Opinion
Supreme Court No. S-11165.
February 23, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge, Superior Court Nos. 3PA-97-105 CP 3PA-00-60 CP.
G. Blair McCune, Anchorage, for Appellant.
Dennis B., Sr. Michael A. Moberly, Law Offices of Michael A. Moberly, PC, Anchorage, for Appellant.
Doris B. Dan N. Branch, Assistant Attorney General, Gregg D. Renkes, 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
This is an appeal of a judgment terminating the parental rights of two former users of illegal drugs. The superior court found that the children, who have been living with relatives for years, were children in need of aid (CINA) based on the parents' prior drug-related conduct. Although the parents no longer use illegal drugs, the parents take narcotics prescribed for back pain and other ailments, and the superior court found that these drugs affect their parenting and may lead to a relapse into drug abuse. On this basis the superior court found that the parents had not remedied their harmful conduct, such that the parents' rights to their children should be terminated. On appeal, the parents argue mainly that the CINA adjudication of the older child should have been based on current circumstances, and that the prescription drug use should not preclude a finding that they have remedied their conduct. We affirm.
II. FACTS AND PROCEEDINGS
This recitation is taken mostly from the superior court's factual findings, which the parents have not disputed on this appeal except as noted. The two children in the case are Christine and Dennis, Jr., and the parents are Doris and Dennis, Sr. A. Christine and Dennis, Jr.
We use pseudonyms for all family members.
Christine was born on August 23, 1995, about a year after Doris and Dennis, Sr., were married. During the pregnancy, Doris sought prescription narcotics from numerous doctors, which may have allowed her to take doses larger than what any single doctor had prescribed. This was done despite warnings by these doctors that the narcotics could hurt Christine in utero. At birth, Christine weighed five pounds and had a cocaine derivative in her stool.
Shortly after Christine's birth, the parents became addicted to heroin. The parents took heroin in front of Christine. In October 1997 the parents were caught trying to pawn stolen goods and in possession of narcotics. This led the Division of Family and Youth Services ("DFYS") to file a CINA petition, and Christine was adjudicated a child in need of aid in February 1998. After obtaining custody, DFYS placed Christine with her paternal grandparents. In 1998 the court appointed the grandparents as Christine's guardians. The court's guardianship order said the guardianship would be set aside once the parents successfully completed substance abuse treatment, parenting classes, and mental health assessments. DFYS released legal custody of Christine to the grandparents in April 2000, and closed her CINA case.
While Christine was living with her grandparents, her parents spent most of the next four years (1998-2002) in prison or out of the state. Based on the 1997 pawn-shop arrest, Dennis was incarcerated and was not released until March 2002. He will be on probation until 2012. For her role in the 1997 heroin-related crimes, Doris spent one year in prison, mostly in the mental ward, where she was treated for post-traumatic stress disorder, bipolar disorder, and borderline personality disorder. After this and after a brief period spent out of the state, Doris returned to Alaska in April 1999.
Sometime around February 2000, Doris visited Dennis, Sr., at his halfway house in Anchorage and became pregnant with Dennis, Jr. It was a troubled pregnancy. During her pregnancy, Doris obtained narcotic drugs through prescriptions written by several doctors. This led to an effort by Doris and her doctor to wean Doris off narcotics, which was largely unsuccessful. In July 2000, six months into her pregnancy, Doris visited an emergency room in what the superior court found was an attempt to obtain prescription narcotics. A month later, Doris went to the emergency room, where she was found to be in acute drug withdrawal. The doctors also discovered that, among other complications, Doris's womb was low on amniotic fluid and the fetus was in a breech position. With Doris's consent, a Caesarean section was performed and Dennis, Jr., was born in August 2000, approximately ten weeks premature. He weighed three pounds, ten ounces, had respiratory problems due to his prematurity, and was suffering withdrawal from narcotics.
A week after Dennis's birth, the state took custody. The superior court found probable cause to adjudicate Dennis, Jr., as a child in need of aid in September 2000. With the parents' support, DFYS placed Dennis, Jr., with his paternal uncle Donald and Donald's wife Kathy. The parents ultimately stipulated that Dennis, Jr., was a child in need of aid, and he has lived with his aunt and uncle ever since leaving the hospital. Shortly after Dennis, Jr.'s placement with them, Donald and Kathy also began spending significant amounts of time with Christine, even though she was in theory living with her grandparents.
