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F.T. v. Div. of Family & Youth Services (9/6/96), 922 P 2d 277
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, telephone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-7265
) Superior Court No.
) 3AN-90-304A CP
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF HEALTH AND SOCIAL ) [No. 4399 - September 6, 1996]
SERVICES, DIVISION OF FAMILY )
AND YOUTH SERVICES and B.T., )
In re: R.T., )
A Minor Under the Age )
of 18 Years. )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: Kenneth C. Kirk, Anchorage, for
Appellant. J. Stefan Otterson, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh and Fabe, Justices.
The father of a minor child, R.T., challenges the
superior court's decision that R.T. remains a child in need of aid
(CINA) and the consequent extension of state custody for up to two
years. We conclude that the trial court's decision was not clearly
erroneous and should be affirmed in all respects.
II. FACTS AND PROCEEDINGS
F.T. and B.T. separated in February 1989. They had two
children: a son, G.T., and a daughter, R.T. R.T. was born in
November 1985 and was nine years old at the time of the most recent
proceedings in the superior court. The children's mother, B.T.,
had custody of the children after she and F.T. separated. F.T. was
not allowed to have unsupervised visits with the children because
of substantiated allegations of child abuse.
In May 1990 the Department of Health and Social Services
(DHSS) filed a CINA petition for temporary placement of the
children. Superior Court Judge John Reese found probable cause to
believe that the children were in need of aid, that reasonable
efforts were made to prevent their removal from the home, and that
continued placement in the home would not be in their welfare.
In February 1991 Judge Reese found that G.T. and R.T.
were children in need of aid. F.T. appealed the child in need of
aid adjudication of G.T. F.T. did not appeal the determination
that R.T. was a child in need of aid.
We concluded that there was no basis in the record to
support a finding that G.T. was in need of aid under AS
47.10.010(a)(2)(A), and insufficient evidence to support a finding
under AS 47.010(a)(2)(C). F.T. v. State, 862 P.2d 857, 862, 864
(Alaska 1993). We vacated the order committing G.T. to the custody
of DHSS, and G.T. was subsequently returned to F.T.
B. Proceedings before Judge Gonzalez
In October 1993 DHSS filed a petition to terminate F.T.'s
parental rights with respect to R.T. (EN1) Superior Court Judge
Rene J. Gonzalez held a termination trial in August 1994. Social
worker Marge Karamolegos testified that she was assigned to R.T.'s
case on July 20, 1990 and that during the time she worked on the
case there was no plan to reunite R.T. and F.T. Larry Overholser
took over for Karamolegos in November 1992. He testified that
there was no reunification plan. However, before the close of
evidence, the State recalled Overholser, and he testified that a
more complete review of the file revealed two reunification plans,
dated December 1990 and June 1991.
Judge Gonzalez found that R.T. was "exposed to domestic
violence between her parents." He also found that R.T.'s foster
parents had done an excellent job with her and that her foster
parents wished to adopt her.
As to reunification, Judge Gonzalez found that although
there were apparently two reunification plans in DHSS's files,
the evidence is clear that DHSS did not
implement these plans because (1) their focus
was on [R.T.] eventually being placed up for
adoption, and (2) in practice, no plan to
reunify [R.T.] with her father existed. DHSS
exerted minimal effort in trying to work with
[F.T.] in a treatment plan he could reasonably
follow to eventually reunite with his daughter
He found that there had been continuing difficulties
between social workers and F.T. and that F.T. "had encountered
repeated difficulties in obtaining reasonable visitation with his
daughter." Judge Gonzalez also noted that social workers had found
F.T. difficult to work with because of his short temper and low
Judge Gonzalez noted that R.T. had been diagnosed by a
psychologist as suffering from "major depression." Given that
diagnosis, he noted that "it is troubling that DHSS did not have
[R.T.] psychologically evaluated at a much earlier date so that she
could have been receiving the professional attention she needs much
Judge Gonzalez concluded that under Alaska Child in Need
of Aid Rule 15(g), DHSS must make a reasonable effort to reunify a
child in its custody with the child's family. He ruled that DHSS
had not made reasonable efforts, opining:
The two social workers who had the direct
responsibility to assist [F.T.] with a
reunification plan were not even sure that
such a plan existed. While it is true that a
search of the case file eventually revealed
documentation of a plan, the actual efforts
made by DHSS to work with [F.T.] were not
reasonable efforts to return [R.T.] to his
Judge Gonzalez concluded that he could not make a finding
that F.T.'s conduct, which originally caused R.T. to be a child in
need of aid, was likely to continue given the absence of a
reasonable reunification plan. He denied the State's petition to
terminate F.T.'s parental rights. Judge Gonzalez also ordered DHSS
to make reasonable efforts to reunite F.T. and R.T. and to work
with F.T. on visitation and counseling.
