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G.C. v. State, Dept. of Health & Social Services (4/11/2003) sp-5678
G.C. v. State, Dept. of Health & Social Services (4/11/2003) sp-5678
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
G.C., )
) Supreme Court No. S-10519
Appellant, )
) Superior Court No.
v. ) 3PA-97-35 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, DIVISION OF ) [No. 5678 - April 11,
2003]
FAMILY & YOUTH SERVICES, )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: J. Randall Luffberry, Palmer,
for Appellant. Lance B. Nelson, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee. Erica Kracker, Kracker Law Office,
Palmer, for Guardian ad Litem.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
The superior court terminated Gary Carsons1 parental
rights. Gary challenges the courts factual findings as erroneous
and unable to support its termination decision. Because we
believe the evidence supports the superior courts finding of
abandonment, its decision that reasonable efforts were made to
reunify Gary and his son Daniel, and its conclusion that
termination would be in Daniels best interests, we affirm the
superior courts decision.
II. FACTS AND PROCEEDINGS
A. Facts
Cousins Gary Carson and Jana Bishop grew up in a small
town in Colorado. As a teenager, Gary would occasionally babysit
Jana and her siblings. One night at age thirteen, while
babysitting, Gary smoked marijuana, consumed alcohol, and watched
pornographic movies. Gary convinced Jana, then age four, to take
off her clothes and the two experimented with sex, meaning he put
his penis inside of her and then stopped when she screamed. Jana
told her mother, Claire King, what had happened, at which point
Claire informed Garys mother, Faye Simmons. Faye confronted Gary
and then took him to the police station until she could have him
admitted to the state hospital for treatment. Approximately
three years later, Gary returned to his mothers home and lived
there on and off for the next few years. During this time, he
was heavily involved in drug use and criminal behavior and was
arrested several times.
In the summer of 1990, Claire left several of her
children, including Jana, with Faye while she went to work on a
Valdez clean-up boat. At that time, Jana was fourteen and Gary
was twenty-three. According to Gary, Jana started to write
letters to him, expressing a desire to have sex with him and to
have his child. Faye expressed concerns about the living
situation to Claire, who said they would discuss it during the
holidays when she came to Colorado to visit. In the meantime,
Faye had Gary move out of her house and into another house she
owned on the same property.
In January 1991, after her mother had returned to
Alaska, Jana began sneaking out of Fayes house and going next
door to Garys house. According to Gary, on two occasions, Jana
came to his house, got into bed with him, and initiated sexual
intercourse. On the first occasion, Gary claimed that he did not
know what had happened until he woke up the following morning and
found them in bed together, naked. The second time, Gary
maintained that he was drunk and stoned when Jana got into bed
with him, and thinking it was his girlfriend, he had sex with
her. Faye found out what was going on and told Gary he would
have to move off the property. At some point after Gary moved
out, Faye learned that Jana was pregnant. Jana then moved back
in with her mother. Daniel was born on October 18, 1991.
Following Daniels birth, Faye and Gary got occasional
reports about Daniel from Claire and Jana, who preferred that
Gary not take an active role in Daniels life. Gary told Jana to
call him if she needed help, but privately doubted if he would
ever hear from her again. The Alaska Division of Family and
Youth Services (DFYS) became involved with Jana and her two
children, Daniel and Stacy,2 in 1995. Faye was aware of some
intervention, but claims she did not know that it was serious
until Jana called her in October 2000 and informed Faye that DFYS
was seeking to terminate Janas parental rights. At that point,
Daniel was in a preadoptive placement with the Peterson family
and Gary was incarcerated in Colorado.
Faye then decided to inform DFYS that Gary was Daniels
father. Upon learning Garys identity, DFYS requested that the
Mesa County (Colorado) Department of Human Services perform a
home study of Fayes house pursuant to the Interstate Compact on
the Placement of Children (ICPC).3 The study was completed on
May 22, 2001; placement was denied on June 1, 2001. Through his
attorney, Gary requested a reconsideration of the denial of
placement, which was also denied. In the meantime, DFYS filed a
petition to terminate his and Janas parental rights. During this
time, the Petersons changed their minds about adoption and Daniel
was placed with a former foster parent named Ted Hughes, who was
considering adoption pending the outcome of the termination
proceedings.
B. Proceedings
Jana voluntarily relinquished her parental rights to
Daniel on August 15, 2001. Trial to terminate Garys parental
rights was held before Superior Court Judge Beverly W. Cutler in
Palmer. Trial began on September 27, 2001, and was held on six
separate days during the months of September, October and
November. Gary testified in a videotaped deposition from the
work release community corrections building in which he currently
resides. He was present by phone for the duration of the trial.
