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Erica A. v. State, Dept. of Health & Social Services (3/21/2003) sp-5674
Erica A. v. State, Dept. of Health & Social Services (3/21/2003) sp-5674
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
ERICA A., )
) Supreme Court No. S-10234
Appellant, )
) Superior Court No.
v. ) 3AN-93-392 CP / 3AN-98-149 CP
)
STATE OF ALASKA, )
DEPARTMENT OF HEALTH ) O P I N I O N
AND SOCIAL SERVICES, )
DIVISION OF FAMILY AND )
YOUTH SERVICES, ) [No. 5674 - March 21, 2003]
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Stephanie E. Joannides, Judge.
Appearances: Richard D. Kibby, Anchorage,
for Appellant. Michael G. Hotchkin, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee. Thom F. Janidlo, Anchorage,
Guardian ad Litem.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Erica A.1 appeals the superior court's order
terminating her parental rights to her children Kevin S. and Amy
K. The superior court correctly applied the termination statute,
AS 47.10.088, to the facts of this case and did not err in any
other respect. We therefore affirm the superior court's order.
II. FACTS AND PROCEEDINGS
Erica A. is a thirty-four-year-old mother of five
children. Her involvement with the Department of Health and
Social Services, Division of Family and Youth Services began in
1989. At the time, Erica had a daughter by her then-husband,
Edward, and a son from a previous relationship. Between May and
October 1989, the division received four reports of harm alleging
that Erica and Edward had neglected the children, that Erica had
a substance abuse problem, and that Edward had physically abused
the children. Erica admitted that she used cocaine, crystal
methamphetamine, acid, and speed while pregnant. The division
referred Erica to homemaker services and substance abuse
treatment.
By 1990 Erica had a third child, her second by Edward.
The division responded to a report of physical abuse, but closed
its case on Erica's children after establishing that they were in
the custody of Edward's parents. Later that year, the division
learned that Erica had taken the children out of Alaska.
Erica again came to the division's attention in 1992.
That year, the division took emergency custody of all three
children after a doctor's examination substantiated reports of
sexual abuse. The division never identified the perpetrator with
certainty, but it instructed Erica to prevent contact between her
children and her teenage half brother. Despite this instruction,
the division received a report that Erica and her mother had left
her children in her half brother's care while they went to
church. The division paid for a psychological evaluation of
Erica's half brother, which recommended that he not be left
unsupervised with children. Erica additionally failed to protect
her older children from a boyfriend, Brian S., who would become
the father of Kevin and Amy. The division told Erica to keep
Brian away from her children after it received a report that he
had physically abused the oldest child and held an unloaded gun
to the head of Erica's young cousin. Erica nevertheless
continued to allow Brian into her home.
The division developed case plans for Erica in 1992-93
and provided services including psychological evaluations, home-
based services to improve parenting and everyday living skills, a
substance abuse evaluation, therapy sessions for Erica and her
children, and parenting classes. When Erica became involved in a
legal dispute with Edward and his parents over custody of the
three oldest children, the division referred her to an attorney.
The superior court granted custody of Edward's children to him,
and granted custody of Erica's oldest child to Edward's parents,
even though they are not biologically related to the child. All
of them later left Alaska, and Erica has had no contact with them
for several years.
In 1993 Erica gave birth to Kevin, a child fathered by
Brian. The division took legal custody of Kevin soon after he
was born, citing Erica's lack of progress on her earlier case
plans and her ongoing substance abuse. Erica admitted that she
used marijuana and alcohol during the pregnancy. Brian was
incarcerated when Kevin was born. The division filed a petition
for Kevin's adjudication as a child in need of aid. Erica
stipulated to his status as a child in need of aid. In the three
months after Kevin was born, the division provided sixty-three
hours of direct services to Erica, including assistance locating
housing and family support classes.
