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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Judith R. v. Dept. of Health & Social Services, Office of Children's Services (12/7/2012) sp-6730
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
JUDITH R., )
) Supreme Court No. S-14693
Appellant, )
) Superior Court No. 3AN-09-00092 CN
v. )
) OPINION
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 6730 - December 7, 2012
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Appellant. Megan R. Webb, Assistant Attorney General,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Appellee. Stephanie Pawlowski, Assistant Public
Advocate, and Richard Allen, Public Advocate, Anchorage,
for Guardian ad Litem.
Before: Fabe, Chief Justice, Carpeneti and Stowers, Justices.
[Winfree, Justice, not participating.]
STOWERS, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
Judith R. challenges the superior court's order terminating her parental
rights to her son, Dexter.1 The court terminated her rights based on her longstanding,
unremedied mental illness. In its ruling on the record, the court, sua sponte, directed the
parties to consult with Dexter's therapist about the advisability of allowing continued
contact between Judith and Dexter following termination of Judith's parental rights, but
the court's written order made no mention of post-termination contact. On appeal, Judith
challenges the superior court's finding that termination of her parental rights was in
Dexter's best interests and the court's failure to issue a "detailed order regarding post-
termination visitation." Because the court's best interests finding was supported by
substantial evidence and because the court was not required to address post-termination
contact in its termination order, we affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
A. Judith
Judith suffers from serious mental health issues that, since 2005, have
resulted in Dexter repeatedly being removed from her custody and, ultimately, resulted
in termination of her parental rights. Judith does not contest the superior court's findings
that her mental illness and emotional disturbance are unremedied and will almost surely
continue, that she is unable or unwilling to consistently take medication that has been
prescribed to treat her condition, that OCS made active reunification efforts to help her
remedy her condition, or that her condition has harmed Dexter and placed him at an
ongoing substantial risk of harm. We need not, therefore, discuss Judith's mental health
issues or history in detail. But we provide a summary of Judith's condition and examples
1 Pseudonyms are used throughout to protect the privacy of the parties.
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of her conduct in order to give context to our analysis of the superior court's finding that
termination of Judith's parental rights is in Dexter's best interests.
Judith has struggled with mental health, substance abuse, and domestic
violence issues for at least ten years. At various times, she has been diagnosed with
bipolar disorder, major depression, anxiety disorder, psychotic disorder, and
posttraumatic stress disorder, and she has been prescribed a variety of medications,
including antipsychotic and antidepressant medicines. She has an extensive history of
abusing alcohol, amphetamines, methamphetamine, cocaine, and prescription
medications. In the past five years, she has been hospitalized for treatment of mental
health issues or received mental health crisis intervention services no fewer than 11
times, and she has been arrested on numerous occasions. In addition, she refuses to end
a relationship with a man who physically and mentally abuses her, and she does not
appreciate why OCS is concerned about that relationship. Richard Fuller, Ph.D., a
neuropsychologist who evaluated Judith in fall 2011, concluded that she cannot function
independently without monitoring and support by an agency that oversees the
functioning of disabled individuals, and that she will not likely be able to maintain a
stable environment for herself or Dexter at any time in the near future.
Dexter has been removed from Judith's custody four times: in 2005, when
Judith told police officers and OCS that she was not willing to care for him; in 2006,
when she was admitted to a hospital for medical and psychiatric treatment; in 2007, when
she left a mental health crisis facility against medical advice; and in 2009, when she
became suicidal and was unable to care for her son. Since the final removal, Judith has
often exhibited behaviors that are inconsistent with safe parenting. Several examples are
illustrative.
