Opinion
Supreme Court No. S-11532.
June 29, 2005.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Jane Kauvar, Judge, pro tem. Superior Court No. 4FA-01-263 CP.
Kathleen A. Murphy, Assistant Public Defender, Anchorage, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Dan N. Branch, Assistant Attorney General, Juneau, and Scott J. Nordstrand, Acting Attorney General, Juneau, for Appellees.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
1. Sofia M. is a methamphetamine addict and twenty-seven year old mother of five. She asks this court to reverse a superior court order terminating her parental rights and responsibilities in regard to her fourth child, Marta. Sofia's parental rights were terminated pursuant to AS 47.10.088 because the superior court found clear and convincing evidence that Sofia's methamphetamine addiction substantially impaired her ability to parent and exposed Marta to a substantial risk of harm. The court also found clear and convincing evidence that Sofia had failed to remedy her substance abuse in a reasonable time, and that the Office of Children's Services, Department of Health and Social Services ("department") had made reasonable efforts to help Sofia remedy her substance abuse.
We use pseudonyms in this opinion to protect the privacy of the persons involved.
2. On appeal, Sofia does not argue that she does not have a substance abuse problem, that she has remedied her addiction, or that the state failed to make reasonable efforts to preserve her family. Her only argument is that the superior court erred by concluding that her addiction impaired her ability to parent and placed Marta at substantial risk of harm. Because there was sufficient evidence before the superior court to conclude that Sofia's addiction impaired her ability to parent and that this impairment exposed Marta to a substantial risk of harm, we AFFIRM the order of the superior court.
3. Sofia has a serious, longstanding substance abuse problem. By her mid-teens Sofia was drinking alcohol, smoking marijuana and using methamphetamines. She testified at trial that she began using methamphetamines when she was sixteen and shortly thereafter became a daily user until she was three months pregnant with her first child. Sofia used drugs, "including marijuana, cocaine, and methamphetamine, often on a daily basis" from April 1996 until March 1998. She was diagnosed in 1998 with "amphetamine dependence, alcohol dependence, and cannabis dependence." A 2000 substance abuse evaluation concluded that Sofia was dependent on methamphetamines, cocaine, and marijuana. According to an August 2003 psychological evaluation, Sofia's "substance abuse has progressed to the point where it interferes with her ability to function socially, occupationally, and legally, as well as to act as a responsible adult and parent." She testified at her termination trial that she overdosed on methamphetamines the week of trial; she was unable to attend the first three days of trial. During that time she contemplated suicide.
Sofia was eighteen at the time.
4. Sofia left her first husband, Roman W., in March 1998 and moved with her three children to Fairbanks, where her mother was living. Following reports of abuse, the children were taken into custody by the department in June 1998. Sofia made some progress on her case plan and the children were returned to her custody in March 1999. Upon receiving fresh reports of abuse, the department removed the children once again in August 1999. They were then placed with Roman in July 2000. The couple divorced in January 2001, and agreed that Roman would have primary physical custody and that they would share legal custody of the three children.
Sofia and Roman were married in April 1996 when Sofia was eighteen and Roman was thirty-eight.
5. Following her divorce, Sofia became romantically involved with Denis M. Sofia became pregnant by Denis and gave birth to Marta in December 2001. Denis testified at trial that Sofia used methamphetamines, cocaine, and marijuana during her pregnancy and that he saw her use methamphetamines on more than ten occasions during her pregnancy. Marta was born one month premature and tested positive for cocaine and methamphetamines. She spent the first month of her life in neonatal intensive care.
Sofia and Denis married on December 26, less than two weeks after Marta's birth.
6. After learning that Marta had been exposed to illegal drugs in utero, the department filed a petition to adjudicate Marta a child in need of aid. Sofia and Denis stipulated that Marta was a child in need of aid in April 2002 pursuant to AS 47.10.011(4), (6), and (9)-(11). The stipulation committed Marta to the custody of the state for a period not to exceed one year.
AS 47.10.011(4), (6), and (9)-(11) provide:
Sec. 47.10.011. Children in need of aid. Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following:
. . . .