By July 1994 Erica, Brian, and Kevin were living
together in Wasilla. In a disposition order entered in July
1994, the superior court continued the state's legal custody of
Kevin but allowed Erica and Brian to retain physical custody.
The division referred Erica and Brian to parenting classes and
counseling to address the effects of sexual abuse that each
parent had suffered in childhood.
In April 1995 the division determined that Kevin was
not at risk in his parents' custody and closed its case on Kevin,
although Kevin's guardian ad litem expressed reservations about
the parents' failure to comply with their case plan. A month
later, Erica and Kevin - apparently no longer living with Brian -
were evicted from their home in a trailer park. Their trailer
caught fire as they were moving out. Erica was charged with
arson and pleaded no contest to criminal mischief, for which she
received a suspended sentence and three years' probation.
That summer Erica tried to break into Brian's trailer
and ended up in a fight with Brian and his new girlfriend. The
police found Erica and Kevin in a van outside the trailer; Erica
had been cut during the fight, and both she and Kevin were
smeared with her blood. Kevin was dressed only in an adult
t_shirt. Erica was charged with one count of child abuse, one
count of assault, and one count of unauthorized entry. She
eventually pleaded no contest to disorderly conduct.
Erica and Kevin moved in with Erica's aunt, whose
parental rights to her own children had been terminated and who
had sexually abused Erica during childhood. On one occasion when
Erica left Kevin at home, her aunt physically abused him by
hitting him and throwing him across the room. A social worker
responding to a report of harm about the incident discovered that
Kevin had bruises and blood blisters. The division again took
custody of Kevin in September 1995 and filed a petition for his
adjudication as a child in need of aid based on this physical
abuse and on Erica's fight at Brian's trailer. Kevin was placed
in foster care.
The following month, October 1995, Erica was sentenced
on her disorderly conduct conviction. The district court imposed
a ninety-day suspended sentence with three years of probation and
required her to participate in parenting classes, alcohol abuse
treatment, and a domestic violence intervention program. The
division worked with the alcohol abuse program to refer Erica to
the Reflections residential substance abuse treatment program.
The division returned Kevin to Erica's physical custody after her
admission to the program, but retained legal custody. It moved
Kevin back to foster care after program staff and participants
observed Erica failing to bathe Kevin, leaving him alone or with
strangers while she went to smoke a cigarette, and hitting him.
After Kevin returned to foster care, his foster mother reported
that he had tried to touch her vaginal area and had attempted to
injure himself and the family dog.
Erica was discharged from Reflections early in February
1996 for failing to follow rules and complete assigned tasks.
The Reflections staff recommended that she continue with
residential substance abuse treatment; although Akeela House had
space available for Erica, she declined to continue treatment.
The superior court adjudicated Kevin to be a child in need of aid
in August 1996; in December 1996 it issued a disposition order
placing him in state custody for two years.
Upon receiving formal legal custody of Kevin, the
division placed him in Erica's physical custody, and the two
lived with Erica's mother. The division provided counseling,
home-based therapy, bus passes, and assistance in keeping track
of Erica's appointments. In March 1997 Erica purchased a trailer
and moved into it with Kevin. The division provided a substance
abuse assessment, which concluded that Erica did not need
additional treatment. The division therefore requested, and the
superior court approved, Kevin's release into Erica's legal
custody in June 1997.
Three months later, in September 1997, the division
received an anonymous report about Erica's care of Kevin. The
reporter alleged that Erica's trailer was filthy, that she
allowed runaway teenagers into her home and used crack cocaine
with them in front of Kevin, and that Kevin displayed highly
sexualized behavior. The division did not investigate that
report. But in December 1997 Erica was arrested for maintaining
a crack house after she allowed a drug dealer to live in the home
with her and Kevin. Police found a crack pipe in her hand, and
she admitted to smoking crack that morning. Erica was pregnant
with Amy at the time. Erica was charged with misconduct
involving a controlled substance and was incarcerated pending
disposition of her charge.
