Opinion
Supreme Court No. S-13137, No. 1344.
June 10, 2009.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Patricia A. Collins, Judge, Superior Court Nos. 1JU-06-48 CP, 1JU-06-49 CP, 1JU-06-50 CP.
Lisa B. Nelson, Nelson, Flint, Otterson Lombardi, Anchorage, for Appellant. Megan R. Webb, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee. Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Guardian Ad Litem.
Before: Fabe, Chief Justice, Eastaugh, Carpeneti, and Winfree, Justices. [Matthews, Justice, not participating.]
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d).Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Daphne W. appeals the termination of her parental rights to her three Alaska Native children: one daughter, now age twelve, and twin daughters, now age three. She challenges the trial court's determinations that: (1) the children were in need of aid under AS 47.10.011(8) and (10); (2) she failed to remedy within a reasonable amount of time the conduct or conditions that placed the children at substantial risk of harm; (3) continued custody was likely to cause serious emotional or physical damage to the children; and (4) terminating her parental rights was in the children's best interests. She also challenges the trial court's reliance on testimony from two probation officers she alleges were biased. Because the trial court's holdings and its reliance on the probation officers' testimony were permissible, we affirm the termination order.
We use pseudonyms to protect the privacy of the family members.
II. FACTS AND PROCEEDINGS
Daphne W. is a Tlingit Indian who was thirty-one years old when the court terminated her parental rights. The interaction with the Office of Children's Services (OCS) that led to the termination began January 25, 2006, when she gave birth to twin girls at an Anchorage hospital. The hospital filed a report of harm with OCS based on Daphne's admissions that she had used cocaine during the first trimester of her pregnancy and was currently using Vicodin, tobacco, and alcohol, and the fact she had tested positive for other drugs when she was five-and-a-half months pregnant. In February 2006 the hospital released the twins into Daphne's care. She returned with them to Juneau, where she lived with her then-nine-year-old daughter.
In October 2005 Daphne was indicted for having sold cocaine in April 2005. She pleaded guilty to reduced charges and was sentenced to three years of probation. Her probation conditions required that she not use illegal substances or alcohol and that she not associate with felons without permission from her probation officer.
An April 2006 substance abuse assessment concluded that Daphne suffered from cocaine, alcohol, and opioid dependence, and from depression and anxiety. Daphne reported that she had used cocaine after the twins were born; drank about five alcoholic drinks a day; had used opiates daily from age twenty-six to age twenty-eight; and had consumed alcohol and used cocaine the day of the assessment. OCS created a case plan for Daphne in May 2006, requiring that she participate in substance abuse treatment, random urinalyses, and a mental health assessment, and that she enroll the twins in a child protective day care facility. OCS reported that Daphne failed to comply with most or all of these requirements.
On June 9, 2006, OCS petitioned for temporary custody of Daphne's three children and for adjudication of the children as being in need of aid. The superior court held that probable cause existed to believe the children were in need of aid under AS 47.10.011(9) (neglect) and (10) (substance abuse), and granted OCS temporary custody.
The court also held that the children were in need of aid under AS 47.10.011(1) (abandonment) and (2) (incarceration). The parties to this appeal agree that these holdings applied only to the children's fathers, not to Daphne.
Daphne entered a residential substance abuse treatment program in June 2006. She graduated in September 2006. She enrolled in outpatient treatment, found a job, scheduled a mental health assessment, participated in random urinalyses, and was put on a waiting list for a family reunification program.
In December 2006 OCS received an anonymous report that Daphne was abusing prescription medication, and on December 29 Daphne admitted to the problem. OCS then postponed a planned reunification between Daphne and her children, and scheduled a trial home visit for June or July 2007.
On June 16, 2007, before the trial home visit occurred, Daphne was arrested for violating her probation. A police officer pulled over a car in which she was a passenger, suspecting that the driver was drunk. The traffic stop revealed that Daphne had violated the terms of her probation by being intoxicated, testing positive for opiates and Oxycodone, and taking painkillers without giving the prescription to her probation officer. Her probation was revoked and she was sentenced to eighteen months in jail. Sixteen of the eighteen months were suspended. Daphne served sixty days in a halfway house and was released from custody in October 2007.
