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Sherry R. v. State, Dept. of Health & Social Services (8/1/2003) sp-5721
Sherry R. v. State, Dept. of Health & Social Services (8/1/2003) sp-5721
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
SHERRY R., )
) Supreme Court No. S-10831
Appellant, )
) Superior Court No.
v. ) 4FA-98-00022 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, DIVISION OF ) [No. 5721 - August 1, 2003]
FAMILY & YOUTH SERVICES, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, John R. Lohff, Judge pro tem.
Appearances: Kathleen A. Murphy, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Karla
Taylor-Welch, Assistant Attorney General,
Fairbanks, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Sherry R. appeals the superior court's judgment that
terminated her parental rights to her children, Doug R., Adam R.,
Jacob R., and Amy R.1 The trial court determined that clear and
convincing evidence established that Sherry R. failed to remedy
within a reasonable period of time the conduct or conditions that
placed the four children at substantial risk of harm. Because
the superior court's findings were not clearly erroneous, we
affirm the termination of Sherry R.'s parental rights.
II. FACTS AND PROCEEDINGS A. The Children Sherry R.
has four children with David E.: Doug, born 1990; Adam, born
1994; Jacob, born 1995; and Amy, born 1997.
1. Doug
Doug is Sherry R.'s oldest child. He was born in 1990.
The Division of Family & Youth Services (DFYS) took temporary
custody of Doug in 1992 because his mother, who was living at the
Clare House, was too intoxicated to care for him. The case
against Sherry was dismissed and Doug was returned to her
custody. DFYS referred Sherry to housing and public assistance
and provided her with transportation.
In November 1998 Doug's foster mother took him to
Tanana Valley Clinic in Fairbanks for a medical evaluation. Dr.
Marvin E. Bergeson, a pediatrician, evaluated Doug for signs of
possible fetal alcohol syndrome or fetal alcohol effect. From
the evaluation, Dr. Bergeson suspected prenatal exposure to
alcohol and suggested that prenatal exposure to cocaine was
possible.
In May 2001 a custody investigator interviewed Doug.
When the custody investigator asked Doug if he missed his mother,
he shrugged his shoulders and responded, "I have people to play
with that keep me company." According to the custody
investigator, Doug reported that his mother drinks frequently.
The guardian ad litem (GAL) noted in her report that Doug had
concerns about returning to live with his mother. Doug believes
his mother might start to drink again.
2. Adam
Adam was born in 1994. Dr. Bergeson diagnosed Adam
with atypical fetal alcohol syndrome in 1999. Dr. Bergeson
observed that Adam had a significant number of features common to
children who are prenatally exposed to alcohol including: short
stature, very small eyes, ears that rotated out and are cupped,
pegged teeth, severely crossed eyes and one eye that turned in
severely.
Adam has been enrolled in special education classes
because he has a communication disorder and is visually impaired.
Additionally, his special education teacher has noted that Adam
shows signs of learning disabilities in reading and math. The
custody investigator reported that Adam exhibits some behavioral
problems. He sucks his thumb constantly and can be quite moody.
According to the GAL, Adam's teacher reported that Adam
blossomed while he was in foster care. She reported in 2002 that
while Adam used to be "in a shell," his sense of humor was
becoming more apparent. She also noted that he had made
significant progress towards being mainstreamed in the 2002-03
school year.
Adam wishes to remain with his foster family. He is
concerned that if he goes to live with his mother or father, they
will fight.
3. Jacob
Jacob was born in 1995. Dr. Bergeson determined that
Jacob may have been prenatally exposed to alcohol. Although he
did not exhibit the major physical features associated with fetal
alcohol effects, he suffered from significant speech and language
delays that his pediatrician "felt were probably attributable to
the alcohol exposure but could also be related to cocaine or
marijuana exposure." Dr. Bergeson noted in his 1998 evaluation
that Jacob was very difficult to understand and was probably
understandable less than ten percent of the time. Additionally,
Jacob had a history of being socially inappropriate and
physically aggressive towards others. Jacob takes medicine for
impulse control and aggression. His pediatrician has diagnosed
him with unsocialized disorder and attention deficit disorder.
The doctor explained that unsocialized disorder means that Jacob
"doesn't pick up on social cues . . . [and has] no impulse
control."
Jacob has difficulty respecting authority and
transferring appropriate behavior learned in one setting to a new
setting. Jacob acts aggressively towards his peers - hitting,
pushing, and grabbing other children - and has thrown chairs in
his classroom.
Jacob's counselor, Karin Gillis, reported that his
behavior improved markedly after being placed in foster care.
