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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ralph H. v. State, Dept. of Health & Social Services, Office of Children's Services (2/4/2011) sp-6536
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
RALPH H., )
) Supreme Court No. S-13852
Appellant, )
) Superior Court No. 3PA-07-00082 CN
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 6536 - February 4, 2011
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Beverly Cutler, Judge.
Appearances: Caitlin Shortell, Anchorage, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage,
and Daniel S. Sullivan, Attorney General, Juneau, for
Appellee. Dianne Olsen, Law Office of Dianne Olsen,
Anchorage, for Krista Berghoff, Office of Public Advocacy,
Palmer, Guardian Ad Litem.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
STOWERS, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
Ralph appeals the superior court's judgment terminating his parental rights
1
to his only son, Rex. The Office of Children's Services (OCS) removed Ralph's and
2
Nell's five children after Ralph physically assaulted their oldest daughter. OCS put the
children in foster care and provided the parents with case plans. The parents moved
away from the community where the children were placed, which made visitation with
Rex difficult. OCS and the children's guardian ad litem (GAL) petitioned to terminate
Ralph's and Nell's parental rights. The superior court terminated Ralph's and Nell's
parental rights to Rex after finding that OCS made reasonable efforts at reunification and
that termination was in Rex's best interests. Because the superior court's factual findings
were not clearly erroneous and its legal conclusions were correct, we affirm the judgment
in all respects.
II. FACTS AND PROCEEDINGS
Ralph and Nell are the parents of Ava, Bella, Daria, Emma, Rex, and Faith.
OCS involvement with the family due to chronic neglect and physical abuse began in
1992. In May of 1992 eight-month-old Ava wastaken to Seward General Hospital "with
serious bruising and abrasions[,] a possible fractured rib, [and] serious physical injuries."
OCS assumed emergency custody of Ava.
Over the next eight years, OCS received approximately 23 reports of harm
on the family. The reports involved allegations of physical abuse or instances of neglect.
Throughout this time, Ralph and Nell neither acknowledged nor addressed their
parenting problems through the services that OCS offered. A pattern developed in that
1
We use pseudonyms to protect the family's privacy.
2
The youngest child, Faith, had not yet been born.
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----------------------- Page 3-----------------------
OCS would begin to investigate a report of harm or engage the family in services, but the
parents would move the family to another community.
From 1997 until 2006 the family had an open file with the Department of
Health and Social Services, Division of Public Health (Public Health). Public Health
personnel considered the family "high risk." The Public Health file shows chronic
neglect because of repeated infestations of head lice, poor parenting, and lack of housing,
clean clothing, and food. OCS worked with Public Health to provide services to the
family.
In 2001, when the family lived in Homer, OCS social workers attempted
to engage the parents but the family moved further and further out of town. The family
then moved to Seward, but abandoned their rented home in July 2001, leaving it in a
filthy state.
The family next moved into a camper parked illegally near Resurrection
Bay. After receiving another report of neglect, an OCS social worker arranged
wrap-around services for the family. These services included referrals to or assistance
provided by a number of agencies and programs: Public Health, Infant Learning
Program, a parent training program, Head Start, the school district, a mental health
program, law enforcement, and OCS. Despite this, the family moved to the Mat-Su
Valley. The social worker transferred the case file to the OCS office there.
Between 2002 and 2004 multiple reports of harm were filed against the
family in the Mat-Su Valley. Social workers arranged food donations, conducted home
visits to monitor the status of the home, spoke to Ralph and Nell about getting assistance
through Alaska Housing Finance Corporation, offered to pay for repair of the family's
3
heating system, and referred the family to Dual Track. At the end of the program, Dual
3
Dual Track is a program within the State of Alaska, Department of Health
(continued...)
-3- 6536
----------------------- Page 4-----------------------
Track referred the family to the Salvation Army Family Services Program. After
receiving reports of neglect based on poor school attendance, a social worker referred the
family back to Dual Track, which provided additional services.
The family had moved to Homer by September 2006. OCS received
another report alleging that the family was homeless and that the children missed school
because of head lice. A social worker and school staff found a cabin for the family and
provided mattresses and laundry cards to help the family get rid of the lice. The social
worker also created a case plan in December 2006 that required Ralph and Nell to seek
consistent employment, maintain clean and adequate housing, and work with school
nurses to get rid of the lice.