In October 2007 OCS changed its recommended permanency plan from reunification to adoption. The children had then been in state custody for approximately fifteen months, and AS 47.10.088(d)(1) required the filing of a termination petition unless, under AS 47.10.088(e), there was a compelling reason for determining that termination would not be in the children's best interests.
The state filed a petition for termination of parental rights in November 2007. In April 2008 Superior Court Judge Patricia A. Collins held a three-day hearing. The court granted the petition and, in May 2008, issued an order terminating Daphne's parental rights to her three children.
The court held that: (1) the children were in need of aid under AS 47.10.011(8) and (10); (2) Daphne had failed to remedy her conduct such that returning the children to her would place them at substantial risk of serious physical or mental injury; (3) returning the children to Daphne's care would likely result in serious emotional or physical damage to them; and (4) the children's best interests would be served by termination of parental rights. Daphne challenges each of these holdings on appeal. She also challenges the trial court's reliance on the testimony of two probation officers, whom she alleges were biased.
AS 47.10.011(8) states that a court may find a child to be in need of aid if conduct or conditions created by the parent: (A) have resulted in a mental injury to the child; (B)(i) have placed the child at substantial risk of mental injury as a result of a pattern of "rejecting, terrorizing, ignoring, isolating, or corrupting behavior"; or (B)(ii)-(continued . . .) (iii) have placed the child at substantial risk of mental injury as a result of exposure to domestic violence. See AS 11.41.100-.220, .230(a)(1)-(3), .250-.270, .410-.432.
The superior court listed AS 47.10.011(1), (2), (8), and (11), but not (10), as the grounds for determining that the children were in need of aid. This appears to have been a typographical error or inadvertent omission. The superior court's oral findings regarding substance abuse indicate that it intended to address subsection .011(10) and both parties address subsection .011(10). We therefore assume that the superior court intended to make its finding under subsection .011(10).
AS 47.10.011(10) states that a court may find a child to be in need of aid if "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 an intoxicant has resulted in a substantial risk of harm to the child."
III. STANDARD OF REVIEW
When reviewing a termination of parental rights, we review the trial court's factual findings for clear error, overturning them only if "a review of the entire record in the light most favorable to the party prevailing below leaves us `with a definite and firm conviction that a mistake has been made.'" We will ordinarily not overturn a trial court's findings based on conflicting evidence, but will look for evidence in the record to support the trial court's findings and conclusions.
L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 949 (Alaska 2000).
Brynna B. v. State, Dep't of Health Soc. Servs., 88 P.3d 527, 529 (Alaska 2004) (quoting A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 214 (Alaska 2000).
Whether the trial court's factual findings satisfy the requirements of the Child in Need of Aid (CINA) and Indian Child Welfare Act (ICWA) statutes, including whether expert testimony sufficiently supported the trial court's determinations, is a question of law. We review questions of law de novo.
E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 989 (Alaska 2002).
L.G., 14 P.3d at 950 (citing E.M. v. State, Dep't of Health Soc. Servs., 959 P.2d 766, 768 (Alaska 1998)); D.H. v. State, Dep't of Health Soc. Servs., 929 P.2d 650, 654 n. 11 (Alaska 1996).
A.A. v. State, Dep't of Family Youth Servs., 982 P.2d 256, 259 (Alaska 1999).
It is the function of the trial court to assess a witness's credibility. A party challenging the trial court's assessment of witness credibility must show that the court's findings of fact were clearly erroneous.
Pam R. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 185 P.3d 67, 71 (Alaska 2008) (citing In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001)).
Vizcarra-Medina v. State, 195 P.3d 1095, 1099 (Alaska App. 2008).
IV. DISCUSSION
A. Was It Error To Hold that the Children Were in Need of Aid?
To terminate parental rights, OCS must show by clear and convincing evidence that the child has been subjected to conduct or conditions specified in AS 47.10.011. The trial court held that Daphne's children were in need of aid under both AS 47.10.011(8) and (10). Daphne contests both holdings. Because we hold that the trial court permissibly held the children to be in need of aid under subsection .011(10), we do not need to address its holding regarding subsection .011(8).