Trial was concluded on November 15, 2001. Judge Cutler issued
oral findings from the bench at the close of trial, followed by
written findings on January 25, 2002.
In its written findings, the trial court found by clear
and convincing evidence that Daniel was a child in need of aid
pursuant to three separate (and independent) parts of the law
defining children in need of aid, that Gary had not remedied the
conduct or conditions that placed Daniel at substantial risk of
harm, that DFYS had demonstrated by a preponderance of the
evidence that it had made reasonable efforts to provide remedial
services and rehabilitative programs to Gary, and that
termination of Garys parental rights would be in Daniels best
interests. Accordingly, the trial court terminated Garys
parental rights and authorized DFYS to place Daniel for adoption.
Gary appeals, claiming that the courts factual findings
were erroneous and that they were not sufficient to support the
courts termination decision.
III. STANDARD OF REVIEW
We apply the clearly erroneous standard when reviewing
the factual findings supporting the termination of a parents
right to raise his or her children.4 We will find clear error
only when a review of the entire record leaves us with a definite
and firm conviction that the superior court has made a mistake.5
Whether the trial courts findings satisfy the requirements of the
child in need of aid statutes and rules is a question of law
which we review de novo.6
IV. DISCUSSION
A. The Trial Court Did Not Err in Finding that Sufficient
Grounds Supporting the Termination of Garys Parental Rights
Existed.
A. Pursuant to AS 47.10.088, prior to terminating a parents
right to raise his or her child, the court must find by clear and
convincing evidence (1) that the child meets one of the bases for
being a child in need of aid under AS 47.10.011 and (2) either
that the parent has not remedied the conditions underlying the
original harm or that returning the child to the parent would
place the child at substantial risk of physical or mental injury.7
Judge Cutler found by clear and convincing evidence
that Daniel was a child in need of aid under three subsections of
AS 47.10.011: (1), (2), and (9).8 In addition, the court made
findings that would support termination on the basis that Daniel
was conceived as a result of child sexual assault under AS
25.23.180(c)(3).9 Because we conclude that there was ample
support for the courts finding that Gary abandoned Daniel, we
affirm the superior courts determination that there were
sufficient grounds for termination of Garys parental rights under
AS 47.10.011(1). In doing so, we decline to review the courts
findings under AS 47.10.011(2) or (9) or AS 25.23.180(c)(3),
since one statutory basis is sufficient for finding a child to
be in need of aid in a termination proceeding.
Alaska Statute 47.10.011(1) requires that the court
find that the parent has abandoned his or her child within the
meaning of AS 47.10.013. Subsection .013(a) provides in relevant
part that:
the court may find abandonment of a child if
a parent or guardian has shown a conscious
disregard of parental responsibilities toward
the child by failing to provide reasonable
support, maintain regular contact, or provide
normal supervision, considering the childs
age and need for care by an adult.
The statute also provides specific examples of conduct that will
be considered abandonment.10
We have interpreted the abandonment statute as
encompassing a two-prong test: (1) whether the parents conduct
evidenced a disregard for his or her parental obligations, and
(2) whether that disregard led to the destruction of the parent-
child relationship.11 Additionally, it is clear that abandonment
is not determined by the parents subjective intent or . . . the
parents wishful thoughts and hopes for the child. 12 Rather, we
apply an objective test to the actions of the parent, inquiring
as to whether his or her behavior demonstrates a willful
disregard of his or her parental responsibility.13
Judge Cutler made specific written findings on Garys
abandonment of Daniel, determining that:
Clearly [Mr. Carson] has abandoned [Daniel].
[Mr. Carson] knew all along that he had a son
as a result of a sexual relation with the
fourteen-year-old mother. He has never paid
support for the child, partly out of
convenience to himself and partly because he
was never asked for support. He has not ever
seen the child. He indicated he took a back
seat because he thought that action would be
best for everyone.
In addition, in her oral findings, Judge Cutler began by stating
that
it seems abundantly clear way beyond clear
and convincing that [Mr. Carson] did, in
fact, abandon [Daniel] for the first half of
his life. . . . No question that he knew he
had a son born to him and that he just
abandoned him, flat out. . . . [N]o
definition of abandonment would not include
that kind of conduct, and even if he may have
had good personal reasons and it might have
even been better for [Daniel] . . . to be
abandoned by his father, in light of all of
the things we have heard about the young life
of both [Jana] and [Mr. Carson], but he was
clearly abandoned by him.