On March 30, 2007, OCS received a report alleging that Ralph had "pulled
[Ava's] hair and scratched her face." Avatold the social worker that she had argued with
her father, and that when she tried to leave the home, Ralph "grabbed her face by
reaching over her from behind and his fingernails caused a cut on her nose." Ava said
Ralph then "pulled her hair and forced her back into the home." She said that her father
had previously slapped her face and back, and that he had kicked her. The social worker
testified that Ava had "marks on her head from being hit by her father." Ava's siblings
corroborated Ava's allegations and expressed concern about the condition of their home.
3
(...continued)
and Social Services, which enables the department to refer low risk reports of harm to a
community-based non-profit social services agency. Dept. of Health & Soc. Servs.,
Family Preservation Component, State of Alaska FY2002 Governor's Operating Budget
(Jan. 05, 2001),http://omb.alaska.gov/ombfiles/02_budget/Budget/H%26SS/comp1628.pdf.
-4- 6536
----------------------- Page 5-----------------------
Based on the evidence of physical abuse, mental injury, and chronic neglect,
OCS assumed custody of all five children and put them in foster care. An OCS social
worker created a case plan for the family. OCS referred Ralph for a substance abuse
assessment, referred both parents for psychological assessments to determine what other
services were necessary, and arranged for supervised visits at the OCS office. The social
worker also referred the children to counseling services.
After their removal, the children remained in the Homer area to facilitate
visits with their parents. Rex's initial placements included two different Homer foster
homes. He participated in a behavioral health assessment which recommended that he
receive mental health services. Due to his aggressive behavior and the unavailability of
a closer placement, Rex was moved to a foster home in Kasilof where he began
individual therapy at Nakenu Family Services. The record does not suggest that Rex has
left this foster home.
OCS sought to coordinate regular visits between the parents and the
children. Visits with Rex were scheduled twice a month in Kenai. Ralph and Nell were
responsible for buying gas for the first monthly trip and OCS paid for gas for the second.
In September 2007, shortly after the children were taken into OCS custody, the parents
moved away from their children, back to the Mat-Su Valley.
OCS prepared another case plan in September 2007, which required that
Ralph complete an Alaska Family Services (AFS) parenting class in Palmer. It also
required that he participate in individual therapy, show that he could refrain from
aggressive behavior, participate in an intake assessment at AFS's Family Violence
Intervention Program, and follow that assessment's treatment recommendations. An
OCS social worker wrote a letter to Alaska Housing Finance Corporation to assist Ralph
and Nell with housing.
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----------------------- Page 6-----------------------
Ralph finished the Family Violence Intervention Program in June 2008.
Ralph and Nell participated in psychological evaluations with Michael Rose, Ph.D.
Dr. Rose concluded that Ralph met the diagnostic criteria for Child Abuse/Neglect,
Partner Relational Problem, and Cannabis Abuse. Dr. Rose also diagnosed Ralph with
"personality disorder with antisocial and passive-aggressive features." Dr. Rose
recommended that Ralph's visits with his children be supervised until he showed
progress in his treatment.
Rex was evaluated by Paul Turner, Ph.D., in January 2008 because of abuse
in his home. He told Dr. Turner that his father would "yell, scream, and throw things at
people." He also described his father "smacking" a sister, and stated that his father
spanked him very hard with a paddle.
During 2008 Ralph attended the Family Violence Intervention Program.
However, he was not considered to have completed the program because he failed to pay
for the program in full which demonstrated a lack of accountability. At the time of the
termination trial Ralph was under a recommendation to redo the program because of his
ongoing aggressiveness.
OCS continued to offer the parents visits with the children to promote
reunification but the parents' visits with Rex were inconsistent. To help with travel
expenses, the social worker gave gas vouchers to Ralph and Nell and arranged for OCS
to provide airfare and mileage reimbursements so they could fly to some visits. Despite
this offered assistance, Ralph and Nell failed to visit Rex regularly. Between October
2007 and June 2008, they visited Rex just once, at Christmas 2007.
