Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Martin N. v. State, Dept. of Health and Social Services (9/12/2003) sp-5736

Martin N. v. State, Dept. of Health and Social Services (9/12/2003) sp-5736

     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

MARTIN N.,                                   )
                              )    Supreme Court No. S-10754
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3PA-00-87 CP
                              )
STATE OF ALASKA,                        )
DEPARTMENT OF HEALTH &        )
SOCIAL SERVICES, DIVISION OF  )
FAMILY & YOUTH SERVICES,      )    O P I N I O N
                              )
             Appellee.                  )    [No. 5736 -
                              September 12, 2003]
________________________________)


          Appeal from the Superior Court of the State
          of Alaska, Third Judicial District, Palmer,
          Eric Smith, Judge.

          Appearances:  Scott A. Sterling, Sterling &
          DeArmond, P.C., Wasilla, for Appellant.
          Gregg D. Renkes, Attorney General, Juneau,
          and Toby N. Steinberger, Assistant Attorney
          General, Anchorage, for Appellee.  Erica
          Kracker, Kracker Law Office, Palmer, Guardian
          ad Litem.

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

          CARPENETI, Justice.





I.   INTRODUCTION

          A father appeals the decision of the superior court

terminating his parental rights under AS 47.10.088 and denying

his request to stay termination proceedings until the Alaska

Division of Family and Youth Services investigates possible

placement of his infant daughter with his parents or sister under

AS 47.14.100(e).  Because the court properly terminated the

fathers rights under AS 47.10.088, and because the placement

issues were irrelevant to the termination proceeding, we affirm.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          Hannah G.1 and Martin N. met in June 1999, immediately

began living together in Talkeetna, and eventually discussed

marriage.  Their relationship was marked by violence and

controlling behaviors in which Martin, among other acts, used a

gun to shoot Hannahs dishes; prevented her from leaving an

argument by grabbing her at the neck, holding her up against the

wall while kneeing her in the stomach, and finally pointing a gun

at her, at which time she was three months pregnant; shouting at

her in a bar and commanding her to get in his truck; and

threatening to kill her cat and dog.  Hannah testified that on

many of these occasions Martin had been using alcohol.  On

December 12, 1999, while Hannah was four months pregnant, Martin

threatened to kill her and then shot her once in her right

buttock.  Martin was arrested and jailed in Palmer in connection

with the shooting on December 13.  Hannah visited Martin in jail

frequently; she later claimed that she had done so because he

threatened harm to her.

          On October 22, 2001 a jury convicted Martin of first-

degree assault and third-degree weapons misconduct, and he was

sentenced to fifteen- and three-year consecutive terms,

respectively, which was the presumptive sentence based on his

prior felonies.  He will be eligible for parole in 2013.  Martins

conviction is currently on appeal and he has maintained his

innocence throughout these proceedings, but he recognizes that he

is estopped from contesting the facts underlying his conviction.2

          On May 4, 2000 Hannah gave birth to Martins daughter

Amanda N.  Amanda is the third of Hannahs four children.  The

          custody of one older half-brother is shared between Hannah and

that childs biological father; another older half-brother lives

with Hannahs mother; and Amandas younger half-brother lives with

Hannah and her new husband.  For several months after Amandas

birth, Hannah brought Amanda to visit Martin in jail nearly every

day.  Since Amandas birth Hannah had been receiving help from the

Division of Family and Youth Services (DFYS) but was unable to

maintain consistent housing.  In October 2000 DFYS took custody

of Amanda because Hannah and the baby were living in a car,

Hannah was not taking medication for bipolar disorder and was

acting irrationally, Amanda was inadequately clothed and fed, and

Amanda had a high fever.  In November 2000 both parents

stipulated that Amanda was a child in need of aid on the grounds

of abandonment and neglect.  Amanda was placed with a foster

family with whom she has lived ever since.

          Upon hearing that Amanda had been taken into custody in

October 2000, Martin immediately contacted his sister and

stepmother in Spokane, Washington; the parties dispute whether

his sister contacted DFYS asking that Amanda be placed with her

at that time.  Initially all parties agreed that it was best for

DFYS to work toward reunification of Amanda and Hannah, and that

this would be best achieved by leaving Amanda in her foster

placement where she would have frequent access to her mother,

visitation with her father, and access to her half-siblings, none

of which would have been possible had she been placed with her

fathers relatives in Washington or her maternal grandmother in

the Trapper Creek/Talkeetna area.

          Martin had five visits with Amanda while he was in jail

at the Mat-Su Pretrial Facility.  While the first visit was

successful, on the second visit in December 2000 Amanda became

agitated, began to cry a loud angry cry, and refused to stop for

several days, resulting in vomiting, diarrhea, and sleep

disturbances.  When this also occurred on subsequent visits,

Amanda was referred to a doctor, who determined that the visits

should cease.  There was no evidence that Martin had done

anything to provoke this reaction, and in fact Amandas foster

parents find that they cannot leave her in day care because she

similarly scream[s] bloody murder when they try.

