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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jamie H. v. State, Dept. of Health & Social Services, Office of Children's Services (10/10/2014) sp-6957

Jamie H. v. State, Dept. of Health & Social Services, Office of Children's Services (10/10/2014) sp-6957

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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JAMIE H.,                                            )  

                                                     )        Supreme Court No. S-15346  

                  Appellant,                         )  

                                                     )        Superior Court No. 3KN-11-00024CN  

         v.                                          )  


STATE OF ALASKA,                                     )        O P I N I O N  

DEPARTMENT OF HEALTH &                               )  

SOCIAL SERVICES, OFFICE OF                           )        No. 6957 - October 10, 2014  

CHILDREN'S SERVICES,                                 )  


                  Appellee.                          )  

_______________________________  )  

                  Appeal from the Superior Court of the State of Alaska, Third  

                  Judicial District, Kenai, Anna Moran, Judge.  

                  Appearances:  Megan Webb, Assistant Public Defender, and  


                  Quinlan Steiner, Public Defender, Anchorage, for Appellant.  


                  Janell M. Hafner,  Assistant Attorney General, Anchorage,  


                  and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  


                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                  Bolger, Justices.  

                  BOLGER, Justice.  

----------------------- Page 2-----------------------

I.            INTRODUCTION


                           Jamie and Anna are the parents of Ian, a young teenager.   The Office of  

Children's Services (OCS) sought termination of Jamie's, but not Anna's, parental rights   

to Ian.  In closing argument, Jamie asserted that termination of his parental rights was not                                                          

in Ian's best interests because OCS had not identified any permanent placement.  But the                                                   

superior court did not specifically address this issue in its findings when it ordered the                  

termination of Jamie's parental rights.  Jamie appeals, arguing that the termination should  


be vacated because the decision does not clearly state that termination of Jamie's parental  


rights was for purposes of freeing Ian for adoption or other permanent placement.  But  


we conclude that the superior court did not err when it found that termination was in  

Ian's best interests.  


              A.           The Family  


                           Jamie and Anna were a couple for many years.   They both have mental  

health  issues,  addiction  issues,  and  extensive  criminal  histories.    Jamie  began  using  


marijuana when he was 12 years old, after he was seriously injured in a car accident, and  


by age 13, he was using methamphetamine.  Anna's uncle sexually abused her, starting  


when she was six years old, and her mother and grandmother were aware of the abuse  


but did nothing to stop it.  At age 16, Anna had a baby, whom she eventually gave up for  

adoption.  Soon after that, Anna began using methamphetamine.  


                           Jamie and Anna had two other children when they lived in Oklahoma, but  


those children have always lived with Jamie's mother and step-brother and were not  


parties to these proceedings. Before Anna became pregnant with Ian (born in 2000), and  

              1            We use pseudonyms to protect the parties' privacy.  

                                                                                     -2-                                                                                     6957  

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during       the    first    six     months       of    her     pregnancy,         both      parents       regularly       used  


methamphetamine.  They stopped using when they realized Anna was pregnant, but after  

Ian's  birth  they  went  back  to  abusing  drugs  and  alcohol,  with  periods  of  sobriety.  


Although Ian lived with his parents during his early years, by the time he was four, he  


and his two non-party siblings were living with Ian's grandmother in Oklahoma while  


his parents lived elsewhere.  According to Jamie, Ian was exposed to domestic violence  

by Jamie's brother during that time.  


                    Jamie, Anna, and Ian moved to Alaska in 2004. Once in Alaska, Jamie and  

Anna had three more children; Kirsty was born in 2006, James was born in 2008, and  

Jon was born in 2010.  The couple's relationship was chaotic and physically abusive, and  


apparently they were separated at the time of trial.  All four children have special needs.  

          B.        OCS's Involvement With The Family  


                    The  family's  first  encounter  with  OCS  was  in  2006,  when  the  agency  


investigated a report of harm claiming that the family's pet pit bull bit Ian's face.  The  


doctor who evaluated Ian determined that he suffered from attention deficit hyperactivity  

disorder with complex emotional trauma, and probable chronic post-traumatic stress  

disorder relative to a disruptive chaotic home environment and exposure to domestic  


violence and drug and alcohol use.  The doctor also noted that Ian had probable brain  


damage and recommended more assessments and medication.  Ian's mental illness and  


behavioral issues were compounded by his lack of care at home.  At age six, Ian had to  


feed himself, routinely stayed up until 2:00 in the morning, had to get himself up and off  

to school, and often left for school on an empty stomach.  