On September 23, 2000, when Dennis, Jr., was less than two months old, Doris's probation was revoked, based on a positive drug test (cocaine and marijuana) from the previous January. Upon her release from prison in May 2001, Doris lived in Anchorage. Attempts to let her visit with Dennis, Jr., during this period were unsuccessful: Doris objected to DFYS's insistence on supervised visits and kept canceling visits; what visits there were seemed to upset Dennis, Jr. Doris did however occasionally have unsupervised visits with Christine in 2001-2002, courtesy of the grandparents who then had custody of Christine. Sometime during this period, the grandparents also began to let Christine spend days or weeks at a time at Kathy and Donald's house, where her brother Dennis, Jr., was living.
When Dennis, Sr., was released from state custody in March 2002, he resumed living with Doris in the Wasilla area. With Dennis, Sr., out of prison, the grandparents began to permit Christine to stay over at her parents' house, instead of in their own home or at Donald and Kathy's. DFYS believed this contradicted provisions in the guardianship order prohibiting Christine's return to her parents before they had completed substance abuse treatment. As a result, DFYS took custody of Christine in May 2002. A few days later, the superior court terminated the guardianship order, and found probable cause that Christine was a child in need of aid. Since May 2002, Christine has lived with her paternal uncle Donald and his wife Kathy, who also have had Dennis, Jr., in their home since his birth. Both children are doing well in that home.
Doris and Dennis, Sr., began making weekly supervised visits with both children in May 2002. The superior court agreed with expert testimony that Christine had showed signs of developing an attachment disorder, that she was beginning to form a bond with her aunt and uncle, and that to remove her from their home would likely be "catastrophic." The superior court also agreed with testimony that Dennis, Jr., had formed a strong bond with Donald and Kathy. Donald and Kathy no longer get along with the parents or the grandparents.
B. The Parents' Drug Use
Although the parents have had drug problems for many years, the only narcotics they were taking at the time of the trial (and at least since their respective releases from incarceration) were prescribed by their doctors for pain. Doris also takes psychotropic drugs prescribed by her psychiatrist. The superior court found that although the parents had valid prescriptions for the drugs by doctors treating them for back pain and other injuries, the drug use was in part to satisfy addictions, based on the parents' history of magnifying symptoms to get drugs and the absence of testimony by the parents' treating physicians. Based on expert testimony, the superior court also found that the use of these prescription narcotics "would `dull' a person's senses and emotions and would affect their ability to parent."
At the time of the trial, both parents were in full compliance with the case plans formulated for them by DFYS, except in one area: both had refused to accept an assessment by the Mat-Su Recovery Center recommending they undergo in-patient treatment at a Juneau facility where they would not be permitted to take prescription drugs. Instead, both parents enrolled in Starting Point, a local for-profit treatment program that permits prescription drug use. They were in good standing at this program as of the termination trial.
C. Termination Proceedings
DFYS filed petitions to adjudicate Christine (whose prior adjudication, unlike Dennis, Jr.'s, had been formally closed) as a child in need of aid in May 2002. A few months later DFYS requested termination of the parents' rights to both children. There was a bench trial over five days in January and April of 2003. Superior Court Judge Eric Smith entered written findings of fact and conclusions of law in July 2003, in which he granted the petitions in full. Only Dennis, Sr., the father, appealed. Doris, who is represented by a different lawyer, has submitted a "notice of joinder" to this court, to show her approval of Dennis, Sr.'s briefs. This was done under Appellate Rule 212(c)(5), which permits an "appellant" to join in papers filed by another appellant. We will assume without deciding that Dennis, Sr., has standing to assert his wife's rights on appeal.
Cf. Manko v. United States, 830 F.2d 831, 838 (8th Cir. 1987) (en banc) (where spouses were co-plaintiffs, wife had standing to challenge denial of husband's motion to add loss of consortium claim); United States ex rel. Celanese Coatings Co. v. Gullard, 504 F.2d 466, 469 (9th Cir. 1974) (surety has standing to assert rights of principal, even though principal had not filed an appeal).
