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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. R.G. v. State, Dept. of Health & Social Services (03/15/2002) sp-5552

R.G. v. State, Dept. of Health & Social Services (03/15/2002) sp-5552

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


R. G.,                             )
                              )    Supreme Court No. S-10114
             Appellant,            )
                              )     Superior Court No. 4FA-96-123
CP
     v.                       )
                              )    O P I N I O N
STATE OF ALASKA, DEPARTMENT)
OF HEALTH AND SOCIAL          )    [No. 5552 - March 15, 2002]
SERVICES, DIVISION OF FAMILY  )
AND YOUTH SERVICES,      )
                              )
             Appellee.             )
________________________________)


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mary E. Greene, Judge.

          Appearances:  Lori M. Bodwell, Fairbanks, for
          Appellant.   Karla  Taylor-Welch,   Assistant
          Attorney  General, Fairbanks,  and  Bruce  M.
          Botelho,   Attorney  General,   Juneau,   for
          Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          I.   R.G. lost custody of her five-year old son E.G. to the

State  of  Alaska  on a number of occasions due to  her  physical

problems  and  as a result of a personality disorder.   At  first

concerns  were  raised by Alaskas Division of  Family  and  Youth

Services  (DFYS) about R.G.s ability to physically  prevent  E.G.

from  endangering  himself.  After offering  R.G.  a  variety  of

services,  DFYS  experienced difficulties  with  R.G.,  including

angry  outbursts  and an assault on a state social  worker.   The

state  petitioned  to  have  R.G.s  parental  rights  terminated.

Relying on a clinical psychologists report that R.G. suffers from

a  severe  borderline  personality  disorder  and  on  R.G.s  own

testimony, and finding that E.G. was a child in need of aid under

AS  47.10.011(11), the superior court terminated  R.G.s  parental

rights.   We  affirm  because  the  record  contains  substantial

evidence  supporting  the  superior  courts  finding  that  R.G.s

personality  disorder  prevents her  from  protecting  E.G.  from

substantial risk of harm.

II.  FACTS AND PROCEEDINGS

          R.G.  is the mother of E.G., who was born in May 1996.1

E.G.s  father  is  thought to be T.T., who  died  in  July  2000,

although  paternity  was never established.   R.G.  attempted  to

raise  E.G.  on her own, but a number of ailments and confounding

circumstances,  including R.G.s difficult  childhood,  have  made

this problematic.

          R.G.  lived with E.G. at a rescue mission in  Fairbanks

on and off for the first few years of his life.  During this time

concerns arose as to R.G.s ability to care for E.G. due to  R.G.s

physical  ailments  primarily a bad back which made it  difficult

for  her  to keep up with E.G.  There were reported incidents  in

which  E.G. ran off, and his mother  due either to her immobility

or  inattention   did not immediately retrieve him,  placing  his

life in danger.  On one occasion E.G. ran out into the street  at

the  rescue  mission where E.G. was staying with his mother.   In

another  incident E.G. ran out into a cul-de-sac at the Fairbanks

Resource Agency, which provided health and other services to R.G.

          A  number  of  state and local agencies including  DFYS

assisted  R.G. with her physical ailments.  More serious problems

developed  despite the assistance of these agencies.  DFYS  first

petitioned  for temporary custody of E.G. in November 1997  after

R.G.  had been evicted from her residence and reportedly had  not

          planned for future living accommodations for herself and E.G.

The superior court granted the petition, stating that [u]nder the

circumstances  of this case, the efforts made to avoid  the  need

for  removal of the child from the parental home were reasonable.

.  . .  Continued placement of the minor in the parental home  is

contrary to the welfare of the child.  E.G. was returned to  R.G.

at the end of November 1997.2

          R.G.  retained custody of E.G. until April  1999,  when

DFYS again took emergency custody of E.G. and also petitioned for

a  child-in-need-of-aid adjudication and temporary custody.   The

petition  cited  reasons including R.G.s continuing  debilitating

back  pain,  which made her unable to protect E.G. from  physical

harm.   At  the  temporary custody hearing in May 1999,  Standing

Master  Katherine  Bachelder determined that there  was  probable

cause  to  find  that E.G. was a child in need of  aid  under  AS

47.10.011(1).3  Master Bachelder subsequently ordered E.G. to  be

placed  in  the  states temporary custody for ninety  days.   The

adjudication  hearing on E.G.s child-in-need-of-aid  status  took

place before Superior Court Judge Mary E. Greene in October 1999.

