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M.L.L. v. State, Dept. of Health and Social Services (12/31/2002) sp-5654
M.L.L. v. State, Dept. of Health and Social Services (12/31/2002) sp-5654
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
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) Supreme Court No. S-10450
SOCIAL SERVICES, DIVISION OF )
FAMILY & YOUTH SERVICES, ) Superior Court No.
) 1JU-97-65 & 66A CP
Appellant, )
) O P I N I O N
v. )
) [No. 5654 - December 31, 2002]
M.L.L., )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Jan A. Rutherdale, Assistant
Attorney General, and Bruce M. Botelho,
Attorney General, Juneau, for Appellant.
Robert F. Meachum, Assistant Public Defender,
Juneau, and Barbara K. Brink, Public
Defender, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
The superior court denied a petition to terminate the
parental rights of Melanie Lewis1 (M.L.L.) to her two children,
Teresa Hanson and Kelly Hanson. The State of Alaska, Department
of Health and Social Services, Division of Family and Youth
Services appeals, claiming that the superior court erred by (1)
not considering the emotional harm that would be caused by
breaking the bonds between the children and their foster mother
and (2) not finding beyond a reasonable doubt that returning the
children to their mother would likely result in serious emotional
or physical damage. Because the superior court properly found
that there was insufficient evidence to prove beyond a reasonable
doubt that the children would be harmed by being returned to
Lewis, we affirm that courts decision not to terminate her
parental rights.
II. FACTS AND PROCEEDINGS
A. Facts and Proceedings in the 1999 Termination Trial
This case involves the termination of Lewiss parental
rights to her two daughters: Teresa and Kelly.2 Lewis and her ex-
husband, Arnold Hanson,3 met in Juneau in 1991, where they were
both undergoing treatment with the Juneau Alliance for the
Mentally Ill (JAMI). They had their first daughter, Teresa, in
Anchorage in 1995.4 Their second daughter, Kelly, was born in
October 1996 in Juneau.5
In July 1997 the state petitioned for and received
temporary custody under the statutes governing children in need
of aid (CINA) and the Indian Child Welfare Act (ICWA).6 After
several unsuccessful attempts to place the children with
relatives or native families, Teresa and Kelly were finally
placed with a non-native, licensed foster parent.7 The foster
parent is a special education teacher, and has indicated that she
wants to adopt the children.8
The state then petitioned to terminate the parental
rights of both Arnold Hanson and Lewis in 1999. They were
adjudicated Children in Need of Aid in both the July 1997
temporary custody determination and the 1999 termination of
parental rights decision for a number of reasons.
Teresa and Kelly were found to be children in need of
aid under AS 47.10.011(11).9 Specifically, the superior court
found that Lewis was diagnosed with schizo-affective disorder,
post-traumatic stress disorder, and mild mental retardation.
Lewiss emotional disorders ranged from suicide attempts and
ideation to irritable moods and poor tolerance for frustration.
These disturbances appeared to be partially caused or exacerbated
by Lewis being overwhelmed by the constant daily pressures of
homelessness, her husbands illness, and the routine care of her
children.
The children were also found to be children in need of
aid under AS 47.10.011(10) because Lewiss habitual use of
intoxicants impaired her ability to parent.10 Between 1997 and
1998, after the children were removed to foster care, Lewis
resumed drinking after a period of apparent sobriety. During
this period police witnessed her in a state of intoxication,
sometimes severe, on at least three occasions. In one incident,
a police officer, while responding to a report of a fight at the
couples residence, found beer cans everywhere and Lewis extremely
intoxicated.
The children were also found to be CINA under AS
47.10.011(8)(B)(iii) because their repeated exposure to domestic
violence placed them at substantial risk of mental injury.11 On
one occasion Hanson almost hit Lewis and Teresa with a backpack
while Lewis was holding Teresa. On another occasion a physical
altercation between Hanson and Lewis in front of the children
left them in a state of extreme distress.
