that given "the parents' lack of engagement in case plans, the goal
of adoption is recommended over reunification."
D. Doug's Visitation With Damien
Doug was not allowed any visitation with Damien until late January 2008.
Visitation was permitted only after Damien stabilized to some extent and options for
therapeutic supervised visits had been explored and rejected as unfeasible. OCS made
the decision to allow supervised visitation after consulting with Howard. Doug was
asked to write letters to his son before visitation began, but the first letter Doug wrote
was deemed inappropriate and was not shared with Damien. The second letter was
appropriately nurturing and supportive, and Howard shared it with Damien. The
expectation was that Doug would continue to write letters, but he never did.
Doug missed several visits. As a result, OCS imposed a rule requiring that
Doug arrive 30 minutes early to each visit to avoid upsetting and disappointing Damien
if Doug did not arrive. Eventually Doug was able to establish consistency and was
permitted to simply call and confirm that he was coming to a visit. Doug's supervised
visits generally went well. But during one visit David Pieper, a supervising OCS social
worker, found Doug to be overly rigid and controlling. Gail Davis, another OCS
supervisor, expressed concern that Doug was sometimes rigid and overly focused on the
same issues, which upset Damien.
The visits influenced Damien's behavior. After visits he would often cry
at school and need to talk about his feelings. Howard felt the visits made Damien miss
his father while also functioning as trauma triggers; after visits were established, Damien
continued to report PTSD symptoms, had nightmares about his father killing him, drew
pictures of his father hurting him, and feared someone was coming to get him.
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Damien's teacher reported the visits were more disruptive and upsetting to
Damien than to other children who had supervised OCS visitations. In his view, while
other children were upset because they wanted to visit with their parents, Damien's
anxiety did not arise from the same feelings. He described that before visits, Damien was
nervous and withdrawn, cried easily, and said he did not want to go. When he returned
from visits, Damien was withdrawn, very sensitive to space, easily agitated, and cried.
Damien told his teacher that the visits were stressful because he was afraid of his father.
Joan functioned as a visitation supervisor during a November 2008
basketball game that Doug wanted to attend. Before attending the game Doug was
instructed not to discipline Damien in any way. But during the game Doug felt Damien
was being disrespectful to his coach, and he verbally reprimanded Damien. The incident
upset Damien because he was concerned his father may hurt him. Damien burst into
tears and would not go out to play at the start of the second half. After the incident, Joan
refused to supervise any future visits.
E. Doug's Visitation With Damien Ends
In early March 2009 Damien called Dave Pieper, his OCS social worker,
to report an incident that occurred during a restroom break at a recent OCS supervised
visit. Pieper later testified that Damien called while on vacation with his grandmother,
reported that "he was really scared . . . [and] . . . would feel better if he could just tell
somebody" that during a recent OCS visit he went to the restroom with his father who
told him, "if he keeps talking and telling people what - what had happened that dad
would hunt him down." Pieper testified that Damien reported feeling better after sharing
this information. Pieper immediately relayed the information to his supervisor and
Howard.
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The incident and Damien's feelings about the incident led Pieper, his
supervisor at OCS, and Howard to agree to stop Doug's visitation. Howard noticed that
after the incident Damien was decompensating quickly and was at risk for
hospitalization. The goal of stopping visitation was to stabilize Damien and reduce the
stressors in his life.
On April 20, 2009, Howard indicated that Damien would continue to need
therapy to address his PTSD. She also concluded that his therapy would only be
successful if he attained psychological safety, which would not be possible with
uncertainty about his permanent placement. In her view, permanent placement and
stability were necessary for Damien to begin to fully heal from the trauma he had
suffered. Howard believed that Damien had a good prognosis as long as he was not
exposed to "any further traumatic events and he has a stable caregiving system that
understands his psychological needs and can respond to him in a safe manner."
In May 2009 Damien was hospitalized at North Star Behavioral Health for
40 days to stabilize his medication. Damien returned to Joan after his discharge from
North Star Behavioral Health, and was able to use coping skills to remain calm.