In February 2010, police officers responding to a late-night complaint of
excessive "banging" in Judith's apartment reported that she was acting strangely and
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exhibiting extreme mood changes. Judith told the officers that after she ran out of her
anxiety medication, her doctor told her to take care of her problems "naturally." She
reported that she and her boyfriend, Kirk, had been drinking heavily. The officers issued
Judith and Kirk a disorderly conduct warning. Later that night, police returned to the
apartment where, although Judith was not at home, the door stood open. Judith then
arrived in a taxi, shoeless, and explained that she had been chasing "the love of her life,"
who had run away from her. Officers transported her to Providence Alaska Medical
Center's emergency room, where she told staff that she had been drinking most of the
night because drinking calmed her and helped her cope.
In April 2010, Judith was again transported by police to Providence
following a disturbance. At the time, Judith, who had been drinking, appeared agitated
and confused. She told the officers that she loves police, that she herself was an
undercover police officer, and that she was collecting information about bad people. On
the way to the hospital, she rambled on about the United Nations, selling cars, living in
camps and hotels with an undercover police officer, and her ex-husband's membership
in a satanic cult. Judith told staff at Providence that she did not need her psychotropic
medications and that she had not taken them for a month.
In April 2011, Judith had the court dissolve a restraining order she had
obtained against Kirk, who had twice been arrested for assaulting her, and she resumed
her on-again, off-again relationship with him. She told her social worker that she did not
understand why OCS would be concerned about their relationship.
In November 2011, a police officer discovered Judith, intoxicated and
passed out, on the side of the road. He had difficulty awakening her and then keeping
her awake. She did not know where she was. The officer transported her to Community
Service Patrol for monitoring.
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These are but a few of many examples of such behavior contained in the
record.
B. Dexter
Dexter, who is eight years old, suffered trauma because of Judith's
behaviors while he was in her custody and also suffered as a result of repeatedly cycling
between Judith's and OCS's custody. After his final removal, his condition deteriorated
to the extent that by fall 2011 he had stopped engaging in school, was experiencing
intense anxiety, and was having difficulty socializing. In October of that year, he
reported fearing that his foster mother, his teacher, and his social worker each intended
to hurt or kill him. That same month, he repeatedly physically attacked his foster mother,
who had been his caretaker for two years. As a result of his deteriorating mental
condition, in December 2011 he was admitted to North Star Hospital for "inpatient
psychiatric treatment as a consequence of depressive symptoms, self-injurious behavior,
possible psychotic features, and extreme irritability and aggression." He remained
hospitalized for a month.
David Sperbeck, Ph.D., conducted Dexter's neuropsychological evaluation.
At the termination trial, Dr. Sperbeck described Dexter as being reflective, intelligent,
verbal, and articulate. He testified that Dexter showed no signs of brain injury, but was
"a very anxious, nervous, self-conscious, sensitive little boy who is very vulnerable and
fragile in his emotional functioning." Dr. Sperbeck diagnosed Dexter with dysthymic
disorder ("a chronic, low grade depression"), intermittent explosive disorder ("a very bad
temper in which he will have explosive, unpredictable outbursts out of proportion to the
precipitating events"), generalized anxiety or separation anxiety disorder, and reactive
attachment disorder (which "occurs when a child does not develop a good bond with the
child's parents, a consistent, loving, predictable relationship with a mother and father").
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In addition, Dr. Sperbeck thought that Dexter probably suffered from bipolar disorder,
but the doctor was hesitant to confirm that diagnosis because of Dexter's young age.
Dr. Sperbeck testified that children in general do best in a highly structured,
predictable environment with clear limits and lots of affirmations and opportunities to
be successful, but that Dexter "in particular" needs "a much safer, [more] predictable
environment than most children. He is very anxious, he's very nervous about future
catastrophe befalling him. . . . [H]e needs a very secure, predictable, consistent
environment that has a fixed schedule." Dr. Sperbeck concluded that Dexter was "a very
disturbed little boy," whose hypersensitivity and fragility meant that if he were placed
in a situation that exposed him to active substance abuse, mental instability, and domestic
violence - such as he would likely experience if placed with Judith - he would suffer
"significant emotional damage."