The children were also found to be CINA under AS
47.10.011(9) because of neglect by Hanson and Lewis.12 The
parents failed to feed and clothe their children adequately on
several occasions. Additionally, Hanson and Lewis irrationally
removed their children from the security of Juneaus Glory Hole
shelter and their trailer on separate occasions to spend the
night outside because they did not feel safe in those secure
places. The couple also failed to provide adequately for their
childrens health, as both children were constantly sick and
Kellys serious health problems (pneumonia and seizures) were only
treated due to the intervention of third parties. Additionally,
the children were not bathed regularly and the house lacked
toothbrushes, towels, soap, shampoo, and toilet paper for them.
The children were assessed as having significant developmental
delays in 1997, and one expert said that the neglectful
environment put them at high risk of developmental delay.
After Teresa and Kelly were placed with their foster
parent, Lewis continued to exhibit problematic behavior for a
relatively short period of time. At one point Lewis and Hanson
cashed an agency check, meant to provide for the cost of a trip
to visit their children, in order to buy alcohol. Additionally,
the children suffered from serious regression after visits by
Lewis and Hanson in December 1997 and April 1998. By mid-1998
Lewis made some improvements in her ability to care for Teresa
and Kelly by ending her relationship with Hanson, stopping her
use of alcohol, and beginning a relationship with Ron Lewis, a
stable man who does not drink.
In 1999, based on the above facts, the superior court
terminated the parental rights of Hanson, a decision that this
court affirmed in A.H. v. State.13 In that decision the superior
court also found that
there is clear and convincing evidence that
[Melanie Lewis] failed, within a reasonable
time, to remedy the conduct and conditions
that place the children at substantial risk
so that returning the children to the parent
would place the children at substantial risk
of physical or mental injury.
Nonetheless, the superior court held that the state
failed to prove beyond a reasonable doubt, as required for the
termination of parental rights under the ICWA,14 that the children
would sustain serious emotional or physical damage if returned to
their mother. The court based this finding on Lewis having her
substance abuse under control, living with Ron Lewis, and making
more intelligent decisions such as avoiding Hanson. The superior
court also held a visitation and placement hearing in September
1999 in which it ultimately ordered visitation between the
children and their mother under the supervision of the maternal
grandparents. The state did not appeal the superior courts
decision.
B. Facts and Proceedings Between the 1999 Termination
Trial and the Current Trial
Between the 1999 termination trial and this proceeding,
Lewis made significant progress. The superior court found that
she was clean and sober for the additional two-year period
between the 1999 termination proceeding and the current action.
She also maintained a stable marriage with Ron Lewis, her new
husband, free of the domestic violence that endangered the
children during her marriage to Hanson. Her mental health
improved to the point where she was not being actively treated by
JAMI and her conservatorship was terminated. Lewis visited her
children on four occasions between August 2000 and October 2001
and fulfilled the requirements of her DFYS case plan.
Additionally, the social workers visits, including at least one
unannounced visit, revealed a clean apartment with no evidence of
alcohol use or domestic violence.
Teresa and Kelly have lived with their current foster
mother in Sitka since December 1997. According to Dr. Sheila
Clarson, a child psychologist who conducted an assessment of the
childrens interactions with their mother, grandmother, and foster
mother, the children have developed significant attachments to
their foster mother during the more than four years in which they
have lived with her. Dr. Clarson also testified that severing
these bonds between the children and their foster mother would be
traumatic and might lead to a number of psychological and
developmental problems.
Despite Lewiss substantial progress since the 1999
trial in which the superior court found that there was
insufficient evidence to terminate her parental rights, the state
filed a second petition to terminate Lewiss parental rights in
July 2001. Following trial held on October 29-31, 2001 the
superior court again found, based upon the above evidence, that
it would be in the childrens best interest to terminate Lewiss
parental rights and allow them to be adopted by their foster
mother. But the superior court again could not find beyond a
reasonable doubt that returning the children to the mother would
likely result in serious emotional or physical damage. The court
therefore denied the states petition to terminate Lewiss parental
rights under the ICWA.15 The court also continued the childrens
placement with their foster mother and noted that visitation
between the children and both Lewis and her parents had been
hampered by the foster mother and must be improved. The state
appeals the superior courts decision to deny termination of
Lewiss parental rights.