Gillis noted that Jacob's play became less violent, his language
less foul, and he interacted more appropriately with his brother.
Gillis attributed these changes to the stable environment
provided by his foster parents. Gillis noted that Jacob "is a
kid that has real special needs and will need stability,
consistency, of course lots of love and encouragement and a
positive behavioral plan . . . that the person that's going to
take care of him can really [] stick to."
4. Amy
One month before Amy was born in 1997, her mother
tested positive for cocaine. Sherry admitted to using cocaine
during her pregnancy. One day after Amy's birth, DFYS took her
into their custody. Dr. Bergeson diagnosed Amy with atypical
fetal alcohol syndrome and noted that she suffers from a speech
delay.
B. Sherry's Substance Abuse
Sherry has struggled with drug and alcohol abuse for
many years. Sherry's alcohol abuse precipitated DFYS's initial
contact with her family. DFYS first took custody of one of her
children in 1992 because Sherry was intoxicated and could not
take care of him. DFYS has received numerous reports alleging
substance abuse by Sherry.
Sherry has attempted substance abuse treatment on
several occasions between 1996 and 2001. The record suggests
that she has participated in seven separate treatment programs.
Of those, she has left four, three of those due to noncompliance,
has been discharged from one, and has completed two.
In April 1996 DFYS referred Sherry to their substance
abuse program. However, Sherry was unsuccessful in completing the
treatment. Because of noncompliance, ongoing substance abuse,
and "disruptive classroom behaviors," she was discharged from the
program in July 1996. It was then recommended that Sherry
complete an intensive residential treatment program; she was
referred to Clitheroe's twenty-eight-day program. Sherry was
also unsuccessful in completing the Clitheroe program. She left
the program against treatment advice in August 1996. At that
time, Sherry was pregnant with Amy, and Clitheroe therefore
recommended that she complete a treatment program for pregnant
women such as the Dena Coy program. That same month, the
superior court ordered Sherry not to return to the family
residence until she had completed substance abuse rehabilitation.
It appears that Sherry did not begin the Dena Coy program in the
fall of 1996, but rather started outpatient treatment through the
Individualized Recovery Intervention Service treatment program in
September 1996. Between September 1996 and October 1996, DFYS
received four reports of harm alleging substance abuse in the R.
home. Additionally, according to DFYS records, Sherry's progress
in the treatment program was poor. Anchorage police were called
to the home fourteen times between October 1 and October 27,
1996. Sherry was ultimately discharged from the Individualized
Recovery Intervention Service treatment program because of
noncompliance.
In November 1996 the children were removed from the
home and placed in foster care. Sherry spent one week in the
Dena Coy treatment program, leaving because she would not comply
with their no smoking policy. In April 1997, two months after
Sherry gave birth to Amy, Sherry entered the Women and Children's
Recovery Program in Fairbanks. Between April and November 1997,
all four children were returned to Sherry's physical custody.
Sherry completed the Women and Children's Recovery Program in
November 1997 and then entered their transitional treatment
program. The program personnel discharged Sherry in April 1998,
reporting that Sherry was "resistant to treatment." It was also
reported at that time that Sherry had "effectively alienated
herself from her entire support network," that her potential for
relapse was "high," and her progress "poor."2
Sherry submitted to three of nine requested random
urinalysis tests (UAs) between April and August 1998. The
results of all were negative. However, shortly thereafter, she
relapsed. In September 1998 Sherry admitted to using crack. In
October 1998 the children were removed from Sherry's home because
the superior court found that staying with Sherry would be
"contrary to the welfare of the children." Sherry had been using
cocaine and had resisted entering a treatment program.
In November 1998 Sherry attempted treatment again. She
entered the detoxification program at the Regional Center for
Alcohol and Other Addictions (RCAOA), and began their residential
program on December 1, 1998. She stayed for three months and
successfully completed the program in March 1999.
Sherry relapsed again, however. Shortly after her
discharge from RCAOA, she used crack. In April 2001 Sherry
reported that she had not used crack since June 1999. She
continued to use other drugs though. On December 20, 2000,
Fairbanks police officers conducted a child welfare check at
Sherry's home which resulted in DFYS taking emergency custody of
the children. A call from Doug to his father telling him that
Sherry was intoxicated precipitated the police officers' check.
When the police arrived at Sherry's house, they found marijuana
in her pocket and Sherry admitted that she had smoked marijuana
earlier that night. The children were placed in two separate
foster homes.