                    OCS initiated a plan to help Ian's parents manage his aggressive behavior.  

To  assist  in  parenting  education,  a  family  support  agent  with  Kenai  Peninsula  


Community Care Center met with the parents twice a week for eight months.  According  

                                                               -3-                                                         6957

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to the agent, Anna was relatively engaged, but Jamie showed little interest in parenting  

and  rarely  participated.    The  agent  eventually  discharged  the  family  from  in-home  


services because they had missed several meetings in a row  and neither parent  had  

followed through with a structured routine or adequate supervision for Ian.  


                       OCS was not significantly involved with the family again until June 2011,  


when police called OCS to report that Anna was suicidal; Anna had called friends and  


told them she was planning to leave James and Jon in the car while she walked into the  



forest to kill herself.   At that time, Ian and Kirsty were at home alone, and Jamie was in  

jail because of a domestic incident involving a firearm.  An OCS worker went to the  

home  and  discovered  that  the  children  were  very  hungry,  five-year-old  Kirsty  was  


wearing nothing but a diaper, and ten-year-old Ian was hoarding an empty peanut butter  


container.  There was plenty of food for the pit bulls in the yard, but no nutritious food  


for the children.  Ian and Kirsty were placed in one emergency foster home, and James  

                                                    2   Prins filed an Emergency Petition for Adjudication of  


and Jon were placed in another.  

Children in Need of Aid and for Temporary Custody, asserting that the children were in  


need of aid under AS 47.10.011(2), (8), (9), and (11).3  


           2          Ultimately, Kirsty was moved to live in the same foster home as James and     


           3          AS 47.10.011 provides in pertinent part that the superior 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: (2) a parent being incarcerated, (8) conduct or conditions  

created by the parent that have resulted in mental injury to the child or placed the child  


at  substantial  risk  of  mental  injury  as  a  result  of  a  pattern  of  the  parent's  behavior,  

(9) parental neglect, or (11) parental mental illness or serious emotional disturbance that  


places the child at substantial risk of harm.  

                                                                      -4-                                                               6957

----------------------- Page 5-----------------------

          C.        Ian's Situation  

                    Since Ian's removal from the family residence, he has lived in several long- 


term residential treatment facilities.  At the time of trial, Ian was at Family Centered  


Services of Alaska, a therapeutic foster home, where his stay was indefinite.  According  


to  OCS,  Ian  was  diagnosed  with  dysexecutive  syndrome,  a  cognitive  disorder;  


oppositional defiant disorder; and mood disorder. In therapy, Ian would share that he  


missed his mother, and he often looked forward to family sessions with her, but he rarely  

mentioned his father and did not ask to see him.  In fact, because of Ian's emotional  


instability and his statements that he never wanted to see his father again, visitation with  


Jamie has not been deemed therapeutically appropriate.  Since Ian was taken into OCS  


custody in June 2011 he has had little or no contact with his father but has had some  

successful visits with his mother.  

          D.        The Superior Court's Findings  


                    In December 2012 OCS filed a petition to terminate Jamie's parental rights  


to all four children and Anna's rights to the three younger children only.  Before trial,  

Anna   relinquished   her   parental   rights   to   the   three   younger   children   with   the  


understanding  that  if  the  court  did  not  terminate  Jamie's  parental  rights,  she  could  

withdraw her relinquishment.  As a result, neither party presented evidence regarding  

Anna's conduct.  

                    In  support  of  its  petition,  OCS  presented  evidence  regarding  Jamie's  


personality disorders, substance abuse, criminal history, and failure to conform to social  


norms.  OCS also presented testimony that Ian's behavior and trauma were attributed to  


Jamie,  as  well  as  testimony  about  Ian's  mental  health  issues  and  need  for  security,  

stability, and permanence.  OCS representatives testified that they were looking into a  


family placement for Ian with Jamie's aunt in Oklahoma, if and when Ian is discharged  

                                                               -5-                                                         6957

----------------------- Page 6-----------------------


from the foster home.  Alternatively, OCS would try to find an adoptive placement for  


Ian.  OCS did not seek to terminate Anna's parental rights to Ian, with the hope that she  


"might  be  able  to  parent  [Ian]  with  enough  wrap  around  supports,  but  if  not  she  is  

instrumental in [Ian's] therapy and recovery."  