III. STANDARD OF REVIEW
We uphold the superior courts factual findings unless
they are clearly erroneous.16 Factual findings are held to be
clearly erroneous if a review of the entire record leaves us with
the definite and firm conviction that a mistake has been made.17
Whether the superior courts findings comport with the
requirements of ICWA involves a question of law and will be
reviewed de novo.18 Under this standard of review, we will adopt
the rule of law that is most persuasive in light of precedent,
reason and policy.19
IV. DISCUSSION
A. The Superior Court Did Not Err by Not Considering the
Likelihood that Granting Custody to Melanie Lewis Would
Cause Severe Harm to Teresa and Kelly by Breaking Their
Bonds with Their Foster Mother.
The state argues that the superior court erred by not
considering the potential harm that breaking the bond between the
children and their foster mother would cause Teresa and Kelly.
The state bases this argument on ICWA 1912(f),20 which they claim
must be read in conjunction with the Adoption and Safe Families
Act (ASFA),21 to impose a requirement that Lewis remedy her
conduct in a timely manner. They claim that this timeliness
requirement mandates that courts consider the bonds between the
children and the foster mother in determining whether granting
custody to the biological parents is likely to result in serious
emotional or physical damage to the children. Because the
superior court considered the potential harm that the children
would suffer from the severing of their bond with their foster
mother, we decline to address whether the ICWA requires that
these bonds be considered.
The superior court considered the childrens attachment
to the foster mother in determining that termination of Lewiss
parental rights would be in the childrens best interests under
the preponderance of the evidence burden of proof required by
Alaska Child in Need of Aid Rule 18(c)(2)(C).22 The superior
court made an oral finding, in support of the above
determination, that even ignoring the bonding issue the court
would find by a preponderance of the evidence that the return of
the children to [Lewis] would be more likely than not to result
in serious emotional harm to them. While the state is correct
that this is the only explicit mention of the bonding issue, this
reference demonstrates that the superior court considered the
issue. The superior court also relied on the testimony of Dr.
Clarson, who testified extensively on the bonding issue.23 The
superior court also impliedly took the relationship between the
children and the foster mother into consideration in deciding
that placement with the foster mother is appropriate and that the
children are doing well there. We hold that the trial courts
findings, in conjunction with its reference to the bonding issue,
constitute sufficient consideration of the likelihood that
granting Lewis custody would cause emotional harm to Teresa and
Kelly.
B. The Superior Court Did Not Err in Holding that the
Evidence Did Not Prove Beyond a Reasonable Doubt that the
Children Would Likely Be Seriously Harmed by Lewiss
Continued Custody over Them.
The state argues that returning the children to Lewiss
custody will likely be harmful beyond a reasonable doubt because
Lewis has failed to remedy some of her damaging conduct, is
incapable of remedying other damaging conduct, and that the
severing of the childrens bond with the foster mother will be
emotionally damaging. Put another way, the state contends that
it has met its burden to show beyond a reasonable doubt that
failure to terminate parental rights is likely to result in
serious emotional or physical harm to the children.24 While the
superior courts findings of fact are sufficient to satisfy the
lesser burdens of proof necessary to terminate parental rights
under CINA Rule 18 in non-Indian termination cases, the superior
court was not clearly erroneous in finding that the higher burden
of proof mandated by the ICWA was not met by the state. The
trial court did not clearly err in finding that the evidence did
not prove beyond a reasonable doubt that Lewiss custody of her
children would likely result in serious emotional or physical
harm to the children.
