Opinion
Supreme Court No. S-13925.
May 18, 2011.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court Nos. 3PA-05-00015/ 00016/00017/00018 CN.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Megan R. Webb, Assistant Attorney General, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee. Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Guardian Ad Litem.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A father challenges the trial court's decision to terminate his parental rights to four children. Because the evidence supports the court's findings and the court correctly applied relevant law, we affirm its termination of parental rights.
II. BACKGROUND
Patrick C. and Molly C. had seven children; three of the children have attained majority and are not part of this appeal. The four minor children are: Shani, born in 1993; Daniel, born in 1995; Sally, born in 1998; and Pax, born in 2001. The State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS) first received a report regarding possible abuse or neglect in 2003 and became involved with the family in 2006. OCS took emergency custody of the children in June 2006 due to extensive neglect, severe physical abuse, and sexual abuse, and petitioned to terminate Patrick's parental rights in September 2009. After a termination trial, the trial court terminated Patrick's parental rights effective April 2010.
Pseudonyms are used for all family members.
Molly's parental rights were terminated at the same time as Patrick's; she does not appeal.
Under relevant Alaska Child in Need of Aid (CINA) statutes and rules, parental rights may be terminated at trial only if OCS shows:
(1) by clear and convincing evidence that:
(a) the child has been subjected to conduct or conditions enumerated in AS 47.10.011 (CINA Rule 18(c)(1)(A));
(b) the parent has not remedied the conduct or conditions that place the child at substantial risk of harm or has failed within a reasonable time to remedy the conduct or conditions so that the child would be at substantial risk of physical or mental injury if returned to the parent (CINA Rule 18(c)(1)(A)(i) — (ii)); and
(c) reasonable efforts have been made to provide family support services designed to prevent the breakup of the family (CINA Rule 18(c)(2)(A)); and
(2) by a preponderance of the evidence that the child's best interests would be served by termination of parental rights (CINA Rule 18(c)(3)).
Patrick appeals two of the trial court's findings underlying the termination of his parental rights, that: (1) OCS made reasonable efforts to provide him with services to enable the children to return to his care; and (2) Patrick did not remedy the conduct or conditions that put the children at risk of harm.
III. STANDARD OF REVIEW
In a case involving the termination of parental rights we review a trial court's findings of fact for clear error. Findings are 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 a mistake has been made." "[I]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." Whether the trial court's factual findings satisfy the requirements of the CINA statutes is a question of law. We review questions of law de novo.
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 53 (Alaska 2003).
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth 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)).
In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) (quoting Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)).
Doug Y. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 243 P.3d 217, 223 (Alaska 2010) (citing Carl N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 102 P.3d 932, 935 (Alaska 2004)); 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).
IV. DISCUSSION
A. The Superior Court Did Not Err In Concluding That OCS Made Reasonable Efforts.
Before a court may terminate parental rights, it must find by clear and convincing evidence that OCS made reasonable efforts to provide family support services to enable the children's safe return to the parents. We assess reasonable efforts "in light of the circumstances of each particular case, including the parent's actions or inaction." "A parent's demonstrated unwillingness to participate in treatment may be considered in determining the reasonableness of state efforts." OCS's efforts "must be reasonable but need not be perfect." We view OCS's reunification efforts in their entirety in determining whether OCS made reasonable efforts; OCS's efforts may be reasonable when taken in their entirety even if efforts are not reasonable for a limited period of time or specified event.
AS 47.10.086; CINA Rule 18(c)(2)(A).
Audrey H v. State, Office of Children's Servs., 188 P.3d 668, 678 (Alaska 2008) (citing Jeff AC, Jr. v. State, 117 P.3d 697, 707 (Alaska 2005)).
Id. (citing E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 991 (Alaska 2002)).
Id. (citing Jeff AC, Jr., 117 P.3d at 706).
Barbara P. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1262 (Alaska 2010) (citing Frank E. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 77 P.3d 715, 720 (Alaska 2003)).
Id. (citing Audrey H, 188 P.3d at 679-81).
To determine whether OCS made reasonable efforts, "[t]he court must first identify the problem that caused the children to be in need of aid and then determine whether OCS's efforts were reasonable in light of the surrounding circumstances." T h e court determined that Patrick's minor children were children in need of aid under AS 47.10.011(6) (substantial physical harm), (7) (sexual abuse), (8)(B)(i)-(ii) (risk of mental injury), (9) (neglect), and (11) (parent has a mental illness, serious emotional disturbance, or mental deficiency). In brief, the evidence showed all four children at issue in this appeal had suffered severe physical abuse; all four children had suffered mental injuries; all four children suffered from neglect — including lack of adequate food that left at least two of them suffering from malnutrition — and lack of basic medical care; and the girls had been sexually abused by one of their brothers.
