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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. A.J. v. State, Dept. of Health & Social Services (1/17/2003) sp-5656

A.J. v. State, Dept. of Health & Social Services (1/17/2003) sp-5656

     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

A.J.,                                                  )
                              )    Supreme Court No. S-10156
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    4FA-91-79 CP
                              )
STATE OF ALASKA,                        )    O P I N I O N
DEPARTMENT OF HEALTH AND      )
SOCIAL SERVICES, DIVISION OF       )     [No. 5656 - January  17,
                                   2003]
FAMILY & YOUTH SERVICES,      )
                              )
             Appellee.                  )
________________________________)

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

          Appearances:  Robert S. Noreen, Law Office of
          Robert  S.  Noreen, Fairbanks, for Appellant.
          D.  Rebecca Snow, Assistant Attorney General,
          Fairbanks,  and  Bruce M.  Botelho,  Attorney
          General, Juneau, for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION

          I.    The State of Alaskas Division of Family and Youth

Services  (DFYS)  has  been involved with  Ann  Jackson  and  her

daughters since 1987 due to Anns chronic substance abuse problem.

DFYS  petitioned  to terminate Anns parental rights  to  her  two

youngest daughters, Faye and Amelia, in July 2000.  Because there

was  sufficient  evidence  that Anns  substance  abuse  justified

termination  under  Alaska  law, we affirm  the  superior  courts

termination of Anns parental rights.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Ann  Jackson1 has six daughters; the youngest three all

have  the  same  father,  Jefferson Simpson.   The  three  oldest

daughters  are  adults and live on their own.  The fourth  child,

Janet,  was  seventeen at the time of the termination  proceeding

and  was  not included in the termination proceeding because  she

refused  any  placement  away from her mother.   The  termination

proceeding involved the two youngest daughters: Faye Jackson  and

Amelia Simpson.2

          The  Division  of  Family  and  Youth  Services  became

involved with the custody of the daughters for the first time  in

1987,  prior  to  the birth of Amelia.  At that  time  DFYS  took

emergency custody of Sylvia, Janet, and Faye when Ann was  passed

out  and could not care for the children.  After Ann completed  a

substance  abuse  treatment program, the girls were  returned  to

her,  and DFYS allowed its temporary custody to lapse.  Ann again

went  through outpatient substance abuse treatment after a charge

of driving while intoxicated in 1987.

          In  July  of  1988  Ann took Sylvia to  Dr.  Marvin  E.

Bergeson  to  have Sylvia examined for possible sexual  abuse  by

Jefferson.  Sylvia had reported to Ann that Jefferson had touched

her  while  she  was  sleeping.  Dr. Bergeson found  no  physical

evidence  of abuse but found the patient history to be suspicious

and  advised Ann that there could be sexual abuse absent physical

evidence.  Ann allowed Jefferson to continue living in the  house

after this incident with Sylvia.

          Ann  took  Sylvia  back  to Dr.  Bergeson  for  another

examination  of possible sexual abuse by Jefferson  in  April  of

1990  after  Sylvia reported that Jefferson came  into  her  room

while  she  was sleeping and tried to pull her pants  down.   Ann

forced  Jefferson to leave the house but he returned by  February

of  1991.   In February 1991, fearing that Jefferson had sexually

abused the girls, Ann had Janet, Faye, and Amelia examined.   Dr.

          J. Timothy Foote found that there was evidence of sexual abuse to

Faye.

          DFYS  took emergency custody of Janet, Faye, and Amelia

in May of 1991 because the custodian who was supposed to care for

the  girls while Ann was in a treatment program refused to do  so

when  it appeared that Ann was still drinking and refusing to  go

to   treatment.   In  September  1991  both  Jefferson  and   Ann

stipulated that the girls were children in need of aid and should

be placed in state custody for one year because of Anns prolonged

depression  and  substance abuse and the  allegations  of  sexual

abuse against Jefferson.

          DFYS  again took emergency custody of Janet, Faye,  and

Amelia in July  1993 when the Fairbanks Police were informed that

Ann and the three girls were staying at the Fairbanks Hotel, that

Ann was passed out and unable to care for the girls, and that the

girls  were  running around the hotel unsupervised,  hungry,  and

dirty.   Ann  entered the Regional Center for Alcohol  and  Other

Addictions (RCAOA) for a short-term program in September 1993 and

was  discharged less than three weeks later for failure to follow

directions  and for falsifying a urine sample.  In  October  1993

both  Jefferson and Ann stipulated that the girls were to  remain

in  the custody of the state for one year.  Ann was readmitted to

RCAOA on October 28 but was discharged for non-compliant behavior

on November 29.