F. Termination Of Doug's Parental Rights
OCS's August 11, 2008 report for permanency hearing stated that if Doug
was "unsuccessful in [his] quest to regain custody of [Damien] and [Damien] is unable
to demonstrate an ability to be reunified, [OCS] would seek to accomplish an adoption."
The report noted that Doug had "not made substantial progress in his case plan," stating
that "he has not engaged with [his] therapist." Doug did not dispute that he failed to
engage in the therapy required by his case plan, but asserted that he "has made the
changes necessary internally on his own." OCS reported that AS 47.10.088(d) required
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OCS to file a petition for termination of parental rights because Doug had "made little
or no effort to remedy his . . . conduct by the time of the permanency hearing."
After the September 2007 removal, Doug only attended four sessions with
his mental health therapist Linda King - one in 2007, two in March 2008, and one in
April 2009. The case plan also required Doug to complete anger management therapy,
but he only attended some of the initial anger management classes. Doug participated
in a substance abuse program at the Salvation Army's Clitheroe Center, but was
discharged for testing positive for marijuana and reporting alcohol use. A substance
abuse assessment after his discharge from the Clitheroe Center recommended continued
treatment and monitoring of Doug's marijuana use. Doug was referred for urinalysis
testing twice a week. He tested positive for marijuana on several occasions and missed
many scheduled tests.
Doug made some progress toward establishing greater financial security by
enrolling in an apprentice program and other training. But he had limited success in
obtaining regular employment, and he left employment that paid $10 an hour because he
thought it did not pay enough.
OCS filed a petition for termination of parental rights in February 2009.
The termination of parental rights trial was held on July 15-17, July 27, August 18, and
August 21, 2009. At the end of the trial, the superior court terminated Doug's parental
rights to Damien. It found by clear and convincing evidence that Damien was a child in
need of aid under AS 47.10.011(6) (physical harm), and (10) (substance abuse); that
Doug failed to remedy the conduct that placed Damien at risk of harm; and that OCS
made reasonable efforts in support of reunification. The superior court also found by a
preponderance of the evidence that it was in Damien's best interest to terminate Doug's
parental rights. The superior court subsequently made permanency findings that
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placement of Damien with his grandmother Joan was in Damien's best interests, and
instructed counsel to relay that finding to Damien so that he would not worry about being
returned to his father's care.
Doug appeals.
III. STANDARD OF REVIEW
In a child in need of aid (CINA) case, we review a superior court's findings
of fact for clear error.6 Findings of fact are clearly erroneous if a review of the entire
record in the light most favorable to the party prevailing below leaves this court "with
a definite and firm conviction that a mistake has been made."7 We review de novo
whether a trial court's findings satisfy the statutory requirements of the CINA statutes.8
IV. DISCUSSION
Before the superior court may terminate parental rights, OCS must prove
three elements by clear and convincing evidence. OCS must prove: (1) that "the child
has been subjected to conduct or conditions described in AS 47.10.086" making the child
a "child in need of aid";9 (2) that the parent "has not remedied the conduct or conditions
in the home that place the child at substantial risk of harm";10 or "has failed, within a
reasonable time, to remedy the conduct or conditions in the home that place the child at
6 Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 88 P.3d 527, 529 (Alaska 2004) (citing A.B. v. State, Dep't of Health & Soc.
Servs., 7 P.3d 946, 950 (Alaska 2000)).
7 Id. (quoting A.B., 7 P.3d at 950).
8 Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 102 P.3d 932, 935 (Alaska 2004).
9 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
10 AS 47.10.088(a)(2)(A); CINA Rule 18(c)(1)(A)(i).
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substantial risk of physical or mental injury;11 and (3) that OCS has made reasonable
efforts under AS 47.10.086 to provide family support services to the child and to the
parents of the child designed to enable the safe return of the child to the family home.12
OCS must also prove by a preponderance of the evidence that termination of parental
rights is in the best interests of the child.13 Doug challenges each element of the superior
court's findings relating to the termination of his parental rights.
A. A Finding That Damien Is A Child In Need Of Aid Under Any Part Of
AS 47.10.011 Is Sufficient To Support Termination.
The superior court found that Damien was a child in need of aid under
AS 47.10.011(6) (physical harm) and (10) (substance abuse) based on Doug's conduct.