In April 2009 Nell asked about restarting visits, but visits did not resume
because Rex's therapist recommended that in-person visits with Ralph and Nell should
not continue. Other reunification efforts continued through 2009 with an OCS social
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----------------------- Page 7-----------------------
worker again updating the parents' case plans. The social worker conducted home visits
and spoke with the parents about services including couples and individual therapy.
OCS initially filed a petition to terminate parental rights of all the children
when Rex was eight. After doing so, OCS once again referred Ralph and Nell for
psychological evaluations with Dr. Rose. Based on the results of Dr. Rose's evaluations,
OCS decided it was in the children's best interests to give the parents further access to
reunification services. Ralph and Nell sought a six-month continuance of the termination
trial. The children's GAL opposed this request but OCS did not.
The superior court denied the continuance with respect to Rex. Based on
this ruling, OCS attempted to withdraw its termination petition as to Rex. The GAL
objected and the superior court refused to allow OCS to withdraw its petition. Instead,
the court permitted the GAL to prosecute OCS's petition to terminate parental rights to
4
Rex. By the conclusion of the termination trial, Rex had been in foster care for over two
years.
The superior court terminated parental rights to Rex. The superior court
concluded that Rex was a child in need of aid (CINA) pursuant to Alaska Statute
47.10.011(1) (abandonment), (6) (physical harm), (8) (mental injury), (9) (neglect), and
(11) (mental health). The superior court further concluded that the parents failed within
a reasonable time to remedy the conduct or conditions that placed Rex at risk of harm,
and that OCS made reasonable efforts to reunify the family. It also concluded that it was
in Rex's best interests for Ralph's and Nell's parental rights to be terminated.
Ralph appeals that order; Nell does not.
4
Neither the appellant nor OCS challenged the superior court's denial of
OCS's motion to withdraw the petition to terminate parental rights or the court's order
that the GAL was authorized to present evidence in support of the petition filed by OCS.
We therefore have no occasion to address these issues in this case.
-7- 6536
----------------------- Page 8-----------------------
III. STANDARD OF REVIEW
We review a superior court's factual findings regarding termination of
5
parental rights for clear error. A finding is clearly erroneous when a review of the entire
record leaves this court with "a definite and firm conviction that the superior court has
6
made a mistake."
We review de novo whether the superior court's findings satisfy applicable
CINA statutes and rules, adopting "the rule of law that is most persuasive in light of
7
precedent, reason, and policy."
We will reverse factual findings under the clearly erroneous standard only
if, after a review of the entire record in the light most favorable to the party prevailing
8
below, we are left with a definite and firm conviction that a mistake has been made.
Conflicting evidence is generally insufficient to overturn the superior court, and we will
not reweigh the evidence when the record provides clear support for the superior court's
9
ruling.
Whether the parent has remedied the conduct or conditions that places the
children at substantial risk of physical or mental injury, and whether returning the child
5
Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 77 P.3d 715, 717 (Alaska 2003).
6
Id. (quoting G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family &
Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003)).
7
Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).
8
Jon S. v. State, Dep't of Health & Social Servs., Office of Children's Servs.,
212 P.3d 756, 761 (Alaska 2009) (internal citations omitted).
9
Maisy W. v. State, Dep't of Health & Social Servs., Office of Children's
Servs., 175 P.3d 1263, 1268 (Alaska 2008).
-8- 6536
----------------------- Page 9-----------------------
to the parent would place the child at substantial risk of physical or mental injury, are
10
factual determinations and will only be reversed for clear error.
IV. DISCUSSION
The superior court must make four separate findings before terminating
parental rights. The court must find by clear and convincing evidence that: (1) the child
11
is a child in need of aid, as defined in AS 47.10.011; (2) the parent has not remedied
12
the conduct or conditions that placed the child at substantial risk of harm; and (3) OCS
has made reasonable efforts, as defined in AS 47.10.086, to reunify the child with the
13
parent. The court must find by a preponderance of the evidence that (4) termination of
14
parental rights is in the best interests of the child.
Ralph does not contest that termination of his parental rights was in Rex's
best interests.
A. The Superior Court Did Not Err By Finding That Rex Was A Child In
Need Of Aid Under AS 47.10.011(1), (6), (8), (9), and (11).
