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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. M.W. v. Alaska Department of Health & Social Services (4/20/2001) sp-5391

M.W. v. Alaska Department of Health & Social Services (4/20/2001) sp-5391

     Notice:  This opinion is subject to 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, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA

M.W.,                         )
                              )    Supreme Court No. S-9557
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3AN-98-348 CP
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF HEALTH AND SOCIAL SERVICES,)
                              )    [No. 5391 - April 20, 2001]
               Appellee.      )   
                              )


          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                      Karen L. Hunt, Judge.


          Appearances:  Stuart G. Ross, Law Office of
Stuart G. Ross, Anchorage, for Appellant.  Kelly Gillilan-Gibson,
Assistant Attorney General, Anchorage, and Bruce M. Bothelo,
Attorney General, Juneau, joined by Robert R. Polley, Assistant
Public Advocate, and Brant McGee, Public Advocate, Anchorage, as
guardian ad litem, for Appellee.


          Before: Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.


          BRYNER, Justice.


I.   INTRODUCTION
          Mark W. appeals the superior court's termination of his
parental rights to his daughter, Michelle. [Fn. 1]  The superior
court determined that Michelle was a child in need of aid because
she had been abandoned by Mark; that Mark failed, within a
reasonable time, to remedy the conduct or conditions that placed
Michelle at a substantial risk of harm; that the Department of
Health & Human Services made reasonable efforts to provide family
remedial services; and that it was in Michelle's best interests to
terminate Mark's parental rights.  Because the record supports the
superior court's factual findings and the court adequately applied
the law to these facts, we affirm the termination order.
II.  FACTS AND PROCEEDINGS
          On July 5, 1998, Laura F. gave birth to a daughter,
Michelle.  Mark W. is Michelle's father.  Because both mother and
daughter tested positive for cocaine, the Department of Health and
Social Services (department) received a report of harm.  Laura has
an extensive history with the department: her substance abuse,
psychological problems, and pattern of abusing and neglecting her
children have resulted in the termination of Laura's parental
rights as to her previous four children.  Laura's history prompted
the department to assume custody of Michelle at birth. 
          A department social worker, Linda Gonzales, met with Mark
at the hospital soon after Michelle's birth.  Mark claimed that he
could care for Michelle, but he refused to provide information on
his living arrangements.  His refusal to cooperate and his
relationship with Laura caused the department to place Michelle in
a foster home when she was three days old. 
          Patricia Driggins, the social worker assigned to the
case, investigated the possibility of placing Michelle with her
father.  She visited Mark at his residence -- the Ingra House -- a
boarding house that permits convicted felons to reside there. 
During this visit, Driggins explained that the Ingra House was an
unsuitable place for a newborn and that Mark would need to find
suitable housing before the department could consider placing
Michelle in his custody. 
          A month later, Driggins met with Mark and Laura at an
initial case conference to discuss their case plan for receiving
custody of Michelle.  The plan required Mark to complete a
parenting class, obtain suitable housing, and visit with Michelle. 
Although Mark promised that he would call to set up visitation, he
failed to recontact the office.  During the year that followed --
between August 12, 1998, and July 1999 -- Mark continued living in
the Anchorage area but never visited or spoke to his daughter. 
From Michelle's birth to the November 1999 termination trial Mark,
by his own account, saw Michelle "[m]aybe three-and-a-half [times]. 
If you count the times [he'd] seen her in a vehicle."
          After the August 1998 case conference, Driggins was
unable to locate either parent.  She consulted Mark's last known
place of employment, Laura's probation officer, the phone book, and
other sources, but had no success.  Because Laura and Mark did not
comply with the case plan, the department petitioned to terminate
their parental rights in April 1999 and then published notice of
the proceedings in the Anchorage Daily News. 
          In July 1999 Laura gave birth to another child, John, 
also fathered by Mark.  The department received a report of harm,
assumed custody of John at birth, and placed him with Michelle's
foster family.
          Mark treated his newborn son differently.  He began
complying with his case plan, and eventually fulfilled its
requirements by obtaining a substance abuse assessment, completing
parenting classes, and visiting John.  In October 1999 the
department placed John with his father.
          Meanwhile, Michelle's termination petition proceeded
toward trial.  At the termination trial, in November 1999, both
parents admitted to abandoning Michelle.  They offered no specific
reasons for failing to visit her or comply with her case plan. 
Laura testified that she had been "trying to get [her] life
together," and Mark explained that he had been "endeavoring to help
[Laura]."  Mark acknowledged that he could have visited Michelle;
he made no attempt to excuse or defend his actions. 
          At the end of the trial, Superior Court Judge Karen L.
Hunt terminated Laura's and Mark's parental rights.  Michelle
remains with her foster family.  Mark appeals. [Fn. 2]
III. DISCUSSION
     A.   Standard of Review
          We apply the clearly erroneous standard when reviewing a
trial court's termination findings; [Fn. 3] clear error arises only
when our review of the entire record leaves us with a definite and
firm conviction that the superior court made a mistake. [Fn. 4] 
Whether the superior court's factual findings satisfy applicable
child in need of aid (CINA) statutes and rules is a question of law
that we review de novo. [Fn. 5]
     B.   The Superior Court Did Not Err in Terminating Mark's 
          Parental Rights.

