Opinion
Supreme Court No. S-13392.
September 2, 2009.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge, Superior Court No. 3PA-06-00073/74 CP.
Abigail E. Sheldon, Wasilla, for Appellant. Megan R. Webb, Assistant Attorney General, Anchorage, Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh, Carpeneti, Winfree, and Christen, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A mother challenges the trial court's decision to terminate her parental rights to her two children. Because the evidence supports the court's findings and the court correctly applied relevant law, we affirm the termination of parental rights.
II. BACKGROUND
Sarah S. and Brian S. had two children: Beth, born in 1999, and Robert, born in 2002. The State of Alaska, Department of Health Social Services, Office of Children's Services (OCS) became actively involved with the family in late 2004 and petitioned for termination of Sarah and Brian's parental rights in March 2008. After a termination trial in the fall of 2008, the trial court concluded that OCS had met its burden of proof for the termination of parental rights. Brian has not appealed, but Sarah appeals two of the findings underlying the termination of her parental rights: (1) she had not remedied the conduct or conditions that placed her children at risk of harm; and (2) terminating her parental rights was in the children's best interests.
Pseudonyms are used for all family members.
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)).
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 only 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." When reviewing factual findings "we ordinarily will not overturn a trial court's finding based on conflicting evidence," and "[w]e will not reweigh the evidence when the record provides clear support for the trial court's ruling." It "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, which we review de novo.
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 53 (Alaska 2003) (citing V.S.B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 45 P.3d 1198, 1203 (Alaska 2002)).
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)).
Martin N., 79 P.3d at 53 (citing In re Friedman, 23 P.3d 620, 625 (Alaska 2001)).
D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 214 (Alaska 2000) (citing A.M. v. State, 891 P.2d 815, 825 (Alaska 1995)).
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)).
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. It Was Not Error To Find Sarah Failed To Remedy the Conduct or Conditions that Put Her Children at Substantial Risk of Harm.
Before parental rights may be terminated, the superior court must find the parent "has not remedied the conduct or conditions in the home that place the child at substantial risk of harm[,] or 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." In determining whether the parent has remedied the conduct in question:
AS 47.10.088(a)(2)(i)-(ii); CINA R. 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.
AS 47.10.088(b).
OCS became involved with the family in late 2004 after receiving a report of harm from a health care provider who determined Beth had contracted a sexually transmitted disease and likely had been sexually abused by an unknown party. In the following months OCS received a report that the children were begging for food, telling neighbors their parents had spent all their money on drugs, and another general report of parental substance abuse. Sarah told the OCS social worker responding to those reports that her marijuana and alcohol use were reasonable because she attempted to conceal it from the children and was never intoxicated to the point of being unable to stand.
In August 2005 OCS removed Beth and Robert from Sarah's care after Sarah's teenaged male friend, who abused drugs and alcohol with Sarah and occasionally babysat the children, abducted and beat Robert before leaving him tied to a tree at the top of a mountain. Around that time Sarah reported moderate to heavy use of marijuana, alcohol, crack cocaine, nitrous oxide, and opiate analgesics.
Sarah was diagnosed with polysubstance dependence in an October 2005 behavior health assessment. By March 2007 Sarah managed to complete substance abuse treatment, maintain several months of clean urinalysis, and remain free of illicit drugs. But at trial she admitted to drinking alcohol occasionally after completing treatment, testifying that it never caused her to feel impaired or to resume taking illicit drugs and that she "didn't feel like there was a problem there, since [she was] over 21 years old." At trial Sarah was unable to state whether she would have consumed alcohol if the children had been in her home, even though she acknowledged that her OCS case plan required her home to remain alcohol-free.
Sarah's testimony reveals that despite completing substance abuse treatment, she neither had completely stopped using alcohol nor understood the risks of using alcohol as a parent. Her testimony at the termination trial is all the more troubling in light of her previous assertions to an OCS social worker that her drug and alcohol use were reasonable despite the obvious consequences for her children.
Based on the foregoing, the superior court's finding that Sarah "does not recognize how [alcohol use] would . . . run the risk of these children being harmed in the future by her addictive personality" is not clearly erroneous. Neither her use of alcohol nor her failure to perceive its impact on her ability to parent, both of which place her children at substantial risk of harm, were remedied by the time of trial.
Cf. Sherry R. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 74 P.3d 896, 902-03 (Alaska 2003) (upholding superior court's finding that parent failed to remedy harmful conduct despite maintaining one year of sobriety when parent had long history of drug and alcohol abuse, had relapsed several times after receiving treatment, and did not demonstrate that "she accepts her problem"); J.H. v. State, Dep't of Health Soc. Servs., 30 P.3d 79, 86-87 (Alaska 2001) (upholding superior court's finding that parent failed to remedy harmful conduct despite making "considerable progress" in treatment when parent resumed drinking, lost her job, and resumed a relationship with child's father, who also had a serious substance abuse problem).