Much of the states argument focuses on past conduct
that has been sufficiently remedied so that there is at least a
reasonable doubt that the conduct will likely cause serious harm
to the children in the future. It appears that Lewis might be
among those parents who are capable of changing and overcoming
the problems that made them unfit parents.25 Significantly, the
superior court found that Lewis has sufficiently remedied the
alcohol abuse that greatly endangered her children. Though she
continued to abuse alcohol for eight months after Teresa and
Kelly were taken from her custody, she has been sober for over
three years. Likewise, Lewis has done a great deal to remedy the
domestic violence that once threatened Teresa and Kelly by
separating from Arnold Hanson. Lewis also appears to have
responded correctly on two occasions when her eighteen year-old
son Gary was drunkenly threatening her and Ron Lewis. On both
occasions the police were promptly called and Lewis obtained a
restraining order against Gary. Finally, since Lewiss marriage
to Ron Lewis, she has remedied many of the unhealthy conditions
that posed a danger to Teresa and Kelly. Whereas there would be
old food left on the floor or beer cans everywhere when Lewis
lived with Hanson, the home she shares with Ron was found to be
clean by a state social worker who made a surprise inspection.
The state argues that Lewis is incapable of remedying
some of the conduct that poses a threat of harm to her children.
Most of these arguments focus on Lewiss continued mental illness,
inability to cope with stress, limited intelligence, poor
decisionmaking ability, and general lack of basic parenting
skills, which the state claims cannot be remedied. This court
has previously stated that while mental illness alone cannot form
the basis of a termination order, when the record links the
[parents] continuing mental illness with his past instances of
extreme neglect there may be a basis for finding that improper
parental conduct [is] likely to continue. 26 It appears to be a
close question whether aspects of Lewiss continuing mental
illness will cause improper conduct in the future, and therefore
prevent her from being able to care safely for her children.
In the 1999 termination proceedings the superior court
found that Lewiss mental illnesses, poor judgment, poor tolerance
for frustration, and inability to cope with the stress in her
life posed a risk of physical and mental injury to her children.
In the current termination proceedings, the superior court relied
on its factual findings from the 1999 trial. The court also
relied on new testimony from Drs. Mander and Clarson. The
testimony of both doctors, though partially unfavorable to Lewis,
left room for doubt as to whether she and her new husband would
be able to safely care for the children. When this testimony is
considered along with the facts that Lewiss mental health has
improved to the point where she is not being actively treated by
JAMI and that her conservatorship has been terminated, we must
conclude that it was not clear error for the superior court to
find that the state had not proven that the children would likely
be physically harmed if they were returned to Lewiss custody.
Dr. Mander found that Lewis suffered from mild mental
retardation, that this condition impaired her judgment, and that
she possibly suffered from a major, undiagnosed mental illness.
He also gave a bleak evaluation of Lewiss ability to make
extemporaneous decisions. His final conclusion was that it is
extremely unlikely that [Lewis] could function independently as
an appropriate parent . . . and she is particularly unable to
care for special needs children. Nonetheless, Dr. Mander
testified that people with Lewiss diagnosed disorders are
treatable and that neither the disorder nor the mild mental
retardation necessarily rule anyone out as an effective parent.
He also found that she has greatly benefitted from terminating
her abusive relationship with Arnold Hanson, entering a
supportive relationship with Ron Lewis, and her continued
sobriety. On cross-examination Dr. Mander said that it was only
more likely than not that some harm would come to the children if
they were in [Lewiss] care, under her . . . sole supervision.
Dr. Mander also qualified his opinion that the children would
likely be harmed if Lewis were caring for them by herself by
noting the positive influence of Ron, and he ultimately
recommended expanded, structured visitation between the children
and Lewis.