C. Proceedings
In April 2010, OCS petitioned to terminate Judith's parental rights to
Dexter. At the close of the trial, which was held in October and November 2010, the
court stated that termination of Judith's parental rights would be in Dexter's best
interests, but it denied the petition, concluding that OCS had not provided Judith with
sufficient reunification efforts, given the severity of her mental health issues. Dexter
remained in OCS's custody while the agency made additional efforts to help Judith
remedy her issues.
In January 2012, OCS filed a supplemental petition to terminate Judith's
parental rights. The following month, the superior court held another termination trial.
The court found on the record, by clear and convincing evidence, that Judith's mental
illness and serious emotional disturbance rendered Dexter a child in need of aid, that
Judith had not remedied conditions that endangered Dexter, and that OCS's active efforts
at reunification had failed primarily because of Judith's "inability to take advantage of
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what has been offered to her despite the admirable and very detailed and responsive
efforts of OCS since October and November of 2010." The court also found, beyond a
reasonable doubt, that Dexter would suffer serious emotional damage if Judith's custody
of him were to continue. In announcing its decision, the court questioned whether
ongoing, post-termination contact with Judith would be in Dexter's best interests, and
it instructed the parties to explore that matter with Dexter's therapist and report back to
the court in the future.
The court followed its oral ruling with a written order, which, in addition
to restating its oral findings, contained a finding, by a preponderance of the evidence,
that termination of Judith's parental rights was in Dexter's best interests.2 The written
order did not mention post-termination contact between Judith and Dexter.
III. STANDARD OF REVIEW
A trial court's determination that termination of a parent's parental rights
is in a child's best interests is a factual finding that we review for clear error.3 A finding
is clearly erroneous if, after reviewing the record in the light most favorable to the
prevailing party, we are left with a definite and firm conviction that the trial court was
mistaken.4 We decide de novo whether the trial court's findings satisfy the requirements
of the child in need of aid statute.5
2 This finding is required by Alaska Child in Need of Aid Rule 18(c)(3)
before a court may terminate parental rights.
3 Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 254 P.3d 1095, 1104 (Alaska 2011).
4 Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 175 P.3d 1263, 1267 (Alaska 2008).
5 Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
(continued...)
-7- 6730
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IV. DISCUSSION
A. Termination Of Judith's Parental Rights Was In Dexter's Best
Interests.
Alaska Statute 47.10.088(c) requires a court to consider the best interests
of the child in a proceeding involving termination of parental rights under AS 47.10.
CINA Rule 18(c)(3) specifies that a court may only terminate parental rights if it finds
by a preponderance of the evidence that termination is in the child's best interests.
Judith raises two challenges to the superior court's finding that termination
of her parental rights was in Dexter's best interests. First, she claims that the court did
not conduct an adequate best interests analysis as part of its oral ruling, and second, she
claims that the court relied upon insufficient evidence in making its best interests finding
in its written decision.
Judith supports her argument that the trial court erred in its oral ruling by
asserting that the court did not specifically address best interests but that instead it
"implicitly, inappropriately, and only indirectly" addressed the issue by questioning
whether post-termination contact between Judith and Dexter would serve Dexter's
interests. Judith errs in interpreting the court's query about post-termination contact as
an analysis of whether termination of Judith's parental rights was in Dexter's best
interests. The two matters are distinct questions. The trial court's discussion of the
potential for post-termination contact was in no way an analysis of whether Dexter's best
interests would be advanced by termination of Judith's parental rights. That best
interests analysis was not explicitly performed by the court in its oral ruling on the
record, but was performed by the court in its written decision. To the extent that Judith
5(...continued)
Servs., 102 P.3d 932, 935 (Alaska 2004).