          1.   The superior court's findings
          Under AS 47.10.088(a), a court entering an order that
terminates parental rights must find:  (1)  that the child is in
need of aid under AS 47.10.011; (2) that the parent failed to
remedy the conduct or conditions that placed the child at a
substantial risk of harm or failed to remedy the conduct or
conditions within a reasonable time; and (3) that the department
made reasonable efforts to provide family support services. [Fn. 6] 
Furthermore, the court must "consider the best interests of the
child" [Fn. 7] and any fact relating thereto. [Fn. 8]
          Here the superior court based its order on the following
findings:
               b.   [Mark] has had only brief contact
with the minor since the minor's birth on July 5, 1998.  Although
the evidence suggests that the father remained in the Anchorage
area, there were few attempts to contact the child or to contact
the Department and work a treatment plan.

               . . . .

               d.   The father's conduct constitutes a
conscious disregard of parental obligation, which has resulted in
the destruction of the parent-child relationship.

               . . . .

               j.   The father's lack of contact with
the child for a period exceeding six months, including failure to
provide for the physical, mental, social, or emotional needs of the
child since the minor's birth, constitutes substantial neglect and
abandonment by the father.

               l.   [Laura and Mark] were not truthful
to the court regarding the nature of their relationship.  [Mark]
testified that he would continue to put [Laura's] needs before the
needs of his children.
     
               . . . .

               7.   That based upon [Mark's] testimony,
in addition to the testimony of the social workers, the court finds
clear and convincing evidence that the parental conduct which
caused the minor to be a child in need of aid is likely to continue
if the parental rights of [Mark] are not terminated.

               8.   There is clear and convincing
evidence that the parents have not remedied the conduct or
conditions in the home that place the child at substantial risk of
harm.

                9.  Pursuant to AS
47.10.088[(a)(1)](B)(ii), the parents have 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 parents would place the child at substantial risk of
physical or mental injury.

               10.  The department has shown by a
preponderance of the evidence that it has made reasonable efforts
to provide remedial services to the family pursuant to AS
47.10.086.

               11.  Termination of parental rights is in
the best interests of the child.
          2.   The superior court correctly determined that
Michelle was a child in need of aid. 

          The superior court relied on three separate grounds in
finding Michelle to be a child in need of aid under AS 47.10.011:
[Fn. 9] Michelle's parents (1) abandoned her; [Fn. 10] (2) were
unwilling or unable to provide care, supervision, or support; [Fn.
11] and (3) engaged in conduct or created conditions that placed
her at a substantial risk of suffering substantial physical harm.
[Fn. 12]  Mark does not dispute or appeal these findings. 
          3.   The superior court correctly determined that Mark
failed to act within a reasonable time to remedy the abandonment.

          Alaska Statute 47.10.088(a)(1)(B) required the court to
find, by clear and convincing evidence, that Mark
               (i)  ha[d] not remedied the conduct or
conditions in the home that place[d] the child at substantial risk
of harm;  or

