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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Apellant v State Dept of Health and Social Services (05/25/2001) sp-5415

Apellant v State Dept of Health and Social Services (05/25/2001) sp-5415

     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
                                 


C.W.,                         )
                              )    Supreme Court No. S-9642
          Appellant,          )
                              )    Superior Court No.
                              )    3AN-95-326CP
     v.                       )    
                              )    O P I N I O N
STATE OF ALASKA, DEPARTMENT OF)
HEALTH AND SOCIAL SERVICES,   )    [No. 5415 - May 25, 2001]
                              )
          Appellee.           )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Rene J. Gonzales, Judge.


          Appearances:  Frank J. Bettine, Anchorage, for
Appellant. Kari C. Kristiansen, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, and
Anita Alves, Assistant Public Advocate, and Brant McGee, Public
Advocate, Anchorage, for Appellee.  


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


          EASTAUGH, Justice.


I.   INTRODUCTION
        Finding that C.W. had abandoned his young child, J.S., the
superior court terminated C.W.'s parental rights.  C.W. argues that
termination violated the Children in Need of Aid (CINA) statute and
the Americans with Disabilities Act (ADA).  He claims that the
State of Alaska violated the CINA statute by failing to make
reasonable efforts to reunite him with his son, and violated the
ADA by failing to provide alcohol treatment services that
reasonably accommodated his allegedly substantial learning
disability.  We reject these arguments because, even assuming the
state had a duty to make reasonable efforts to reunite C.W. with
J.S. after he abandoned J.S., the superior court did not clearly
err in finding that the state fulfilled this duty with its
reasonable but fruitless attempts to contact C.W. after he had
abandoned his son for three years and lost contact with all those
involved in his son's CINA proceeding.  Furthermore, we conclude
that this abandonment finding justified termination notwithstanding
any of C.W.'s arguments regarding the ADA because his alleged
learning disability has no bearing on the abandonment issue and he
has not argued that the state's efforts in contacting him were
unreasonable under the ADA.   We also conclude that the superior
court did not clearly err by failing to incorporate visitation into
its order terminating C.W.'s parental rights.
II.  FACTS AND PROCEEDINGS
          J.S. was born April 30, 1993, to biological mother P.S.
and biological father C.W.  P.S. has a history of mental illness --
including manic depression -- and alcohol and substance abuse. 
C.W. has a history of alcohol and substance abuse and criminal
violations -- including five convictions for driving while
intoxicated and a no-contest plea to a charge of assault against
P.S. [Fn. 1]  In addition, a clinical psychologist, Dr. Frank
Gonzales, testified that he performed tests on C.W., which show
that C.W. has a verbal I.Q. of 73, has difficulty retaining
information, and is "borderline deficient"in certain verbal
skills.
          J.S. was first taken into Alaska Department of Health and
Social Services (DHSS) custody on July 17, 1995, after the
Anchorage Police Department arrested P.S. for being intoxicated
while caring for the child.  After two days in foster care, J.S.
was placed with his paternal grandmother.  When DHSS took custody
of J.S., C.W. was commercial fishing in Bristol Bay and was
unavailable to care for his son.  
          In September 1995 DHSS caseworker Jason Allen located
C.W. and explained the case plan to him.  Allen testified that he
perceived no lack of understanding on C.W.'s part and documented
C.W.'s agreement to participate in the plan.  C.W. did not
challenge the case plan at that time. 
          In September 1995 both parents met with social worker
Andrew Linn to discuss their case plan, and appeared intoxicated at
the meeting.  P.S. admitted using cocaine, and C.W. reported that
he was scheduled for a substance abuse evaluation at Clitheroe
Center.  Linn sent both parents for a urinalysis test, which showed
a high dilution rate [Fn. 2] and inconclusive results.  On May 26,
1996, the superior court accepted the stipulation of both parents
to CINA adjudication.  Both parents stipulated that their substance
abuse problems and C.W.'s absence from the home created conditions
that placed J.S. at substantial risk of harm, and that although
remedial services were being rendered by DHSS to promote
reunification of the family, returning J.S. to the home would not
be in his best interest at that time.  
          In 1995 and 1996 J.S.'s paternal and maternal
grandparents shared custody.  During this period, P.S. and C.W.
were granted liberal visitation and DHSS made efforts to enable
returning J.S. to their care by (1) monitoring drug usage for both
parents -- referring both to substance abuse treatment programs --
and (2) addressing the mental illness of P.S.  
          In 1996 C.W. moved from Anchorage and had no contact with
J.S., his social worker, or his lawyer in the CINA matter for more
than three years.  During this period, C.W. moved several times and
was in and out of jail.  He did not inform DHSS of his whereabouts
and gave no forwarding address.  C.W. explained at trial that he
moved away because he learned that P.S. was using drugs again and
feared that she would injure him as she had in the past or,
alternatively, that his presence would be destabilizing, or "create
problems"for J.S.  
          On April 30, 1998, DHSS returned physical custody of J.S.
to P.S.  In July 1998 P.S. called the police and reported that her
adult male friend had sexually molested J.S.  On July 20, 1998,
DHSS returned J.S. to the custody of his maternal grandmother. 
Janet Mitchell -- a licensed clinical social worker providing
therapy for J.S. -- diagnosed him with post traumatic stress