Doug concedes that Damien is a child in need of aid under AS 47.10.011(6) (physical
harm) and (8) (mental injury) as a result of his excessive discipline. But Doug disputes
the superior court's finding under AS 47.10.011(10) (substance abuse).
A finding that a child is a child in need of aid under any part of
AS 47.10.011 is sufficient to support termination.14 Doug's concession that Damien is
a child in need of aid under AS 47.10.011(6) (physical harm) is sufficient to support the
11 AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(ii).
12 AS 47.10.088(a)(3); CINA Rule 18(c)(2)(A).
13 AS 47.10.088(b), (c); CINA Rule 18(c)(3).
14 See Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family &
Youth Servs., 165 P.3d 605, 618 (Alaska 2007) ("Because either [CINA] finding alone
would support the termination order and because [appellant] does not challenge the
court's finding of abandonment, her challenge to the mental illness finding has no impact
on the outcome of the case."); Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of
Family & Youth Servs., 74 P.3d 896, 902 n.7 (Alaska 2003) ("Sherry also makes an
argument concerning her personality disorder, however, because we affirm the trial
court's decision on other grounds, we do not address this argument.")
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termination order, making review of the finding under AS 47.10.011(10) (substance
abuse) unnecessary.
B. Doug Did Not Remedy The Conduct That Placed Damien At
Substantial Risk Of Harm.
The superior court found that Doug failed to remedy the conduct that placed
Damien at risk of harm. Doug argues that it was clearly erroneous for the superior court
to find that he had not remedied his conduct or could not remedy it within a reasonable
period of time.
In making a determination that a parent failed to remedy the conduct or
conditions that place the child at substantial risk of harm we may consider five factors
under AS 47.10.088(b):
(1) the likelihood of returning the child to the parent
within a reasonable time based on the child's age and
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.
We note "the best interest factors listed in the statute are not exclusive and the superior
court need not accord a particular weight to any given factor."15 The superior court must
"consider the best interests of the child"16 and may "consider any fact relating to the best
15 Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 234 P.3d 1245, 1263 (Alaska 2010).
16 AS 47.10.088(c).
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interest of the child,"17 including the statutory factors, in terminating parental rights.
Here all five factors support a determination that Doug did not remedy the conduct or
conditions placing Damien at substantial risk of harm.
1. Damien has a low likelihood of returning to Doug within a
reasonable time.
The superior court found that Doug "failed to acknowledge or accept that
he is the cause of [Damien's] fear." Dr. Rose's evaluation placed a high priority on Doug
acknowledging that his actions were wrong. According to Dr. Rose, Doug needed to
appreciate "the nature and extent of [Damien's] psychological problems" and the role he
played in contributing to them. Doug's own expert, Vivian Patton, explained, "[Doug
is] not conscious or aware that a change needs to occur." In his own testimony, Doug
described the incidents as "fall[ing] short as most people do," trivializing the severity of
his conduct and the serious impact his conduct had on Damien. The court concluded that
Doug "has not taken responsibility in the sense of thinking that what he has done is
wrong. Change has not occurred." The superior court commented that Doug "comes off
kind of blaming everybody else," that Doug blamed his girlfriend and her children for
distracting his focus on Damien, and that he blamed having "too much on [his] plate and
not knowing how to properly address everything." Ultimately, the superior court saw the
situation "as a failure [of Doug] to fulfill [his] obligations." Doug's unwillingness to
take responsibility for his actions in the two years since he first came into contact with
OCS illustrates that there is a low likelihood of reunification in the reasonable future.
17 AS 47.10.088(b).
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2. Doug only put in a minimum amount of effort to remedy his
conduct.
The superior court found that Doug "engaged only minimally in his case
plan." On appeal Doug emphasizes that he had learned a skill that would allow him to
obtain gainful employment to support himself and his son, had completed some of the
classes required by his case plan, and had participated in whatever counseling and anger
management he could afford.
The record shows that in the two years between the second incident and
trial, Doug failed to seriously undertake the kind of counseling and therapy necessary to
make him a safe parent for Damien. Dr. Rose and OCS repeatedly emphasized that the
most important part of Doug's case plan was individual therapy, yet Doug only attended
four sessions between 2007 and 2009. Doug did not follow through on his required
anger management classes, and essentially ignored or rejected the recommendation that
he abstain from marijuana and alcohol use.