CINA Rule 18(c)(1)(A); see also AS 47.10.086(a)(1)-(3).
See note 4, above.
The trial court did not specify which part of subsection .011(8) applied, but its findings, including the finding that "[t]he children have been witness to domestic violence," are more relevant to subsections .011(8)(B)(ii) or (iii) than subsection .011(8)(B)(i). Subsections (B)(ii) and (iii) state that a court may find a child to be in need of aid if conduct or conditions created by the parent have placed the child at substantial risk of mental injury as a result of exposure to domestic violence. See AS 11.41.100-.220, .230(a)(1)-(3), .250-.270, .410-.432. The "witness" finding is clearly erroneous, at least as to the twins: it was not possible for the twins to have been exposed to domestic violence because the only domestic violence alleged here occurred before they were born.
Alaska Statute 47.10.011(10) states that a court may find a child to be in need of aid if "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."
The statute further provides:
[I]f a court has previously found that a child is a child in need of aid under this paragraph, 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(10). Because we affirm the trial court's decision, we do not need to address the state's argument that this dispute is controlled by a previous stipulation by Daphne that her children were in need of aid under subsection .011(10).
The trial court found that Daphne "was an addict before the twins were born"; that she "continues to use controlled substances despite being on felony probation and the subject of this action"; that she "failed to complete treatment programs, failed to disclose pain medication usage and was observed to have alcohol in her home"; that she "admits to some, but not all, professionals that she continues to use intoxicants"; and that she "continues to associate with felons." The court also found that Daphne had "a very significant addiction to at least cocaine," that she had been indicted for selling cocaine, that she chose inappropriate caregivers for her children, that she tested positive for drugs while pregnant, and that the twins tested positive for drugs as a result of in utero exposure.
Daphne argues that there is "no evidence" substance abuse impaired her parenting ability or that her children suffered substantial harm as a result of her alleged substance abuse. She argues that there must "be a nexus between the mother's substance abuse and her ability to care for her children" and that "[t]here is insufficient evidence of any `nexus' in this case." She also argues that because she was not indicted or arrested for dealing cocaine until six months after the crime occurred, and OCS did not become involved in her case until after the twins were born, neither OCS nor the police thought her involvement in drugs placed her eldest daughter at a substantial risk of harm. Finally, she argues that concern about the caregivers she chose for her children is misplaced. The caregiver she planned to leave the children with while she attended a drug treatment program had a four-year-old drug trafficking felony conviction, but Daphne argues that the proposed caregiver was not a "bad placement" because she was a "trusted family member[]" and there was no evidence she was still involved in drug trafficking or was addicted to drugs.
Clear and convincing evidence supports each of the trial court's findings, including the testimony of one of Daphne's social workers and two of her probation officers regarding her ongoing substance abuse, multiple probation violations, and willingness to leave her children with questionable caregivers. These findings in turn support the conclusion that Daphne's drug use substantially impaired her ability to parent and resulted in a substantial risk of harm to her children. The trial court did not err by holding that the children were in need of aid under AS 47.10.011(10).
See A.J. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 62 P.3d 609, 614 (Alaska 2003) (affirming trial court's finding that mother's substance abuse exposed children to substantial risk of harm when substance abuse impaired mother's judgment and rendered her unable to care for children); M.J.S. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 39 P.3d 1123, 1124, 1126 (Alaska 2002) (affirming trial court's finding that mother's substance abuse exposed child to substantial risk of harm when mother was "available as a parent only occasionally . . . refusing to change her lifestyle in a way that would allow [her daughter] to form a stable and healthy relationship").
B. Was It Error To Hold that Daphne Failed To Remedy Her Conduct?
To terminate parental rights, OCS must show by clear and convincing evidence that the parent has not within a reasonable time remedied the conduct or conditions that placed the child at substantial risk of harm, so that the child would be at "substantial risk of physical or mental injury" if returned to the parent. In making this determination,
CINA Rule 18(c)(1)(A)(i)-(ii).
the court may consider any fact relating to the best interests of the child, including: (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 harmful conduct will continue; and (5) the history of conduct by or conditions created by the parent.[]
Thomas H. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 184 P.3d 9, 13-14 (Alaska 2008) (citing Sherry R. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 74 P.3d 896 (Alaska 2003); AS 47.10.088(b)).