After her arrest, Erica arranged for Kevin to live with
her brother in Palmer. Upon investigation, the division
determined that Kevin was not at risk in Erica's brother's home
and did not take custody of him.
In January 1998 the Department of Corrections placed
Erica in the Dena A. Coy program, which provides residential
substance abuse treatment for expectant mothers. Amy was born in
February 1998, two months premature. At the time, Erica was
unable to identify Amy's father. (A paternity test later
established that Brian was the father.) Because of her premature
birth, Amy suffered serious health problems, which made it
difficult for Erica to participate in substance abuse treatment;
as a result, she was discharged early from Dena A. Coy.
Between May and June, Erica was released from jail to
her parents' third-party custody. After her release, the
division provided bus passes, taxi vouchers, counseling, a
psychological evaluation, and assistance in organizing her
appointments. By June 1998 the division had helped Erica enroll
in the New Dawn long-term after care program. At New Dawn, Erica
was disciplined for nursing the infant Amy in the rain while
Erica smoked a cigarette.
Erica eventually pleaded no contest to misconduct
involving a controlled substance. In August 1998 the superior
court sentenced her to twenty-one months in jail. She then
entered the Hiland Mountain Correctional Center to serve her
sentence.
Meanwhile, in March 1998, the division had filed a
petition to adjudicate Amy a child in need of aid based on
Erica's history of substance abuse. In July the superior court
had found Amy to be a child in need of aid and had committed her
to the state's temporary custody pending disposition. But the
division allowed Amy to remain in Erica's physical custody until
Erica returned to jail in August 1998. The division then allowed
Erica to place Amy with a family friend, Connie H. The division
provided services to address Amy's physical and cognitive
developmental delays.
In January 1999 the superior court held a disposition
hearing and committed Amy to state custody for two years. At
that time the division planned to pursue guardianship of Amy by
Connie. But Connie soon decided that she could no longer care
for Amy and returned her to Erica's mother. The division agreed
to the placement and filed a permanency report with the superior
court in August 1999, recommending termination of Erica's
parental rights and adoption by Erica's mother. Erica's social
worker testified at the termination trial that he instructed
Erica's mother not to allow unsupervised visits between Erica and
Amy, though Erica's mother maintained that she was never informed
of the restriction. The social worker also testified that
Erica's mother disagreed with the division's assessment that
Erica had serious deficiencies as a parent, but agreed to comply
with any conditions that would allow Erica's mother to have
permanent custody of Amy.
The Department of Corrections released Erica from
custody in July 1999. She remained on probation for her criminal
mischief conviction. The state did not then have custody of
Kevin, believing that he was living with Erica's father. But in
October 1999 the division received a report of harm regarding
Kevin and at least one other child at Erica's trailer. The
report alleged that Erica had smoked crack in front of six-year-
old Kevin, that Kevin played outdoors without shoes, that he
played with fire and a BB gun, and that Erica left unspecified
children unattended while she slept. When a social worker
arrived at Erica's home to investigate, he found her trailer
dirty and messy. Kevin was not there, but Erica was home with a
toddler. A woman Erica could not identify was asleep on the
sofa. Erica told the social worker she was babysitting the
toddler, but admitted that the child was Amy after the child
called Erica "mommy." Erica also told the social workers that
Kevin had been living with her, not with Erica's father. The
division's social workers contacted Kevin at school. Kevin told
them that his home was very messy, that many people came and
went, and that the people there fought a lot - swearing, kicking,
and punching.
The division took emergency custody of both children.
They initially attempted to place Kevin with Erica's father. But
when they were unable to contact him, they placed both children
in emergency foster care. The division petitioned for custody of
Kevin, alleging that he was a child in need of aid. At a
temporary custody hearing the superior court found probable cause
to believe that Kevin was a child in need of aid and committed
him to the temporary custody of the division. Kevin's
adjudication hearing was set for January 2000 but was continued
several times upon motions filed by both parties.