In order to terminate a parent's rights and responsibilities, a superior court
must find by clear and convincing evidence that the child has been subjected to
conditions or conduct that would render the child to be a child in need of aid pursuant to
10
Barbara P. v. State, Dep't of Health & Social Servs., Office of Children's
Servs., 234 P.3d 1245, 1250 (Alaska 2010).
11
AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
12
AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(I)-(ii).
13
AS 47.10.088(a)(3); CINA Rule 18(c)(2)(A).
14
CINA Rule 18(c)(3).
-9- 6536
----------------------- Page 10-----------------------
15
AS 47.10.011. The superior court found Rex was a child in need of aid under
AS 47.10.011(1), (6), (8), (9), and (11).
1. AS 47.10.011(1): Abandonment
Under AS 47.10.011(1), a child may be in need of aid if "a parent or
guardian has abandoned the child as described in AS 47.10.013, and the other parent is
absent or has committed conduct or created conditions that cause the child to be in need
of aid under this chapter."
Alaska Statute 47.10.013 provides:
For purposes of this chapter, the court may find abandonment
of a child if a parent or guardian has shown a conscious
disregard of parental responsibilities toward the child by
failing to provide reasonable support, maintain regular
contact, or provide normal supervision, considering the
child's age and need for care by an adult. Abandonment of a
child also includes instances when the parent or guardian,
without justifiable cause
. . .
(2) has made only minimal efforts to support and
communicate with the child;
(3) failed for a period of at least six months to maintain
regular visitation with the child[.]
In addition to conscious or "willful" disregard, there also must be evidence that the
16
parental conduct resulted in the destruction of the parent-child relationship.
15
AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
16
Rick P. v. State, OCS, 109 P.3d 950, 957 (Alaska 2005) (citing G.C. v.
State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 651-52
(Alaska 2003)).
-10- 6536
----------------------- Page 11-----------------------
17
The superior court found beyond a reasonable doubt that Rex was a child
in need of aid pursuant to AS 47.10.011(1) based on Ralph's and Nell's failure to visit
Rex for a seven-month period in 2008, their failure to make regular visits between
December 2008 and September 2009, and their failure to send any correspondence or
pictures to Rex. Ralph does not dispute these findings.
The superior court found that this lack of visitation was not excused by the
distance separating Ralph's and Nell's home from Rex's placement because the parents
had "placed themselves in the position of being so far away from Rex and the department
did make reasonable efforts in helping to provide them with gas money and opportunity
for visits."
There is substantial evidence that Ralph failed to maintain regular contact
with Rex. In September 2007 Ralph and Nell moved from Homer to the Mat-Su Valley
when Rex was placed in a foster home on the Kenai Peninsula. The superior court found
that Ralph and Nell moved to the Mat-Su Valley with "no clear benefit to the children
or parents." As previously mentioned, none of the children's placements were in the
Mat-Su Valley. For therapeutic reasons, it was decided that Rex needed to remain on the
Kenai Peninsula and that visits should occur there. Ralph's and Nell's visits became
infrequent and irregular despite OCS's offers of gas vouchers, airfare, and mileage to
defray the cost.
17
Ralph states in his brief that "[a]ppellant's brief will also explore how the
court's order applied the incorrect standard by stating that this finding had been proven
beyond a reasonable doubt when the applicable standard of proof is by clear and
convincing evidence." Ralph failed to meaningfully develop this argument, and his claim
is waived. We note, however, that even though AS 47.10.088(a)(1) and CINA Rule
18(c)(1)(A) require the court to make a child in need of aid finding by clear and
convincing evidence, it is not error for a court to make such a finding by a higher
standard of proof, which is what the court did in this case.
-11- 6536
----------------------- Page 12-----------------------
There is also evidence that the lack of consistent contact led to the
destruction of the parent-child relationship. Dr. Turner testified that if Rex had not seen
Ralph and Nell in the previous eight months, there could be substantial risks in restarting
visits, including exacerbating Rex's Reactive Attachment Disorder, his Oppositional
Defiant Disorder, and an increased risk of serious psychopathology later in life. Social
worker Katheryne Calloway testified that due to the long time since Rex's last visit with
his parents, she would be concerned about renewing contact, particularly because Rex
"talked about it being difficult for him to not know what's happening, for his parents to
come to visits and his parents to stop coming to visits."