Id. (citing Burke v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 162 P.3d 1239, 1245 (Alaska 2007)).
Patrick contends OCS failed to make reasonable efforts to help reunite his family because OCS failed to: (1) support his mental health counseling by providing his therapist information about how severely the children were abused and by facilitating communication between his therapist and the children's therapists; (2) support visitation with the children after September 2007; and (3) provide an appropriate family violence intervention program.
The fundamental flaw in Patrick's arguments is that the failure to reunite his family within a reasonable time resulted from his own lack of participation in his case plan, not from OCS's lack of reasonable efforts. Patrick's initial July 2006 case plan required, among other things, that he have a psychological evaluation. Patrick prevented an initial psychological evaluation from being completed until April 2007. The evaluating psychologist noted "a number of psychological problems" and recommended that Patrick seek mental health treatment. Patrick participated in some individual therapy, but repeatedly delayed treatment, consistently minimized the impact of his mental health issues while in therapy, and refused to comply with OCS's request for a psychological re-evaluation to determine whether he had made progress. OCS case workers also testified about Patrick's lack of cooperation in other areas of his case plan, including refusing to allow a home visit and permitting the son who had sexually abused his daughters to live in the home without completing an OCS-required sex offender evaluation.
OCS provided information to Patrick's therapist, including the trial court's temporary custody adjudication findings, verbal summaries of how severely the children were abused, and evaluations of the resulting physical and psychological damage. But each of the children's therapists strongly opposed sharing information about the children's therapy with Patrick, and Patrick's therapist acknowledged that whether such information would be helpful for Patrick depended on Patrick's level of engagement and commitment to treatment. Patrick repeatedly denied his children had ever been abused. Similarly, Patrick resisted treatment for his mental illness despite OCS's repeated efforts to provide him appropriate care. There is no evidence that OCS's decisions regarding Patrick's therapy harmed Patrick's treatment; rather, the record supports the trial court's finding that Patrick's participation was insufficient to remedy the conduct that placed the children at substantial risk of harm.
Patrick next argues that OCS unreasonably denied him visitation with the children after 2007. OCS initially provided for visitation between Patrick and his children, but quickly discontinued these visits on the recommendations of the children's therapists. In late August 2007 the trial court held an evidentiary hearing regarding Patrick's visitation with the children. The trial court denied visitation with two of the children and left visitation with one child to OCS's discretion, but ordered visitation with one child. OCS did not arrange visitation between Patrick and that child as the court ordered.
OCS argues that case workers "routinely reviewed whether visits were in the best interests of the children" and concluded visits should not occur. The therapist for the child with whom visitation was ordered testified that contact with Patrick would have almost certainly proved harmful to the child. Even if OCS's decision were not reasonable, we have previously held that a limited failure to provide visitation does not necessarily negate reasonable efforts. We affirm the superior court's finding.
Barbara P., 234 P.3d at 1262-63.
Finally, Patrick contends that OCS's original requirement that he complete a family violence intervention program rendered OCS's efforts unreasonable because the program focused on spousal abuse rather than violence against children. Patrick began attending the program's group meetings, but was discharged after the program's director found Patrick's behavior disruptive. Patrick's refusal to meaningfully participate in the family violence program is more telling about his failure to participate in his case plan and to remedy conditions that placed his children at risk than it is about OCS's failure to make reasonable efforts.
We therefore conclude that the record amply supports the trial court's reasonable efforts finding by clear and convincing evidence.
B. The Superior Court Did Not Err In Finding Patrick Failed To Remedy Within A Reasonable Time The Conditions Placing The Children At Risk Of Harm.
Before a court may terminate parental rights, it must find by clear and convincing evidence that the parent has not remedied the conduct or conditions that placed the child at risk. In making this finding:
AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i)-(ii).
[T]he 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.
AS 47.10.088(b).
The trial court focused on two main issues: (1) "the children were beaten not spanked as characterized by [Patrick]"; (2) "the children were isolated to an extreme that if allowed to remain unchecked would cause mental injury." The trial court acknowledged in its termination order that Patrick had made strides to rectify much of his behavior, but found that he failed to remedy the conditions that placed the children at risk or failed to do so in a reasonable time.
