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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sarah G. v. State, Dept. of Health & Social Services, Office of Children's Services (12/2/2011) sp-6621
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
SARAH G., )
) Supreme Court No. S-14150
Appellant, )
) Superior Court Nos.
v. ) 3PA-10-00012/13/14/15 CN
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 6621 - December 2, 2011
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Gregory Heath, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Appellant. Joanne M. Grace, Assistant Attorney General,
Anchorage, and John J. Burns, Attorney General, Juneau, for
Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CARPENETI, Chief Justice.
I. INTRODUCTION
Four children were removed from their parents' care based on domestic
abuse in the parents' relationship. The parents later divorced and the mother was able
to regain custody, but thereafter she entered into another abusive relationship. Two of
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her sons physically intervened in one violent confrontation between the mother and her
new partner and notified the police of the abuse. The State took the boys and their two
younger siblings into temporary custody. Their mother appeals the superior court's
finding that all four children were children in need of aid under AS 47.10.011(8), (10),
and (11), and that the two eldest children were also in need of aid under AS 27.10.011(4)
and (6). Because we conclude that continued exposure to domestic violence placed the
children at substantial risk of injury, we affirm the superior court's finding that the
children are children in need of aid.
II. FACTS AND PROCEEDINGS
Sarah is the biological mother of Wes (age 19), Marco (age 15), Dustin (age
11), and Skyla (age 9).1 The children are Indian children under the Indian Child Welfare
Act (ICWA).2 Their biological father, Wilson, was married to Sarah for eight years and
in a relationship with her for over 15 years. Throughout the couple's relationship,
Wilson abused Sarah and the children, and was convicted on several occasions of
assaulting Sarah.3 Sarah has bipolar disorder, which causes mood swings, and she can
become violent towards Wilson if her disorder is not controlled by medication. She has
been taking medication for her disorder since 2004. Wilson testified that Sarah has
struggled with substance abuse, which brought out similarly violent behavior towards
Wilson.
1 In order to protect the privacy of the parties, we use pseudonyms.
2 25 U.S.C. § 1903.
3 For a detailed history of the relationship between Sarah and Wilson see
Wilson W. v. State of Alaska, Dep't of Health & Soc. Servs., Office of Children's Servs.,
185 P.3d 94, 96 (Alaska 2008).
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In October 2006, the Office of Children's Services (OCS) removed the
children from Sarah and Wilson's care because the "ongoing pattern of physical assaults
against [Sarah]" put the children at risk. The superior court granted OCS temporary
custody, and in Spring 2007 found that the children were in need of aid under
AS 47.10.011(8) and AS 47.10.011(9).4
In June 2009, the children were returned to Sarah's custody. Near that
time, Sarah and Wilson divorced and Sarah obtained a restraining order against Wilson.
At some point, Sarah began a relationship with Frank. After the children returned home,
OCS received several reports of harm, all of them involving drinking.
Full OCS involvement resumed in February 2010, based on two reports.
First, OCS received a report in which Dustin stated, "my mom's boyfriend always hits
me, and he almost killed my mom." Later that same month, Alaska State Troopers went
to Sarah's home in response to a 911 call from Wes reporting "big time domestic
violence." That night, Sarah, Frank, Wes, and Marco were involved in a physical
altercation during which Frank assaulted Sarah. Wes and Marco retaliated against Frank,
and both Wes and Marco were injured. The boys tried to call 911, but Sarah knocked
the phone out of their hands. Eventually Wes was able to call for help. The police
arrested Sarah, Wes, and Marco.
OCS then filed an emergency petition for temporary custody. According
to the petition, the children reported that they did not feel safe at home and that Frank
had assaulted Sarah on multiple occasions. They also said that Frank often punched
Marco and had choked him on multiple occasions. The children reported being spanked
with belts by both Sarah and Frank, leaving bruises and marks. Sarah was bruised and
discolored on much of her face, which she attributed to falling on a casserole dish after
4 Id. at 99. We affirmed the superior court's findings. Id. at 96.
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struggling with Marco, as well as falling down and hitting her cheek with her knee the
previous week.
A. The Children's Placements Following OCS Custody
After OCS assumed custody, all of the children required extraordinary care.
After release from the Mat-Su Youth Facility, Marco was placed in a foster home and
Wes was placed at the Dorothy Saxton Youth Shelter. Wes ran away from the Youth
Shelter and upon return to OCS custody was placed in the same foster home as Marco.