                    The superior court found that Ian was a child in need of aid pursuant to  


AS 47.10.011(8) in part because  of Jamie's conduct, and that Jamie had not timely  

remedied his conduct; he failed to comply with the family preservation program, his  

participation in services with that agency was "virtually nonexistent," and he had not  

remedied  the  conditions  identified  in  2006  (exposure  to  domestic  violence)  which  

traumatized Ian.  


                    In September 2013 the superior court issued an order terminating Jamie's  

                               4  The court remarked that Jamie had missed the opportunity to help  

parental rights to Ian.                                                                                

Ian after Ian was diagnosed with complex emotional trauma and possible PTSD; instead  


                    [Jamie] destroyed his relationship with [Ian] to such an extent  


                    that [Ian] wants nothing to do with his father and refuses to  


                    talk about him.  It does not appear [Jamie] can remedy this  


                    situation  in  a  reasonable  time.  .  .  .  Moreover,  [Jamie]  has  

                    done very little on his current case plan.  No reason exists to  


                    believe   [Jamie]   will   remedy   these   conditions   within   a  


                    reasonable time, and [Ian] needs permanence.  

The  court  found  that  OCS  engaged  in  reasonable  efforts  to  provide  family  support  


services, and that termination of Jamie's parental rights was in Ian's best interests.  Jamie  


          4         The court declined to terminate Jamie's parental rights to the other three  

children because OCS did not present sufficient evidence linking the mental injuries  


suffered by the other children to Jamie's conduct.  Because the court did not terminate  


Jamie's parental rights to the other children, the court permitted Anna to withdraw her  

relinquishment of parental rights to them.  

                                                               -6-                                                         6957

----------------------- Page 7-----------------------

appeals, but he does not dispute that the evidence presented at trial supports the court's  




                    The superior court's determination that termination of parental rights is in  



a child's best interests is a factual finding that we review for clear error.   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 superior court  


                      6  We decide de novo whether the superior court's findings satisfy the  

was mistaken.  


requirements  of  the  child  in  need  of  aid  statutes,7  bearing  in  mind  at  all  times  that  


terminating parental rights is a drastic measure.8  



                    The  rights  and  responsibilities  of  a  parent  regarding  a  child  may  be  


terminated for purposes of freeing the child for adoption or other permanent placement.9  


Jamie argues that termination of his parental rights to Ian was improper because there  

was no specific permanency plan for Ian and no intention of terminating Anna's parental  


rights, even if Ian remains in therapeutic foster care. In support, Jamie cites A.B. v. State,  


          5         Judith  R.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  

Servs., 289 P.3d 896, 900 (Alaska 2012) (citing Christina J. v. State, Dep't of Health &  


Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1104 (Alaska 2011)).  

          6         Id.  (citing  Maisy  W.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Office  of  


Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008)).  

          7         Id. (citing  Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family  

& Youth Servs., 102 P.3d 932, 935 (Alaska 2004)).  

          8         Christina J., 254 P.3d at 1104 (quotations and citation omitted).  

          9         AS 47.10.088(a).  

                                                               -7-                                                         6957

----------------------- Page 8-----------------------



Department of Health & Social Services ,   wherein we held that when circumstances  


create  a  risk  of the  child  becoming  a  "half-orphan,"  thereby  depriving  the  child  of  


potential financial support and inheritance rights, the superior court must determine  

whether  termination  was  for  the  purpose  of  freeing  the  child  for  adoption  or  other  

permanent placement and if not, then the court should decline to terminate parental  


                     OCS argues that Jamie did not raise this argument before the superior court  

and thus cannot raise it now.  We disagree.  We have previously held:  


                    Arguments are considered on appeal if raised explicitly in the  


                     superior court, or if the issue is "1) not dependent on any new  

                     or controverted facts; 2) closely related to the appellant's trial  


                     court arguments; and 3) could have been gleaned from the  


                    pleadings," or if failure to address the issue would propagate  


                     "plain error."  


We conclude that Jamie preserved this issue for appeal when he asserted in his closing  


argument that termination of his parental rights was not in Ian's best interests because  

OCS had not identified any permanent placement.  


                    It is permissible to terminate one parent's rights without legally changing  


the relationship of the children to the other parent, so long as the statutory requirements  


for termination are met and the superior court makes findings that the goal of terminating  



the parent's rights is to free the children for adoption or other permanent placement. 

          10         7 P.3d 946, 954-55 (Alaska 2000).  

          11        Sea Lion Corp. v. Air Logistics of Alaska, Inc.                       , 787 P.2d 109, 115 (Alaska  

 1990) (quoting State v. Nw. Constr., Inc., 741 P.2d 235, 239 (Alaska 1987)).  