Kevin was placed in foster care but his behavioral
problems proved too severe for his foster family. His problems
include sexualized behavior, head banging, biting, fire setting,
defecating in his pants, and violence towards animals. He also
exhibited fear for his security, including an inability to sleep
unless an adult was present, nightmares, and verbal expressions
of concern for his physical safety. Because of his special
needs, Kevin was institutionalized at Charter North/North Star,
then transitioned to therapeutic foster care.
Amy had already been declared a child in need of aid
and placed in state custody until January 29, 2001. The division
decided not to return Amy to her grandmother's care, since
Erica's mother had allowed Erica to have unsupervised visits with
Amy, and the division no longer trusted her to protect the child.
Amy thus has remained in a pre-adoptive foster home since October
1999.
From October 1999 to September 2000 Erica was
consistently employed, but her place of employment and work
schedule changed frequently. The division scheduled weekly
visitation between Erica and her children beginning in October
1999. Erica had difficulty coordinating her work schedule, the
bus schedule, and the visitation schedule, and she was late or
did not attend several visits. In response, the division helped
her figure out which bus would arrive on time. In February 2000
the division assisted Erica in scheduling a substance abuse
assessment. Erica's social worker called her home and learned
that she was letting two men she knew only by first name live
with her. Between January and April 2000, the police went to
Erica's trailer three times to investigate disturbances. In one
instance, a man who slept in Erica's laundry room became violent
after drinking, and in another case Erica's boyfriend punched her
in the eye. In the third case, Erica was so drunk she could
hardly stay awake to answer the officer's questions.
In June 2000 the state petitioned to revoke Erica's
probation, alleging that she had violated her conditions by
changing her residence without permission, consuming alcohol,
ingesting cocaine, failing to undergo a substance abuse
assessment, failing to maintain full-time employment, failing to
complete a mental health evaluation, and failing to make
restitution payments for the trailer that she burned down in
1995. The superior court released her on bail, and the division
and her probation officer referred her to the residential
substance abuse treatment program at Akeela House.
In May 2000, a month before Erica was charged with
violating the conditions of her probation, the division filed a
petition to terminate Erica's parental rights to both Kevin and
Amy. The division jointly petitioned to terminate Brian S.'s
parental rights, as well, but it later moved for and received a
continuance as to Brian so that it could conduct paternity
testing to determine if he was Amy's father. Erica's termination
trial was thus severed from Brian's. The court consolidated
Kevin's child- in-need-of-aid adjudication hearing with the
termination trial. The trial took place over thirteen days
between January and April 2001. At the end of the trial, the
superior court terminated Erica's parental rights to Kevin and
Amy.
Erica appeals.
III. DISCUSSION
A. Standard of Review
We apply the clearly erroneous standard when reviewing
the superior court's factual findings.2 Factual findings are
clearly erroneous when we are convinced, upon review of the
entire record, that a mistake has been made.3 Whether the
superior court's factual findings satisfy applicable CINA rules
is a question of law subject to de novo review.4
B. The Superior Court Correctly Applied AS 47.10.088.
A court entering an order that terminates parental
rights must find by clear and convincing evidence that the child
was subjected to conduct or conditions placing the child in need
of aid under AS 47.10.011 and that the parent has failed within a
reasonable period of time to remedy the conditions that place the
child at risk.5 The court must further find, by a preponderance
of the evidence, that the division made reasonable efforts under
AS 47.10.086 to provide family services to enable the child to
return home.6 Finally, the court must find that termination is
in the child's best interests.7 Erica challenges the trial
court's reasonable efforts and best interests findings.
1. Reasonable efforts
The trial court found by "more than a preponderance of
the evidence" that the division made reasonable efforts to
prevent the breakup of Erica's family. But Erica, focusing on
the narrow time frame between January 1999 and November 2000,
contends that the division failed to make reasonable efforts.