In response to a question whether she was finding that Gary had
willfully abandoned Daniel, Judge Cutler responded: Its my
finding, by clear and convincing proof, that for the first many
years of [Daniel]s life that he was willfully abandoned by
[Gary]. [Gary] may have had his own reasons. Nonetheless, the
court concluded, it was clearly willful abandonment in my
opinion, . . . based on the totality of what was presented about
the circumstances.
Gary argues that he did not consciously disregard his
parental responsibilities. He maintains that he wanted to act as
a father to Daniel, but that he was not provided the opportunity
to do so by the mother, who rejected his offers of assistance.
He claims that his failure to pursue fatherhood was due to his
sensitivity to the wishes of the mother and her family and his
fears that to become more assertive would have cut him and his
mother off from any contact or information. According to Gary,
his immediate interest in Daniel once Gary learned he was in DFYS
custody demonstrates that it was Jana who barred him from being a
father, not his own lack of initiative.
Garys contention that he did not willfully abandon his
son or cause the destruction of the child-parent relationship
lacks merit. As in In re H.C.,14 in which we found the failure of
a father to maintain any contact with his daughter for over one
year to demonstrate his willful abandonment,15 Garys objective
conduct belies his assertions. Daniel and Gary have had no
contact during Daniels ten-year life, and Daniel only found out
that Gary was his biological father in 2001. Gary has never
actively attempted to provide financial or emotional support to
Daniel, has never tried to see him, to gain custody of him, or to
develop any type of a relationship with him. Whatever Garys
reasons for not attempting to act as a parent to Daniel for the
first ten years of his life, his decision was conscious and
calculated, and he sets forth no basis on which we could
determine that the superior court erred in finding that his
conduct amounts to willful abandonment.
B. The Trial Court Did Not Err in Determining that DFYS Had
Made Reasonable Efforts To Reunify Gary and Daniel.
A. In a termination proceeding, the superior court must also
find by preponderance of the evidence that the department has
complied with the provisions of AS 47.10.086 concerning
reasonable efforts.16 In relevant part, section .086 requires
DFYS to make timely, reasonable efforts to provide family support
services to the parent and 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.17 Specifically, the duty to make
reasonable efforts requires that DFYS identify family support
services to remedy the causes of CINA jurisdiction, actively
offer these services to the parent, and refer the parent to
community-based family support services whenever available and
desired by the parent.18 Additionally, [i]n making determinations
and reasonable efforts under this section, the primary
consideration is the childs best interests.19
In considering this factor, Judge Cutler found that
under the circumstances, the department had made reasonable
efforts to provide remedial and rehabilitative services to Gary.
While recognizing in her oral findings that DFYS was admittedly
disappointed upon learning that Gary was the father, and that
[t]hey could have made more efforts if their heart was in it more
strongly, Judge Cutler found that clearly they did make an effort
here, and I think it was definitely reasonable in the
circumstances.
We have held that [a] parents incarceration
significantly affects the scope of the active efforts that the
State must make.20 Especially in situations such as this, where
the parent is incarcerated in another state, the trial court may
consider factors such as the difficulty of providing services to
inmates generally, the specific resources available for the
incarcerated parent in question, and the expected length of
incarceration.21 Additionally, where a parent is in prison, we
have held that the Department of Corrections, rather than DFYS,
may fulfill this obligation by enrolling the parent in classes
and treatment programs.22
Gary admits that DFYS was limited in the services it
could provide to him due to his incarceration and concedes that
efforts of any state agency, including the Department of
Corrections (DOC), will suffice to meet DFYSs obligation.
Nonetheless, he contends that DFYSs contact with his jail
counselor was not sufficient to meet its requirements under the
statute. At the very least, Gary maintains, DFYS should have
been required to contact Colorado or Mesa County child protection
authorities to ascertain what community-based programs they were
aware of, something DFYS declined to do until well after the
trial had begun. In response, the state explains that Gary was
offered all of the classes and treatment available to inmates in
Colorado and that therefore, DFYSs efforts were reasonable.