disorder; she testified at trial that J.S. had been sexually abused
for a period of two and one-half years while in the physical
custody of P.S. and the legal custody of the state.
          DHSS filed a petition to terminate the parental rights of
P.S. and C.W. on July 27, 1999, and amended the petition on
November 30, 1999.  P.S. relinquished her parental rights before
trial.  C.W.'s motion for a visitation order was denied.  The trial
began December 9, 1999, and concluded with a delayed session on
February 8, 2000.  The superior court permanently and irrevocably
terminated all parental rights of P.S. and C.W. to J.S. 
          C.W. appeals.
III. DISCUSSION
     A.   Standard of Review
          We apply our independent judgment in reviewing questions
of statutory interpretation, such as whether the superior court's
findings comport with the requirements of the CINA statutes. [Fn.
3]  We review findings of fact in CINA proceedings for clear error.
[Fn. 4]  Clearly erroneous findings are those that, upon "a review
of the entire record[,] leave us with a definite and firm
conviction that a mistake has been made."[Fn. 5] 
     B.   Failure to Make Reasonable Efforts Tailored to C.W.'s  
Learning Disability  
          C.W. argues that the state violated its duty under the
CINA statute and the ADA to make reasonable efforts, tailored to
his learning disability, to remedy his alcohol abuse problem and
enable him to reunite with J.S. 
          Alaska Statute 47.10.088 allows a court to terminate
parental rights "for purposes of freeing a child for adoption or
other permanent placement." In order to terminate parental rights
under the statute, a court must first find, by clear and convincing
evidence, that (1) the child is a child in need of aid under AS
47.10.011, [Fn. 6] and (2) the parent has not remedied the conduct
or conditions that placed the child at risk. [Fn. 7]  Alaska
Statute 47.10.086(a) requires that DHSS make "reasonable efforts to
provide family support services"to the parent and child with the
aim of preventing out-of-home placement. [Fn. 8]  
          But even assuming AS 47.10.086(a) invariably requires
DHSS to make reasonable efforts to reunite the biological family
when the parent has abandoned the child, [Fn. 9] it does not
require DHSS to make greater efforts than it made in this case to
locate C.W. after he had left town and lost contact with his son
and those others involved with the CINA proceeding.
          Title II of the ADA prohibits states from discriminating
on the basis of disability in the provision of "services, programs,
or activities."[Fn. 10]  The Code of Federal Regulations and the
federal case law uniformly suggest that the reunification services
provided by DHSS are "services"within the contemplation of Title
II. [Fn. 11]  Therefore, if the state had a duty under the statute
to provide support services to remedy C.W.'s alcohol abuse, we
assume for discussion purposes that it also had the duty under the
ADA to provide these services in a manner that reasonably
accommodated his alleged disability.  But we need not decide here
whether DHSS made reasonable efforts under the ADA to remedy C.W.'s
alcohol abuse, because the order terminating C.W.'s parental rights
rests independently on the superior court's well-supported findings
that C.W. had abandoned his son, and that DHSS had made reasonable
efforts under the circumstances to locate C.W. and to include him
in the CINA proceeding.
          The superior court found that J.S. was a child in need of
aid under AS 47.10.011(1) [Fn. 12] due to C.W.'s failure "to
maintain regular visits for a period of three years"and the fact
that C.W. "had not called, written letters, sent pictures, or
participated in any kind of contact that would let the child know
that his father was still around and that he still cares." The
superior court concluded that in light of the three-year
abandonment and C.W.'s failure to inform DHSS of his whereabouts,
DHSS's efforts to provide C.W. services were reasonable.
          The record supports the finding that DHSS's contact
efforts were reasonable.  After C.W. left Anchorage and his son in
1996, social workers continued to communicate with C.W.'s mother
(whose address C.W. had used for mail and communication with DHSS)
knowing that C.W. had contact with his mother and that through her,
he would get the message that social workers wanted to speak with
him about his case plan.  Although it was not until the case goal
had changed from reunification to termination that DHSS checked
criminal records in what would ultimately be a successful effort to
locate C.W. in jail, [Fn. 13] C.W. admitted that he knew all along
how to contact the caseworkers and his son if he so desired.  
          C.W. abandoned his child for more than three years,
leaving DHSS no information concerning his whereabouts.  And by the
time C.W. reappeared, he had been separated from J.S. for so long
that the court could reasonably conclude that no further efforts to
reunite C.W. and J.S. could reasonably be expected to have remedied
the harm that the abandonment had caused.  Thus, as the state met
its statutory obligations, AS 47.10.086 does not provide grounds
for challenging the termination of C.W.'s parental rights. 
          Nor does the ADA provide such grounds.  C.W. has never
contended that his alleged disability affected the circumstances
surrounding his abandonment.  He advanced his ADA claim only with
respect to DHSS's failure to make reasonable efforts to address his
alcohol abuse problem.  Because the superior court's findings
concerning abandonment -- including its finding of reasonable
efforts -- provided an independent basis for terminating C.W.'s
parental rights, and because C.W.'s disability claim had no logical
bearing on the abandonment findings, the court did not err in
terminating C.W.'s parental rights on that ground, even assuming
that DHSS's efforts to address his alcohol problem were
unreasonable under the ADA and arguably precluded terminating his
rights on the ground that his drinking made him an unfit parent.
     C.   Remedy of Conduct that Placed J.S. at Substantial Risk of
Injury
          