          Faye and Amelia were again taken into emergency custody

by  DFYS in July 1996.  This happened after Ann dropped off Faye,

age  ten, and Amelia, age six, at a local grocery store and  told

them  to  walk home.  The girls walked around the downtown  area,

where  they  saw their mother in an intoxicated state,  and  then

walked home.  Their aunt was there, but she was unwilling to care

for Faye and Amelia and called the Fairbanks Police, who took the

girls  to  an  emergency foster home.  In November 1996  Ann  and

Jefferson again stipulated that Faye and Amelia were children  in

need of aid and, therefore, should be in state custody for up  to

two years.

          Ann  again entered substance abuse treatment  in  1997.

She  was  treated at RCAOA for seven months beginning in  January

before  being  administratively  discharged  in  July.   Ann  was

referred  to the Womens and Childrens Residential Program  (WCRP)

in  April  1998  where she remained until she was  discharged  in

July.  Ann participated in the recommended aftercare program  for

about  a month but did not finish this program.  Faye and  Amelia

were returned to Anns care in December.

          Ann  started  showing signs of relapse  around  May  of

1999.  Ann had several urinalyses between May of 1999 and June of

2000  that  showed positive results for various drugs,  including

(1)   cocaine,   (2)   opiates,  and  (3)   benzodiazepines   and

barbiturates.   Other  urinalyses came back with  low  creatinine

levels, indicating that Ann had tried to dilute her urine to hide

evidence of drug use.

          Ann   entered  substance  abuse  treatment   again   in

September  2000  and was discharged in November after  completing

her  treatment  plan.   Ann  had  several  urinalyses  while   in

treatment  which  were positive for various  drugs.   Three  such

tests  within  one week in November 2000 showed positive  results

for, respectively, opiates and benzodiazepines, barbiturates, and

barbiturates  and  benzodiazepines.   These  results  caused  the

treatment center to rate Ann as having a high relapse potential.

     B.   Proceedings

          DFYS  petitioned  for  the  termination  of  Anns   and

Jeffersons  parental rights to Faye and Amelia in July  2000.   A

trial  was  held before Superior Court Judge Mary  E.  Greene  in

December  2000.   In her findings and order terminating  parental

rights  issued in March 2001, Judge Greene found that  there  was

clear  and  convincing evidence that Anns ability to  parent  had

been  substantially impaired by her habitual  use  of  drugs  and

alcohol and that this had resulted in harm to Faye and Amelia.

          The  court  also  found that it  was  likely  that  Ann

consumed alcohol while pregnant with Amelia, resulting in  Amelia

having fetal alcohol syndrome, and that Ann failed to protect her

children from sexual abuse by Jefferson, even though she was made

aware of Jeffersons possible conduct as early as 1988 when Sylvia

reported  specific incidents to Ann.  Further,  the  court  found

that Ann had failed to remedy the conduct that placed Amelia  and

Faye at substantial risk of harm.

          As  required  by the Indian Child Welfare Act  (ICWA),3

Judge  Greene  found  beyond a reasonable  doubt  that  continued

custody of Faye and Amelia by Ann was likely to result in serious

physical or emotional damage to the girls, because it was  likely

that they would be sexually abused and because Ann was likely  to

relapse  into substance abuse again and be unable to  meet  Fayes

and  Amelias  needs.  The court also found by a preponderance  of

the  evidence  that active efforts had been made to  prevent  the

breakup  of  the Indian family under ICWA4 and that an  unusually

extensive set of programs has been offered to this family.  These

programs  included substance abuse treatment programs,  intensive

in-home services, parenting instruction, help with how to teach a

fetal  alcohol  syndrome child, counseling,  and  parent  support

services.