Doug contended that he could not afford more therapy sessions, but his
claims that he would restart and complete counseling and substance abuse treatment once
he had a higher income are contradicted by the record. He admitted at trial that "the
financial reasons weren't the biggest" reasons he did not continue therapy, and he
testified that he did not complete the substance abuse program because he was being "put
through something that [he] didn't feel [he] needed to go through." Based on this
evidence, the superior court did not err in concluding that the real problem in this case
was Doug's "feelings and his attitude and his responsibility to [the problems identified
by OCS]," rather than his financial limitations. Doug's actions and attitude indicate a
minimal amount of effort to remedy the conduct that made Damien a child in need of aid.
We have repeatedly recognized that a child's need for permanence and
stability should not be put on hold indefinitely while the child's parents seek to rectify
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the circumstances that cause their children to be in need of aid.18 Because Doug failed
to take therapy seriously, the superior court was forced to consider that Doug would have
to start the therapeutic portion of his case plan from the beginning. Dr. Rose believed
that Doug would "require a considerable treatment period to properly address [his
issues]" and that even under the best of circumstances making the necessary changes
would "take[] a year or more of sustained therapy." Giving Doug another chance to
remedy the conduct that made Damien a child in need of aid would inevitably extend
Damien's period of uncertainty and instability. The superior court was required to
consider this factor when it ruled on the second element of the termination petition.
3. Damien suffered significant harm as a result of Doug's conduct.
Doug was involved with OCS for over two years. He first came into contact
with OCS in September of 2005 after he beat Damien with a spoon and left significant
bruises. His second contact came in September of 2007 when he beat Damien with a belt
and left extensive welts and bruises on Damien's back, torso, legs, and bottom. Damien
suffered tremendous trauma from the incidents and continued to suffer from them at the
time of the trial: he had nightmares of his father beating and killing him; mental health
professionals diagnosed Damien with PTSD resulting from Doug's abuse; and Damien
repeatedly described significant fear of his father and the possibility that he might be
returned to his father's care. We agree with the superior court's assessment of the
evidence: Damien suffered significant harm as a result of Doug's conduct.
18 See, e.g., Kent V. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 233 P.3d 597, 603 (Alaska 2010); Carl N. v. State, Dep't of Health
and Soc. Servs., Div. of Family & Youth Servs., 102 P.3d 932, 936-37 (Alaska 2004);
J.H. v. State, Dep't of Health & Soc. Servs., 30 P.3d 79, 87 (Alaska 2001).
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4. There is a high likelihood that Doug will continue to engage in
harmful conduct.
Doug's failure to take full responsibility for his conduct is a strong
indication that abuse may occur again.19 In fact, Doug was involved in several incidents
during visitation that raised significant concerns, ultimately leading to discontinuation
of the visits. OCS supervisors found some of Doug's conduct rigid and controlling.
During a basketball game, Doug verbally disciplined Damien after he was instructed not
to do so. That incident left Damien in tears and in fear that Doug may hurt him. During
another visit, Doug threatened to "hunt down" Damien if he continued to tell people what
Doug had done. Visitation was stopped because Damien was decompensating and was
at risk for hospitalization. Rather than taking responsibility for his conduct, Doug
complained that he did not get credit for the days when he was not abusing Damien.
Given this record, the superior court correctly concluded that "change has not occurred."
5. Doug's history of conduct warrants termination.
Doug beat Damien on at least two occasions over a two-year span, thus
requiring OCS intervention. He threatened and intimidated Damien, leaving him
suffering with significant anxiety and PTSD. Doug also failed to engage in the case plan
designed by OCS to rectify his conduct and demonstrate that he is capable of
reunification. Doug's conduct and the harm done to Damien resulted in the superior
court's well-supported conclusion that "it is contrary to the welfare of the child to return
[him to Doug]."
19 Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 74 P.3d 896, 903 (Alaska 2003) ("The superior court is entitled to rely on a
parent's documented history of conduct as a predictor of future behavior." One predictor
of future behavior is the parent's failure to "fully accept or understand [his] children's
disabilities.").