Specifically, Erica argues that during this period the state did
not provide the particular services that would have addressed her
problems, including assistance with "thinking, organizing, and co-
dependence," "treatment for depression," and a bonding assessment
of Amy. She also alleges that the division did not provide
reasonable visitation after Kevin and Amy were removed from her
home. The state responds that Erica did, in fact, receive
services of the type she denies receiving. The state also argues
that the reasonableness of its efforts during the disputed period
must be evaluated in light of the extensive services it provided
over the entire course of the division's involvement with Erica.
The record establishes that the state provided a number
of services in the disputed period. Between September 1998 and
May 1999, while serving her sentence for misconduct involving a
controlled substance, Erica participated in a halfway house
program at Akeela House. Although the Department of Corrections
placed her in the program, we have held that "[i]t is of no
particular consequence that the Department of Corrections . . .
rather than DFYS" provided a particular service.8 In March 1999
the division referred Erica for one of several psychological
evaluations that it provided over the years. Although the record
does not indicate that Erica received any services between her
release from Akeela House sometime after April 1999 and the
removal of Kevin and Amy from her care in October 1999, after
their removal in October the division consistently offered
services to assist Kevin and Amy and facilitate their return
home, including services to help address Kevin's special needs.
It also offered Erica a urinalysis program, a substance abuse
assessment, visitation with Kevin and Amy,9 further residential
treatment for substance abuse at Akeela House, and referrals for
counseling to address the issues underlying Erica's substance
abuse, such as depression and co-dependence.
In any event, as the state correctly recognizes, the
reasonableness of the division's efforts in 1999 and 2000 must be
viewed in light of the entire history of services that the state
had already provided.10 As detailed above in the statement of
facts, Erica's substance abuse and parenting problems arose well
before Kevin and Amy were born, and the division had already made
substantial efforts to assist Erica before it intervened on
behalf of Kevin and Amy. Between Kevin's birth in September 1993
and the beginning of the disputed period here, January 1999, the
division continued to make extensive efforts. In fact, Erica
stipulated to the reasonableness of the state's efforts from July
1992 through August 1996 and does not challenge the court's
finding of reasonable efforts for the period between September
1996 and January 1999.
We have held that "the state's efforts to prevent
breakup of the entire family" may be considered "in assessing
whether that effort was sufficient" with respect to a particular
child.11 Thus, in determining what efforts would be reasonable
for Erica from January 1999 onward, the court was entitled to
consider the division's extensive history of efforts and Erica's
consistent lack of success at addressing problems. When viewed
in light of this history, the superior court's finding of
reasonable efforts is not clearly erroneous.
2. Best interests
Alaska Statute 47.10.088 requires the court to consider
whether termination of parental rights is in the best interests
of the child.12 Erica challenges the superior court's best
interests finding. She points to her care of Amy during the
child's first six months and her family physician's assessment
that Amy is developmentally age-appropriate. Erica also contends
that she has support from family members, pointing to their care
of Kevin while she was incarcerated in 1998.
Erica further argues that the superior court should
have adopted the recommendations of Dr. Bruce Smith rather than
those of Dr. Richard Lazur. Both psychologists evaluated Erica's
parenting capacity in 1999. Dr. Lazur believed that Erica was
unlikely ever to be capable of parenting. In contrast, although
Dr. Smith agreed that Erica should not have primary
responsibility for parenting her children, he suggested a
permanent plan that would allow her frequent contact with the
children by placing them in the primary custody of Erica's
parents, who could provide for their day-to-day parenting needs.
Dr. Smith believed that this arrangement "would appear to meet
the best interest[s] of the children." Erica insists that Dr.
Smith was more objective and credible than Dr. Lazur.