          For  all of the above reasons, Judge Greene found  that

termination of Anns parental rights was in Fayes and Amelias best

interests.   As  to Amelia, the court stated that  [a]ll  efforts

should  be  made  immediately  to  find  [Amelia]  an  Athabascan

placement, although she has permanent placement . . . if a Native

home  cannot  be  found.5   As  to  Faye,  although  noting  that

termination  is  less  clearly necessary, the  court  nonetheless

found  that  termination  was in Fayes best  interest  given  the

alternative of remaining in Anns custody and that termination was

necessary  in order to find permanent placement for Faye  because

Ann  had  a  history  of interfering with the  placement  of  her

children.  Judge Greene concluded that terminating Anns  parental

rights  made  it more likely that successful permanent  placement

          could be found for Faye and Amelia.

          Ann appeals the termination of her parental rights.

III. STANDARD OF REVIEW

          I.   We will affirm a trial courts factual findings regarding

termination of parental rights unless those findings are  clearly

erroneous.6  A finding of fact is clearly erroneous when  we  are

left with a definite and firm conviction that the trial court has

made a mistake.7  Whether the factual findings are sufficient  to

satisfy  the  Child In Need of Aid (CINA) rules is a question  of

law  that we will review de novo.8  We adopt the rule of law that

is  most persuasive in light of precedent, reason, and policy for

questions of law.9

IV.  DISCUSSION

     A.   The Superior Courts Findings that the Children Have Been
          Subjected to Conduct or Conditions Described in AS 47.10.011 Is
          Adequately Supported by the Record.
          
          A.   Ann argues that the superior court is required to make

findings  as to the requirements of AS 47.10.011(6)10  under  the

circumstances that exist at the time of termination,  not  merely

through  historical chronology.  Ann states  that  a  recital  of

stale  events no longer applicable cannot solely create a  catch-

all  for termination of parental rights involving an eleven-year-

old  daughter and a fourteen-year-old daughter wherein the  court

has  admitted  that  any  meaningful placement  stability  is  in

question.   Ann  asserts that Judge Greene  failed  to  point  to

specific current problems to justify termination.

          The state argued for termination under AS 47.10.011(1),

(7),  (8),  (9),  and  (10),11 not under  subsection  (6).   Anns

argument that the superior court must meet the requirements of AS

47.10.011(6)  fails  because it does not respond  to  the  states

petition  to  terminate.  Judge Greene was not required  to  find

that  the  state  had  met the requirements  of  AS  47.10.011(6)

because  the  state  did  not argue for  termination  under  that

particular subsection.

          In  response  to Anns argument that the superior  court

          erred in relying on events that occurred prior to the termination

proceedings, the state asserts that the question is  whether  the

parents conduct had previously made the child a child in need  of

aid,  not  whether it is making the child in need of aid  at  the

time of the termination trial.  Under AS 47.10.088(a)(1)(A),12 as

a prerequisite to terminating parental rights, the superior court

is  required  to find by clear and convincing evidence  that  the

children  have been subjected to conduct or conditions  described

in  AS  47.10.011.13  We have previously stated that the  inquiry

regarding  CINA  status  at a termination  hearing  involves  all

evidence   of   the  parents  pre-termination  hearing   conduct,

including  evidence  of  parental  conduct  predating  the   CINA

adjudication.  14  We therefore find that it was appropriate  for

the  superior court to take all of Anns past conduct into account

in making its determination under AS 47.10.088(a)(1)(A).

          Ann also argues that there was insufficient evidence to

support  the  superior  courts finding by  clear  and  convincing

evidence that the children remained children in need of aid under

AS  47.10.011.   Judge Greene issued a sixteen-page  decision  in

which  she  found  by  clear and convincing  evidence  that  Anns

substance  abuse affected her parenting, causing her  to  neglect

Faye  and  Amelia  and  posing a risk that  the  girls  would  be

sexually victimized.  Judge Greene also found that Anns  lack  of

supervision of the girls resulted in a substantial risk that  the

girls would be sexually abused, that Anns behavior subjected  the

girls  to  neglect,  and that Anns substance  abuse  resulted  in

substantial risk of harm to the girls.  While the courts  lengthy

findings and order does not contain the recitation that Faye  and

Amelia are children in need of aid and does not state under which

subsections of AS 47.10.011 the children qualified as children in

need  of  aid,  the findings are nonetheless legally  sufficient.