III. DISCUSSION
A. Statutory Scheme, Claims of Error, Standard of Review
To determine that a child is in need of aid, the superior court must find by a preponderance of evidence that the child has been subject to one of eleven conditions enumerated in AS 47.10.011. One of the conditions occurs when the child has suffered "substantial physical harm, or there is a substantial risk that the child will suffer substantial physical harm, as a result of conduct by or conditions created by the child's parent . . . or by the failure of the parent . . . to supervise the child adequately." Another condition exists where the parents' parenting ability "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."
AS 47.10.011(6).
AS 47.10.011(10).
To terminate parental rights, DFYS must establish by clear and convincing evidence that the child "has been subjected" to one of the eleven conditions enumerated in AS 47.10.011, and that the parent has either (i) "not remedied the conduct or conditions in the home that place the child at substantial risk of harm," or (ii) "failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury." In addition, DFYS must prove by a preponderance of evidence that DFYS has made reasonable efforts "to enable the safe return of the child to the [parents'] home." Finally, the superior court is required to "consider the best interests of the child," particularly in its determination of whether the parents have sufficiently remedied their conduct.
AS 47.10.088(a)(1).
AS 47.10.088(a)(2); AS 47.10.086(a).
AS 47.10.088(b) and (c).
The parents argue that (1) Christine's CINA adjudication was improperly based on events from 1997, (2) termination of the parents' rights to Dennis, Jr., was improperly based on harm that occurred in utero, (3) they have remedied their conduct, notwithstanding their continued use of prescription pain medicines, (4) DFYS did not engage in reasonable efforts to reunify the family, and (5) termination was not in the best interests of either child.
We apply the clearly erroneous standard when reviewing factual findings in CINA and termination cases. Whether the factual findings are sufficient to satisfy the relevant statutes and rules is a question of law that we review de novo.
E.g., Stanley B. v. State, DFYS, 93 P.3d 403, 405 (Alaska 2004).
E.g., id.
B. The Superior Court Did Not Err in Adjudicating Christine a Child in Need of Aid.
Judge Smith found that Christine was a child in need of aid based on the 1997 heroin-related thefts. The parents claim this was an error because the 1997 conduct did not reflect their parenting capabilities as of the hearings held in January and April 2003. In response, DFYS argues primarily that this claim of error has been waived.
The waiver issue is close. After the trial ended, the parents apparently submitted proposed findings of fact and conclusions of law that included language adjudicating Christine as a child in need of aid based on 1997 conduct — language that is nearly identical to the part of the superior court's final written findings that the parents now say was erroneous. But on the other hand, the parents' lawyer argued at trial that Christine's adjudication could not be based on 1997 conduct.
It turns out to be unnecessary to decide the waiver question because we believe Judge Smith made other factual findings establishing that Christine is currently a child in need of aid. As a preliminary matter, we agree with the parents that, where DFYS seeks to terminate parents' rights over a child who has not already been adjudicated as a child in need of aid, DFYS is required to use relatively up-to-date circumstances to prove that adjudication is warranted. We further agree that this rule applies to Christine's situation: although she had been adjudicated as a child in need of aid in 1998, this adjudication case was closed, and DFYS was required to start over with proof of up-to-date circumstances. (The current-circumstances requirement does not affect Dennis, Jr., because his adjudication case remained open. This termination proceeding is the disposition of that adjudication, and DFYS was therefore required to prove by clear and convincing evidence only the older circumstances that led to that adjudication, and that these circumstances had not been remedied as of the termination proceeding.)
See V.D. v. State, Dep't of Health Soc. Servs., 991 P.2d 214, 217 (Alaska 1999).
See D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 208 (Alaska 2000).
Although Judge Smith based Christine's adjudication on older facts related to the parents' heroin use, our de novo review of legal conclusions means that we can affirm the adjudication on an alternative ground if the superior court has made other findings sufficient to support it. Judge Smith found that the parents are abusing prescription narcotics, that the parents' continued use of these narcotics risks a relapse into more dangerous forms of drug abuse, and that the parents have "obvious deficiencies" in their parenting that are exacerbated by the prescription drug abuse. He also found that the "use of any type of narcotics would `dull' a person's senses and emotions and would affect their ability to parent." Judge Smith further found that Christine's chaotic childhood puts her at a significant risk of developing an attachment disorder, and that the parents' refusal to give up prescription drugs makes it impossible for them "to parent the children adequately and effectively over the long term."