(4) the child is in need of medical treatment to cure, alleviate, or prevent substantial physical harm or is in need of treatment for mental injury and the child's parent, guardian or custodian has knowingly failed to provide the treatment;. . . .
(6) the child has 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, guardian, or custodian or by the failure of the parent, guardian or custodian to supervise the child adequately;
. . . .
(9) conduct by or conditions created by the parent, guardian or custodian have subjected the child or another child in the same household to neglect;
(10) the parent, guardian or custodian'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 substantial harm to the child; if 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, guardian or custodian 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 harm to the child as described in this paragraph;
(11) the parent, guardian, or custodian has a mental illness, serious emotional disturbance, or mental deficiency of a nature and duration that places the child at substantial risk of physical harm or mental injury.
7. A case plan was developed in April 2002 with the concurrent goals of returning Marta to the custody of Sofia and Denis, or moving towards adoption by Denis's parents. The case plan identified two areas of concern for Sofia: (1) her substance abuse, and (2) her lack of parenting skills, especially in regard to the special developmental needs of her children, and Marta in particular. To address her substance abuse, Sofia was required to stop using drugs, undergo in-patient treatment and follow the recommendations of her substance abuse evaluation, demonstrate awareness of the effects of her substance abuse on her children, and submit to urinalysis. The case plan also required her to attend parenting classes, demonstrate awareness of her children's, and especially Marta's, developmental needs, and visit regularly with Marta.
8. Sofia made "great progress" on her case plan, and the department placed Marta with Sofia and Denis in a semi-permanent trial home visit between October 1, 2002, and April 2003. Marta's guardian ad litem, Peter Braveman, testified at trial that he visited the family home and was very impressed. He testified that his professional opinion at the time was that Marta was not going to be in any significant danger from her parents. This happy state of affairs did not last. Sofia relapsed and resumed her methamphetamine use.
According to Sofia's testimony, she began to feel depressed after her mother died in November 2002. She also testified to stress related to the family's economic condition: the family could not pay rent, her car broke down, and she was apparently fired from her job. Sofia testified that she "caved in" to these stresses and relapsed. The superior court did not credit this explanation for the relapse. In its oral findings, the court observed that the relapse occurred when "things were going as well in [Sofia's] life as they ever had gone" and took place "despite how well things were going."
9. In March 2003 the police contacted the department because of a drug investigation involving Sofia and Denis. The police had found a box containing equipment used in the production of methamphetamines in Sofia and Denis's home. Sofia reportedly admitted to the police that she knew of the contents of the box. Sofia's social worker also testified that Sofia admitted to methamphetamine use at the time. Sofia admitted at trial to having relapsed prior to the discovery of the box. She testified that she had been struggling and was in "full-blown relapse" for three months after the box was found.
10. Following the discovery of the box, Marta was removed from the family home and placed with a maternal aunt. In April 2003 the state moved for an order extending state custody of Marta pursuant to AS 47.10.080(c)(1)(A). In early May 2003 Superior Court Judge Niesje J. Steinkruger concluded that Marta continued to be a child in need of aid pursuant to AS 47.10.011(4), (6), and (9)-(11), and ordered that the department's custody of Marta be extended for six months.
11. Sofia used drugs for two to three months during the late spring and early summer of 2003. She testified at trial that she had curtailed her use when she discovered that she was pregnant, but she admitted that she relapsed during her pregnancy, and her fifth child, Stephan M., tested positive for barbiturates and methamphetamines at birth.
12. The department moved for termination of Sofia's parental rights concerning Marta in August 2003. A termination trial was held before Superior Court Judge Pro Tem Jane Kauvar in May 2004. At trial, Sofia admitted to overdosing on methamphetamines one week before her testimony, and to contemplating suicide at that time. Sofia's former social worker testified at the end of trial that she had encountered Sofia in a state of extreme drug intoxication outside of the courthouse during a recess in the proceedings. Sofia was incoherent and discussed suicide.