Ralph argues that he consistently visited Rex and relies on statements in the
GAL's pre-disposition report from August 2007. However, the superior court relied on
the lack of visitation for seven months in 2008 and between December 2008 and
September 2009, not conduct prior to August 2007.
Ralph also argues that his lack of visitation should have been excused
because he was too poor to visit more often. This argument is unconvincing in light of
the fact that Ralph and Nell moved away from Rex to the Mat-Su Valley, and that OCS
offered to assist the parents with gas vouchers, airfare, and mileage. The superior court
addressed this argument and found that the parents "placed themselves in the position of
being so far away from Rex and the department did make reasonable efforts in helping
to provide them with gas money and opportunity for visits."
Ralph also argues that the superior court erred because he was a better
18
parent than the father in Jeff A.C., Jr., v. State. As OCS noted in its brief, the facts
18
117 P.3d 697 (Alaska 2005) (finding that father had abandoned his child
when he made no effort to determine whether he had fathered the child, and once
informed that he was the parent, expressed no desire to assume parental responsibility
for one year thereafter).
-12- 6536
----------------------- Page 13-----------------------
discussed inJeff A. C., Jr. do not set the minimum standard that must be reached to show
abandonment.
Given this record the superior court's finding that Rex was a child in need
19
of aid pursuant to AS 47.10.011(1) was not clearly erroneous.
2. AS 47.10.011(6): Physical Harm
Under AS 47.10.011(6), a child may be in need of aid if "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 child's
parent." The superior court found that Rex was at substantial risk of physical harm based
on domestic violence in the family's home.
OCS argues that because the statutory provision looks to the risk of physical
20
harm, OCS need not wait until a child has suffered actual harm before intervening. In
considering whether such risk exists, the trial court may look to "the totality of the
21
State's evidence." OCS argues that there was sufficient evidence to support the finding
of substantial risk of harm to Rex.
Ralph himself acknowledged his physically abusive behavior. At the
termination trial, Ralph testified about his own father abusing him and stated "I tried
other things with my children and they didn't work, [so] I resorted to whippings and
spankings." He acknowledged that his assault on Ava, which led to OCS assuming
custody of his children, was an act of violence. He also testified that if OCS had not
19
OCS correctly argues that because the superior court also found that Nell
caused Rex to be a child in need of aid and Ralph has not challenged this finding on
appeal, AS 47.10.011(1)'s "other parent" requirement was met.
20
OCS cites Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family
& Youth Servs., 79 P.3d 50, 54 (Alaska 2003).
21
Id.
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----------------------- Page 14-----------------------
removed Rex, his relationship with Rex would have been similar to Ralph's relationship
with his own father.
Ralph argues that there is no admissible evidence to support the finding that
Rex was a victim of physical abuse. However, evidence about physical abuse of Rex was
presented by Dr. Turner. Ralph challenges the admission of social worker Katheryne
Calloway's testimony about Rex's statements of physical abuse as inadmissible hearsay.
Even if that testimony is excluded as hearsay there is still sufficient evidence to support
the superior court's finding that Rex is a child in need of aid pursuant to
AS 47.10.011(6).
Given this record, the superior court's finding that Rex was a child in need
of aid pursuant to AS 47.10.011(6) was not clearly erroneous.
3. AS 47.10.011(8): Mental Injury
The superior court found that Rex was a child in need of aid under
AS 47.10.011(8). The superior court did not specify which subsection of (8) it relied
upon.
Alaska Statute 47.10.011 provides:
[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:
. . .
(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
-14- 6536
----------------------- Page 15-----------------------
(ii) exposure to conduct by a household
member, as defined in AS 18.66.990, against
another household member that is a crime . . . ;
or
(iii) repeated exposure to conduct by a
household member, as defined in AS 18.66.990,
against another household member that is a
crime . . . .
The superior court found that Rex suffered from "cognitive delays, limited
self-esteem, attachment disruptions, anger and aggressive outbursts." It also found that
Rex was diagnosed with Reactive Attachment Disorder and severe Oppositional Defiant
Disorder likely because of pathogenic parental care. The superior court found that Rex
had memories of physical abuse of himself and his siblings by his parents, and made
findings about Ralph's pattern of abusive, aggressive, and threatening conduct.