In support of its conclusion that Daphne failed to remedy her substance abuse, the trial court found that she has a "pattern of selling and using drugs and deceiving people about her drug use, and that she was "engaging in the same behaviors that brought her children into custody." Sufficient evidence supports this finding: two probation officers and a social worker testified about Daphne's continued substance abuse, and one of the officers testified that Daphne had admitted to allowing drug dealers into her home to "facilitate what they do." The trial court did not err by holding that Daphne failed to remedy her substance abuse within a reasonable time.
C. Was It Error To Hold that Restoring Daphne's Custody Would Likely Result in Serious Harm to the Children?
In an ICWA case, "[n]o termination of parental rights may be ordered . . . in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent . . . is likely to result in serious emotional or physical damage to the child." To satisfy this requirement, OCS must prove two elements:
25 U.S.C. § 1912(f) (2006).
[First] that the parent's conduct is likely to harm the children, and [second] that it is unlikely that the parent will change her conduct. These two elements can be proved through the testimony of a single expert witness, by aggregating the testimony of expert witnesses, or by aggregating the testimony of expert and lay witnesses.[]
L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 950 (Alaska 2000) (internal citations omitted).
In support of its conclusion that custody would likely result in serious harm, the trial court cited the testimony of one of the OCS social workers who testified as an expert witness. The trial court found that there was a "pattern of domestic violence, and pattern of drug addiction and sales that have continued unabated since at least 2005"; that Daphne "has repeatedly demonstrated she is unable to recognize safe caregivers for her children"; and that "[t]he twins are developmentally behind and have shown significant healthcare needs[, and] require a caretaker who can prioritize their needs; the parents have been unable to do so."
The evidence to support these findings includes testimony regarding Daphne's ongoing substance abuse and her association with felons and drug dealers; the OCS social worker's expert testimony that Daphne could not meet the children's needs; and Daphne's statements to substance abuse assessors and to OCS that she had been involved in abusive relationships. This evidence was sufficient for the trial court to conclude that Daphne's conduct would continue to occur for at least some period of time after she regained custody and that it would likely result in serious harm in the future.
Daphne makes four primary arguments why the trial court erred in finding that she did not remedy her substance abuse. First, she argues that OCS should have dismissed the case in January 2007, once she completed two substance abuse programs and "met the basic requirements of the OCS caseplan." She claims that at this point she was a "model client for OCS — a success story!!" because she had completed multiple substance abuse treatment programs, took the initiative to enroll herself in them, and actively participated in them. This argument is not persuasive. There was sufficient evidence at the time of termination to support the court's conclusion that she had failed to remedy her substance abuse.
Second, Daphne argues that OCS moved too fast in terminating her rights. She argues that OCS should not have changed the permanency goal from reunification to adoption in June 2007 and instead should have applied the "compelling reason" exception in AS 47.10.088(e). Alaska Statute 47.10.088(d) requires that OCS file a petition to terminate parental rights if the child has been in foster care for fifteen of the last twenty-two months. Alaska Statute 47.10.088(e) provides an exception to this requirement, allowing OCS to not file for termination if there is a "compelling reason for determining that filing the petition would not be in the best interests of the child." Daphne points to evidence that by June 2007 she was making substantial progress on her case plan and argues that this amounts to a compelling reason for OCS to postpone filing a petition to terminate. This argument is not persuasive. Alaska Statute 47.10.088(e) asks whether filing the petition is in the child's best interest, not whether the parent has made progress.
Third, citing J.J. v. State, Department of Health Social Services, Division of Family Youth Services, Daphne argues that there was "a substantial period of sobriety" before the termination trial, "cast[ing] doubt" on the likelihood that her past addiction indicates future addictive behavior. She points out that June 16, 2007 (when she was arrested for probation violations) was the last time she tested positive for drugs. That was ten months before the trial began in April 2008, and the parent in J.J. had been sober for either nine or ten months before trial. But there was evidence Daphne admitted to her probation officer that she had consumed alcohol and snorted Vicodin in January 2008, three months before trial. As discussed below, the trial court's reliance on the probation officers' testimony was not erroneous. The trial court's finding that Daphne's substance abuse has "continued unabated since at least 2005" was therefore not clearly erroneous, and J.J. does not apply.