Under  AS 47.10.088(a) an explicit finding that children  are  in

need  of aid as a condition of termination of parental rights  is

not  required.   But the court must find that the  children  have

          been subjected to conduct or conditions described in AS

47.10.011.    That  section,  in  turn,  describes  conduct   and

conditions  that must exist in order to find that a  child  is  a

child  in need of aid.  In the present case Judge Greene, without

identifying subsections (7),15 (9),16 and (10)17 of AS 47.10.011,

explicitly  found  by  clear  and convincing  evidence  that  the

children  had  been subjected to conduct or conditions  that  are

described in those subsections.  The findings thus comply with AS

47.10.088.

          Judge  Greenes findings that Faye and Amelia  had  been

subjected to conduct or conditions tracking those described in AS

47.10.011 are supported by the record in this case.  Ann has  had

a   substance  abuse  problem  that  has  required  the  repeated

intervention of DFYS since 1987.  On at least two occasions,  Ann

has  stipulated that Amelia and Faye were children in need of aid

due  to  Anns  alcohol  abuse.  Ann has been  in  at  least  four

different substance abuse programs and has consistently failed to

maintain her sobriety.18  There is also substantial evidence that

Anns  substance abuse was escalating from alcohol abuse to  abuse

of  prescription and street drugs.  Ann also consistently  failed

drug tests while in substance abuse treatment.

          Anns  substance  abuse placed the girls at  substantial

risk  of harm and caused Ann to neglect the girls.  DFYS has  had

to  take  at least one of the daughters into custody on at  least

six different occasions since 1987 because Ann was unable to care

for  the girls due to her substance abuse.  On multiple occasions

Ann  has been found passed out and unable to care for the  girls.

Reports have been made over a period of years that the girls were

dirty  and hungry due to Anns neglect.  Anns substance abuse  has

also  impaired  her  judgment so that male visitors  who  pose  a

substantial risk to the girls are allowed in the home.

          Both  Faye  and Amelia are special needs  children  who

require  consistent  environments in order  to  meet  educational

goals.  Amelia suffers from fetal alcohol syndrome, and Faye  may

          suffer from fetal alcohol effect.  Ann failed to provide the

needed  environment  for Faye and Amelia  because  her  substance

abuse  required  the  girls  to get  up,  get  dressed,  and  get

themselves  to school on their own.  The girls were  consistently

absent  from school, late in arriving, and were often  picked  up

hours  after  school  had  ended.  The  principal  of  the  girls

elementary school testified that Ann showed up intoxicated at the

school.

          The record also supports a finding that Faye and Amelia

were  at  substantial risk of being sexually abused due  to  Anns

lack  of  supervision.  The record shows that Ann took Sylvia  to

the  doctor twice to have her examined for possible sexual  abuse

by  Jefferson.  Ann also took Faye to the doctor, and  Dr.  Foote

determined  that  Faye  had  been  sexually  abused.   Also,  Ann

testified that she was aware of the likelihood that Jefferson was

sexually  abusing her daughters.  Therefore, there was sufficient

evidence  that  Ann  was aware that Faye and  Amelia  were  at  a

substantial risk for sexual abuse but that Ann failed to  protect

her children from this danger.

          We  consequently conclude that the findings  that  Faye

and  Amelia were subjected to conduct or conditions described  in

AS  47.10.011  are  adequately supported by the  record  and  the

superior court did not err in terminating Anns parental rights.

     B.   The Superior Court Did Not Err in Ordering the Termination
          of Anns Parental Rights Instead of Guardianship Pursuant to AS
          47.10.110.
          
          Ann argues that the superior court erred because it did

not  consider appointing a guardian for the children  instead  of

terminating  her  parental rights.  The superior  court  was  not

required to consider the less drastic alternative of guardianship

in a termination proceeding.  We have previously stated that

          [a]lthough  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 childs 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 childs best interest.[19]
          
In  this  case,  Judge  Greene  concluded  that  termination  was

necessary  because  of  Anns  history  of  interfering  with  the

childrens placements.  This conclusion was amply supported by the

testimony  of  Joanne Simmerman, a social worker with  DFYS,  who

testified  that  Ann interfered with Fayes foster  placement  and

that  Anns  relatives refused placements due to  fears  that  Ann

would  be disruptive.  The superior court did not err in choosing

termination,  because  the  significant  chance  that  Ann  would

interfere with any guardianship justified the termination of Anns

parental rights in the best interests of her children.

V.   CONCLUSION

          I.   Because there was substantial evidence that Faye and Amelia
were subjected to conduct or conditions described in AS 47.10.011
and  the  superior courts order terminating Anns parental  rights
was supported by the law, we affirm the superior courts order.
_______________________________
     1     Pseudonyms  have  been used in this  opinion  for  all
family members.