Under AS 47.10.011(8)(A), a court may determine a child is a child in need
of aid if conduct or conditions created by the parent have resulted in mental injury to the
child. "Mental injury" is defined as "a serious injury to the child as evidenced by an
observable and substantial impairment in the child's ability to function in a
developmentally appropriate manner"; "the existence of that impairment is supported by
22
the opinion of a qualified expert witness."
Dr. Turner and licensed clinical social worker Pat Truesdell, Rex's therapist
of two years, testified about Rex's inability to function in a developmentally appropriate
manner. Dr. Turner diagnosed Rex with Reactive Attachment Disorder, a history of
severe neglect, and severe Oppositional Defiant Disorder. Dr. Turner was of the opinion
that Rex's problems were related to neglect, exposure to domestic violence, and
pathogenic parenting. Truesdell also diagnosed Rex with Reactive Attachment Disorder.
22
AS 47.10.990(21) incorporating the definition found in AS 47.17.290(9).
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----------------------- Page 16-----------------------
Truesdell further noted that Reactive Attachment Disorder usually begins with
pathogenic parenting.
There is sufficient evidence in the record to support a finding by the
superior court that Rex was exposed to domestic violence and that he was a child in need
of aid under AS 47.10.011(8)(A). The superior court's findings were not clearly
erroneous.
4. AS 47.10.011(9): Neglect
The court may find a child to be in need of aid if "conduct by or conditions
created by the parent, guardian, or custodian have subjected the child or another child in
23
the same household to neglect." Neglect is further defined in AS 47.10.014:
For purposes of this chapter, the court may find neglect of a
child if the parent, guardian, or custodian fails to provide the
child with adequate food, clothing, shelter, education,
medical attention, or other care and control necessary for the
child's physical and mental health and development, though
financially able to do so or offered financial or other
reasonable means to do so.
The superior court found that Rex was a child in need of aid based on neglect under
AS 47.10.011(9).
Ralph had stipulated to adjudication that his children had been neglected.
On appeal, his argument is: "Although much was made of a long history of neglect in
this case (OCS neglected to assume custody based on reports of harm from 1992 until
2007), there was inadequate support for a finding of neglect at the time of the termination
trial." Ralph did not adequately brief his argument challenging the court's finding of
23
AS 47.10.011(9).
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----------------------- Page 17-----------------------
24
neglect, and regardless, the record provides ample evidentiary support for the superior
court's finding of neglect.
5. AS 47.10.011(11): Mental Illness
AS 47.10.011(11) provides that a court may find a child to be in need of
aid if "the parent, guardian, or custodian has a mental illness, serious emotional
disturbance, or mental deficiency of a nature and duration that places the child at
substantial risk of physical harm or mental injury." The superior court found Rex was
a child in need of aid under this subsection.
Ralph admits that he has a mental illness but argues that there was not
sufficient evidence that his mental illness placed Rex at substantial risk of physical harm
or mental injury to support the superior court's finding.
Dr. Rose was of the opinion that Ralph's personality disorder would give
Ralph a "tendency not to consider the children's needs before his own needs, and to also
behave in a somewhat over[-]controlling or arrogant fashion. Parents with antisocial
features usually are somewhat authoritarian and aggressive in their parenting style." Dr.
Rose opined that Ralph's personality disorder combined with Rex's Oppositional Defiant
Disorder would be a "bad combination, because it usually leads to some explosive
confrontations."
Ralph's mental illness combined with the mental injury suffered by Rex,
namely his Reactive Attachment Disorder and Oppositional Defiant Disorder diagnosis
24
Due to inadequate briefing this claim has no merit. Frank E. v. State, Dep't
of Health & Soc. Servs., Div. of Family & Youth Servs., 77 P.3d 715, 719 n.14 (Alaska
2003) (quoting Martinson v. Arco Alaska, Inc., 989 P.2d 733, 737 (Alaska 1999))
(concluding that a party waives appellate consideration of an issue if it is inadequately
briefed); City of Fairbanks v. Rice, 20 P.3d 1097, 1106 (Alaska 2000) (holding that issue
was so "sparely briefed" as to be waived).