Judge Greene made a number of oral findings, and found that  E.G.

was  a  child in need of aid under AS 47.10.011(6).4  The  courts

written  findings  questioned R.G.s capacity  and  commitment  to

provide  E.G. a safe environment.  The court found that  in  many

instances  either  DFYS  or  Fairbanks  Resource  Agency  offered

services  to assist R.G.  Sometimes R.G. used these services  and

other times she ignored or shunned them.

          Shortly  after the superior court found E.G.  to  be  a

child in need of aid, R.G.s relationship with the state and local

agencies  deteriorated.  During a DFYS supervised  visit  between

R.G.  and  E.G.  in October 1999, R.G. assaulted  a  DFYS  social

worker, leaving the social worker with red marks on her face  and

a  bruise on her arm.  R.G. participated in anger management  and

parenting classes.  She attended some of these sessions at first,

but  her  attendance  deteriorated after her  efforts  to  regain

          custody of E.G. were unsuccessful.  In early 2000 Holly Byrnes,

the social worker assigned to R.G.s case since December 1999, had

a  discussion  with R.G. about her inappropriate  conduct  during

visits with E.G., and particularly her harassment of E.G.s foster

parents.   By February 2000 the Fairbanks Resource Agency  halted

supervised  visits  at R.G.s residence after it  discovered  that

there were inappropriate people  some with criminal histories  in

the  home.   In  October 2000 R.G. stopped  attending  the  anger

management program.

          In addition to the physical ailments that initiated the

transfer  of E.G.s custody to the state, clinical evaluations  of

R.G.s personality disorder raised concerns about whether she  was

an  effective parent and potentially endangered E.G.s own  mental

development.   In  November 1999 a staff member  of  R.G.s  anger

management  program determined that R.G. needed  a  psychological

evaluation  before social workers could continue with  her  case.

Dr.  Frank Nelson, a clinical psychologist, tested her in  August

2000.   He strongly questioned R.G.s ability to overcome a severe

personality disorder and noted that R.G.s problem could put  E.G.

at  substantial  risk.   In  later  termination  proceedings  the

superior  court found that E.G.s aggressive behavior  may  be  an

early  sign that he is developing emotional disturbances  similar

to R.G.s.

          In  September  2000 DFYS filed a petition to  terminate

R.G.s  parental rights to E.G.; it alleged that E.G. was a  child

in  need  of aid under AS 47.10.011(1), (8), (9), and  (11).   In

March  2001 the superior court issued its findings and  an  order

terminating  R.G.s parental rights.  The findings recounted  many

of the occurrences reported above, and placed particular emphasis

on  Dr. Nelsons findings.  The courts termination order concluded

that E.G. was a child in need of aid under AS 47.10.011(11).5

          R.G. appeals.

III. DISCUSSION

     A.   Standard of Review

          A.   This court reviews factual findings supporting the superior

courts determination that a minor is a child in need of aid under

the  clearly  erroneous standard.6  Factual findings are  clearly

erroneous if a review of the entire record leaves the court  with

a  definite  and firm conviction that a mistake has  been  made.7

Whether  the  trial courts findings comport with the requirements

of  the  child in need of aid statutes is a question of law  that

this court reviews de novo.8

     B.   The Superior Court Did Not Err in Terminating R.G.s Parental

          Rights.