C. Proceedings before Judge Reese
In March 1995 F.T. filed a petition alleging that the
Division of Family and Youth Services (DFYS), a division of DHSS,
was refusing him visitation in violation of Judge Gonzalez's order.
DFYS opposed the petition and filed a petition to extend custody
for another two years. The State's petition argued that F.T.
should complete one-on-one parenting classes, attend counseling,
and address anger management through individual or group counseling
prior to visitation. The State also alleged that R.T.'s
psychologist had diagnosed her as suffering from post-traumatic
stress disorder and that visitation with F.T. would seriously
interfere with her academic and daily functioning. F.T. opposed
the State's motion to continue custody.
Judge Reese conducted the trial on May 2, 1995. F.T.
argued that the two-year extension was not in R.T.'s best interests
and claimed that R.T. was no longer a child in need of aid. He
proposed that a transitional schedule be put in place to return
R.T. to his care.
The court received testimony from two therapists, social
worker Larry Overholser, F.T., and R.T.'s mother, B.T. This
included extensive testimony as to R.T.'s unwillingness to accept
the care of her father, past alleged incidents of child abuse and
domestic violence, and F.T.'s behavior at supervised visits with
R.T. F.T. also testified at length about what he would do if R.T.
were returned to his care. He also provided testimony about how he
felt G.T. was doing under his care.
The court found that R.T. continued to be a child in need
of aid on the basis that she was refusing to accept F.T.'s care.
The court also noted in its oral order that R.T. could be found a
child in need of aid based on the threat of physical harm if she
were returned to F.T.'s care. The court added in its written order
that F.T. had failed to complete treatment "necessary to address
anger management and to be able to respond adequately to the needs
of [R.T.]." The court concluded that continued CINA jurisdiction
was in R.T.'s best interests.
Judge Reese also ruled that the State could not leave the
decision about commencing visitation up to R.T.'s therapist. He
told the State that it would have to be ultimately responsible for
such decisions. The court approved the State's treatment plan for
F.T. R.T. was left in the care of the State. F.T. appeals.
A. Standard of Review
The superior court's factual findings will not be
overturned unless they were clearly erroneous. A.H. v. State, 779
P.2d 1229, 1231 (Alaska 1989). A finding is clearly erroneous when
we are left with the definite and firm conviction after reviewing
the entire record that a mistake has been made. In re J.L.F., 828
P.2d 166, 170 n.12 (Alaska 1992), overruled on other grounds, In re
S.A., 912 P.2d 1235, 1241 (Alaska 1996).
As to the interpretation of statutes and other issues of
law, we apply our independent judgment. In re J.L.F., 828 P.2d at
B. Did the Trial Court Correctly Conclude that R.T. Is a
Child in Need of Aid?
Both AS 47.10.083 and CINA Rule 19 require the court to
determine that a child continues to be in need of aid before it
grants an extension of custody. See AS 47.10.083; CINA Rule 19(f);
see also 1990 Senate Journal 3431. (EN2) In this case, the trial
court correctly concluded that R.T. continued to be a child in need
Under AS 47.10.010(a)(2)(A) a child can be found to be a
child in need of aid as a result of
the child being habitually absent from home or
refusing to accept available care, or having
no parent, guardian, custodian, or relative
caring or willing to provide care, including
physical abandonment. . . .
Judge Reese found that R.T. was "refusing care available
by her father apparently in a very loud manner,"and this formed
the primary basis for his finding that R.T. was a child in need of
aid. The State, B.T., and the Guardian Ad Litem all agree that it
was correct for the trial court to adjudge R.T. a child in need of
aid on this basis. F.T. argues that R.T. has not had the
opportunity to actually accept or reject his care.
The superior court had before it a great deal of evidence
concerning R.T.'s refusal to accept F.T.'s care. This evidence
came primarily from the testimony of therapists who examined or
worked with R.T. Their opinions related the substance of R.T.'s
refusal to accept care from their father. As Dr. Senzig testified,
it "seem[ed] highly unlikely"that R.T. "would accept [F.T.] as her
full-time caregiver"at the time of trial. They also discussed
R.T.'s reasons for refusal and their judgment that R.T. was basing
her concerns on actual events. For example, the court had the
following exchange with Dr. Senzig:
Q You said that [R.T.] can give you
accurate and vivid detail about the
reasons why she doesn't want to visit.
What are those reasons?
A She talks about watching her parents
engaged in arguments and fights, and
trying to shut out the noise of the
fights by covering her ears and not being
able to do that, and saying that after
hearing fights like that, she has -- she
can't get the angry words and voices out
of her head, and they keep going on and
on and on. She tries to distract herself
by engaging in various play activities
and still can't get the words out of her
Q Anything else?