-17- 6536
----------------------- Page 18-----------------------
likely caused by Ralph's pathogenic parenting, supports a conclusion that Rex is a child
in need of aid under AS 47.10.011(11).
The superior court's finding that Rex was a child in need of aid pursuant to
AS 47.10.011(11) was not clearly erroneous.
B. The Superior Court Did Not Err By Finding That The Parents Had
Not Remedied The Conduct Or Conditions That Made Rex A Child In
Need Of Aid.
Before a court may terminate parental rights, it must find by clear and
convincing evidence that the parent "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
25
injury." In making this determination, "the court may consider any fact relating to the
26
best interest of the child." Factors include, but are not limited to: (1) the likelihood of
returning the child to the parent within a reasonable time based on the child's 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 harm will continue;
27
and (5) the history of conduct or conditions created by the parent.
We recently clarified the standard of review for this "remedying the harmful
conduct" determination in Barbara P. v. State, Department of Health & Social Services,
28
Office of Children's Services. We held that "whether the parent has remedied the
conduct or conditions . . . that place the child at substantial risk . . . [is a] factual
25
AS 47.10.088(a)(2)(B).
26
AS 47.10.088(b).
27
AS 47.10.088(b)(1)-(5).
28
234 P.3d 1245, 1253 (Alaska 2010).
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determination best made by a trial court after hearing witnesses and reviewing evidence,
not [a] legal determination[] to which an appellate court should apply its independent
29
judgment." We thus review the superior court's "remedying the harmful conduct"
30
determination for clear error.
The record contains sufficient evidence to support the superior court's
finding that Ralph had not remedied the conduct and conditions that placed Rex at
substantial risk of harm, as well as the finding that Ralph failed to remedy within a
reasonable time.
Even though Ralph attended AFS's Family Violence Intervention Program,
he was not in compliance because he failed to pay the program fees in full, and payment
of such fees is considered necessary to demonstrate that a parent has accepted
accountability for his behavior. Of greater significance, even after attending the
program, Ralph threatened to kill a social worker if his son was not returned to him. This
fact is clear evidence that Ralph had not remedied his violent conduct.
Dr. Rose, who reevaluated Ralph just before the termination trial, testified
that Ralph continued to be self-absorbed, which limited his ability to be empathetic to
Rex's needs. Dr. Rose testified that Ralph still saw little need for his behavior to change.
Cathy Okeson, Ralph's mental health therapist, testified that Ralph did not yet accept
responsibility for his own behavior.
Ralph's own testimony at the termination trial supported a finding that he
had failed to remedy his conduct - Ralph admitted that he moved to the Mat-Su Valley
to meet his own needs. Ralph also blamed his continued marijuana use on others when
he testified: "I've been waiting for someone to tell me, you got to quit."
29
Id.
30
Id.
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Ralph argues that he has substantially complied with his treatment plan.
However, we have noted that "[c]ompliance with treatment plans does not guarantee that
parental rights will not be terminated because it cannot guarantee that adequate parenting
31
skills will be acquired from the treatment regimen." Based on the testimony discussed
above there was sufficient evidence to find that Ralph did not benefit from treatment to
such an extent that he had remedied the conduct and conditions that placed Rex at
substantial risk of harm.
The superior court did not err in finding that Ralph had not remedied the
conduct or conditions that made Rex a child in need of aid.
C. The Superior Court Did Not Err By Finding That OCS Made
Reasonable Efforts.
Alaska Statute 47.10.086 provides:
[T]he department shall make timely, reasonable efforts to
provide family support services to the child and to the parents
or guardian of the child that are designed to prevent
out-of-home placement of the child or to enable the safe
return of the child to the family home, when appropriate, if
the child is in an out-of-home placement. The department's
duty to make reasonable efforts under this subsection
includes the duty to
(1) 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]
(2) actively offer the parent or guardian, and refer the parent
or guardian to, the services identified under (1) of this
subsection . . . .
31
V.S.B. v. State, Dept. of Health & Social Servs., Div. of Family & Youth
Servs., 45 P.3d 1198, 1208 (Alaska 2002).
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In making determinations under AS 47.10.086, the superior court's primary consideration
32
is the child's best interests.