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----------------------- Page 9-----------------------
may be arguing that the court erred by including in its written decision a best interests
analysis and finding that it had not made orally, her argument is without merit.6
As to her second argument, Judith concedes that the court's written order
terminating her parental rights contained an explicit best interests finding. In its order,
the court specified that this finding was based on evidence recited at length in the
portions of its decision addressing Dexter's status as a child in need of aid, OCS's active
efforts to reunify the family, and the harm that Dexter would likely suffer if he were
returned to Judith's care. That evidence included Judith's long history of mental
instability and her failure to follow her doctors' treatment advice; her pattern of
repeatedly using OCS as "respite care" for Dexter; her refusal to leave her physically and
mentally abusive boyfriend; the trauma her conduct had caused Dexter; Dr. Fuller's
testimony that Judith will not be able to function independently without monitoring and
support and that she will not be able to maintain a stable environment for herself or
Dexter in the near future; and Dr. Sperbeck's testimony that additional exposure to
substance abuse, mental instability, and domestic violence would cause Dexter to suffer
significant additional emotional damage. The trial court thus found that termination of
Judith's parental rights was in Dexter's best interests, and it explained its finding
sufficiently clearly and explicitly to allow for meaningful appellate review.7
6 See Sandy B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 216 P.3d 1180, 1187-88 (Alaska 2009) (holding that trial court did not err by
following its initial written order terminating parental rights with a second written order
that contained findings required for termination that, while implied in the initial order,
were not explicitly stated in it); K.T.E. v. State , 689 P.2d 472, 477 (Alaska 1984)
("Generally, where inconsistencies exist between a court's written findings and its oral
statements, the written findings control.").
7 See Mapco Express, Inc. v. Faulk, 24 P.3d 531, 537-38 (Alaska 2001).
-9- 6730
----------------------- Page 10-----------------------
Judith argues that the court erred in basing its best interests finding on
evidence that also supported its other findings. She argues that the court should instead
have conducted a best interests analysis independent of "factors . . . required for
adjudication of either CINA status, active efforts or the likelihood of future serious
emotional harm." She asserts that the court should, at a minimum, have taken into
account the "best interests" factors set out in AS 47.10.088(b). This argument is
unpersuasive.
First, the evidence cited by the trial court clearly relates to whether Dexter's
interests lay in terminating his relationship with Judith. Second, while nothing prevents
a trial court from considering the factors listed in AS 47.10.088(b) in making a best
interests determination under AS 47.10.088(c), the factors listed in subsection (b) are
intended specifically to guide a court in determining whether a parent has timely
remedied conduct or conditions that endanger a child. As we have noted, a finding that
termination of parental rights is in a child's best interests requires a more comprehensive
judgment than does determining whether a parent has timely remedied dangerous
conduct or conditions.8
8 Karrie B. ex rel. Reep v. Catherine J. , 181 P.3d 177, 186 (Alaska 2008).
In addition, we note that the evidence cited by the superior court addressed all of the
factors set out in subsection (b). The first factor concerns the likelihood of returning the
child to the parent within a reasonable time based on the child's age or needs. The
superior court cited Dr. Fuller's testimony and report, which explicitly addressed that
matter, to support its finding. The second factor involves the amount of effort Judith
made to remedy the conduct or conditions that placed Dexter in danger. To this end, the
court considered Judith's long and cyclical history of engaging in treatment and then
relapsing, her failure to follow through with mental health treatment and medication
compliance, her failure to comply with her OCS case plan, and her failure to separate
herself from her abusive boyfriend. The third factor, the harm caused to the child, was
addressed by testimony that Judith's actions had caused Dexter to suffer emotional
(continued...)
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----------------------- Page 11-----------------------
Finally, Judith argues that the trial court erred by not addressing additional
factors relating to Dexter's best interests. Specifically, she asserts that the court should
have considered Dexter's recent loss of his long-term foster placement and his current
lack of a permanent placement.9
While trial courts have discretion in determining whether a child's best
interests will be promoted by termination of a parent's rights, a child's placement and
bond with a foster family are factors that trial courts often consider.10 In the present case,
Dexter had lived with the same foster mother for two years and had bonded with her.
OCS had anticipated that, if Dexter were not reunited with Judith, this foster mother
would be his permanent caregiver. Shortly before the second termination trial, however,
the foster mother lost her job and her home, and could no longer provide care for Dexter.