Patrick argues that the trial court's finding is clearly erroneous because: (1) the trial court improperly considered his failure to complete the family violence intervention program in reaching its determination; (2) Patrick "acknowledged a significant level of responsibility for inappropriate discipline and for excessively isolating the children"; (3) Patrick unequivocally renounced using physical discipline at the termination trial; and (4) the trial court improperly found that Patrick showed no real understanding of the children's issues.
OCS responds by noting that the children were in need of aid pursuant to five separate provisions of AS 47.10.011, and that Patrick's compliance with many of his case plan's requirements was insufficient to fully remedy his harmful conduct. OCS cites the multiple times Patrick's therapist stated that Patrick either denied or was unaware of the extent his children were physically abused. OCS also points to Patrick's excessively brief expectations for reunification efforts as evidence that Patrick failed to understand, appreciate, and ultimately remedy his harmful conduct. The guardian ad litem echoed OCS's concerns about Patrick's failure to understand the extent of his children's physical and psychological injuries and emphasized that the children's pressing need for permanency was inconsistent with the pace of Patrick's progress.
Even full compliance with a case plan does not guarantee that a parent will be found to have remedied the conduct or conditions that placed the children in danger, as compliance cannot guarantee a parent will acquire the necessary skills required to properly parent their children. Barbara P., 234 P.3d at 1260 n. 40.
Patrick's first claim — that the trial court should not have considered his behavior in and discharge from the family violence intervention program — contradicts the plain language of AS 47.10.088(b) that the trial court "may consider any fact relating to the best interests of the child" when determining whether a parent has remedied conduct endangering a child. Regardless of whether participation in the program was a reasonable OCS requirement, the trial court's consideration of Patrick's lack of participation in it was not error.
As to the arguments that at trial Patrick acknowledged a significant level of responsibility and renounced using physical discipline, the trial court noted comparisons with Tessa M. v. State, Department of Health Social Services, Office of Children's Services. In Tessa M. the trial court terminated a mother's parental rights following the mother's extended inability to acknowledge a systematic pattern of abuse. While the mother participated in counseling, she remained unable to acknowledge she abused her child, and only conceded on appeal that her daughter was subjected to "inappropriate discipline amounting to physical abuse." We upheld the trial court's finding that Tessa failed to remedy her conduct in a reasonable period of time due in part to Tessa's persistent failure to admit that her behavior was abusive and to understand her child's needs. Like the mother in Tessa M., Patrick repeatedly failed to acknowledge his use of corporal punishment constituted child abuse and justified using corporal punishment to discipline his children, going so far as to say that he did not bruise his children — despite conclusive photographic and testimonial evidence to the contrary. Patrick likewise maintained that his daughters were never sexually abused by their brother despite being presented with substantial evidence to the contrary.
182 P.3d 1110 (Alaska 2008).
Id. at 1115-16.
Id. at 1116.
Id. at 1116 n. 17.
Id. See also Doug Y. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 243 P.3d 217, 225-26 (Alaska 2010) (upholding trial court's determination father failed to remedy his harmful conduct when father failed to seriously engage in therapy and to acknowledge and take responsibility for past abusive conduct).
Patrick's final argument, that the court's finding that he showed no real understanding of the children's emotional and mental health issues is erroneous because it was based on his inability to immediately integrate information he was first presented at the termination trial, also fails. Patrick testified that reunification with the children would be a relatively quick process and likely possible within three to six months. But therapists who treated the children testified that contact with Patrick would be traumatic and potentially damaging to the children. It was not clearly erroneous for the court to find that Patrick showed no real understanding of his children's needs.
The children were removed from Patrick's custody in 2006. Contrary to Patrick's statements that reunification could take place within a few months, several therapists testified to doubts that the children could ever safely be reunified with their father and to the children's need for permanency. Patrick justified the use of at least some violence against his children throughout the proceedings. Because Patrick resisted mental health treatment and refused to comply with OCS's request for a psychological re-evaluation to determine whether he had made progress, at the time of trial there was no evidence that Patrick had yet begun to remedy his own mental health issues that placed his children at risk.
We therefore conclude that clear and convincing evidence supports the trial court's finding that Patrick failed to remedy his conduct in a reasonable time and that the children were at substantial risk of physical or mental injury if returned to him.
V. CONCLUSION
We AFFIRM the trial court's decision to terminate Patrick's parental rights.