Dr. Clarsons testimony also raised concerns about
Lewiss ability to parent Teresa and Kelly. She found that Lewis
had difficulty responding to both children effectively and did
not set proper limits for the children. Dr. Clarson also
testified that Lewis lacks many basic parenting skills and would
need personal counseling dealing with regulating feeling,
regulating emotions and expressing feelings, social skills,
training, [and] decision making as a foundation in order for
there to be increased contact between her and her children.
Nevertheless, Dr. Clarson ultimately recommended increased
visitation between the children and their biological family,
saying not only do I not believe it would be harmful to the
children to have contact with their mother and grandparents, I
believe that it would be helpful. In light of this testimony, we
cannot say that the superior court clearly erred in finding that
ICWAs reasonable doubt standard was not met.
The state argues that the significant chance that
severing the bonds between the children and their foster mother
will cause emotional harm, when combined with the above concerns
over Lewiss parenting ability, is sufficient to meet the ICWAs
high burden of proof. There was certainly ample testimony from
Dr. Clarson supporting a conclusion that the children would be
harmed by ending that relationship. Dr. Clarson concluded that
after a relationship of almost four years, as of her testimony on
October 29, 2001, the children saw their foster parents as their
psychological parents. She also expressed concern that the
children would experience serious emotional damage if they were
removed from their placement with their foster mother. Dr.
Clarson warned that the ending of this relationship would be
extremely distressing to the children and would lead to them
acting out and then becoming depressed, detached, and unable to
succeed at school or maintain peer relationships for a very long
period of time. Nonetheless, Dr. Clarson ultimately recommended
more contact with Lewis and Lewiss parents and family. Likewise,
Dr. Mander recommended increased visitation and some unsupervised
visitation between the children and their biological family.
Additionally, Dr. Mander testified that professionals can be of
assistance in overcoming bonding issues. While this testimony
did not constitute an endorsement of granting custody to Lewis,
it also was not a recommendation that her parental rights be
terminated, something that this court has found instructive in
similar cases terminating parental rights under ICWA 1912(f).27
The testimony supports the superior courts holding that the state
did not prove beyond a reasonable doubt that returning the
children to Lewis would be likely to cause them severe emotional
harm.
The superior court was correct to draw a careful
distinction between the preponderance of the evidence and clear
and convincing standards of proof used in non-ICWA proceedings
and the beyond a reasonable doubt standard of proof demanded by
ICWA 1912(f). We hold that, because of the improvements in
Lewiss ability to care for her children and the doubt raised by
the expert testimony of Drs. Mander and Clarson, the superior
court was not clearly erroneous in finding that the state failed
to prove beyond a reasonable doubt that granting Lewis custody of
the children would likely result in serious emotional or physical
damage to the [children].28
V. CONCLUSION
Because the superior court did not err in finding that
the state failed to meet the burden of proof demanded by ICWA
1912(f), we AFFIRM the decision not to terminate Lewiss parental
rights.
_______________________________
1 Pseudonyms are used for all family members in this
opinion.
2 Melanie Lewis married Ron Lewis between the 1999 child
custody determination and this case. She is referred to as
Melanie Hanson (M.H.) in earlier court documents and M.L.L. in
current court documents.
3 Arnold Hansons parental rights were terminated in an
earlier case, which we affirmed. A.H. v. State, Dept of Health &
Soc. Servs., 10 P.3d 1156 (Alaska 2000).
4 Id. at 1158.
5 Id. at 1159.
6 Id.
7 Id.
8 Id.
9 AS 47.10.011(11) 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 parent, guardian, or custodian 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[.]
10 AS 47.10.011(10) 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 [conditions
under which] the parent, guardian, or
custodians ability to parent has been
substantially impaired by the addictive or
habitual use of an intoxicant, and the
addictive or habitual use of the intoxicant
has resulted in a substantial risk of harm to
the child[.]