Cf. Matanuska Elec. Ass'n, Inc. v. Chugach Elec. Ass'n, Inc., 99 P.3d 553, 558 (Alaska 2004) (summary judgment may be upheld based on alternative legal theory).
We believe these factual findings (all made under the clear and convincing standard) were not clearly erroneous, for the reasons stated in part III.D, below. We also believe that these circumstances establish that the parents' parenting ability "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." Although not every parent who abuses prescription narcotics is necessarily impaired to the requisite degree, Christine is unusually vulnerable, and it seems clear that her parents' dulled emotions and risk of relapse into more serious drug abuse indicate a substantial impairment of their ability to nurture this particular child over the long term, constituting a substantial risk of harm to Christine. We therefore reject the parents' challenge to Christine's adjudication.
AS 47.10.011(10).
C. The Superior Court Did Not Err in Basing Dennis's CINA Adjudication on Injuries First Sustained In Utero.
The parents next argue that Dennis, Jr.'s 2000 adjudication was not established by the clear and convincing evidence required to support the termination under 47.10.088(a)(1) because the main harm to Dennis, being born addicted to opiates, occurred in utero and the statute does not cover such injuries.
We reject this argument. The statute authorizes an adjudication where "the child has suffered substantial physical harm, or there is a substantial risk that the child will suffer substantial physical harm." Dennis, Jr., was born addicted to opiates. Even discounting any suffering that occurred in utero, and even assuming that his premature birth and attendant medical problems were not caused by Doris's narcotics use, we think it is clear that Dennis "suffered substantial physical harm" after his birth in the form of the addiction itself and the suffering involved in overcoming it. The parents argue that Doris's interest in maintaining her own health excuses prenatal narcotic use, but even assuming this excuse would be sufficient if true, the superior court found (based on sufficient evidence) that it was not true: while pregnant, Doris visited the emergency room to seek narcotics to satisfy her addiction. For these reasons, we believe the superior court did not err in finding that Dennis, Jr., was a child in need of aid under AS 47.10.011(6) and AS 47.10.088(a)(1)(A).
AS 47.10.011(6).
D. The Superior Court Did Not Err in Finding That the Parents' Refusal To Enroll in In-Patient Drug Treatment Amounted to a Failure To Remedy Conduct.
The parents' next argument is that the superior court erred in finding that they had not remedied their harmful conduct. Under AS 47.10.088(a)(1)(B) the court can terminate a parent's rights only if it finds by clear and convincing evidence that
the parent (i) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or (ii) has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury.
According to AS 47.10.088(b), in making the determination required by subsection (a)(1)(b), 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.
The superior court found that the parents had failed to remedy their conduct under AS 47.10.088(a)(1)(B)(i), and (in the alternative) that they had failed to do so in a reasonable time under AS 47.10.088(a)(1)(B)(ii). This holding was based primarily on the findings we relied on to support Christine's adjudication: the parents' abuse of prescription narcotics; the attendant risk of relapse into more dangerous forms of drug abuse; and the finding that prescription narcotics "would `dull' a person's senses and emotions and would affect their ability to parent."
The parents appear to argue that these findings were clearly erroneous and that the findings do not justify the legal conclusion that the parents had failed to remedy their conduct. We reject the claim of factual error. Under the clearly erroneous standard, the superior court was entitled to credit Dr. Ellen Halverson's testimony that inpatient treatment without prescription drug use was required for the parents to avoid relapse and to maintain emotional alertness. The parents point out that Dr. Halverson described her own views as conservative. This is true, but the superior court was entitled to credit these views nonetheless. The superior court was also entitled to reject the opinions of the witnesses put on by the parents, e.g., the probation officer and the Starting Point assessor. In any event, the testimony by these witnesses does not contradict Dr. Halverson's points about relapse and the mental effects; the Starting Point assessor and other witnesses confirmed that prescription drug use created a risk of relapse into more harmful drug-related behavior. The parents also argue that the assessment by the Mat-Su Recovery Center was flawed, because the assessor incorrectly believed Dennis, Jr., was born cocaine-positive. But the mistake is trivial. Dennis was not born cocaine-positive but he was born opiate-positive, and this as a result of serious drug-seeking behavior by his mother. Mat-Su Recovery Center's blanket policy against prescription drugs makes it clear that correction of the cocaine mistake would not have made any difference in the assessor's analysis.