So Dexter was placed with his school counselor, with whom he had a rapport. The
8(...continued)
trauma, and by Dr. Sperbeck's diagnosis of Dexter with numerous mental and emotional
maladies. The fourth factor, the likelihood that Judith's harmful conduct will continue,
was addressed by Dr. Fuller's conclusion that Judith's prospects of being able to parent
Dexter were "poor," and by evidence about the cyclical, recurring nature of Judith's
behaviors. And the final factor, concerning the history of the conduct or conditions
created by Judith, was the subject of all of the evidence referred to by the court.
9 Judith also argues that the trial court should have considered her bond with
Dexter, her willingness to keep working toward reunification, and the fact that her
presence is the only constant element in Dexter's life. But Judith's assertions as to these
matters are not supported by the record.
10 See, e.g., Doe v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 272 P.3d 1014, 1023-24 (Alaska 2012); Barbara P. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1263-64 (Alaska 2010); Karrie
B., 181 P.3d at 184-85; S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family &
Youth Servs., 42 P.3d 1119, 1124-25 (Alaska 2002); M.W. v. State, Dep't of Health &
Soc. Servs., 20 P.3d 1141, 1147 (Alaska 2001); A.H. v. State, Dep't of Health & Soc.
Servs., 10 P.3d 1156, 1166 (Alaska 2000).
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----------------------- Page 12-----------------------
placement is not permanent; no permanent placement had been identified for Dexter by
the time of the trial.
These circumstances would certainly have been proper for the trial court
to have addressed in conducting its best interests analysis. But the court was aware of
the situation, having heard testimony about it and explored it with counsel near the close
of the trial. That the court chose to exclude Dexter's placement situation from its best
interests analysis and instead focus on Judith's conduct and the consequences that
placement with her would have for Dexter indicates the court's belief that, regardless of
Dexter's situation, Judith could not be a functional parent for him, and thus severing her
parental rights to free him for adoption or another permanent placement would be in his
best interests. The court did not err in its analysis.
B. The Superior Court Did Not Err By Not Addressing Post-Termination
Contact In Its Written Termination Decision.
At the close of the termination trial, the superior court speculated, sua
sponte, about whether Dexter's interests would be served by continued contact with
Judith after her rights were terminated. The court directed the parties to explore this
option with Dexter's therapist, and report back to the court. The court specifically
reserved judgment on whether it would order post-termination contact, pending further
proceedings. Judith argues that the court erred by discussing post-termination contact
in its oral ruling but not resolving the matter in its written decision. She asks us to order
the superior court to issue "a detailed order regarding post-termination visitation."
As with questions of placement, questions regarding post-termination
contact between a parent and child are independent of the analysis a court performs in
deciding whether to terminate parental rights.11 In its oral ruling at the close of the
11 Cf. Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family &
(continued...)
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----------------------- Page 13-----------------------
termination trial, the superior court discussed with counsel both Dexter's placement and
post-termination contact. The court was not required to, nor did it, include a ruling on
either placement or post-termination contact as part of its order terminating Judith's
parental rights. The fact that the court informed the parties that it intended to hear
evidence about post-termination contact did not preclude it from finalizing its order
terminating Judith's rights in advance of any proceeding that the court might hold in the
future concerning post-termination contact. The trial court did not err in this matter.
V. CONCLUSION
For the foregoing reasons, the superior court's order terminating Judith's
parental rights to Dexter is AFFIRMED.
11(...continued)
Youth Servs., 79 P.3d 50, 57 (Alaska 2003) (holding that existence of relatives with
whom a child might have been placed "is unrelated to whether [the parent's] parental
rights should have been terminated"); Erica A. v. State, Dep't of Health & Soc. Servs.,
Div. of Family & Youth Servs. , 66 P.3d 1, 10 (Alaska 2003) (holding that superior court
is not required to revisit earlier placement decisions when considering a petition to
terminate parental rights).
-13- 6730
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