A She describes a visit at DFYS where her
father was, as she puts it, yelling and
it being very scary, and she's trying to
shrink out of the way, and hoping that
there wouldn't be a physical fight like
she had seen [F.T.] and [B.T.] do in the
past. She talked once about sitting
somewhere between her parents and having
them argue over her, and scrunching down,
and talking about how it feels to have
two grownups yelling over your head. And
says, you know, I feel like getting up
and standing in front of them and
screaming, you're acting like children,
stop it, but I don't do that because that
would be rude and that would be
Q Anything -- any other things that
happened at the visits that were seen by
her as particularly stressful?
A She described once that Mr. Overholser
had to ask her father to leave because he
was yelling so much, and stated that she
was glad because she's tired of hearing
all that yelling. She described her
father asking her, as she puts it, dumb
questions. And asking her the same
question over and over, and has commented
he doesn't -- he doesn't listen to what I
B.T. also testified. She had recently taken R.T. to
lunch and claimed that when she mentioned the possibility of living
with F.T. to R.T., "[w]e had to calm her down and we had to change
the conversation and calm her down."
R.T.'s social worker, Larry Overholser, also testified.
His testimony about F.T.'s behavior during visits with R.T. would
also lend credibility to R.T.'s claim that she would not accept
F.T.'s care. For example, Overholser testified:
I talked to [R.T.] after that visit and
spent some time talking to her and -- and
talking to the foster parent. [R.T.] was very
upset. She was -- she was visibly shaken, and
the foster parent was a little bit fearful
too. But [R.T.] was very visibly upset and
visibly shaken and scared. At that time I --
I told [R.T.] that -- that she had some say in
the visit. That -- that -- I also told her
that I was not going to force her to visit
[F.T.] under those conditions.
Overholser testified about subsequent conversations that he had
with R.T. on the issue of visitation with F.T.:
A I went out to the house and talked to
[R.T.]. And [R.T.] told me that she was
-- she was afraid of [F.T.] and she
didn't want to visit him any more. His
behavior had scared her and -- and she
thought he was unpredictable. She didn't
know what he would do, and she said she
didn't want to visit him at that time. I
-- I gave some assurance that she had
some -- some say in the visit.
. . . .
Q All right. Were there any visitations
after that time?
A Since that time [R.T.] has pretty
consistently refused to visit with
[F.T.]. And I've talked to her. We saw
the results of the psychological which
came out, taken those into consideration,
referred her to counseling to Dr. Karen
Senzig who basically kind of confirmed
some of the stuff that we were seeing.
And after that point we had had requests
for visitation but [R.T.] at that point
was pretty strongly, pretty consistently,
and in my -- my opinion, justifiably,
refusing to visit with him. So, I agreed
not to force her to visit with him. I
didn't feel like it was in her best
interests to do that.
Additionally, there was testimony that R.T. witnessed
F.T. committing acts of domestic violence. B.T. testified that
when they were together, F.T. threw a plate of spaghetti at her
while R.T. crouched between her legs. She also testified that at
a time when R.T. was in the home, F.T. knocked her into the wall
and then "[h]e hit me in the face, broke my nose, and broke my
shoulder blade as I laid on the floor."
Given all of this evidence, it was not clearly erroneous
for the court to conclude that R.T. refused to accept F.T.'s care,
rendering her a child in need of aid.
C. Did the Court Implicitly Overrule Judge Gonzalez's Order?
F.T. claims that Judge Reese's order was inconsistent
with Judge Gonzalez's order. F.T. argues that Judge Gonzalez found
that no reasonable efforts had been made to encourage visitation.
On the other hand, Judge Reese seems to have implicitly found that
reasonable efforts had been made to encourage visitation. This is
the only inconsistency to which F.T. points.
There was no inconsistency between the orders because
Judge Reese's order can be read to reflect the State's efforts at
promoting visitation in the wake of Judge Gonzalez's order. Judge
Reese's order was not inconsistent with Judge Gonzalez's order.
D. Did the Court Err by Failing to Enter a Specific
Finally, F.T. argues that Judge Reese refused to enforce
Judge Gonzalez's order that DFYS work towards reunification of R.T.
with F.T. He claims that the superior court was required to find
that the State had shown by clear and convincing evidence that
termination of visitation was in the child's best interests. He
argues that the State failed to meet this burden of proof. F.T.
asks this court to remand this case with instructions that the
trial court establish a specific visitation schedule, which should
include "unsupervised visits, overnights, and extended visits
during school holidays."