The superior court found that Sarah also suffered from a mental illness that placed the children at substantial risk of harm and that by the time of trial Sarah was "not receiving the type of treatment she needs in order to successfully parent." Although a personality disorder was not formally diagnosed at the time of the children's removal, Sarah's consulting psychiatrist observed that a personality disorder would likely be her primary diagnosis. After Sarah completed substance abuse treatment a clinical psychologist, Dr. Paul Turner, evaluated her and diagnosed an unspecified personality disorder with dependent features. Sarah testified that although she was in counseling for depression, she was not being treated for her personality disorder and had not yet shared her mental health records, including Dr. Turner's evaluation, with her treatment provider.
The court found that Sarah's personality disorder "significantly impacts her ability to take care of herself much less her children" and is, along with her substance abuse problems and other medical issues, "at the heart of the reason why she can't . . . adequately provide a safe environment for her children." When Sarah was receiving counseling in early 2005, before the children's removal, her consulting psychiatrist documented lethargy, negativity toward her children, and an apparent inability to understand "it is her responsibility to parent her child and not the other way around." After evaluating Sarah and observing her interactions with her children, Dr. Turner concluded Sarah's mental condition significantly affected her children and her ability to parent them. He observed she remained "ambivalent about whether her specific actions were a danger to the children when they were removed" and "had difficulty understanding the child protection concerns involved." He also concluded Sarah "continues to be at-risk for poor judgment and problem solving in parenting," and has a "less than minimally adequate ability to parent her children." At trial Dr. Turner testified that Sarah "more often is going to meet her own needs rather than prioritize those with the children."
Sarah argues Dr. Turner's evaluation is not persuasive evidence of her parenting capacity, asserting his report was outdated and "based on one hour of observation." Dr. Turner relied on Sarah's mental health records from earlier treatment providers and observations of Sarah's play with her children as well as his interview with Sarah. Although the report was made a year before trial, Sarah produced no evidence to refute it or to show the conditions and capabilities Dr. Turner described were improved. The superior court found Dr. Turner a credible witness. We defer to the court's credibility determination. Knutson, 973 P.2d at 599-600 ("[I]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." (internal quotation marks omitted)). Because Sarah presents no evidence to counter Dr. Turner's observations, her argument is unavailing.
Sarah's conduct, both before and after removal, supports these observations. In August 2005 Sarah was regularly smoking marijuana and drinking with a teenaged boy and occasionally left her children under his supervision despite noticing a sudden and contemporaneous change in Robert's behavior. Shortly after the children's removal from her care she decided to leave Seward, where she had lived with the children, to join Brian in Wasilla. She remained there even though it hindered maintaining a relationship with her children, who were living with a foster family in Seward (and later in Kenai). Sarah and Brian "missed several visits and on one occasion declined to visit with their children a second day because they had camping plans." Sarah allowed Brian to live with her intermittently until spring 2008 despite the fact that his failure to complete substance abuse treatment prevented OCS from returning the children to her custody while Brian was in the home.
Based on this evidence, the court's conclusion that Sarah's personality disorder remains untreated and continues to prevent her from providing a safe environment for her children is not clearly erroneous.
The harm the children suffered while in Sarah's care — kidnapping and beating in Robert's case, sexual abuse and infection in Beth's, as well as both children's neglect and exposure to drug use — was substantial. It is appropriate in this context to consider a child's, especially a young child's, need for permanency in determining a reasonable amount of time for a parent to remedy his or her conduct. The children were removed from Sarah's care when Beth was five years old and Robert was two years old. By the time of trial they had already been out of Sarah's custody for over three years. In light of the superior court's finding that "[t]here is a strong likelihood that this hurtful conduct will continue given Dr. Turner's opinion and the mental health concerns that [Sarah] suffers from," it is unlikely that the children could safely return to her within a healthy time frame for the children.
Martin N., 79 P.3d at 56 ("The legislature has found that children under six years of age suffer tremendously when their bonding processes are interrupted, such that `it is important to provide for an expedited placement procedure to ensure that all children, especially those under the age of six years, who have been removed from their homes are placed in permanent homes expeditiously.'" (quoting AS 47.05.065(5)(C))).