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C. OCS Made Reasonable Efforts To Provide Doug With Family
Services.
A court considers reunification efforts in their entirety when reviewing
whether OCS made reasonable efforts.20 The superior court found that OCS made
reasonable efforts to provide family support services to Doug, including "repeated efforts
to engage [Doug] in a case plan and in substance abuse treatment." Doug raises seven
contentions in support of his argument that OCS failed to make reasonable efforts,
claiming that OCS failed to assist him in: (1) obtaining counseling; (2) obtaining a
parenting assessment; (3) obtaining an updated evaluation by Dr. Rose; (4) keeping Doug
informed about Damien's schooling and medication; (5) participating in Damien's
treatment team meetings; (6) ensuring Doug and Damien's therapists had necessary
information; and (7) visiting Damien. Having considered these arguments, we agree with
the superior court that reasonable efforts were made.
1. Assisting Doug in obtaining counseling
Doug argues that OCS's failure to help him pay for counseling or assist him
in obtaining affordable counseling constitutes a failure to make reasonable efforts. OCS
counters that it was not OCS's duty to request or provide funding to pay for Doug's
ongoing therapy, particularly under the circumstances of this case.
Doug primarily relies on Section 6.2.2.7 of the OCS's Child Protective
Services Manual to support his argument that OCS should have helped pay for his
ongoing individual therapy. This provision covers special needs funds, and lists
"counseling, therapy" among the services that can be provided to parents. The manual
20 Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 234 P.3d 1245, 1262 (Alaska 2010) (citing Frank E. v. State, Dep't of Health &
Soc. Servs., Div. of Family & Youth Servs., 77 P.3d 715, 720 (Alaska 2003)).
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states "OCS may pay for counseling or therapy services only when it is necessary to . . .
return a child to the child's own home." It also explains that "OCS is the payer of last
resort. Consideration must be given to the parent's resources/income, insurance, and/or
Medicaid. Providers who have sliding scale fees should be used if appropriate and
available. Requests are reviewed on a case-by-case basis."
As OCS points out, Doug never presented this policy at trial. And while
Doug often stated at trial that his ability to participate in counseling was limited by his
ability to pay, he also conceded that "financial reasons weren't the biggest thing" keeping
him from participating in individual therapy. Doug also chose his individual therapist,
although more affordable options were available. Doug's social worker spoke with his
therapist about the possibility of payment on a sliding scale; when that option proved
unavailing he asked Doug if he would be willing to see a different, more affordable
therapist. Doug refused. Doug's expert also indicated that, "there are programs out there
that do deferred fees or sliding scale fees and those programs should be sought out."
Doug chose not to seek counseling services from other programs or more affordable
providers.
The evidence strongly suggested that Doug's inability to pay was a
secondary reason why he did not attend therapy. Doug's trial counsel seemed to concede
this point, stating that therapy "didn't seem profitable to [Doug]" because he perceived
his therapist had not received all the information she needed to help him. Further, Doug
chose not to keep the job he held at the beginning of the case plan.
2. Obtaining a parenting assessment
Doug argues that OCS failed to make reasonable efforts because it did not
obtain a parenting assessment evaluating Doug's interactions with Damien. Doug
emphasizes that on several occasions persons involved with the case recommended a
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parenting assessment evaluating Doug and Damien. But Dr. Rose did conduct a
parenting assessment, just not one with Doug and Damien together. Dr. Rose explained
at trial that for a parenting evaluation "there's not necessarily a need for observing
parents and children together," and that in an abuse case the "concern would be primarily
with the parent's behavior." Dr. Rose testified that a parenting assessment addressing
only parenting capacity, and not parent-child bonding, was sufficient in this case.
According to Dr. Rose, a bonding assessment might have been helpful after Doug made
progress on his individual therapy, but the centerpiece of Doug's case plan and
Dr. Rose's evaluation was individual mental health therapy to address Doug's
psychological and anger management issues. Doug's case plan specifically emphasized
that his progress in the area of parenting would only come after he made substantial
progress with his mental health therapy. Because Doug failed to make progress with his
own mental health therapy, he never got to the point where a parent-child bonding
assessment was indicated. The failure to obtain a bonding assessment was not a failure
to make reasonable efforts.