               (ii) ha[d] failed, within a reasonable
time, to remedy the conduct or conditions in the home that place[d]
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 . . . .[ [Fn. 13]]   
          Mark asserts that, by the time of the termination trial,
he had remedied the conduct or conditions that placed Michelle at
risk of harm.  He had complied with his son's case plan, and the
department returned John to him in October 1999.  But Mark's
argument ignores the superior court's finding that he failed to
remedy the conduct or conditions that placed Michelle at risk of
harm "within a reasonable time," as required under
AS 47.10.088(a)(1)(B)(ii).
          Mark does recognize that Dr. Richard Lazur, the state's
expert, "testified how important it is for a child to bond with
[her] parents during the crucial early months of life and how
necessary it was for parents to visit with their children." 
Further, he admits that he now understands the significance of
bonding with a child in the first few months of life and how it
would hurt John to be taken away from his father.  Yet Mark
inexplicably urges us to find that one year is a reasonable time to
remedy the effects of his abandonment under
AS 47.10.088(a)(1)(B)(ii).  We disagree.
          The state cites two cases, In re H.C. [Fn. 14] and O.R.
v. State, Department of Health & Social Services, [Fn. 15] in
support of its argument that a parent's attempt to resolve
abandonment by reappearing does not remedy the conduct unless the
attempt occurs within a reasonable amount of time.  Although the
statute does not define what is a "reasonable amount of time," the
state argues that abandoning a child for one year before returning
is obviously unreasonable. [Fn. 16]  The state also points to
legislative findings that indicate the importance of expediting the
placement process for children under six years of age. [Fn. 17] 
Here, Mark failed to contact the agency from August 1998 through
July 1999 and made no efforts to establish a relationship with
Michelle for over a year after her birth. 
          We find the state's argument persuasive and hold that the
superior court did not err in finding that Mark failed to remedy
the conduct or conditions within a reasonable time under
AS 47.10.088(a)(1)(B)(ii).
          4.   The superior court properly found that the
department made "reasonable efforts" to provide family support
services.

          Alaska Statute 47.10.086(a) requires the department to
          make timely, reasonable efforts to provide
family support services to the child and to the parents or guardian
of the child that are designed to prevent out-of-home placement of
the child or to enable the safe return of the child to the family
home, when appropriate, if the child is in an out-of-home
placement.  The department's duty to make reasonable efforts under
this subsection includes the duty to

               (1)  identify family support services
that will assist the parent or guardian in remedying the conduct or
conditions in the home that made the child a child in need of aid;

               (2) actively offer the parent or
guardian, and refer the parent or guardian to, the services
identified under (1) of this subsection;  the department shall
refer the parent or guardian to community-based family support
services whenever community-based services are available and
desired by the parent or guardian;  and

               (3)  document the department's actions
that are taken under (1) and (2) of this subsection.

The superior court found by a preponderance of the evidence that
the department's efforts were reasonable. [Fn. 18] 
          Mark challenges this finding.  But Mark was present at
the initial case conference, where he and Laura were advised of the
need to "work out" a visitation schedule and complete parenting
classes.  Mark asked no questions then, and later testified that he
understood the basic requirements of the plan and the importance of
establishing a child-parent relationship.  Mark nonetheless
complains that he never received a written copy of the case plan.
He speculates that if he had received a written copy, "it might
have given [him] clearer notice of what DFYS expected him to
accomplish prior to the return of his daughter."  Yet at the same
time, Mark recognizes that even if he had received a written copy,
it might not have made any difference.
          Although Mark also argues that he received no mail or
communications from the department after August 11, 1998, he admits
that he moved around frequently and failed to provide the
department with forwarding information; moreover, he failed to
contact the department after August 1998.
          Furthermore, Driggins testified that her efforts were
reasonable:  "Reasonable efforts [under AS 47.10.086(a)] mean you
identify what the client needs to do, and we very clearly did that,
and make referrals for services."  Driggins and the guardian ad
litem called Mark's last known place of employment and discovered
that he no longer worked there.  The department had no contact
information for Mark's family or friends, making it difficult for
Driggins to locate him.  Driggins completed an affidavit of
diligent inquiry on April 13, 1999, noting that her efforts to
locate Mark included checking phone books, utility applications,
permanent fund dividend applications, and criminal records.  And
finally, the state reminds us that, in making its reasonable
efforts finding, the superior court could consider Mark's
unwillingness to engage in his case plan. [Fn. 19]
          Given these circumstances, we conclude that the record
supports the superior court's finding that the department made
reasonable efforts under AS 47.10.086(a).
          5.   The superior court did not err in determining that
terminating Mark's parental rights was in Michelle's best
interests.
          Mark's last point addresses the superior court's best
interests finding. [Fn. 20]  Mark argues that it is poor public
policy to separate siblings.  Because he has custody of John, Mark
asserts, it is in Michelle's best interests to be in his home with
her brother.  In advancing this argument, Mark suggests that
Michelle and John formed a four-month bond while they were living
with Michelle's foster parents.  But this unsupported contention
directly conflicts with Dr. Lazur's testimony that very young
children would not form a close bond within four months. [Fn. 21]
          Moreover, the state correctly points out evidence
indicating that it is in Michelle's best interests to remain with
her foster family because she had bonded to them.  At trial Dr.
Lazur testified that Michelle would view someone like Mark -- whom
she had seen three times in one year -- as a stranger, even though
he was her biological parent.  Dr. Lazur further testified that to
remove Michelle from 
          a consistent environment where the child knows
a caregiver, is able to rely upon a particular individual to take
care of her needs or his needs, to then suddenly find him or
herself removed from that situation would cause tremendous amount
of anxiety, a sense of horror, a sense of terror and a sense of
unsafety in the world.  It would probably leave . . . irreparable
psychological damage to the child. 
          We conclude that the record supports the superior court's
conclusion that it is in Michelle's best interests to terminate
Mark's parental rights.  ["I]n a termination trial, the best
interests of the child, not those of the parents, are paramount."
[Fn. 22]  Michelle is thriving, happy, and well-adjusted at her
foster parents' home; she has bonded with her family.  The superior
court could properly find that removing Michelle from the only
family she has ever known would likely cause her irreparable harm. 
IV.  CONCLUSION
          For these reasons, we AFFIRM the superior court's
termination of Mark's parental rights.