Given the amount of time available23 and the fact that
Gary was incarcerated in another state throughout the period that
services could be offered to him, DFYS was limited in how much it
could do for him. DFYS social worker Jean Marie Hakenson
testified as to her efforts upon learning that Gary might be the
father, explaining that she immediately prepared a case plan,
requesting parenting and anger management classes and substance
abuse assessment and treatment. She also contacted Cindy Fugate,
Garys case manager at Sterling Correctional Facility, to find out
what classes were available to Gary while in prison. Gary had
already taken a number of these classes, which were then listed
in Ms. Hakensons permanency report. Furthermore, when Gary
informed Ms. Hakenson that he might be moving to a halfway house,
she told him to notify her when he was actually there so she
could arrange for services for him there. Ms. Hakenson admitted
that after speaking with Ms. Fugate at DOC, she did not contact
any neighborhood mental health facilities or community-based
programs to see if any additional services were available for
Gary. However, she testified that it was her belief that when a
person is in prison, DFYS is only required to determine what
services are available in the prison, and not in the community at
large.
The trial court found that DFYS had made reasonable
efforts by contacting DOC in Colorado and requesting that any
available classes or services be provided to Gary. Given the
range of relevant DOC offerings, including substance abuse
counseling, anger management, relapse prevention, life skills
seminars, and strategies for self-improvement and change, we see
no reason why DFYS should have been required to seek out
additional community-based services in this situation. As the
state points out, given that Gary was in jail, and there was no
home to which Daniel could be returned, the departments efforts
were clearly reasonable under the circumstances. We find that
the evidence supports the courts finding that reasonable efforts
were made by DFYS and we therefore affirm Judge Cutlers
determination that the requirements of AS 47.10.086 have been
met.
C. The Trial Court Did Not Err in Finding that Termination of
Garys Parental Rights Would Be in Daniels Best Interests.
A. The final requirement for termination of parental rights is
that the court consider the best interests of the child.24
In its written findings, the court stated:
Given the age of the child and length of time
that he has been in custody (over 4 years),
there is a critical risk of long term harm to
the child if there is not immediate
permanency. The court finds that the childs
counselor, Ms. [Houston], is a disinterested
witness in that she has no perceived bias
except for a need to look out for the best
interests of the child. Her testimony was
persuasive in the need for [Daniel] to have a
loving, nurturing, and stable environment as
soon as possible.
In her testimony, Lori Houston attested to the extreme importance
to Daniel of having a stable, permanent home and of not getting
his hopes up and then being disappointed again. She also voiced
her concerns about the familys history and about what type of
treatment that a family with that level of dysfunction has gone
through in order to repair and obtain a level of functioning that
is going to be appropriate for [Daniel].
In addition to this testimony, the trial court
considered the statements of Gary himself. Specifically, the
trial court expressed difficulty giving much credence to Garys
plans for himself in the future:
I do think, while he states that he expects
to be a different person now than he was
during the first eight or 10 years of
[Daniels] life, that in some ways I find his
statements not as credible as I would those
of a person who had been more stable in their
life, because it does appear to me that he
may while he can verbalize the idea of who
he is and what he thinks his abilities are,
that often the idea a person has in their
mind of who they are and what their abilities
are, the idea is often not the same as their
ability to actually be that person or follow
through[ ] . . . Im saying as the judge I
dont completely disbelieve him, but I do have
great concern that his own idea of who he is
and what his abilities are to be a good
parent to [Daniel] and his ability to
actually follow through might be separated by
a lot of there might be a lot of differences
between what will actually happen and what he
hoped would happen.
Gary maintains that Judge Cutlers decision that it was
in Daniels best interests for Garys parental rights to be
terminated was clearly erroneous, given that under Garys proposed
plan of placing Daniel with his grandmother Faye, permanency
could have been achieved immediately. Gary argues, With this
plan, [Daniel] could have reunited with his father when, if ever,
the state deemed it safe and appropriate. Also, if the trial
courts fears about [Garys] likelihood to reoffend came true,
[Faye] could provide continuity, permanency, and protection of
[Daniel] until he was grown. Because Daniel was not in an
adoptive placement at the time of trial, Gary argues that the
court should have preferred placement with Faye to Daniels
current situation.25
Judge Cutler specifically found that while Daniels best
interests would be served by permanency, they would not be met by
a placement with his paternal grandmother:
It appears that [Gary] and his mother [Faye],
whos the grandmother that Mr. Luffberry
argues really would be a perfect adoptive
placement, also have a pretty dysfunctional
relationship thats codependent in bad ways,
and that really [Faye] was not highly
successful in raising [Gary] to be a normal,
ordinary, functioning adult male, and we
should be concerned about [Daniel] following
a bad pattern as opposed to a good pattern if
he were somehow to get into placement with
them.