3. Obtaining an updated evaluation by Dr. Rose
Doug also argues that OCS failed to make reasonable efforts because it did
not get an updated evaluation of Doug by Dr. Rose. We are not persuaded there was
need for Dr. Rose to conduct an updated psychological evaluation because Doug made
so little progress in his mental health therapy.
In his argument on appeal, Doug emphasizes that psychological evaluations
are usually updated once a year, and that Dr. Rose specifically requested, but was denied,
the opportunity to evaluate Doug a second time. While this may be the case, Dr. Rose
testified at trial that if Doug "has not engaged in the services that I recommended since
the time I made the recommendations then there's no evidence . . . that there have been
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any significant changes." We agree. Doug's failure to address his significant
psychological and anger management issues negated any need for an updated evaluation.
OCS was not required to pay for a new evaluation when there was no objective reason
to conclude that Doug had made progress in his case plan.
4. Keeping Doug informed about Damien's schooling and
medication
Doug argues that OCS failed to notify him of important decisions relating
to Damien's education and medical treatment. But Damien's doctor, not OCS, was
obligated to notify Doug of important medical decisions. Doug also argues OCS never
informed him of Damien's placement at North Star Behavioral Health, but the record
shows that OCS sent Doug notice by mail. As for Doug's argument that OCS failed to
keep him informed of Damien's school transfer, the transfer from one school to another
was based on the school's Individualized Education Program for Damien, not OCS's
actions. None of these alleged shortcomings rises to the level of a failure to make
reasonable efforts.
5. Allowing Doug to participate in Damien's treatment team
meetings
Doug argues that OCS should have allowed him to participate in Damien's
treatment team meetings. This argument overlooks that OCS initially sought to have
Doug participate in Damien's therapy, and Doug chose not to participate. Howard
testified that Doug initially expressed a desire not to participate in Damien's therapy.
Further, when Doug did appear at a team meeting in January 2009, he appeared late, was
hostile, and was antagonistic. Doug raised his voice when he arrived in the lobby and
upset Damien who was escorted out of the lobby by a therapist. Doug was told that he
would not be able to participate in that meeting, and that future participation would
depend on Damien's best interests. After a discussion with Damien's guardian ad litem,
Howard decided it was not in Damien's best interests to include Doug in Damien's
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therapy meetings because Damien's expectation was that his communications with
Howard would be kept confidential. While parental participation in treatment team
meetings should be encouraged, it must be fostered consistent with the child's best
interests.21 Here, OCS reasonably concluded that Doug's participation was not in
Damien's best interest and the superior court did not err by concluding that the decision
to exclude Doug from future meetings did not defeat OCS's showing of reasonable
efforts.
6. Ensuring Doug and Damien's therapists had necessary
information
Doug also argues that "OCS also failed to ensure that Doug's therapist, and
Damien's therapist all had relevant information." Doug's main criticism is that his
therapist should have been provided with more information about Damien's needs. The
therapist agreed that such information would have made her counseling more effective,
but she stressed they could have moved forward immediately in other areas. The central
focus of Doug's therapy was the psychological and anger management issues identified
by Dr. Rose. Dr. Rose emphasized that only after substantial progress was made in this
area would he move on to focus on Doug's parenting issues. Doug's therapist testified
that once she had Dr. Rose's report in March 2008, she had clear direction and enough
information to proceed with Doug's therapy.
From our review of the record it appears that Doug's therapist and OCS
could have done a better job communicating with each other about this case. But given
the small number of therapeutic visits Doug attended, it is clear that any communication
21 AS 47.10.005 (setting forth the goal that state involvement in a CINA case
"promote the child's welfare and the parents' participation in the upbringing of the child
to the fullest extent consistent with the child's best interests . . .").
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----------------------- Page 24-----------------------
shortcomings did not constitute a failure to make reasonable efforts nor meaningfully
contribute to Doug's failure to make progress in his case plan.
