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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).