Wes started substance abuse treatment and was doing "pretty well" in the foster home at
the time of trial. Marco exhibited some "behavioral issues" at the foster home and was
placed in Dorothy Saxton for a few days, but since then had become "pretty stable." OCS
first placed Skyla in a foster home but she was admitted to North Star Hospital after she
exhibited "out of control behavior." She was then moved to a therapeutic foster home
where she had been fairly stable at the time of trial. Dustin was diagnosed with a variety
of significant mental disorders and was admitted to North Star Hospital. He was then
transferred to a residential facility in Fairbanks but after exhibiting aggressive and
sometimes violent behavior he was readmitted to North Star Hospital.
B. Superior Court Hearings
On five separate days between June 4, 2010, and November 19, 2010, the
superior court conducted hearings on whether the children were in need of aid.5 The court
5 All parties have an interest in speedy resolution of CINA cases. That it
took over five months to complete a five-day evidentiary hearing on adjudication is
extremely troubling. Although multiple continuances were caused by scheduling
conflicts and both Sarah's and Wilson's failure to personally attend trial on days they
were scheduled to testify, both courts and practitioners must be vigilant in ensuring a
speedy resolution of CINA cases because children's time-sensitive interests are at stake.
CINA trial courts that experience frequent episodes of drawn-out adjudication and
termination hearings must re-examine their scheduling practices.
-4- 6621
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heard testimony from OCS staff; Sarah; her ex-husband, Wilson; her eldest son, Wes; and
expert testimony from the Director of Domestic Violence Programs at Alaska Family
Services. At the conclusion of the hearings, the superior court found all four children
were in need of aid under AS 47.10.011(8) (mental injury), (10) (substance abuse), and
(11) (parent's mental illness). The superior court also found that Wes and Marco were
in need of aid under subsections (4) (failure to provide treatment) and (6) (failure to
supervise). Sarah appeals, arguing that her children are not children in need of aid under
any subsection.
III. STANDARD OF REVIEW
In a child in need of aid case we review the superior court's factual findings
for clear error.6 We will reverse only if left with "a definite and firm conviction that a
mistake has been made."7
IV. DISCUSSION
A. The Superior Court Did Not Err In Adjudicating The Children As
Children In Need Of Aid Under AS 47.10.011(8)(B)(ii).
Under AS 47.10.011(8)(B)(ii), the court may find a child to be a child in
need of aid if it finds, by a preponderance of the evidence, that "conduct by or conditions
created by the parent, guardian, or custodian have . . . placed the child at substantial risk
of mental injury as a result of . . . exposure to conduct by a household member . . . against
another household member that is a crime." The superior court found "by a
preponderance of the evidence that [Sarah] has a continued tendency to enter into
physically abusive relationships, creating a substantial risk of mental injury for her
children." The superior court cited Sarah's own testimony that all four children suffer
6 Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 175 P.3d 1263, 1267 (Alaska 2008).
7 Id.
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from post-traumatic stress disorder from her abusive relationship with the children's
father, and expert testimony about the detrimental impact of witnessing domestic violence
on children's brains. Though Sarah and Wes testified that domestic violence was not an
issue in the home, the superior court found that this testimony was not credible based on
evidence that both Sarah and the children had injuries indicating domestic violence.
Sarah disputes the superior court's findings on two grounds. First, she
argues that no evidence supports the finding that she has a "continued tendency" to enter
physically abusive relationships. While acknowledging that she followed her abusive
marriage to Wilson with a "troubled relationship" with Frank, Sarah claims that this does
not show a tendency toward entering abusive relationships. She argues that the superior
court's holding compels the conclusion that any woman who fails to sever all contact with
an abusive partner at the first sign of violence would show a "continued tendency" to
enter abusive relationships.
The State counters that ample evidence supports the superior court's
findings that Sarah was unwilling to admit that violence was an issue in her home, that
the danger of domestic violence had not necessarily passed as Sarah has aggressive
tendencies, and that Sarah's relationship with Frank supports a finding that Sarah has a
"continued inability to notice and address developing domestic violence situations."
We are persuaded by the State's argument. Though Sarah claims that a
succession of two bad relationships does not constitute a "continued tendency" toward
abusive relationships, no evidence at trial supported a finding that Sarah has ever
successfully had a non-violent relationship. Importantly, the children's entire lives have
been lived in the shadow of their mother's abusive relationships. The record contains
clear support for the superior court's finding that Sarah had a tendency to enter and
remain in abusive relationships.
-6- 6621
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Second, Sarah argues that no evidence at trial showed that her relationships
created a "substantial risk of mental injury" to her children. She claims that testimony
about the detrimental impact of domestic violence on children's brains lacked specific facts
about these children and was therefore not credible. Sarah argues that her relationship
with Frank and recent domestic violence incidents are "moot" because the relationship is
over and Frank has moved out of the state.8
The State counters that termination of a relationship does not render the issue
moot - a trial court should look at the totality of the evidence when determining whether
a child is in danger of harm. The State also argues that all the children are "particularly
vulnerable to mental injury from exposure to domestic violence," as evidenced by their
mental health issues and "continuing struggles in state custody."