          C.W. also argues that the superior court clearly erred in
finding that he had failed to remedy his substance abuse problems,
and in failing to recognize that by the time of trial he was
"willing and able to care for [J.S.]."
          In order to terminate parental rights under AS 47.10.088,
a court must find by clear and convincing evidence that the parent:
          (i)  has not remedied the conduct or
conditions in the home that place the child at substantial risk of
harm; or
               (ii) 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 . . . .[ [Fn. 14]]

Here, the superior court found "clear and convincing evidence that
[C.W.] ha[d] not remedied the conduct or conditions that placed
[J.S.] at substantial risk of harm,"as C.W. had "failed, within a
reasonable period of time to successfully address his alcoholism
addiction."
          C.W. argues that the record, which reveals that he
completed his treatment at Cordova House in October 1999 with a
good prognosis for recovery, cannot support this conclusion. 
Although the record might support the conclusion that C.W. had
remedied his alcohol dependence by the time of trial, there was
also sufficient evidence indicating that he had not put his
alcoholism behind him.  The superior court reasonably found that
C.W. had not remedied his alcohol dependency within a reasonable
time because (1) since completing his first alcohol treatment
program in 1997, C.W. has been twice convicted of driving while
intoxicated, and (2) at the time of trial, he had not yet completed
a subsequent treatment program.  Regardless, even if the court had
erred in failing to recognize that C.W. had remedied his substance
abuse problems, this error would not justify reversal because the
termination order rests on the independent and adequate statutory
ground that C.W. abandoned J.S.  C.W. has not argued that his act
of abandonment was remedied such that it could no longer justify
the termination of his parental rights.
     D.   Guardianship Arrangement
          C.W. also argues that the superior court erred in
terminating his parental rights when the "less restrictive
alternative"of guardianship was available.  The guardianship issue
was raised during an October 29, 1999 evidentiary hearing on C.W.'s
motion for visitation.  C.W.'s mother objected to granting custody
of J.S. to the maternal grandparents and explained that she "would
be more than willing to become guardian of [J.S.] until [C.W.]
completed his case plan and could be [reunited] with [J.S.]."
However, the issue was not properly raised at trial.  C.W. offered
no evidence regarding a guardianship arrangement at trial.  In
fact, the issue was not even mentioned until closing arguments,
when C.W.'s counsel suggested that guardianship should be
considered.
          Although AS 47.10.110 permits a court to appoint a
guardian for a child when it appears to the court that such an
appointment would be in the child's best interest, AS 47.10.088
does not require that guardianship be considered in termination
proceedings, except to the extent that the statute requires the
court to order an arrangement that is in the child's best interest.
          The superior court implicitly rejected the guardianship
proposal when it denied C.W.'s visitation motion and continued
custody of J.S. with his maternal grandparents.  C.W. points to no
evidence indicating that guardianship would have been in the best
interest of J.S. or that it would have been in J.S.'s best interest
to disrupt the stability and security he had enjoyed living with
his maternal grandparents, with whom his therapist indicated that
he had formed deep attachments.  The superior court did not err in
failing to order a guardianship arrangement.