But the trial court, not this court, decides issues of
credibility.13 "Because of the unique ability of the trial court
to assess credibility, this court consistently grants deference
to trial courts where credibility is at issue."14 Here, the
superior court could reasonably find Dr. Lazur's testimony more
persuasive than Dr. Smith's. Moreover, the record does not
suggest that the superior court believed that either
psychologist's testimony was crucial. The court's best interests
findings appear to rely on evidence establishing that a permanent
plan calling for Erica's parents to have primary custody was not
a viable option. Undisputed evidence showed that neither parent
was willing to care for Kevin. And although Erica's mother did
say that she would be willing to assist Erica by taking primary
custody of Amy, ample evidence supports the superior court's
decision that Erica's mother would be unlikely to protect Amy
from Erica: Erica's mother had repeatedly allowed Erica to have
unsupervised visits with Amy, had a history of failing to follow
the division's directions concerning her sister's children, and
persistently refused to acknowledge that Erica had serious
parenting and substance abuse problems.
As is clear from the statement of facts, the state
presented overwhelming evidence of Erica's repeated failure to
care appropriately for her children and her longstanding lack of
success in substance abuse treatment. Erica's background is
checkered with periods of progress and backslide. Although at
the end of the trial, in April 2001, Erica showed signs of
improvement, her counselor estimated that it would take at least
another year for her to be able to demonstrate her ability to
care for her children - assuming that she continued to progress.
When viewed in light of the record as a whole, the superior
court's best interests findings are supported by substantial
evidence and are not clearly erroneous.
C. Misapplication of Facts
Erica further alleges that the superior court failed to
separately consider the evidence as it related to each child and
that it applied evidence concerning individual children to both.
Specifically, Erica challenges a finding as to Kevin in the
superior court's December 1999 temporary commitment order that,
according to Erica, was based on evidence relating only to Amy.
Erica also argues that because Dr. Lazur's evaluation of her
parenting skills focused only on her relationship with Amy, the
evaluation had no bearing on her ability to parent Kevin. But
Erica's own counsel drafted the final findings in the temporary
commitment order; and, in any event, the termination order now
renders those findings moot. Furthermore, as already discussed
above, psychological testimony did not play a crucial role in the
trial court's ruling - particulary as to Kevin, since neither of
Erica's parents was willing to assume primary custody of Kevin.
In short, Erica's claims are meritless.
D. Jurisdiction
Erica argues that the superior court lacked
jurisdiction over Amy. Erica's argument is based on the
following circumstances.
On January 29, 1999, the superior court ordered Amy
committed to the division's custody for two years. Because of
multiple continuances requested by both parties, the termination
trial did not begin until the day custody expired - January 29,
2001. At the time, none of the parties realized that the
division's custody over Amy had expired. But the division soon
recognized the problem. On February 21, 2001, it filed an
emergency petition to adjudicate Amy a child in need of aid, and
on February 26, the superior court entered an order renewing the
state's custody of Amy based on a renewed finding that Amy was a
child in need of aid. Meanwhile, on February 22, Erica had
signed a power of attorney purporting to give her mother
authority over Amy's "care custody and upbringing."
Erica essentially reasons that because she gave legal
custody of Amy to her mother during a lapse in the state's
custody, the court lacked jurisdiction to reassume custody. But
Erica's power of attorney was not an assignment of legal custody;
it simply gave Erica's mother authority to act in her stead in
matters concerning Amy's care, custody, and upbringing. Erica
cites no authority for the proposition that the document had any
effect on the court's jurisdiction. Under AS 47.10.080(c), the
superior court has authority to extend a two-year child-in-need-
of-aid commitment for an additional year upon a showing that the
extension would be in the child's best interests.15 Nothing in
the statutory grant of authority precludes the extension from
being implemented after the initial two-year commitment has
technically expired. Erica's jurisdictional argument thus lacks
merit.
E. Due Process
The children's father, Brian S., was in jail throughout
the termination trial. The state's petition initially sought to
terminate both Erica's and Brian's parental rights, but the state
moved for and the court granted a continuance of Brian's
termination trial. Although the continuance severed Brian's case
from Erica's, the court allowed Brian's counsel to attend and
participate in Erica's trial. Brian was present telephonically.