The superior court concluded that OCS made reasonable efforts to prevent
the children's removal and, after OCS assumed custody of the children, to reunify the
family.
OCS argues that it had provided referrals for Ralph to Public Health,
parenting classes, the Infant Learning Program, Head Start, mental health services,
Alaska Housing Finance Corporation, and wrap-around services through the Dual Track
program. OCS also points out that it arranged for food donations and laundry cards,
conducted home visits, offered to pay for repair of the family's heating system, found a
cabin and mattresses for the family, and tried to help Ralph get a job.
OCS also argues that it worked with the family after assuming custody of
the children by developing case plans that detailed child-protection issues and services
to remedy these issues. OCS made many referrals to help with reunification; referrals
were made for multiple psychological assessments with Dr. Rose, to parenting classes,
to anger management and domestic violence programs, to both individual and couples
therapy, and to Alaska Housing Finance Corporation for assistance with housing. Ralph
was also referred for a drug and alcohol assessment. OCS offered the parents assistance
with rent.
OCS further argues that it tried to help with the cost of visiting the children
by providing gas vouchers and plane tickets or offering mileage reimbursements. OCS
referred the children to a variety of mental health services and educational services.
Ralph argues that "efforts made by state agencies prior to OCS custody
cannot support a finding of reasonable efforts for a case that began in 2007." However,
32
AS 47.10.086(f).
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in assessing whether reasonable efforts were made, the court considers all of OCS's
33
efforts, not just those within a specific time period.
Ralph also argues that the superior court erred because an OCS social
worker did not refer him to services to teach him how to parent Rex with his Reactive
Attachment Disorder and Oppositional Defiant Disorder diagnoses. OCS argues that this
would have occurred in family therapy, in which Truesdell could teach Ralph how to
address Rex's Reactive Attachment Disorder and Oppositional Defiant Disorder. The
recommendation for family therapy would have needed to come from Truesdell, who
could evaluate its appropriateness for Rex. However, Truesdell recommended that Rex
not have in-person contact with his parents, which precluded family therapy after that.
OCS social worker Katheryne Calloway testified that since Rex was not at a point where
family therapy with Ralph and Nell was appropriate, OCS's decision not to offer this
service was appropriate.
In light of this record, the superior court's finding that OCS had made
reasonable efforts to provide family support services to Ralph is not clearly erroneous.
D. Termination Of Ralph's Parental Rights Did Not Violate His Due
Process Rights Under The Alaska And United States Constitutions.
Ralph argues that termination of his parental rights to Rex violated Ralph's
due process rights under the Alaska and United States Constitutions. Ralph's argument
is conclusory, and he cites to no authority demonstrating that any of OCS's actions
constituted a violation of substantive due process. While we consider this claim waived
34
for inadequate briefing, we note that in Matter of T.W.R. we stated:
33
See Erica A. v. State, Dept. of Health & Social Servs., Div. of Family &
Youth Servs., 66 P.3d 1, 7 (Alaska 2003).
34
887 P.2d 941 (Alaska 1994) (internal citations and quotations omitted),
overruled on other grounds by Matter of S.A., 912 P.2d 1235, 1237 (Alaska 1996)).
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[T]he private interest of a parent whose parental rights may
be terminated is of the highest order. However, parental rights
may be terminated where such steps are necessary to protect
the welfare, health and even lives of the children. This is a
situation where the State's interest in the welfare of the
children involved, outweighs the interest of the parents. The
superior court found by clear and convincing evidence that
despite her progress, [plaintiff] had demonstrated an inability
to care for her children which could not be cured in the
foreseeable future or soon enough to allow her to care for her
children without exposing them to a risk of abuse and neglect.
In such a situation it is not arbitrary to terminate parental
rights.[35]
Accordingly, termination of parental rights does not violate due process provided, as in
this case, that appropriate findings have been made by the superior court to support
terminating the parent's parental rights.
IV. CONCLUSION
We AFFIRM the superior court's findings that Rex is a child in need of aid
pursuant to AS 47.10.011(1), (6), (8), (9), and (11); that Ralph did not remedy the
conduct or conditions that made Rex a child in need of aid; that OCS made reasonable
efforts; and the order terminating Ralph's parental rights to Rex.
35
Id. at 947.
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