In January 2001 it was recommended that Sherry enter an
intensive inpatient treatment program in Anchorage at a dual
diagnosis facility. Sherry refused the inpatient treatment,
opting for outpatient care through Inroads to Healing in
Fairbanks. The GAL reported that Sherry completed the Inroads to
Healing substance abuse program in November 2001. The GAL noted
that Sherry's substance abuse counselor, Betsy Cicilese,
expressed reluctance to accept Sherry to the program because she
knew that Sherry had already unsuccessfully attempted at least
four treatment programs. However, Cicilese reported that Sherry
was one of the program's best participants. Sherry did not miss
a group or individual session. Additionally, according to the
GAL report, Sherry has taken UAs on a regular basis, none of
which have tested positive for drugs. However, several specimens
were diluted.
Sherry admits that she has had problems with alcohol.
However, the degree to which she acknowledges her drinking
problem is debatable. When asked at the termination hearing
whether she considers herself an alcoholic, she responded: "I'm
not real sure. I know I have problems with alcohol but I've been
to AA and I still go . . . . [T]o a degree of [] alcoholism . .
. I would agree with it. But full blown alcoholic, I don't think
so." Sherry testified that her last drink was July 27, 2001, and
that she has not used crack cocaine since 1999.
C. Abusive Relationships
Domestic violence has been another significant factor
in Sherry and her children's lives. Sherry describes many of her
relationships with men as abusive. In a March 1996 police
report, Sherry stated that David E. "grabbed her by the arm,
shook her and threw her onto her bed," and that when she landed
on the bed, her head hit her nineteen-month-old son's head. Two
months later, in May 1996, Sherry reported that David kicked her,
smashed a cigarette into her face, and hit her. In November 1996
the court removed the children from their father's home in part
because of reports of domestic violence between him and Sherry.
Similarly, shortly after Amy's birth, the superior court
committed her to DFYS's temporary custody in part based upon
reports of domestic violence between Sherry and David. Sherry
and David both obtained restraining orders against each other at
different times. David testified that at one point, he moved
with the children from hotel to hotel in Fairbanks to avoid
confrontations with Sherry. During a 1997 psychological
evaluation with Dr. Frank Nelson, Sherry said that when she was
drinking she would sometimes yell, scream, and throw things at
David.
Following Sherry's relationship with David, she became
involved with a man named Robert whom she began dating in 1999.
According to Sherry, Robert was abusive to her. During their
relationship, Robert hit Sherry in the head with a space heater,
which resulted in Sherry going to the hospital. Sherry stopped
seeing Robert in July 2001.
Sherry then began seeing Jerry B. Sherry knew that
Jerry had spent thirty years in and out of prison. Sherry
testified that Jerry wanted to tell her about his past, but that
because she was "going through a lot of stuff" she did not want
to know. She testified that Jerry was treating her well. "I was
trying to get my life together and I had just gotten out of a
rotten relationship and I wasn't ready for one. And so that's
when I said I didn't want to know all that right then." Sherry
envisioned a future with Jerry that included his taking part in
raising the children. Jerry joined Sherry in her visits with the
children. However, she continued to avoid asking him about his
past. "I figured he was treating me good, he was doing things
for the kids, . . . he wasn't an abusive person . . . whatever he
did in his past he did his time for it and he paid his price. So
I . . . didn't feel like I needed to dig into a whole bunch of
details." But Jerry has been convicted of a number of serious
felony offenses including sexual abuse of a minor. When Sherry
learned of this offense, Jerry B. moved out. Because of his
conviction, the public housing agency would not allow him to live
in Sherry's apartment.
Even after learning of Jerry B.'s conviction for sexual
abuse of a minor, Sherry was reluctant to sever ties with him.
Additionally, Sherry seems to deny that Jerry is guilty of the
offense. When asked at the termination trial whether she had
been willing to sever ties with Jerry, Sherry replied: "There's
been allegations and so far he hasn't been in here . . . to
testify to substantiate and if this is the case and this turns
out to be true, yeah, because there is no way I'd have anybody
like that doing anything like that to my children." During the
termination trial in July 2002, Sherry was seen with Jerry at one
of the R. children's soccer matches.
Because Sherry identified Jerry as her partner to
JoAnne Simmerman, the DFYS social worker, Simmerman incorporated
him into the R. family case plan in March 2002. Jerry told
Simmerman that his thirty-year criminal history included assault,
robbery, and car theft. He also told her that he had a history
of drinking. Based upon this information, Simmerman requested
that Jerry complete a substance abuse evaluation, a behavioral
assessment to determine whether he needed anger management
classes, and a family assessment to determine the strengths and
weaknesses of Sherry and Jerry's relationship in terms of raising
children. Simmerman also requested that Jerry submit to random
urinalysis. According to Simmerman, Jerry completed the
requested evaluations, but he never submitted to urinalysis
testing.