          R.G. correctly argues that before a court may terminate

parental  rights it must find, by clear and convincing  evidence,

that: (1) the child is in need of aid under AS 47.10.011; and (2)

the parent failed to remedy the conduct or conditions that placed

the child at a substantial risk of harm within a reasonable time.9

The  court  must also find, by a preponderance of  the  evidence,

that the department has made reasonable efforts to provide family

support  services.10  R.G. does not dispute the  superior  courts

finding  that E.G. was a child in need of aid under AS 47.10.011;

nor  does  she  contest the finding that DFYS and other  relevant

agencies  made  reasonable  efforts  to  provide  family  support

services.   R.G.s argument hinges on the corrective  actions  she

alleges  she took to remedy the conduct and conditions deemed  to

put E.G. at risk.

          R.G.  argues  that her own testimony  as  well  as  the

testimony of others supports her assertion that she remedied  the

concerns of DFYS.  Her argument proceeds along three fronts:  (1)

she   remedied  her  physical  ailment  such  that  she  can  now

physically  control  E.G.;  (2) she has  stabilized  her  housing

situation; and (3) she has abated her anger through the suggested

anger  management program.  R.G. points to testimony by  Kathleen

Stenberg, the social worker assigned to the case in October 1999,

that  suggests  R.G.  was following the recommended  program  for

improving her physical capabilities.  To support her claim  of  a

          stable living environment, R.G. cites her own testimony that she

has  lived  in  [the  same] apartment for 16 months.   R.G.  also

states  that  she  only  stopped attending  the  suggested  anger

management classes when hope was lost of her son returning to her

care.

          The  state argues that R.G. ignores the superior courts

finding  that  termination was proper because  R.G.s  personality

disorder  placed  E.G. at substantial risk of  physical  harm  or

mental injury per AS 47.10.011(11).  Indeed, R.G.s brief does not

address this finding by the superior court, and she did not  file

a  reply  brief to address the states discussion of this findings

relevance.   As  it  turns  out, R.G.s emotional  disturbance  is

central to the superior courts termination of parental rights, as

the courts explicit finding reveals:

          Dr.   Frank   Nelson  evaluated  [R.G.]   and

          provided a written report to the court  along

          with  oral  testimony.   His  testimony   and

          report were very compelling.  Based upon  his

          testimony the court concludes that [R.G.] has

          an  emotional  disturbance or mental  illness

          which   has   been  diagnosed  as  borderline

          personality  disorder . . . .  The  qualities

          noted  by Dr. Nelson, along with [R.G.s]  own

          stated  history  of  child  abuse,  and   her

          volatile   personality  are   known   to   be

          associated  with ineffective and  potentially

          abusive parenting . . . [E.G.] is a child  in

          need   of  aid  based  on  AS  47.10.010(11).

          [R.G.]  has  a  long-term severe  personality

          disorder,  and her conduct that results  from

          that  puts  [E.G.]  at  substantial  risk  of

          mental injury or physical harm.

          On  appeal  R.G.  does not dispute either  Dr.  Nelsons

findings or the superior courts adoption of those findings.  R.G.

instead  argues that there is no evidence in the record  to  link

her  anger toward other adults with her ability to care for  E.G.

Nowhere,  however, does R.G. demonstrate that the superior  court

erred in ordering termination due to her emotional disturbance.

          The state does not dispute R.G.s claims relating to her

efforts  to  control her anger, provide housing, and improve  her

physical ability to care for E.G.  But the state does not have to

address  these  issues to prevail because,  as  it  notes,  R.G.s

emotional disturbance was central to the termination order.   The

superior   court  found  that  R.G.s  personality  disorder   was

detrimental  to her ability to care properly for E.G.,  and  that

[i]t  is not likely that [R.G.] is going to change.11  R.G.  does

not  dispute this finding.  Based on its findings and Dr. Nelsons

report regarding R.G.s personality disorder, the court found that

E.G. is a child in need of aid per AS 47.10.011(11).

          The  superior  court also found that  DFYS  engaged  in

reasonable efforts.  R.G. does not dispute this finding,  either.