Erica contends that terminating her parental rights
before Brian was released from jail violated her due process
rights because it prevented her from benefitting from having
additional time to progress in her treatment program. She
further contends that allowing Brian's counsel to participate at
her trial violated her due process rights because it allowed
three attorneys (the state, the guardian ad litem, and the
father's counsel) to argue for termination. The state responds
that this argument is waived because Erica has failed to show how
Brian's participation prejudiced her. The guardian ad litem adds
that Erica cites no legal support for these claims.
The superior court considered Erica's objection to
Brian's presence and participation but decided to allow it. As
the children's biological parent, Brian had a legitimate interest
in Erica's termination proceedings. Erica has cited no legal
authority suggesting that the superior court erred in allowing
him to attend and to be represented by counsel, and we are aware
of no such authority. Moreover, Erica provides no basis for her
claim of a constitutional right to additional time in treatment.
We find no error in the trial court's decision.
F. Foster Care Placement
Barring certain exceptions, AS 47.14.100 prohibits the
state from placing a child in foster care if a relative requests
placement of the child in the relative's home.16 Erica contends
that when the state took emergency custody of Kevin and Amy in
October 1999, it should have placed them with relatives rather
than in foster care. This error, she argues, entitles her to a
reversal of the superior court's termination order.
The state and the guardian ad litem correctly respond
that the October 1999 temporary custody order is not properly
before this court. This appeal is from the superior court's
ultimate decision to terminate Erica's parental rights. In
reaching its termination decision, the superior court was not
required to revisit its earlier placement decision and its
termination order superseded all earlier placement orders.17 As
the state correctly points out, Erica could have challenged those
placement decisions by requesting superior court review.18 Erica
could then have petitioned this court for review of the superior
court's ruling.19 Because Erica failed to seek timely review, the
superior court's termination order now renders earlier issues of
placement moot.20
G. Remaining Claims
Erica raises several additional claims that she has not
properly preserved for review. Specifically, Erica claims that
the superior court erred in October 1999 when it found probable
cause to believe that Kevin was a child in need of aid; that the
state abridged her due process rights by failing to investigate
the circumstances surrounding Amy's presence in Erica's home in
October 1999 and by failing to provide notice to Erica's mother
that Amy was not allowed unsupervised visits with Erica; and that
the superior court violated her due process rights by relying on
an unsigned case plan and by failing to hold adjudication and
permanency hearings for Kevin within the statutorily mandated
time frame.
Erica has failed to cite any point in the record where
she raised these issues; our review of the record has not
uncovered any indication that she did so. We will not review
issues that were not properly raised in the trial court.21
IV. CONCLUSION
We AFFIRM the superior court's order terminating
Erica's parental rights to Kevin and Amy.
_______________________________
1Pseudonyms are used throughout the opinion to protect the
privacy of those involved.
2See M.W. v. State, Dep't of Health & Human Servs., 20 P.3d 1141,
1143 (Alaska 2001).
3See id. at 1143.
4See id.
5AS 47.10.088(a)(1).
AS 47.10.088 provides, in relevant part:
(a) [T]he 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;
and
(B) 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; and
(2) by preponderance of the evidence that
the department has complied with the
provisions of AS 47.10.086 concerning
reasonable efforts.
. . . .
(c) In a proceeding under this chapter
involving termination of the parental
right of a parent, the court shall
consider the best interests of the
child.
AS 47.10.011 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 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 child's parent, guardian, or
custodian or by the failure of the
parent, guardian, or custodian to
supervise the child adequately;
. . . .
(9) conduct by or conditions created by the
parent, guardian, or custodian have
subjected the child or another child in
the same household to neglect;
(10) the parent, guardian, or custodian's
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 . . . .
6AS 47.10.088(a)(2).