We find the State's argument persuasive. First, Sarah's argument that her
relationship with Frank is now moot has no merit. In the context of termination of
parental rights proceedings, which first require a CINA finding, we have said that the court
"may consider . . . evidence of parental conduct predating the CINA adjudication."9 The
same reasoning applies here. Though Sarah tries to diminish the importance of her past,
it does not become irrelevant simply because her relationships with Wilson and Frank are
over.
Sarah's claim that there was no evidence that her relationships created a
substantial risk of injury to her children also lacks merit. Domestic violence was clearly
8 As to Wilson, Sarah acknowledges that AS 47.10.011 permits the court to
look at past conduct or conditions, but argues that her relationship with Wilson should
not determine whether the children are in need of aid in the present.
9 Danielle A. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 215 P.3d 349, 354-55 (Alaska 2009) (quoting A.H. v. State, Dep't of Health &
Soc. Servs., 10 P.3d 1156, 1161 (Alaska 2000)) (internal quotation marks omitted).
-7- 6621
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a problem in Sarah's home, featuring prominently in both her marriage to Wilson and her
relationship with Frank. Her failure to acknowledge it magnifies the possibility of its
recurrence. In the domestic violence context, we have held that the mere witnessing of
domestic violence is damaging to children.10 Because of this, we have found that domestic
violence in the home, even if not committed against the children, poses a high risk of
mental injury.11 OCS presented extensive testimony on the emotional and mental effects
of domestic violence on children. It is abundantly clear that domestic violence poses a
significant risk to children who are present in the home.
Further, there was evidence not only that the children were at risk of harm,
but that they had actually suffered harm. Sarah's own testimony indicated that the children
suffered from PTSD and required intensive therapy. Testimony from OCS staff
throughout the hearings highlighted the children's struggles in OCS custody, indicating
the damage caused by their exposure to violence in the home.
Both Sarah's tendency to enter violent relationships and that those
relationships create a risk of mental injury to her children are supported by the record. We
affirm the superior court's findings on these grounds.
B. Because We Affirm The Superior Court's Finding That The Children
Were In Need Of Aid Under AS 47.10.011(8)(B)(ii) We Do Not Reach
Sarah's Other Claims Of Error.
10 See A.H., 10 P.3d at 1161-62 (citing In re J.A., 962 P.2d 173, 178 (Alaska
1998)). ("[W]e have recognized that because witnessing domestic violence has a
'devastating impact' on children, domestic violence need not be directed toward the child
or signify a significant risk of physical harm to a child to support a CINA finding.").
11 See, e.g., Winston J. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 134 P.3d 343, 348 (Alaska 2006) (upholding a superior court finding
that children were at substantial risk of mental injury from a father who committed
domestic violence against their mother before they were born).
-8- 6621
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Sarah additionally challenges the superior court's determination that her
children were children in need of aid under AS 47.10.011(10) and (11) and that Wes and
Marco were in need of aid under subsections (4) and (6). Because only one statutory basis
is required for a CINA finding, we do not need to address the superior court's other CINA
findings.12
We note, however, that we are puzzled by the superior court's reference to
"journal entries" used to support the court's finding that the children were in need of aid
under AS 47.10.011(10). Our review of the exhibit does not lead to the same conclusion.
First, the handwritten entries appear to be Sarah's letters defending her husband, Wilson,
from an assault charge rather than journal entries. Second, the entries do not contain any
indication of substance abuse; the only entry involving alcohol merely mentions going to
a bar. Instead the letters detail the writer's struggle with mental illness, violent mood
swings, and problems adjusting to and obtaining proper medication. A further review of
the record indicates that 46 additional handwritten pages were offered but were ultimately
withdrawn. We are concerned that the superior court may have relied upon evidence that
was not admitted, or that the exhibits were misnumbered, indicating a problem maintaining
a proper record for review. Nonetheless, testimony by Wilson was credited by the court
and provided ample support for the superior court's finding that the children were in need
of aid under AS 47.10.011(10) (substance abuse).
V. CONCLUSION
Because the superior court did not err in finding that Sarah's extensive
history of abusive relationships was likely to result in harm to the children we AFFIRM
12 AS 47.10.011; Jon S. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 212 P.3d 756, 762 (Alaska 2009) (citing G.C. v. State, Dep't of Health
& Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 651 (Alaska 2003)).
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the superior court's finding that Marco, Wes, Dustin, and Skyla are children in need of aid
under AS 47.10.011(8)(B)(ii).
-10- 6621
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