13. Judge Kauvar issued findings of fact and conclusions of law. She found "clear and convincing evidence that [Marta] remains a child in need of aid under AS 47.10.011(1, 10)." She also found that "[t]here is clear and convincing evidence that the mother has failed, within a reasonable time, to remedy the conduct or conditions in the home that place [Marta] in substantial risk . . . of physical or mental injury. The mother was given multiple opportunities to demonstrate that she could overcome her addiction without success." The court further found that "[t]here is a substantial risk of harm to [Marta] when her mother is intoxicated on drugs, as Ms. M[.] gets intoxicated for three to four days at a time. Given that [Sofia] consumed methamphetamines during the week of trial on May 3, 2004, there is no way that she could have cared for or protected her daughter." Finally, the court concluded that, by more than the required preponderance of the evidence standard, the department had made reasonable efforts to prevent the breakup of the family. Based on these findings, the court terminated Sofia's parental rights and responsibilities in regard to Marta. Sofia appeals from this order.
The court also terminated Denis's parental rights based on his abandonment of Marta. Denis has not appealed this order and is not a party to this appeal.
14. We apply the "clearly erroneous" standard of review when reviewing a trial court's findings of fact regarding the termination of parental rights. We will find clear error only when a review of the entire record leaves us with a definite and firm conviction that a mistake has been made. We review de novo whether a trial court has correctly applied CINA law to its findings of fact.
Vivian P. v. State, Dep't of Health Soc. Servs., 78 P.3d 703, 706 (Alaska 2003).
Id.
Id.
15. In order to terminate a parent's rights and responsibilities, AS 47.10.088(a) requires the superior court to find by clear and convincing evidence that the child has been subjected to conditions or abuse that would qualify the child as a child in need of aid pursuant to AS 47.10.011. In addition, the court must find by clear and convincing evidence that the parent either (1) has not remedied the conduct or home conditions that place her child at substantial risk of harm, or (2) "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 and mental injury."
AS 47.10.088(a)(1). In addition, AS 47.10.088(a)(2) requires a court to find by a preponderance of the evidence that the state has made reasonable efforts to provide family support services to both the child and parent designed to prevent the child from being placed outside the parent's home or to enable the safe return of the child to her parent's custody. However, Sofia does not challenge the superior court's finding that the state made reasonable efforts to reunite the family.
16. Sofia admits on appeal that she is a drug addict, but contends that her drug use "has never placed [Marta] at substantial risk as envisioned by AS 47.10.011(11)." Sofia argues on appeal that the department failed to present clear and convincing evidence that her "ability to parent was substantially impaired by the habitual use of intoxicants." She also argues that the court ignored evidence that her parenting was unaffected by her drug use. Lastly, she maintains that termination was inappropriate because her case is distinguishable from A.J. v. State, in which we concluded that a mother's substance abuse had contributed to her failure to protect her children from sexual abuse. We disagree in all respects.
62 P.3d 609 (Alaska 2003).
17. Based on the evidence in the record, we cannot conclude that the superior court's finding that clear and convincing evidence showed that Sofia's substance abuse impaired her parenting ability and exposed Marta to a substantial risk of harm is clearly erroneous. Three categories of evidence supported the superior court's finding: (1) previous adjudications of Marta as a child in need of aid because of Sofia's substance abuse, (2) testimony from social workers and a psychologist that Sofia's parenting ability was substantially impaired by her substance abuse, and (3) evidence that Sofia cannot prioritize her children's needs above her own need to use drugs. Our review of this evidence certainly does not leave us with the firm conviction that the superior court's interpretation of the evidence was mistaken.
Sofia had stipulated in April 2002 that Marta was a child in need of aid based, in part, on her substance abuse. And it is undisputed that Sofia's drug abuse caused Marta substantial harm when Sofia exposed Marta to methamphetamines and cocaine in utero. Following the discovery of the methamphetamine paraphernalia in April 2003, Judge Steinkruger concluded that Marta continued to be a child in need of aid, in part, because of Sofia's substance abuse.
At trial, the superior court heard substantial testimony that a drug dependent parent who is a regular user, especially of methamphetamines, is unable to keep a child safe or meet the child's needs. The court also heard testimony that Sofia's substance abuse prevented her from being able to function as a parent. One social worker testified that although Sofia is a "good parent" and possesses "very good [parenting] skills" when she is sober, "her substance abuse issue has gotten in the way of her being able to provide those things for her child that her child needs." A psychologist who evaluated Sofia reported that Sofia's "substance abuse has progressed to the point where it interferes with her ability to function socially, occupationally, and legally, as well as to act as a responsible adult and parent. . . . [H]er drug of choice can produce symptoms which mimic psychiatric disorders, both during use and during withdrawal."
