Opinion
Supreme Court No. S-11662.
August 10, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge, Superior Court No. 3PA-01-00125 CP.
Ann DeArmond, Sterling DeArmond, P.C., Wasilla, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage, and David W. Marquez, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Clinton R. Sr., father to minor child Clint Jr., and stepfather to minor child Zeke, appeals the termination of his parental rights. Clinton challenges the superior court's findings that Clint was a child in need of aid due to abandonment, that Clinton failed to remedy the conduct that rendered Clint a child in need of aid, and that termination of Clinton's parental rights was in Clint's best interests. Although Clinton has made some efforts to comply with the case plan designed by the Office of Children's Services (OCS), his frequent disappearances from Clint's life, his inability to control his use of alcohol, and his failure to end his abusive relationship with the boys' mother, Amanda R., have caused stress and instability in the children's lives. Because the record supports the findings of the superior court, we affirm the superior court's termination of parental rights.
II. FACTS AND PROCEEDINGS
A. Factual History
Clinton R. Sr. is the biological father of Clint R., who was born on March 22, 2000. Amanda R. is Clint's mother. Amanda did not appeal OCS's termination of her parental rights to Clint or to Zeke, her child by another father. Although Clinton is not Zeke's biological father, Zeke has thought of Clinton as his father since he was a toddler. Zeke was ten months old when Clinton and Amanda first became involved in 1998. Clinton and Amanda married in July 2000, several months after Clint was born.
Pseudonyms have been used throughout this opinion to protect the identity of the parties.
Randy P., Zeke's biological father, was a party to the trial court proceeding but has filed a separate appeal challenging termination of his parental rights to Zeke. See R.P. v. State, OCS, S-11654. Randy is currently imprisoned in Washington state; his anticipated release date is 2023.
Although OCS only seeks to terminate Clinton's parental rights to Clint, Clinton's relationship to Zeke is relevant because OCS hopes to find a permanent home that will permit Zeke and Clint to remain together.
OCS first became involved with the family in May 2001, when it received a report that Amanda had been arrested for assaulting Clinton and for slashing a car tire when Clinton tried to leave. Clint was present at the time of the arrest, and it was noted that Amanda had been drinking. Amanda and Clinton separated soon after this incident. Amanda retained physical custody of the two boys, but Clinton visited often. In September 2001 OCS received a second report that Amanda had requested Clinton to pick up the boys from day care and did not return for three days. This apparently occurred after a second domestic violence episode where Clinton alleged Amanda injured him. In November 2001 a third report was filed with OCS that detailed drug activity in the home and discovery of a box of cocaine in a house cupboard.
Sometime prior to OCS's decision to take custody of the children, Clinton removed the boys from Amanda's home, but he returned the boys to Amanda because he thought she was not using drugs anymore. OCS decided to assume emergency custody of Clint and Zeke in December 2001, following Amanda's involvement in a bar fight. OCS was also concerned that Clinton could not protect himself or the children from Amanda. At the time OCS assumed emergency custody, Zeke was four and Clint was almost two. The children were placed with their maternal grandmother and step-grandfather.
Visitation between the children and Clinton was relatively consistent from January through August 2002. Clinton would usually visit once a week — most often on Sunday and occasionally on an additional evening during the week. But Clinton's relationship with the children's grandparents began to deteriorate, and there were several periods in the fall of 2002 and summer of 2003 when Clinton was late for or slept through his visits. Clinton acknowledged at trial that he did not exercise as much visitation as he should have and recognized that his visits were inconsistent.
The department arranged for counseling for Zeke in February 2002 when he began having anger outbursts and tantrums. Clint was referred to counseling in July 2003 when he began experiencing problems with sleep, anger, and other adjustment issues. Clint and Zeke both met with their counselors about once a week. Both boys began to improve significantly in 2004, attributed largely to a cessation of home visits with Clinton and an increase in the stability of their home life.
Five case plans were developed for Clinton. The case plans that were developed on March 22, 2002, June 18, 2002, and December 17, 2002 focused on Clinton's need to abstain from drugs and alcohol, undergo substance abuse treatment, submit to random urinalysis, and enroll in parenting classes and an anger management/domestic violence program. His fourth case plan, developed on June 25, 2003, reflected that Clinton had made some progress by completing a substance abuse treatment program and three quarters of the Family Violence Intervention Program, but also noted that Clinton did not initially agree to urinalysis. Clinton eventually agreed to undergo random urinalysis but only participated sporadically — and many of his results were reported to be diluted or dirty.