          12        AS 47.10.088(h) ("The rights of one parent may be terminated without  


                                                                -8-                                                         6957

----------------------- Page 9-----------------------

While difficulty finding permanent placement because of a child's severe behavioral  



problems does not prevent termination,                          a court may terminate parental rights only if it  



finds by a preponderance of the evidence that termination is in the child's best interests. 


                     Although OCS stated in its petition that termination of Jamie's parental  


rights was for the purpose of freeing Ian for a permanent placement, the location of that  


                                         However, at the time of trial, Ian was not in Anna's care or  

placement was unclear. 


custody, and his stay in the therapeutic foster home was indefinite.  Therefore, A.B. does  


not apply - A.B. applies only if the child is still in the custody of the "non-offending"  



parent.        Moreover, it is unlikely that OCS ever will place Ian permanently with Anna,  


affecting the rights of the other parent."); see also K.B. v. State, Dep't of Health & Soc.  


Servs., Div. of Family & Youth Servs., Mem. Op. & J. No. 1034, 2001 WL 34818265, at  


*2 (Alaska July 18, 2001).  



                     See S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  


Servs., 42 P.3d 1119, 1124-25 (Alaska 2002); see also Louise A. v. State, Div. of Family  


& Youth Servs., Mem. Op. & J. No. 1162, 2004 WL 541373, at *3 (Alaska Mar. 17,  


2004) ("Freeing a child for the possibility of a permanent, stable home is sufficient; there  

need not actually be an adoptive home at the time of termination.").  

          14         Child in Need of Aid Rule 18(c)(3).  



                     The issue is further complicated by the fact that the court did not terminate  


Jamie's parental rights to the other three children.  Jamie argues that, since he still has  


parental rights to the younger three children, there are continued efforts to create stability  


in  the  home,  and  therefore,  continued  reunification  efforts  could  result  in  further  


stabilization for all four children.  Given Ian's unique disabilities and  therapeutic needs,  

combined with Jamie's history of parenting Ian, we disagree.  

          16         S.H., 42 P.3d at 1125 ("A.B. stands for the proposition that the risk of a  


child being 'half-orphaned' should be considered in the best interests analysis where  


                                                                 -9-                                                          6957

----------------------- Page 10-----------------------

given her parenting history and Jamie's continuing co-parenting of the younger three  


                    OCS presented substantial undisputed evidence that termination of Jamie's  


parental rights was needed to protect Ian from his father; Jamie was an unfit parent and  


 caused serious harm to Ian, such that Ian's health and safety were at risk, while Anna's  


 continued involvement could benefit Ian's therapeutic plan, and terminating her rights  


                                                                 Therefore the superior court did not clearly  

 could be psychologically harmful to Ian. 

 err in finding that termination of Jamie's parental rights was in Ian's best interests.  


 [OCS] seeks to terminate only one parent's rights and the child will remain in the other  


parent's custody. " (emphasis added)); see also Patience P. v. State, Dep't of Health &  


Soc. Servs., Office of Children's Servs., Mem. Op. & J. No. 1417, 2102 WL 1232605,  

 at  *5  (Alaska  Apr.  11,  2012)  (stating  that  "[t]he  decision  in A.B.  was  subsequently  


limited to the specific facts of that case"); cf. K.B., 2001 WL 34818265, at *2-3 (holding  


that, where permanency plan kept children in mother's physical custody, superior court  


 did not abuse its discretion when it found that father's parental rights were terminated  


to free children for permanent placement and that termination was in children's best  


interests);  Victor B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  


Mem. Op. & J. No. 1399, 2011 WL 6004329, at *3-7 (Alaska Nov. 30, 2011) (upholding  


 superior court's finding that father failed to remedy domestic violence issues and that  


 continued custody would not be in the children's best interests, and concluding that  


termination  of  father's  parental  rights  freed  children  for  permanent  placement  with  



           17       See K.B., 2001 WL 34818265,  at *3 (upholding termination where superior  


 court found that, where the children had lived in a "violent, frightening, dangerous,  


 erratic environment" their entire lives, termination of the father's rights and permanent  

placement with mother would be an improvement that would serve the children's safety  

 and, thus, was in their best interests).  

                                                              -10-                                                         6957

----------------------- Page 11-----------------------


              For  the  foregoing  reasons,  we  AFFIRM  the  superior  court's  judgment  

terminating Jamie's parental rights to Ian.  

                                           -11-                                     6957

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