Considering the length of time Daniel has been in state
custody, that he has never met or been given the opportunity to
develop a relationship with his father, that his grandmothers
home was rejected as a possible placement for him in the ICPC
home study, that Garys future is uncertain, that Gary has a long
history of criminal behavior and sexual misconduct, and that
Daniel is currently in a placement which may result in adoption,
we do not believe Judge Cutler erred in finding that Daniels best
interests would not be served by placement with Faye and denial
of the states petition to terminate Garys parental rights. Given
the ample support in the record for the courts best interests
finding, we therefore affirm the trial courts determination that
termination of Garys parental rights would be in Daniels best
interests.
V. CONCLUSION
Because none of the factual findings underlying Judge
Cutlers decision was clearly erroneous and because these findings
provide sufficient support for each of the requirements of AS
47.10.088, we AFFIRM the superior courts decision to terminate
Garys parental rights.
_______________________________
1 Pseudonyms have been used for all family members
throughout this opinion.
2 Jana had a second child, Stacy, in 1994 with Colorado
resident Darren Hunt. Stacy is currently with her maternal
grandmother pending placement with her father.
3 AS 47.70.010.
4 S.H. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002); J.H. v.
State, Dept of Health & Soc. Servs., 30 P.3d 79, 85 (Alaska
2001).
5 S.H., 42 P.3d at 1122.
6 Id. at 1123; M.W. v. State, Dept of Health & Soc.
Servs., 20 P.3d 1141, 1143 (Alaska 2001).
7 AS 47.10.088(a)(1).
8 AS 47.10.011 provides in relevant part that the court
may find a child to be in need of aid if it finds that:
(1) a parent or guardian has abandoned
the child as described in AS 47.10.013, and
the other parent is absent or has committed
conduct or created conditions that cause the
child to be a child in need of aid under this
chapter;
(2) a parent, guardian, or custodian is
incarcerated, the other parent is absent or
has committed conduct or created conditions
that cause the child to be a child in need of
aid under this chapter, and the incarcerated
parent has not made adequate arrangements for
the child;
. . . .
(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[.]
9 AS 25.23.180(c)(3) provides in relevant part:
The relationship of parent and child may
be terminated by a court order issued in
connection with a proceeding under this
chapter or a proceeding under AS 47.10 on the
grounds . . . that the parent committed an
act constituting sexual assault or sexual
abuse of a minor under the laws of this state
or a comparable offense under the laws of the
state where the act occurred that resulted in
conception of the child and that termination
of the parental rights of the biological
parent is in the best interest of the child.
10 See AS 47.10.013(a)(1)-(8) (listing factors such as
failure to support, communicate with, or visit the child, and
failure to participate in a reunification plan).
11 E.J.S. v. State, Dept of Health & Soc. Servs., 754 P.2d
749, 751 (Alaska 1988).
12 Id. (quoting D.M. v. State, 515 P.2d 1234, 1237 (Alaska
1973)).
13 Id. See also Nada A. v. State, 660 P.2d 436, 439
(Alaska 1983) (indicating that while involuntary incarceration
might not suffice to establish abandonment, an eight- month
voluntary absence prior to incarceration would) legislatively
overruled on other grounds, 1, ch. 99, SLA 1998.
14 956 P.2d 477 (Alaska 1998).
15 Id. at 482. See also E.J.S., 754 P.2d at 751
(affirming finding of abandonment based on fathers failure to
make reasonable efforts to locate and communicate with his
daughter for five years); In re B.J., 530 P.2d 747, 750 (Alaska
1975) (holding that fathers failure to acquire suitable home for
his children, pay even nominal child support, visit or correspond
with his children, or make efforts to secure permanent employment
were sufficient to demonstrate conscious disregard of his
parental obligations).
16 AS 47.10.088(a)(2).
17 AS 47.10.086(a).
18 Id.
19 AS 47.10.086(f).
20 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 261 (Alaska 1999).
21 Id.
22 T.F. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 26 P.3d 1089, 1096 (Alaska 2001).
23 As discussed in Part C of this opinion, Daniel had
already been in foster care for a significant period of time and
had seen at least one preadoptive placement fall through as a
result of these proceedings. Because allowing for additional
time for DFYS to provide Gary with reunification services would
not have been in Daniels best interests, DFYS faced a short
window during which to provide Gary with such services.
24 AS 47.10.088(c).
25 Gary also argues that AS 47.14.100(e) requires
placement with Faye because she is a blood relative. However, as
Gary concedes, he did not raise this argument at trial, and
therefore we deem it to have been waived. See Brandon v. Corrs.
Corp. of Am., 28 P.3d 269, 280 (Alaska 2001) (repeating well-
established rule that this court will not treat issue on appeal
that was not raised at trial).