Some progress was also noted in Clinton's fifth case plan, which was developed on August 4, 2003. But OCS noted several problems in Clinton's performance of the plan's requirements. On October 28, 2003, OCS filed a report to the court that detailed a range of concerns about Clinton's treatment and case plan progress, including the lengthy period that it took Clinton to complete a ten-month batterer's course; Clinton's failure to schedule regular visits with the children since July; Clinton's failure to call the boys in the entire twenty-two months that they were living with their grandparents; Clinton's development of "a simplistic `buddy' relationship with the boys, instead of taking [on] the parenting role and providing for the children's `day-to-day' needs"; and Clinton's decision to maintain regular contact with Amanda. OCS stated that "the parents continue to make choices that are not in the children's best interest regarding safety and permanency."
Clinton's last contact with the boys occurred during the first week of January 2004. On January 16, 2004, Clinton was arrested for his third DUI and for refusal to take a breathalyzer test. At the time of the arrest, Clinton conceded that he had too much to drink. The officer also reported seeing an open bottle of beer in Clinton's front seat. Clinton chose not to inform OCS of the arrest, and he made no attempt to contact OCS to determine what additional treatment he might be required to undergo. OCS made multiple attempts to contact Clinton by telephone, and after he failed to respond, it decided to terminate visitation with the boys on April 8, 2004. OCS maintains that Clinton's untreated substance abuse, related criminal charge, and demonstrated inability to make a change in his life have impacted the lives of the children dramatically and points to the children's therapists' concern that "the children have been hurt by their parent's abandonment."
Clinton pled no contest to the DUI charge on April 19, 2004. He was placed on an ankle monitor and was required to use a Sobrietor and participate in random urinalysis. On June 15, 2004, Clinton was diagnosed as suffering from alcohol abuse, and it was recommended that he undergo a third course of treatment for substance abuse. Clinton had scheduled, but not yet begun, substance abuse treatment at the time of the termination trial.
A Sobrietor is an alcohol monitoring device that periodically measures a person's breath alcohol content and reports it electronically.
B. Procedural History
Clint and Zeke were taken into emergency custody on December 6, 2001. An emergency petition for adjudication of children in need of aid was filed on December 10, 2001 and an order temporarily committing the children to state custody was entered on December 28, 2001. Clinton stipulated that the children were in need of aid and stipulated to adjudication in April 2002. On August 30, 2002, Superior Court Judge Eric Smith committed the children to the custody of OCS for two years.
A petition to terminate parental rights was filed by OCS on April 23, 2003. After almost a year of continuances that were sought in part to permit Clinton additional opportunities to remedy his conduct, a four-day trial was held before Superior Court Judge Eric Smith on June 21-24, 2004. The superior court heard testimony from three social workers, two counselors, and a psychologist. It found that Clint was a child in need of aid under AS 47.10.011(8) (domestic violence), (10) (substance abuse), and (1) (abandonment) and that Clinton had failed to remedy the conduct that caused Clint to be a child in need of aid. The superior court also found that termination of Clinton's parental rights was in Clint's best interests. Clinton appeals.
The petition also sought to terminate Amanda and Randy's parental rights.
AS 47.10.011(8) permits a trial court to 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 "conduct or conditions created by the parent" that have resulted in either mental injury to the child or have placed the child at substantial risk of mental injury as a result of exposure to criminal behavior as enumerated under the statute. This criminal behavior includes crimes committed against another household member, including assault.
AS 47.10.011(10) permits a trial court to find a child to be a child in need of aid, if it finds by a preponderance of the evidence that the parent's "ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child." It also explains that "the resumption of use of an intoxicant by a parent . . . within one year after rehabilitation is prima facie evidence that the ability to parent is substantially impaired and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child. . . ."
AS 47.10.011(1) permits a trial court to find a child to be a child in need of aid, if it finds by a preponderance of the evidence that a parent "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 a child in need of aid under this chapter."
AS 47.10.013(a) states a trial court "may find abandonment of a child if a parent . . . has shown a conscious disregard of parental responsibilities toward the child by failing to provide reasonable support, maintain regular contact, or provide normal supervision. . . ." Under the statute, abandonment may also be found where the parent "has made only minimal efforts to support and communicate with the child" or has "failed to participate in a suitable plan or program designed to reunite the parent or guardian with the child." See AS 47.10.013(a)(2) (4).
III. DISCUSSION
Termination of parental rights requires the superior court to make four findings, in accordance with the child in need of aid (CINA) rules and statutes. A trial court must: (1) find by clear and convincing evidence that the child is in need of aid as articulated in AS 47.10.011; (2) find by clear and convincing evidence that the parent has not remedied the conduct that placed the child at risk within a reasonable time; (3) find by a preponderance of evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts to prevent the breakup of the family; and (4) find by a preponderance of evidence that termination of parental rights is in the best interests of the children.