     E.   Failure to Include a Visitation Arrangement
          C.W. also argues that it was error for the superior court
to fail to incorporate a visitation plan into the termination
order.  But when adequate grounds for termination exist, there is
no presumption that the parent should have visitation rights. [Fn.
15]  After parental rights have been fully terminated, the former
parent has no residual rights at all -- certainly the CINA statute
provides for none.  Because the CINA statute does not expressly
provide for post-termination visitation by biological parents,
courts probably lack authority to order post-termination
visitation. [Fn. 16]  Even if such authority exists under some
circumstances, it may be exercised only to the extent that the
authorized visitation is in the best interest of the child. [Fn.
17] 
          The superior court ruled on C.W.'s motion to order
visitation only one month before the termination trial began, and
found by clear and convincing evidence that "[J.S.]'s welfare and
best interests are served by disallowing parental visitation until
approved by his current therapist Jan Mitchell." The court further
ordered that "any visitation between [J.S. and C.W.] shall be
allowed only under a structured program and as directed by Ms.
Mitchell." At trial, Mitchell offered the opinion that a child's
reconnection with an absent parent normally should not begin until
the child is at least eighteen.  C.W. does not persuasively show
that it would be in J.S.'s best interest to have contact with him
before the age of eighteen.
IV.  CONCLUSION
          We AFFIRM in all respects.


                            FOOTNOTES


Footnote 1:

     P.S. shot C.W. in 1993, while she was intoxicated and pregnant
with J.S.  C.W. was arrested as a result, and pleaded no contest to
assaulting P.S.  He testified that he did not actually assault
P.S., but entered the plea in order to prevent P.S.'s
incarceration.  


Footnote 2:

     Linn testified that a high dilution rate "is suspect for
people who will drink a lot of fluids to attempt to flush drugs out
of their system."


Footnote 3:

     See A.B. v. State, Dep't of Health & Soc. Servs., 1 P.3d 677,
681 (Alaska 2000) (citing R.J.M. v. State, Dep't of Health & Soc.
Servs., 973 P.2d 79, 84 (Alaska 1999)).


Footnote 4:

     See R.J.M., 973 P.2d at 84 (citing In re S.A., 912 P.2d 1235,
1237 (Alaska 1996)).


Footnote 5:

     Id. (citing S.A., 912 P.2d at 1237).


Footnote 6:

     See AS 47.10.088(a)(1)(A).


Footnote 7:

     See AS 47.10.088(a)(1)(B)(i).


Footnote 8:

     AS 47.10.086(a) provides: 

          Except as provided in (b) and (c) of this
section, the department shall 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.


Footnote 9:

     Cf. AS 47.10.086(c).  That subsection provides: 

          The court may determine that reasonable
efforts of the type described in (a) of this section are not
required if the court has found by a preponderance of the evidence
that (1) the parent or guardian has subjected the child to
circumstances that pose a substantial risk to the child's health or
safety; these circumstances include abandonment. . . .


Footnote 10:

     42 U.S.C. sec. 12132 (1995) ("Subject to the provisions of
this
subchapter, no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such
entity.").


Footnote 11:

     See 28 C.F.R. sec. 35.102 (2001).  That section provides:

          (a)  Except as provided in paragraph (b) of
this section, this part applies to all services, programs and
activities provided or made available by public entities. (b) To
the extent that public transportation services, programs and
activities of public entities are covered by subtitle B of title II
of the ADA (42 U.S.C. 12141), they are not subject to the
requirements of this part. 