The most compelling evidence that Sofia cannot stop using drugs when the best interests of her children demand it is her admitted drug use while pregnant and during her termination trial. Denis testified that he observed Sofia consume methamphetamines, cocaine and marijuana while pregnant with Marta. He testified that he observed her use methamphetamines more than ten times while she was pregnant with Marta. Sofia also testified at trial that she had overdosed on methamphetamines the week before her testimony. Her social worker also testified that she had encountered Sofia heavily intoxicated with methamphetamines at lunch following the second day of trial. These incidents tend to show that Sofia is unable to put aside her appetite for drugs when the needs of her children require her to be sober and that Sofia is, therefore, unable to meet Marta's needs or protect her from harm.
18. Sofia's contention that the superior court ignored evidence that she was a good parent in spite of her drug use also lacks merit. Sofia points to testimony given by Marta's guardian ad litem concerning his observations of Sofia and Marta from January 2002 until April 2003 to support her contention that her drug use did not impair her ability to parent. The GAL testified that he was "very impressed" with Sofia and Denis. He found them to be very attached and comfortable with Marta and believed that they were meeting her needs. These observations are irrelevant to Sofia's ability to parent when she is using drugs because they occurred when Sofia was not using drugs. The GAL testified that he did not observe any indication of substance abuse. And he also testified that "I don't believe that — that the child could have been cared for properly if either parent was under the influence of — of illegal substances."
19. Sofia lastly argues that her case is distinguishable from this court's decision in A.J. v. State. Sofia is correct that she did not expose her children to the risk of sexual abuse, as did the mother in A.J. This distinction, however, does not imply that the evidence before the superior court was insufficient to show that Marta had been exposed to the conduct or conditions described in AS 47.10.011(10). In A.J., we affirmed a superior court's decision to terminate a mother's parental rights in part because her substance abuse placed her daughters at substantial risk of harm. We first noted that the trial court had complied with AS 47.10.088 by finding by clear and convincing evidence that the children had been subjected to conduct or conditions described in AS 47.10.011(7), (9), and (10). We then concluded that the trial court's findings were supported by the record. Contrary to Sofia's argument, we did not conclude that the record supported the court's finding that the children had been exposed to conduct or conditions described in AS 47.10.011(10) only because her intoxication and need for drugs contributed to the exposure of her daughters to the risk of sexual abuse. We did not even address what evidence of harm is sufficient to support an AS 47.10.011(10) finding. We certainly did not hold that the risk of sexual abuse, or any other harm, is a prerequisite for finding that a child has been subjected to the conditions described in AS 47.10.011(10). We expressly rejected a similar argument in M.J.S. v. State, Department of Health and Social Services.
62 P.3d 609 (Alaska 2003).
Id. at 613-14.
Id. at 613.
Id. at 614.
Id.
39 P.3d 1123 (Alaska 2002). In M.J.S., we affirmed a superior court's decision that a mother had subjected her child to the conditions identified in AS 47.10.011(10). Id. at 1126. The terminated parent in M.J.S. had argued that her substance abuse did not expose her child to a substantial risk of harm because she had arranged for a competent third party to care for the child when she was using. Id. We rejected her argument, noting that the superior court properly found that "despite [the third party's] competent caregiving" the mother's "conduct continued to expose [her child] to a substantial risk of harm because [the parent's] substance abuse prevented [the child] from forming a stable child/parent bond." Id. We also agreed with the superior court that the parent's substance abuse caused harmful instability in her child's life. Id.
20. After a review of the entire record, especially of Marta's prior child in need of aid adjudications, the testimony of Marta and Sofia's social workers, Sofia's psychological evaluation, and evidence that Sofia is unable to overcome her need for drugs, we are not left with the firm conviction that the superior court erred by finding that Sofia's substance abuse impairs her ability to parent and places Marta at risk of substantial harm. Consequently, we AFFIRM the superior court's order terminating Sofia's parental rights and responsibilities to Marta.