11 AS 47.10.011(8)(B)(iii) 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 . . . conduct
by or conditions created by the parent,
guardian, or custodian [which] have . . .
placed the child at substantial risk of
mental injury as a result of . . . repeated
exposure to conduct by a household member, as
defined in AS 18.66.990, against another
household member that is a crime under AS
11.41.230(a)(3) or 11.41.250-11.41.270 or an
offense under a law or ordinance of another
jurisdiction having elements similar to a
crime under AS 11.41.230(a)(3) or 11.41.250-
11.41.270[.]
12 AS 47.10.011(9) 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
. . . conduct by or conditions created by the
parent, guardian, or custodian have subjected
the child or another child in the same
household to neglect[.]
13 A.H. v. State, 10 P.3d 1156 (Alaska 2000).
14 25 U.S.C.A. 1912(f) (2001).
15 Though appellants challenged the applicability of the
ICWA at trial and in their points on appeal, they subsequently
waived that challenge in their briefs.
16 A.H., 10 P.3d at 1160.
17 E.A. v. State, 623 P.2d 1210, 1212 (Alaska 1981).
18 L.G. v. State, Dept of Health & Soc. Servs., 14 P.3d
946, 950 (Alaska 2000).
19 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
20 25 U.S.C.A. 1912(f) (2001) states:
No termination of parental rights may be
ordered in such proceeding in the absence of
a determination, supported by evidence beyond
a reasonable doubt, including testimony of
qualified expert witnesses, that the
continued custody of the child by the parent
or Indian custodian is likely to result in
serious emotional or physical damage to the
child.
21 The state argues that the Adoption and Safe Families
Act of 1997, Pub. L. 105-89, 101, 111 Stat. 2115, 2116 (1998)
(codified as amended at 42 U.S.C.A. 671(a)(15) (Supp. 2002)),
imposes a requirement that Lewis remedy her conduct in a timely
manner and that the reasonableness of the time taken to remedy
her conduct is determined by whether returning the child to the
parent at this point would place the child at substantial risk of
physical or mental injury. The state contends that because of
Lewiss failure to remedy her conduct in a timely manner the
children developed bonds with their foster mother, and that they
will suffer emotional harm if these bonds are severed by
returning the children to Lewis.
22 CINA Rule 18 states in relevant part:
(c) Before the court may terminate parental
rights, the Department must prove:
(1) by clear and convincing evidence
that
(A) the child has been subjected to
conduct or conditions described in AS
47.10.011 and
(i) the parent has not
remedied the conduct or conditions in the
home that place the child at substantial risk
of harm; or
(ii) the parent 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; or
. . . .
(2) by a preponderance of the evidence
that
. . . .
(C) termination of parental rights
is in the best interests of the child; and
(3) in the case of an Indian child, by
evidence beyond a reasonable doubt, including
the testimony of qualified expert witnesses,
that continued custody of the child by the
parent or Indian custodian is likely to
result in serious emotional or physical
damage to the child.
23 Dr. Clarsons oral testimony dealt extensively with
attachment issues. Her report also dealt with the attachment
between the children and their foster mother, concluding that
removal from the foster family would likely cause severe
emotional distress. The report also included a number of
relatively favorable evaluations of the interaction between Lewis
and her children.
24 C.J. v. State, Dept of Health & Soc. Servs., 18 P.3d
1214, 1218 (Alaska 2001).
25 Rita T. v. State, 623 P.2d 344, 347 (Alaska 1981).
26 A.H. v. State, Dept of Health & Soc. Servs., 10 P.3d
1156, 1162 (Alaska 2000) (alteration in original) (quoting J.P.W.
v. State, 921 P.2d 604, 608 (Alaska 1996)).
27 See J.A. v. State, Dept of Family & Youth Servs., 50
P.3d 395, 402 (Alaska 2002) (Both experts recommended that J.A.s
rights to his three children be terminated and given the experts
high degree of familiarity with the case materials this was more
than sufficient to support the trial courts conclusion under ICWA
that J.A.s children would likely be seriously harmed if returned
to him.).
28 25 U.S.C.A. 1912(f) (2001).