                            FOOTNOTES


Footnote 1:

     To protect the anonymity of the parties, we use pseudonyms
throughout this opinion.


Footnote 2:

     Laura has not appealed.


Footnote 3:

     See D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 207 (Alaska 2000).


Footnote 4:

     See id. at 207-08.


Footnote 5:

     See id. at 207.


Footnote 6:

     See AS 47.10.088(a).


Footnote 7:

     AS 47.10.088(c).


Footnote 8:

     See AS 47.10.088(b).


Footnote 9:

     AS 47.10.011 provides, in relevant part:

          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:

               (1) a parent or guardian has abandoned
the child as described in AS 47.10.013, and the other parent is
absent or has committed conduct or created conditions that cause
the child to be a child in need of aid under this chapter;

               . . . .

               (3) a custodian with whom the child has
been left is unwilling or unable to provide care, supervision, or
support for the child, and the whereabouts of the parent or
guardian is unknown;

               . . . .

               (6) 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, guardian, or custodian or
by the failure of the parent, guardian, or custodian to supervise
the child adequately[.]


Footnote 10:

     See AS 47.10.011(1) and 47.10.013 (defining "abandonment").


Footnote 11:

     See AS 47.10.011(3).


Footnote 12:

     See AS 47.10.011(6). 


Footnote 13:

     AS 47.10.088(a)(1)(B).  The state correctly points out that
this provision did not require the superior court to find that
Mark's conduct is likely to continue.  Although the pre-1998
version of the statute required such a finding, the legislature
omitted this requirement from the new statute.  See former AS
47.10.080(c)(3).  Therefore, Mark's first issue on appeal is moot. 



Footnote 14:

     956 P.2d 477 (Alaska 1998).


Footnote 15:

     932 P.2d 1303 (Alaska 1997).


Footnote 16:

     Although abandonment may result because of various conduct,
the legislature has determined that a child is abandoned if the
parent "failed for a period of at least six months to maintain
regular visitation with the child."  AS 47.10.013(a)(3).  Mark did
not maintain regular visitation for over one year.


Footnote 17:

     See AS 47.05.065(5).


Footnote 18:

     See AS 47.10.088(a)(2).  This "reasonable efforts" standard
should be distinguished from the higher "active efforts"
requirement under the Indian Child Welfare Act (ICWA), 25
U.S.C. 1912(d) (1983).  See infra note 19.


Footnote 19:

     Cf. A.M. v. State, 945 P.2d 296, 305-06 (Alaska 1997) (dealing
with the "active efforts" requirement of 25 U.S.C. sec. 1912(d)).


Footnote 20:

     AS 47.10.088 provides, in relevant part:

          (b)  In making a determination under (a)(1)(B) of
this section, 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.

          (c)  In a proceeding under this chapter involving
termination of the parental right of a parent, the court shall
consider the best interests of the child.



Footnote 21:

     Although Mark claims that termination of his parental rights
to Michelle will "forever separate[] siblings," this is unsupported
and refuted by the foster mother's testimony.  The foster mother
testified that she and her husband have arranged visitation between
Michelle and Mark and would encourage Michelle to have future
contact with her biological family.  In fact, the foster parents
are godparents to one of Michelle's half-siblings.


Footnote 22:

     A.B. v. State, Dep't Health & Human Servs., 7 P.3d 946, 954
(Alaska 2000) (quoting A.A. v. State, Dep't of Family & Youth
Servs., 982 P.2d 256, 260 (Alaska 1999)).