The parents' argument can also be construed as an argument that the facts found by the superior court did not warrant the legal conclusion that the parents failed to remedy their conduct. This is reviewed de novo. We have already stated our view that these conditions amounted to an unacceptable risk to Christine, based in part on her emotional fragility. We also think the parents' behavior constitutes a failure to remedy their conduct as to both children. In Sherry R. v. State, Department of Health Social Services, Division of Family Youth Services, the parent lost her children due to alcohol-related neglect, and then recovered and maintained sobriety for a year before the termination proceeding. This court upheld the finding that she had not remedied her conduct sufficiently, because "her sobriety is still very new," and the court was "entitled to rely on a parent's documented history of conduct as a predictor of future behavior." The court concluded that even though Sherry had "made strides toward remedying her conduct, the trial court could properly find that Sherry failed to address her substance problem within a reasonable time." It is true that other factors were at play in Sherry that are not present here, e.g., Sherry continued to associate with (but not live with) a convicted sex offender, and she did not adequately appreciate her children's problems with fetal alcohol syndrome. Still, the parents in this case have not done markedly better than Sherry, and they have arguably done worse, i.e., they still take prescription narcotics, which puts them at a higher risk of relapse and impairs their under-developed parenting abilities (seen in Doris's mental health problems and the uneven success of both parents in visiting with the children).
74 P.3d 896 (Alaska 2003).
Id. at 903.
Id.
Id.
Another relevant point is that the statute authorizes the superior court to consider the children's best interests in assessing the parents' remedial efforts. This concept includes considering whether the parents have improved or will improve in a "reasonable time," measured in light of the children's "age or needs." Here, the parents are doing better now than before, but they were absent from Christine and Dennis, Jr.'s lives for most of the four years preceding the termination petition. The superior court found, based on overwhelming evidence, that both children were doing well with Kathy and Donald. In the opinion of one expert, it would likely be "catastrophic" to remove Christine, in particular, because she was overcoming her attachment disorder by bonding closely with Kathy. It seems fair and consistent with the statute to consider these facts in assessing the parents' attempts to remedy their conduct.
AS 47.10.088(b)(1).
We have some sympathy with the parents' position, but based on all the foregoing, we believe the superior court did not err in holding that the parents had failed to remedy their conduct.
E. The Parents' Other Allegations of Error
The parents argue that DFYS did not make "reasonable efforts" to reunify the family as required by AS 47.10.086(a) and AS 47.10.088(a)(2). As the parents recount, DFYS did not permit the parents to make unsupervised visits because the parents refused to undergo the residential treatment recommended by the Mat-Su Recovery Center; in turn, a shortage of supervisors meant that the parents' visits were limited to one visit per week with both children simultaneously.
The superior court found that requiring supervised visitation was reasonable in light of the parents' continued use of prescription drugs. This particular decision may be debatable, but the larger question is whether DFYS's overall efforts were reasonable. On this point it is clear that DFYS tried hard to keep the parents involved in the lives of their children. The superior court found that DFYS worked with the parents over "a long period of time" on substance abuse and mental health counseling and treatment. The record also shows that while Dennis, Sr., was in prison DFYS set up numerous appointments that Doris often failed to keep, and that the parents sometimes let their standoffs with DFYS distract them from visiting the children. Under these circumstances, it is fair to say that DFYS has undertaken reasonable efforts.
See Erica A. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 66 P.3d 1, 7 (Alaska 2003).
The parents' final argument is that termination was not in the children's best interests, despite the overwhelming evidence about the bonding with their foster family. The alleged error is that this bonding would have occurred with the parents instead of the foster family had there been reasonable visitation. But establishing the child's "best interests" should be determined without regard to blame. In any event the parents' argument fails because visitation was reasonable in light of their own difficulties in maintaining contact with the children.
IV. CONCLUSION
The superior court's judgment is AFFIRMED.