     2     Jefferson  was  served with notice but  he  failed  to
appear at the termination proceedings.  His parental rights  were
terminated in March 2001 and he is not appealing the termination.

     3    25 U.S.C.  1912(f) (2001).

     4    25 U.S.C.  1912(d).

     5    See 25 U.S.C.  1915(b).

     6     A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 259 (Alaska 1999).

     7    Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).

     8     T.F.  v. State, Dept of Health & Soc. Servs., 26  P.3d
1089, 1092 (Alaska 2001).

     9    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     10    AS 47.10.011(6) 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:
               . . . .
               (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  childs  parent,
          guardian,  or custodian or by the failure  of
          the   parent,   guardian,  or  custodian   to
          supervise the child adequately[.]
          
     11    These subsections of AS 47.10.011 deal with abandonment
(subsection  1),  sexual  abuse  (subsection  7),  mental  injury
(subsection  8),  neglect  (subsection 9),  and  substance  abuse
leading to substantial risk of harm to the child (subsection 10).

     12    AS 47.10.088(a)(1)(A) provides:

          (a)  Except  as  provided in AS 47.10.080(o),
          the rights and responsibilities of the parent
          regarding  the  child may be  terminated  for
          purposes  of freeing a child for adoption  or
          other permanent placement if the court finds
               (1)  by  clear  and convincing  evidence
               that
                    (A) the child has been subjected to
          conduct   or  conditions  described   in   AS
          47.10.011[.]
          
     13    AS 47.10.088(a)(1)(A); see also J.H. v. State, Dept of
Health & Soc. Servs., 30 P.3d 79, 85 (Alaska 2001).

     14     A.H. v. State, Dept of Health & Soc. Servs., 10  P.3d
1156, 1161 (Alaska 2000) (quoting D.M. v. State, Div. of Family &
Youth Servs., 995 P.2d 205, 209 (Alaska 2000)).

     15      AS  47.10.011(7)  provides  that  a  child  may   be
adjudicated a child in need of aid when:

          the child has suffered sexual abuse, or there
          is  a  substantial risk that the  child  will
          suffer  sexual abuse, as a result of  conduct
          by   or  conditions  created  by  the  childs
          parent,  guardian,  or custodian  or  by  the
          failure of the parent, guardian, or custodian
          to  adequately  supervise  the  child;  if  a
          parent,  guardian,  or custodian  has  actual
          notice that a person has been convicted of  a
          sex  offense against a minor within the  past
          15   years,  is  registered  or  required  to
          register as a sex offender under AS 12.63, or
          is  under  investigation for  a  sex  offense
          against a minor, and the parent, guardian, or
          custodian subsequently allows a child  to  be
          left   with   that   person,   this   conduct
          constitutes  prima  facie evidence  that  the
          child   is  at  substantial  risk  of   being
          sexually abused[.]
          
     16      AS  47.10.011(9)  provides  that  a  child  may   be
adjudicated a child in need of aid when:

          conduct  by  or  conditions  created  by  the
          parent, guardian, or custodian have subjected
          the  child  or  another  child  in  the  same
          household to neglect[.]
          
     17      AS  47.10.011(10)  provides  that  a  child  may  be
adjudicated a child in need of aid when:

          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;  if  a
          court has previously found that a child is  a
          child  in  need of aid under this  paragraph,
          the  resumption of use of an intoxicant by  a
          parent,  guardian,  or custodian  within  one
          year  after  rehabilitation  is  prima  facie
          evidence  that  the  ability  to  parent   is
          substantially impaired and the  addictive  or
          habitual  use of the intoxicant has  resulted
          in a substantial risk of harm to the child as
          described in this paragraph[.]
          
     18     As  the  superior court so plaintively noted  in  its
Findings and Order:

          Ms.  [Jackson] was still drugging during  her
          latest  substance abuse treatment even though
          she  has  had more treatment than anyone  the
          court  has ever seen in such cases,  has  had
          lots of support, had the incentive of knowing
          the  termination trial would be starting soon
          and  the knowledge that urinalysis tests were
          being done.
          
     19     C.W. v. State, Dept of Health & Soc. Servs., 23  P.3d
52, 57 (Alaska 2001).