          See also Crawford v. Indiana Dep't of Corrections, 115
F.3d 481, 483 (7th Cir. 1997) (applying Title II to education
programs for prisoners), overruled on other grounds by Erickson v.
Board of Governors, 207 F.3d 945, 948 (7th Cir. 2000); Duffy v.
Riveland, 98 F.3d 447, 455 (9th Cir. 1996) (prison disciplinary
hearing); Rodriguez v. DeBuono, 44 F. Supp. 2d 601, 614 (S.D.N.Y.
1999) (state assessment program for home care services), reversed
on other grounds, 197 F.3d 611, 618-19 (2d Cir. 1999); McNally v.
Prison Health Servs., 46 F. Supp. 2d 49, 58 (D. Me. 1999)
(prescription services provided by state detention center); Civic
Ass'n of the Deaf v. Giuliani, 915 F. Supp. 622, 634 (S.D.N.Y.
1996) ("As a remedial statute, the ADA must be broadly construed to
effectuate its purpose.") (citation omitted).


Footnote 12:

     AS 47.10.011 provides: 
 
          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 . . . .

          Further, AS 47.10.013 provides: 

          (a)  For purposes of this chapter, the court
may find abandonment of a child if a parent or guardian has shown
a conscious disregard of parental responsibilities toward the child
by failing to provide reasonable support, maintain regular contact,
or provide normal supervision, considering the child's age and need
for care by an adult.  Abandonment of a child also includes
instances when the parent or guardian, without justifiable cause, 
               (1)  left the child with another person
without provision for the child's support and without meaningful
communication with the child for a period of three months; 
               (2)  has made only minimal efforts to
support and communicate with the child; 
               (3)  failed for a period of at least six
months to maintain regular visitation with the child; 
               (4)  failed to participate in a suitable
plan or program designed to reunite the parent or guardian with the
child; 
               (5)  left the child without affording
means of identifying the child and the child's parent or guardian; 
               (6)  was absent from the home for a
period of time that created a substantial risk of serious harm to
a child left in the home; 
               (7)  failed to respond to notice of child
protective proceedings; or 
               (8)  was unwilling to provide care,
support, or supervision for the child.


Footnote 13:

     Cf. M.W. v. State, Dep't of Health & Soc. Servs., __ P.3d __,
Op. No. 5391 (Alaska, April 20, 2001) (affirming termination of
parental rights where superior court found that DHSS's efforts to
contact absent parent which included checking phone books, utility
applications, permanent fund dividend applications, and criminal
records, were reasonable efforts under statute). 


Footnote 14:

     AS 47.10.088(a)(1)(B).


Footnote 15:

     See AS 47.10.084(c) (limiting residual parental rights, such
as right and responsibility of visitation, to parents whose child
is involved in CINA proceeding, but whose "parental rights have not
[yet] been terminated by court decree"); see also D.H. v. State,
723 P.2d 1274, 1276 n.6 (Alaska 1986) ("We recognize that a parent
does not have an absolute right to visitation.")  (citing K.T.E. v.
State, 689 P.2d 472, 477 (Alaska 1984)).  In both D.H. and K.T.E.,
the court examined the subsection .084(c) visitation rights of
parents whose parental rights had not yet been terminated. 


Footnote 16:

        See In re W.E.G., 710 P.2d 410, 415 (Alaska 1985)
(construing original version of AS 25.23.130, which did not mention
post-adoption visitation, and holding that statute foreclosed post-
adoption visitation by biological relatives).


Footnote 17:

       See K.T.E., 689 P.2d at 477 (holding that under CINA
statute, even as to parents whose rights have not yet been
terminated, AS 47.10.084(c) "should be read in conjunction with the
rest of the chapter to allow parental visits to be barred when the
visits are not in the best interests of the child"); see also In re
A.F.M., 960 P.2d 602, 605-06 (Alaska 1998) (construing newly
amended AS 25.23.130(c) which expressly empowers courts to
authorize visitation among adopted children and their biological
relatives when such visits are in best interest of children, and
holding that subsection .130(c) does not confer right of visitation
on biological parent).