J.J. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 38 P.3d 7, 11 (Alaska 2001).
Id. at 8.
Daphne also argues that the testimony of the two expert witnesses, both OCS social workers, was insufficient because, in this "`borderline case,' the court should have heard from a real expert — a psychologist, or an expert in substance abuse and its effects on children." But the trial court qualified both witnesses as experts, without objection from Daphne, and ICWA does not require any particular type of expert.
The trial court did not err by holding that returning the children to Daphne's custody would likely result in serious harm. D. Was It Error To Hold that the Children's Best Interests Would Be Served by Terminating Daphne's Parental Rights?
To terminate parental rights, OCS must show by a preponderance of the evidence that the child's best interests would be served by termination of parental rights. The trial court's findings regarding a child's best interests are factual findings that we review for clear error. We are sympathetic to the fact that Daphne appears to have done well, for a number of years, against great odds. But however commendable her early parenting, it cannot prevent termination when termination is necessary; all relevant findings have been made, and those findings are not clearly erroneous.
AS 47.10.082, .088(c); CINA Rule 18(c)(3).
Frank E. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 77 P.3d 715, 721 (Alaska 2003) (citing G.C. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003)).
Daphne argues that terminating her parental rights is not in her eldest daughter's best interest because the daughter wants to remain with her mother; because the guardian ad litem recognized that Daphne raised her well for at least the first nine years of her life; and because there has never been a report of harm indicating that Daphne caused her harm. She argues that terminating her parental rights is not in the twins' best interests because there were no reports of harm or major problems, "just little `nit-picky' things," in the short time she had custody of the twins.
In support of its conclusion that terminating Daphne's parental rights would serve the children's best interests, the trial court stated that
for 12 years, [the eldest daughter] has been waiting to have a normal life, [and] a mother who is not an addict And she is currently and has been for some period of time in a stable foster home with foster parents who love her and appear committed to making that placement a permanent one.
The trial court stated that the twins "have lived with a very committed foster family almost since birth[,] . . . have bonded with the foster family, by all accounts are happy children," and have "special medical needs and needs that may not yet even be apparent."
There was sufficient evidence to support the trial court's finding. Two expert witnesses testified that it was in the children's best interests to terminate Daphne's parental rights. The eldest daughter's foster mother testified that she was doing well, earned good grades, had made some friends, and had bonded with her foster siblings. The foster mother also testified that the daughter was having trouble forming attachments, possibly because "she lives in this fear that at any minute she's just going to be somewhere else." The twins, who were twenty-seven months old at the time of trial, had spent almost two years with their current foster family. The twins have special needs that were being met by their foster family, and, according to a social worker who testified as an expert witness in early childhood development, were "doing very well." Both foster families want to adopt the children, and both are willing to allow the children to have continued contact with Daphne, or at least other members of Daphne's family, which a different social worker testified could be in the children's best interests.
The trial court did not err by holding that the termination of Daphne's parental rights was in the best interests of the children.
E. Was It Error To Rely on the Probation Officers' Testimony?
Daphne argues that the testimony of two probation officers should have been "looked upon with suspicion" by the trial court because there were rumors that Daphne was having an affair with one of the officer's husbands. Daphne argues that this made the officers hostile towards her, and that because of this they gave some "powerful, conclusory statements about [Daphne]."
Daphne failed to make this argument below and the argument was not preserved for appeal. We therefore review the trial court's decision for plain error. Given that each officer's testimony was corroborated by the other's, by the testimony of one of the social workers, and by Daphne's own admissions in pre-and post-treatment substance abuse and mental health assessments, we hold that it was not plain error for the trial court to rely on the probation officers' testimony.
D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001).
V. CONCLUSION
We therefore AFFIRM the trial court's termination of Daphne's parental rights.