The reasonable efforts provisions of AS 47.10.086
provide, in relevant part:
(a) 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. The
department's duty to make reasonable
efforts under this subsection includes
the duty to
(1) identify family support services that
will assist the parent or guardian in
remedying the conduct or conditions in
the home that made the child a child in
need of aid;
(2) actively offer the parent or guardian,
and refer the parent or guardian to, the
services identified under (1) of this
subsection; the department shall refer
the parent or guardian to community-
based family support services whenever
community-based services are available
and desired by the parent or guardian;
and
(3) document the department's actions that
are taken under (1) and (2) of this
subsection.
7See AS 47.10.088(c); see also CINA Rule 18(c)(2)(C) (requiring
the superior court to find by a preponderance of the evidence
that termination of parental rights is in the best interests of
the child).
8A.M. v. State, 945 P.2d 296, 305 (Alaska 1997).
9Although more visitation might have been possible during the
disputed period, the record suggests that Erica bears much of the
responsibility for the limited visitation. Erica's social worker
submitted an affidavit documenting twelve scheduled visits
between December 17, 1999 and February 24, 2000, of which four
occurred. Six did not occur because Erica was late or failed to
appear. Kevin missed one visit because of a doctor appointment,
and Amy missed one visit because her foster parents could not
transport her to the visit. One visit did not occur because the
social worker was out of town. The social worker also stated
that he helped Erica figure out which bus would arrive in time
for the visits, and that he contacted her three times regarding
visitation and took her calls six times.
10E.A. v. State, 46 P.3d 986, 990 (Alaska 2002).
11Id. at 991.
12AS 47.10.088(c) provides:
In a proceeding under this chapter involving
termination of the parental right of a
parent, the court shall consider the best
interests of the child.
13See In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001).
14Wasserman v. Bartholomew, 38 P.3d 1162, 1167 (Alaska 2002).
15AS 47.10.080 provides, in relevant part:
(c) If the court finds that the child is a
child in need of aid, the court shall
(1) order the child committed to the
department for placement in an
appropriate setting for a period of time
not to exceed two years . . . except
that the department or the child's
guardian ad litem may petition for and
the court may grant in a hearing
(A) one-year extensions of commitment . . .
if the extension is in the best
interests of the child[.]
16AS 47.14.100 provides, in relevant part:
(e) A child may not be placed in a foster
home or in the care of an agency or
institution providing care for children
if a relative by blood or marriage
requests placement of the child in the
relative's home. However, the
department may retain custody of the
child and provide for its placement in
the same manner as for other children if
the department
(1) makes a determination, supported by
clear and convincing evidence, that
placement of the child with the
relative will result in physical or
mental injury . . . ;
(2) determines that a member of the
relative's household who is 12
years of age or older was the
perpetrator in a substantiated
report of abuse under AS 47.17; or
(3) determines that a member of the
relative's household who is 12
years of age or older is under
arrest for, charged with, has been
convicted of, or has been found not
guilty by reason of insanity of, a
serious offense . . . .
. . . .
(f) . . . Nothing in . . . (e) of this
section applies to child placement for
adoptive purposes.
17See AS 47.10.088; CINA Rule 18.
18CINA Rule 19.1(b) provides for superior court review of
placement decisions:
At any time in a proceeding, a party who is
opposed to the Department transferring a
child from one placement to another may move
the court for a review hearing at which the
requesting party must prove by clear and
convincing evidence that the transfer would
be contrary to the best interests of the
child[.]
19See Alaska Appellate Rule 402, which provides in pertinent part
that:
An aggrieved party . . . may petition the
appellate court as provided in Rule 403 to
review any order or decision of the trial
court, not appealable under Rule 202, and not
subject to a petition for hearing under Rule
302, in any action or proceeding . . . .
20Erica similarly challenges the trial court's denial of her March
2000 motion for a hearing to review Kevin's placement in Charter
North and Amy's placement with her foster family. This claim
likewise is moot.
21See, e.g., D.E.D. v. State, 704 P.2d 774, 780 (Alaska 1985).