7. Allowing Doug to visit Damien
Doug argues that OCS's refusal to allow visitation with Damien from
September 2007 to January of 2008, and then again from March 2009 forward,
demonstrates that OCS did not make reasonable efforts to provide family support
services to Doug.
Damien was placed in state custody in September 2007 following his
second incidence of child abuse in less than two years. Damien's original therapist
advised against visitation because Damien "expressed fear of his father" and because of
Doug's "disregard for appropriate parenting help and [failure to take] responsibility for
removals." Damien's grandmother and social worker both reported that Damien was
happy he had reported his father, whom he hoped would go to jail so he could no longer
beat him. Damien's primary therapist, Kristin Howard, reported that Damien had
"numerous" nightmares involving Doug drowning, killing, hurting, and beating him,
often occurring several times a week.22 Following the 2007 removal, Damien was
diagnosed with PTSD, and his care providers observed that his anxiety and fear were
triggered by certain facial expressions of his father or seeing his father's belt. All of
these conditions justified the decision to stop Doug's visitation.
After Doug resumed visitation with Damien in early 2008, Damien's
therapist reported that Damien was experiencing increased agitation and anxiety
following the visits. Damien told his therapist "that every time he closed his eyes he
22 For example, Howard related an interaction with Damien in May 2009
where he "drew a picture of [himself] and his father, [and] described a dream in which
he was assaulted by . . . a man wearing a mask and the man took off his mask and it was
his father who then shot him."
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----------------------- Page 25-----------------------
would see his father beating him." His therapist also explained that Damien "doesn't
fully trust his father to be safe with him." His teacher reported increased anxiety and
behavioral problems both before and after visits with his father. Visitation was
terminated in March 2009 after Damien reported to his social worker that Doug
threatened him during a supervised visit and his therapist concluded Damien was
decompensating quickly and was at risk for psychiatric hospitalization.
D. The Superior Court Did Not Err In Terminating Parental Rights And
Not Establishing A Guardianship.
Alaska Statute 47.10.11023 permits but does not require the appointment of
a guardian when "it appears to the court that the welfare of a minor will be promoted by
the appointment of a guardian."24 The superior court is not required to consider
guardianship in a parental termination proceeding, "except to the extent that the statute
requires the court to order an arrangement that is in the child's best interest."25
The superior court implicitly rejected the guardianship proposal. It noted
that Damien needs "stability, [and] the certainty that he will be protected from his angry,
abusive father." The court expressed hope that Doug would change and that a healthy
relationship could be established, but observed "that's not what the evidence has shown
has occurred up to now." The potential that Doug may one day be able to change is not
sufficient to suggest, much less prove, that guardianship is in Damien's best interest.
23 AS 47.10.110 provides: "When, in the course of a proceeding under this
chapter, it appears to the court that the welfare of a minor child will be promoted by the
appointment of a guardian or custodian of the minor's person, the court may make the
appointment."
24 C.W. v. State, Dep't of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001).
25 Id.
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E. The Superior Court Did Not Err In Denying Doug's Request For More
Time.
Doug argues that he should have been given more time to meet the case
plan and remedy the conditions that harmed Damien. He specifically contends that he
may be able to obtain a better paying job soon, which would make it easier to pay for
counseling.
When a court finds that a parent has not remedied poor behavior in a
reasonable time under AS 47.10.088(b)(2), it may also readily find that termination of
parental rights is in the child's best interest under AS 47.10.088(c).26 We have observed
that courts may consider factors such as a parent's determination and capability to change
when assessing whether termination is in the best interest of the child.27 In this case,
Doug has not demonstrated determination to change. Doug admits that "financial
reasons weren't the biggest thing" keeping him from participating in individual therapy.
He did not seek more affordable solutions that even his expert acknowledges existed.
Doug put in little effort to meet the case plan but complained often that OCS was not
doing enough to pay for his counseling, to pay for his transportation, or to excuse him
from the requirement of completing his case plan. As the superior court observed, "there
has to be change in his feelings and his attitude and his responsibility to these problems
instead of saying that somebody else didn't give me bus fare."
V. CONCLUSION
We AFFIRM the judgment of the superior court in all respects.
26 Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 186 (Alaska 2008).
27 Id.
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