In response, the State points out that there are two
different burdens of proof in visitation cases. When reasonable
visitation is actually or constructively terminated, the clear and
convincing evidence standard applies. In re D.P., 861 P.2d 1166,
1167 (Alaska 1993); D.H., 723 P.2d at 1277. However, when "a
parent's reasonable visitation rights are merely restricted,"the
burden is to prove that the restriction is in the child's best
interests by a preponderance of the evidence. In re D.P., 861 P.2d
at 1167; In re A.B., 791 P.2d 615, 618 (Alaska 1990). The State
argues that it has not denied visitation but merely placed
reasonable restrictions on visitation to protect R.T.
Because F.T.'s right to visitation has been completely
denied until he makes progress on his treatment plan, the clear and
convincing standard applies. See D.H., 723 P.2d at 1276 (allowing
foster parents to take child to Alabama had functional effect of
terminating visitation rights of indigent parent).
At trial, social worker Larry Overholser testified that
within one week of Judge Gonzalez's order, Overholser contacted
F.T. to discuss a reunification plan. He asked F.T. to come to his
office to discuss reunification. The plan included F.T.'s
participation in individual counseling, one-on-one parenting
classes, and anger management training. Overholser claimed that
F.T. was "ambivalent"about participating. Overholser contacted
F.T. a week later and was told he was still thinking about it.
Overholser testified that he was not aware that F.T. had taken any
steps to comply with the treatment plan since Judge Gonzalez's
order in March of that year. Overholser stated that he would allow
visitation as soon as the counselor approved it.
Judge Reese found that F.T. is "severely disturbed, and
has acted inappropriately during visits." He acknowledged F.T.'s
rights to reasonable visitation but stated that the State could
defer visitation until F.T. "made adequate progress on the
treatment plan, and visitation would not be damaging to the child."
The trial court's decision is supported by clear and
convincing evidence and is not clearly erroneous. There was a
daunting compilation of evidence that visitation with F.T. at this
point would seriously harm R.T. There was also significant
evidence that F.T. is in need of anger management and parenting
skills training. In light of this evidence, it was clearly in
R.T.'s best interests to suspend visitation until F.T. begins
making progress on the treatment plan. See K.T.E. v. State, 689
P.2d 472, 477-78 (Alaska 1984) (finding that banning visitation did
not violate parent's right to reasonable visitation when there was
testimony that visits were harming child); cf. In re D.P., 861 P.2d
at 1167 (vacating order limiting visitation to two per year because
state presented no evidence that limitation was in child's best
interest); In re A.B., 791 P.2d at 617-18 (affirming trial court
decision that state had failed to prove that limiting visitation to
one clinical visit per week was in child's best interests where
evidence showed that child's condition had stabilized during same
time that more extensive visitation had been allowed).
F.T. has raised the concern that R.T.'s therapist will
never agree to allow visitation. (EN3) However, the court ruled
that DFYS will have to make the decision on visitation and that it
cannot delegate that decision to a counselor. Because F.T. has not
taken the necessary steps to follow through on his treatment plan,
it is premature for him to complain that the State is likely to
withhold visitation in an unreasonable manner. (EN4)
We conclude that the superior court's decision was
correct in all respects. Once F.T. has commenced the treatment
plan, he can petition the court if he believes that the State has
unreasonably withheld visitation. The decision of the superior
court is AFFIRMED.
1. B.T., R.T.'s mother, consented to having R.T. adopted by her
2. Prior to the 1990 amendment to AS 47.10.083, under our
decision in In re A.S., 740 P.2d 432, 434-436 (Alaska 1987), the
only relevant question upon a petition to extend the State's
custody of a child in need of aid was whether such an extension was
in the best interests of the child.
3. For example, on the question of how soon visitation might be
advisable, Dr. Senzig testified:
I can't say about the near future because it
would depend on what [F.T.] was doing in
counseling. If after consulting with his
therapist, there was reason to believe that he
was making progress and had more ability to
focus on [R.T.'s] needs, at that point I think
visitations might be possible.
4. F.T. also argues that Judge Reese erroneously failed to
consider and misconstrued evidence of how G.T. was doing under his
care. F.T. presented testimony that G.T. is doing much better in
his care. However, Judge Reese stated in his oral disposition
I hoped to hear more about [F.T.]'s success
with [G.T.]. There was in the end almost no
information about [G.T.]. Listening to the
other testimony, I am quite concerned about
In this regard, F.T. himself testified that he took G.T. off
his medications despite explicit warnings from G.T.'s psychiatrist.
Additionally, it does not seem that G.T. is receiving any
professional counseling. The trial court also received testimony
that G.T. had been asked not to return for visits with friends at
Alaska Baptist Home because G.T. was too disruptive. There was
also evidence that G.T. is doing better; F.T. testified that he no
longer has to be restrained and is doing better in school. Larry
Overholser was also apparently told by a teacher that G.T. was
doing better in school. Given the mixed nature of the testimony
regarding G.T. and the fact that R.T. was refusing to return to
F.T.'s care, the trial court's decision was not erroneous.