Indeed,  DFYS offered many services to R.G., only some  of  which

she  accepted,  as  part  of  its  reasonable  efforts  to  avoid

termination.  Further, although R.G. accepted some services,  and

took  steps to correct physical ailments and her anger,  she  was

generally not successful in her efforts.  And to the extent  that

she  successfully  addressed  some  of  the  concerns  about  her

physical ailments, R.G. refers us to no evidence that Dr. Nelsons

findings regarding her personality disorder were in error or that

would  justify  a  conclusion that the superior  court  erred  in

adopting those findings.

          In  reviewing  the  superior courts  order  terminating

R.G.s  parental  rights,  we  look for  evidence  in  the  record

supporting  the  courts  findings  and  conclusions.  The  record

contains  substantial evidence supporting termination  under  the

test  set out in AS 47.10.088.  The superior courts findings were

not  clearly  erroneous.  We affirm the superior courts  findings

and order.

          Finally,  because  termination was  required  under  AS

47.10.011(11)  it was not error for the court to terminate  R.G.s

parental rights based on her personality disorder rather than her

physical  ailment.  R.G. argues that each time she  attempted  to

satisfy  an agency demand or suggestion, a new, different  agency

demand  emerged.  R.G. does not point to a specific  instance  of

this  occurrence, but the record indicates that much of the early

discussion  in the proceedings focused on R.G.s physical  ability

to chase after E.G.  For instance, in the first temporary custody

ruling   in  1997  the  standing  master  determined   that   the

combination   of  R.G.s  physical  ailments  and  inattentiveness

constituted  abandonment  under AS  47.10.011(1).   In  1999  the

superior  court analyzed E.G.s status as a child in need  of  aid

under AS 47.10.011(6), which addresses physical harm.  It was not

until  2000  that  R.G.s personality disorder  became  a  primary

concern, implicating AS 47.10.011(11).

          The  superior  court did not err in  terminating  R.G.s

parental rights, however, because evidence, including Dr. Nelsons

testimony   regarding  R.G.s  borderline  personality   disorder,

supported termination on the ground E.G. was a child in  need  of

aid  under  AS 47.10.011(11).  Also, there is no indication  that

R.G. had inadequate notice of this ground for termination or  had

an inadequate opportunity to oppose the termination on the ground

her personality disorder put E.G. at substantial risk of harm.

IV.  CONCLUSION

          Because   the  record  contains  substantial   evidence

supporting  the  superior courts finding that  R.G.s  personality

disorder prevents her from protecting E.G. from substantial  risk

of  harm,  we AFFIRM the superior courts findings and termination

order.

_______________________________
     1     R.G.s parental rights to her four other children  have
already  been terminated in a separate proceeding not  before  us
now.

     2     The  superior  court  granted  a  brief  extension  of
temporary  custody  in  December 1997 when  the  electricity  was
turned off in R.G.s apartment.

     3     AS 47.10.011(1) states, in part, that a court may find
a  child in need of aid if a parent or guardian has abandoned the
child . . . and the other parent is absent.

     4     AS 47.10.011(6) states, in part, that a court may find
a  child  in need of aid if there is a substantial risk that  the
child  will  suffer substantial physical harm,  as  a  result  of
conduct by or conditions created by the childs parent, . .  .  or
by  the  failure  of  the  parent . . . to  supervise  the  child
adequately.

     5     AS  47.10.011(11) states that a court may find a child
to  be in  need of aid if, by a preponderance of the evidence, it
determines  that  a  parent . . . 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.

     6    A.H. v. State, 779 P.2d 1229, 1231 (Alaska 1989).

     7    R.J.M. v. State, Dept of Health & Soc. Servs., 973 P.2d
79, 84 (Alaska 1999) (citation omitted).

     8    Id.

     9    AS 47.10.088(a)(1)(A), (B).

     10    AS 47.10.088(a)(2).

     11    As the state correctly notes, mental illness on its own
cannot  form the basis for termination.  A.H. v. State,  Dept  of
Health  & Soc. Servs., 10 P.3d 1156, 1162 (Alaska 2000) (citation
omitted).   Where  the illness is continuing  and  is  likely  to
create a substantial risk of harm, however, it can form the basis
for a termination order.  Id. (citation omitted).