Sarah argues that she adequately remedied her conduct because she complied with the recommendations of her OCS case plan. The record is unclear in this regard. Sarah's case plan required her to "establish a home environment that is free of drugs and alcohol," but she admitted to using alcohol after completing substance abuse treatment. Moreover, compliance with a case plan does not mean a parent has actually remedied the harmful conduct or conditions. Sarah testified that she still drinks despite receiving substance abuse treatment. According to Dr. Turner, Sarah still has less-than-minimal parenting ability despite completing a parenting class. Although Sarah undoubtedly made some efforts to remedy her conduct, she also delayed the start of her substance abuse treatment, delayed receiving treatment for her personality disorder, and made decisions — such as joining Brian in Wasilla rather than remaining closer to the children in Kenai, and living with Brian despite his failure to get treatment — that diminished the likelihood of Beth and Robert's quick return to her care. Accordingly, we conclude the superior court did not err in finding clear and convincing evidence that Sarah had not remedied the conduct or conditions placing her children at substantial risk of harm.
See Rick P. v. State, Office of Children's Servs., 109 P.3d 950, 956 (Alaska 2005) (rejecting argument that because father attended counseling sessions, he remedied his violent conduct that placed his son at risk of harm); V.S.B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 45 P.3d 1198, 1208 (Alaska 2002) ("Compliance with treatment plans does not guarantee that parental rights will not be terminated because it cannot guarantee that adequate parenting skills will not be acquired from the treatment regimen.").
Sarah asserted she rejected the recommended treatment because she doubted the impartiality of the recommender, who testified on behalf of her teenaged friend at his kidnapping trial, and because she felt Brian had a more serious problem than she but received the same recommendation. Valid or not, these objections resulted in several months' delay.
Sarah also argues that delays in remedying her conduct were caused by various health problems. We recognize Sarah has suffered from serious medical conditions, including a broken ankle and drug-resistant staph infection, but there is no apparent connection between those conditions and her continued use of alcohol, untreated personality disorder, or lack of parenting skill and judgment, which pose a substantial risk of harm to the children.
B. It Was Not Error To Find Termination of Parental Rights Is in the Children's Best Interests.
Before terminating parental rights, the superior court must find by a preponderance of the evidence that termination is in the children's bestinterests. "The best interests of the child, not those of the parents, are paramount." In this case the court found that terminating Sarah's parental rights furthers the children's best interests, explaining, "The children deserve permanency and stability. Thirty-seven months is too long for young children to wait for their parents to correct their unhealthy behavior."
AS 47.10.088(c); CINA R. 18(c)(3).
A A., 982 P.2d at 260 (internal quotation marks omitted).
Sarah argues the court clearly erred because (1) Sarah's "time with her children had been so limited, it is impossible to say . . . whether [termination] was in her children's best interests or not," and (2) "[n]o evidence was presented that there would be particular harm to the children to continue in foster care long enough for Sarah to complete" mental health counseling, find stable housing, and secure financial support. Sarah's arguments are unpersuasive. First, her limited contact with the children, due in large part to her own choice to live in Wasilla, does not undermine the probative value of the children's progress in foster placement, her own conduct, or the opinions of medical professionals regarding her judgment, insight, and mental health. Second, an OCS social worker testified that young children generally do suffer harm when they are uncertain what the future holds for their family life. And even if no particular harm (other than uncertainty) can be identified in delaying the children's permanent placement, there is ample evidence to support the superior court's finding that terminating parental rights — which would enable Beth and Robert to enjoy the safety, permanency, and stability of adoption by their foster mother — better serves the children's interests than delaying their permanent placement so that Sarah can continue trying to remedy her conduct.
Beth and Robert have remained in the same extended foster family since shortly after their removal from Sarah's care. An OCS social worker testified that the children are bonded to their foster mother and are in the "best possible [foster] placement." Both the social worker and the children's guardian ad litem observed that Beth loves her parents and wants them in her life, but has expressed that she would prefer to stay with her foster family. Dr. Turner observed that "[n]either child expressed much natural affection for [Sarah]." He also observed that Sarah's interactions with Robert were warm and proper, but that her interactions with Beth had an edge and at times were inappropriate.
After removal Beth and Robert were placed in a Seward foster home. In March 2006 Beth and Robert were placed in a foster home with their previous foster father's brother in Kenai. In August 2007 the children were placed with their foster fathers' mother, whom they already knew and thought of as a grandmother figure.
Given: (1) the children's positive experience with their foster family; (2) the length of time they have been out of Sarah's care and their consequent "weak bond" with her; (3) Sarah's deficient parenting ability; (4) Sarah's inability to secure stable housing or employment despite state assistance; and (5) Sarah's continuing harmful conduct discussed above, the superior court did not clearly err in concluding that termination of Sarah's parental rights was in Beth and Robert's best interests.
V. CONCLUSION
We AFFIRM the superior court's decision to terminate Sarah's parental rights.