Sherry and David continue to argue, even though they
are no longer living together. At a visit with the children at
DFYS in May 2002, they fought over a video camera. During the
confrontation, Adam crawled under a table. Thereafter, JoAnne
Simmerman, the DFYS social worker, scheduled separate visits for
David and Sherry and mandated that none of the adults - Sherry,
Jerry, or David - argue in front of the children.
At the termination trial, Dr. Marti Cranor gave her
opinions as to how Sherry's poor relationship choices could
adversely affect the children. Dr. Cranor explained that in a
home where the adults argue frequently and where there may be
physical fights, it is difficult to maintain the routine that the
children need. Additionally, Dr. Cranor explained that her
greatest concern was that Sherry might focus on her relationship
with her boyfriend to the detriment of the children's needs.
D. Procedural History
On January 2, 2002, DFYS filed a petition for
termination of parental rights. DFYS petitioned to terminate the
rights of both David and Sherry; however, as David does not
appeal the termination, we focus only on the facts relevant to
Sherry. DFYS alleged that the R. children had been subjected to
substantial physical and emotional harm and were at risk of
substantial harm due to their parents' actions. The petition
noted Sherry's long history of substance abuse, her ineffective
attempts at treatment, her choice of abusive partners, and her
psychological problems as barriers to being an effective parent.
DFYS argued that Sherry had not remedied her conduct as she had
not followed her case plan or the activities directed by the
court. DFYS concluded that if the R. children were placed with
either parent, the children would be in danger of significant
emotional or physical harm. The petition noted: "Although
[Sherry] is sincere in her desire to change her behaviors she has
been unable to demonstrate that she has the ability to provide a
safe and nurturing home for her children."
Trial on the petition for termination was held in
Fairbanks between July 22 and July 26, 2002, and on August 2,
2002 before Superior Court Judge pro tem John Lohff. In his
findings, the trial judge noted that "[w]hile [Sherry] made
tremendous progress in her substance abuse treatment, her
sobriety is a relatively new thing in the . . . history of this
case." In addition, Judge Lohff noted that Sherry seemed unable
"to face unpleasant realities such as the troubled past of her
current partner and the diagnosis about the effects of alcohol on
three of her children." The court also observed with regard to
Sherry's substance abuse history: "[Sherry] is still fragile in
her sobriety and that sobriety would be at great risk because of
the immense needs of the children." Because the court concluded
that Sherry was unable to safely and consistently care for her
children, it terminated her rights and responsibilities with
regard to her children. Sherry appeals.
III. STANDARD OF REVIEW
When reviewing a trial court's factual findings
concerning the termination of parental rights, we apply the
clearly erroneous standard of review.3 We find clear error only
when our review of the entire record leaves us with "a definite
and firm conviction that the superior court has made a mistake."4
We review de novo whether the superior court's factual findings
satisfy applicable child in need of aid statutes and rules.5
IV. DISCUSSION
A. The Trial Court Did Not Err in Concluding that
Sherry Failed, Within a Reasonable Time, To Remedy the
Conduct or Conditions in the Home that Place the R.
Children at Substantial Risk of Physical or Mental
Injury.
Parental rights may be terminated under AS 47.10.088 if
the superior court finds by clear and convincing evidence that
the child is in need of aid under AS 47.10.011 and that 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.
In making a determination whether the parent has remedied or
will, within a reasonable time, remedy the conditions in the home
that place the child at substantial risk, the court may consider
any fact relating to the best interests of the child.6 Judge
Lohff found that the children were in need of aid and that Sherry
had failed, within a reasonable time, to remedy the conduct or
conditions that placed the R. children at substantial risk of
physical or mental injury. Accordingly, Judge Lohff terminated
Sherry's parental rights.
Specifically, Judge Lohff found that the R. children
are in need of aid under four statutory factors: AS 47.10.011(1)
(abandonment); AS 47.10.011(8) (mental injury); AS 47.10.011(10)
(substance abuse of the parent); and AS 47.10.011(11) (mental
illness of the parent). In his ruling from the bench, Judge
Lohff noted that Sherry
has made tremendous progress in her substance
abuse although it's a year into it and with
apparent complete success in terms of
abstinence, it's still a new thing. We hope
- all hope it continues to be a long term
thing but it's not the complete availability
for the children yet that we . . . need.