AS 47.10.088(a)(1)(A); CINA Rule 18(c)(1)(A).
AS 47.10.088(a)(1)(B); CINA Rule 18(c)(1)(A)(i) (ii).
AS 47.10.088(a)(2); CINA Rule 18(c)(2)(A).
AS 47.10.088(c) (d)(3); CINA Rule 18(c)(2)(C).
In this case, Clinton challenges the superior court's findings that Clint is a child in need of aid due to abandonment; that Clinton failed to remedy his conduct; and that termination of Clinton's parental rights was in Clint's best interests. He also disputes the superior court's finding that he has no legally cognizable relationship to Zeke.
A. Standards of Review
In a child in need of aid proceeding, we will affirm the superior court's factual findings unless they are clearly erroneous. Factual findings are clearly erroneous if this court is left "with a definite and firm conviction that a mistake has been made." Whether the superior court's findings comport with the requirements of the CINA statutes is a question of law that this court reviews de novo.
Brynna B. v. State, Dep't of Health Soc. Servs., 88 P.3d 527, 529 (Alaska 2004).
A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000) (citation omitted).
Id.
B. The Superior Court Did Not Err in Determining that Clinton Failed To Remedy the Conditions that Caused the Children To Be in Need of Aid.
Clinton contends that the evidence does not support the superior court's finding by clear and convincing evidence that Clinton failed to timely remedy his conduct. Clinton claims that he followed through with his case plan and "did not consciously disregard his responsibilities towards the children, but rather he became daunted by the seeming impossibility of ever satisfying the Department." Clinton maintains that any failure to follow his case plans is "reasonable and justifiable" due to his incarceration and placement with a third-party custodian, his change in attorneys, or his "extremely distasteful" dealings with the children's maternal grandmother. Clinton also argues that he "put an enormous amount of effort into following his plans" and because he was only "one step away from obtaining the boys" he should be permitted additional time to demonstrate ongoing sobriety.
The superior court recognized that this is a close case and explained that "[m]any of [Clinton's] actions, standing alone, would not support a finding that [he] has failed to take the necessary corrective actions." But the trial court concluded that Clinton's actions, "taken together, especially in light of [his] . . . many delays, lapses, and failures to maintain regular visitation with the children[,] indicate that he has not remedied his conduct within a reasonable period of time." The superior court found it particularly significant that Clinton "cut off all contact with the Department and his children after his DUI arrest in January 2004." The superior court also recognized that Clinton had been given an opportunity to change his behavior since his first case plan was developed in March 2002. Although the superior court considered Clinton's testimony that "he has learned his lesson," the court noted that "given the series of mistakes and lapses by [Clinton], it is going to be necessary to essentially `start over,' which means that reunification would have to wait many more months while [Clinton] completed treatment and established a sufficient period of demonstrated sobriety." The superior court therefore concluded that "the time . . . simply has run out" for Clinton to remedy his conduct.
As the State points out, between the time the children first entered state custody and the termination trial, Clinton has regressed, rather than remedied his conduct. If alcoholism were the only relevant issue in this case, then perhaps the superior court's finding would be harder to support. But Clinton has demonstrated only sporadic, inconsistent visitation with the children throughout the time they have lived with the maternal grandparents. And in addition to his failure to remedy his alcohol abuse issues, the superior court recognized that Clinton "failed to take the steps necessary to find the children proper housing; and he declined to participate in the needed counseling and in school activities." While we agree with the superior court that this is a close case, there is sufficient evidence to support the superior court's conclusion that Clinton failed to remedy the conditions that led to a finding that Clint is a child in need of aid.
See Rick P. v. State, OCS, 109 P.3d 950, 956 (Alaska 2005) (emphasizing that the crucial question in analyzing failure to remedy is whether parent had succeeded at changing his behavior; attendance at various counseling sessions was not enough).
C. The Superior Court Did Not Err in Determining that Termination of the Father's Parental Rights Is in the Best Interests of the Children.
Clinton also maintains that the best interests of Zeke and Clint are not served by termination of his parental rights. In making its best interests findings, the trial court recognized that "[Clinton] has shown in the past that he can comply with his case plan, but he has been inconsistent, and he completely dropped out after the 2004 DUI arrest." The superior court found, based on the testimony of the children's therapists and their current guardians, the maternal grandparents, that "it has been very damaging for the children to have [Clinton] commit to a visit, only to renege. It would be adverse to the children's best interests to place them in a situation where they may get their hopes up, only to have [Clinton] again fall short." Clinton counters that the boys' best interests will not be served by placing them with "total strangers," and that any discipline problems or difficulties the boys are experiencing can be attributed to Amanda or to the boys' removal from the family home, not to Clinton's behavior.