Sherry does not contest the court's finding that her
children are in need of aid. Rather, she contends that the trial
court erred in concluding that she failed to remedy the
conditions that placed her children at risk. Sherry argues that
she has been sober "for a sufficient period of time to
demonstrate her ability to remain sober" regardless of the
stresses that she might encounter while raising her children.7
Sherry argues that because she had been sober for
approximately one year prior to the termination trial, she has
remedied, within a reasonable time, the conduct or conditions
that put her children at risk of harm. Sherry testified at the
termination hearing that she had her last drink on July 27, 2001,
and that since July 28, 2001, she has attended AA meetings
regularly. Since her last drink, Sherry has submitted to random
urinalysis testing. This evidence supports Sherry's contention
that she maintained sobriety for a year prior to the start of the
termination trial in July 2002.
However, as Judge Lohff noted, Sherry's sobriety is a
relatively new phenomenon in her life. She has struggled with
substance abuse and relapsed after treatment a number of times.
Additionally, although she recognizes that she has had problems
with alcohol, it is unclear the degree to which she accepts her
problem.
Sherry argues correctly that her situation is
distinguishable from S.H. v. State, Department of Health & Social
Services, Division of Family & Youth Services.8 Unlike Sherry's
maintenance of a year of sobriety, S.H. admitted to using cocaine
only four months before her termination hearing.9 Unfortunately,
even though Sherry may have made strides towards remedying her
conduct, the trial court could properly find that Sherry failed
to address her substance abuse problem within a reasonable time.
The superior court is entitled to rely on a parent's documented
history of conduct as a predictor of future behavior. It seems
that Judge Lohff relied upon Sherry's long history of substance
abuse in making his determination. He commended her for her
success, but noted that her sobriety is still very new.
Moreover, even since sobriety, Sherry has continued to
make choices that affect her children's lives adversely,
specifically, her romantic involvement with Jerry. Jerry has been
convicted of child sexual assault. Concerning her relationship
with Jerry, Sherry argues that she showed that she made the right
choice by asking Jerry to move out of her apartment when she
learned of his sex offenses. As the State correctly argues, the
record refutes Sherry's assertions of good judgment. Despite the
fact that Jerry wanted to share the details of his past with
Sherry, she did not want to know because she was "going through a
lot of stuff." At trial Sherry testified: "I figured he was
treating me good, he was doing things for the kids, . . . he
wasn't an abusive person . . . whatever he did in his past he did
his time for it and he paid his price. So I . . . didn't feel
like I needed to dig into a whole bunch of details."
Additionally, Sherry continued to see Jerry even after he moved
out of the house. During the termination trial in July 2002, she
was seen with him at one of the children's soccer matches.
Sherry persisted in exposing her children to Jerry, despite her
knowledge of Jerry's history of sexual abuse.
There is also evidence in the record that Sherry fails
to recognize her children's special needs. Sherry argues that
she acknowledges their needs, has gathered information about
fetal alcohol exposure and its effects, and is prepared to meet
her children's special needs. However, these arguments are
refuted by the record. At trial, Sherry only admitted that her
children's problems "could be" due to the fact that she drank
while pregnant with them. When asked what she thought about the
testimony of the three younger children's alcohol-affected
diagnoses, she replied "I really don't know what to think."
Sherry has tried to learn about fetal alcohol syndrome, but her
testimony suggests that she does not fully accept or understand
her children's disabilities.
As Judge Lohff's determination was not clearly
erroneous, we affirm the superior court's conclusion.
V. CONCLUSION
Because the trial court did not clearly err in finding
that Sherry R. failed to remedy the conduct or conditions that
placed the R. children at substantial risk of harm, we AFFIRM the
trial court's decision to terminate Sherry R.'s parental rights.
_______________________________
1We use pseudonyms to protect the family's privacy.
2In terms of Sherry's experience with the Women and Children's
Recovery Program in Fairbanks, two reports in the record present
two slightly different versions of the facts. The facts recounted
above reflect those described in the Annual Review of Child in
Need of Aid Report, dated September 13, 1998. The Petition for
Termination of Parental Rights differs in that it says that three
weeks after Sherry successfully completed the inpatient and
aftercare components of the Women and Children's Recovery
Program, she relapsed and resumed using crack.
3S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family &
Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002).
4Id.
5Id. at 1122-23.
6AS 47.10.088(b).
7Sherry also makes an argument concerning her personality
disorder, however, because we affirm the trial court's decision
on other grounds, we do not address this argument.
842 P.3d 1119 (Alaska 2002).
9Id. at 1122-24.