The superior court's extensive findings on this issue are supported by the evidence. The trial court appropriately considered Clinton's inconsistent behavior and failure to follow through on his case plan, noting that "given Clinton's failure to place the children as a priority, or to timely follow through with his case plan, the chances of the children obtaining the required stability and consistency are better with an appropriate adoptive placement rather than waiting for him to establish an appropriate environment." There was also considerable evidence from both Clint and Zeke's therapists that the boys began to improve when Clinton was not participating in their lives. Clint's therapist, Tamara Stadem, noted that Clint's behavior was more aggressive and more emotional when Clinton was participating regularly in visitation. She testified that Clint would talk to her about "being sort of let down when . . . visits weren't followed through" and he would mention "some of the different issues that had occurred during the visitations that were upsetting to him." She explained that there was "more emotional turmoil occurring during the visits . . . [a]nd then once the visits were terminated and he wasn't seeing his father or talking to him, that all just sort of stopped." Stadem also testified about how important it was for Clint to have "stability and consistency" and "parents or primary caregivers that are . . . involved in his day-to-day life, so that he has routine structure."
Zeke's therapist, Marlin Bozone, also noted the instability in Zeke's life that was caused by Clinton's failure to follow through with visitation and attend Zeke's therapy sessions. He testified that Zeke began to see for himself that Clinton's behavior was not going to change and "he was able to state his dislike of his stepfather's offensive language, and was able to state he did not want to go to [his] stepfather's house until it improved." Mr. Bozone has also noted a great improvement in Zeke's behavior since Clinton has played a less active role in his life.
A social worker, Lori D'Amico, testified about the "roller coaster" that Clint and Zeke had experienced and how this inconsistency and lack of stability caused "emotional damage" and "emotional upheaval of not knowing what's happening in their life" throughout this three-year process. She testified that "the biggest thing for the kids is not knowing if their parents were going to be a permanent part of their lives, the back and forth with it." Ms. D'Amico admitted that Clinton had made "substantial progress" and that she "saw potential with [Clinton], and so . . . was trying to work with him." But she questioned whether it was fair to Clint and Zeke to be kept in limbo after both parents had been given multiple chances to improve their behavior: "I don't think it's fair to the kids. They need some permanency in their li[ves]. They need to move forward." She also argued that the department had already given Clinton far longer than is normally permissible: "we are mandated to go at 15 months. We are almost at three years." We conclude there is sufficient evidence to sustain the superior court's finding that the interests of the children would be best served by termination.
Clinton also challenges the superior court's finding that he could not qualify for a foster care license and asserts that the superior court did not adequately address his ability to assume custody of Zeke as a "psychological parent." We conclude that the trial court was correct to surmise that there would be no legal basis for Clinton to obtain custody of Zeke, but also note that this was not the predominant feature of the superior court's analysis. The superior court explained that "this is not, in and of itself, sufficient grounds to terminate [Clinton's] rights to [Clint], it is an important factor in assessing the best interests of the two boys." Because the superior court made extensive findings regarding Clinton's failure to remedy his conduct in a reasonable amount of time and found that the children would be best served if they could be placed in a stable, consistent home environment, we need not reach the issue whether Clinton is a psychological parent.
D. The Superior Court Did Not Err in Determining that Clint Was a Child in Need of Aid.
As a final matter, Clinton challenges the superior court's determination that Clint was a child in need of aid under AS 47.10.011(1) based on Clinton's abandonment of Clint. But, as the State points out, Clinton conceded that Clint was a child in need of aid based on domestic violence and substance abuse, under AS 47.10.011(8) (10). Hence, we need not reach this issue.
See Rick P., 109 P.3d at 955-56 (concluding that it was not error to find abandonment and hence it was unnecessary to consider the challenge to the neglect finding); see also M.J.S. v. State, Dep't of Health Soc. Servs., 39 P.3d 1123, 1126 n. 12 (Alaska 2002) (holding that the superior court's finding that the child was at substantial risk of harm under AS 47.10.011(10) was not clearly erroneous and subsequently concluding it was unnecessary to address the superior court's alternative grounds for termination).
IV. CONCLUSION
Because the record supports the superior court's findings as to the child's best interests, we AFFIRM the termination of Clinton's parental rights.