          DFYSs initial case plans for Martin, developed in

November 2000 and April 2001, relied on his insistence that his

incarceration was temporary, and consisted of parenting classes,

psychological evaluation, drug monitoring, and supervised visits.

He initially took several parenting classes while in jail, but

later was put in maximum security because of his in-jail

behavior, and as a result was unable to participate in further

classes because of restrictions on his movement.  At trial,

Martins probation officer testified that Martin had been put into

maximum security status as a result of a high frequency and

volume of disciplinary problems.  The social worker assigned to

Amandas case also testified that Martin threatened him with

bodily harm.  Because Martin was in maximum security, he was

unable to comply with the final case plan drawn up in September

2001, which called for, among other things, his attendance at

further substance abuse and anger management classes.

          DFYS eventually became concerned about the length of

time that Amanda had been in foster care.  Because of that and

because she was becoming closely bonded with her foster parents,

DFYS petitioned to terminate Hannahs and Martins parental rights

in October 2001.  Martin was found guilty of assault and weapons

misconduct and was sentenced on October 22.  A permanent

placement hearing was held on November 9, 2001 before Superior

Court Judge Eric Smith, who held that the childs foster placement

should not be disturbed and converted it into a potentially

permanent living arrangement.

     B.   Proceedings

          Hearings on the petition to terminate were held over

five days in March and April of 2002.  At trial, the state did

not pursue termination of Hannahs parental rights,  because her

condition had improved significantly after she began taking

proper medication and established a stable household.  Hannahs

position at trial was that if Martins rights were terminated,

then she would relinquish hers, because she felt that it was in

the best interests of her child to be placed permanently with her

foster parents.  The superior court terminated Martins parental

rights under AS 47.10.080(o) and AS 47.10.088, holding that

Amanda remained a child in need of aid under AS 47.40.011

subsections (2), (6), and (8).  Martin appeals.

III. STANDARD OF REVIEW

          We will reverse the factual findings of the superior

court in a termination of parental rights case only when those

findings are clearly erroneous, a standard which is met only if

we are left with a definite and firm conviction that a mistake

has been made after review of the entire record.3  When reviewing

factual findings, we view the evidence in the light most

favorable to the party prevailing below;4 we ordinarily will not

overturn a trial courts finding based on conflicting evidence.5

The issue of whether the trial courts findings are consistent

with the child in need of aid statutes is a question of law that

we review de novo,6 adopting the rule of law that is most

persuasive in light of precedent, reason, and policy.7  We bear

in mind at all times that terminating parental rights is a

drastic measure. 8

IV.  DISCUSSION

          Martin argues that the superior court erred in

terminating his parental rights.  He also argues that the

superior court erred by refusing to stay the termination

proceedings and refusing to order DFYS to investigate his parents

and sister as possible permanent placements for Amanda under AS

47.14.100(e).  Because Judge Smiths factual findings were not

clearly erroneous, and because his legal rulings and application

of the law to the facts were proper, we affirm.

     A.   Martins Parental Rights Were Properly Terminated Under AS
          47.10.088.
          
          A.   When the state petitions to terminate the rights of a parent

under AS 47.10.088, the superior court must make several findings

before termination may occur.  First, it must find by clear and

convincing evidence that the child has been subjected to conduct

or conditions making the child a child in need of aid under AS

47.10.011.9  Second, it must find by clear and convincing

evidence that the parent has not remedied the conditions or

conduct placing the child at risk, or has failed to make

sufficient progress in a reasonable period of time such that the

child remains at substantial risk of physical or mental injury.10

Third, it must find by a preponderance of the evidence that DFYS

made reasonable efforts to help the parent remedy the problematic

behavior or conditions.11  Finally, it must find by a

preponderance of the evidence that termination of parental rights

is in the best interests of the child.12  Martin challenges the

superior courts findings on each of these issues.13

          1.   Alaska Statute 47.10.088(a)(1)(A): Amanda was a child in
               need of aid on the bases of substantial risk of future physical
               harm and future mental harm.
               
          1.   The superior court found that Amanda had been subjected to

conditions causing her to be a child in need of aid under AS

47.10.011.  Martin contests the superior courts findings.14

               a.   AS 47.10.011(6): substantial risk of physical harm
                    
          a.   The trial court found that Amanda was a child in need of aid

under AS 47.10.011(6), which provides in part that a child may be

found to be in need of aid if the child has suffered substantial

physical harm, or there is a substantial risk that the child will

suffer substantial physical harm, as a result of conduct by or

conditions created by the childs parent.  Martin first argues

that the trial courts holding was erroneous because he has never

caused physical harm to Amanda in the past.  But the trial courts

ruling was specifically directed to the likelihood of future harm

under AS 47.10.011(6);  the state is not required to wait to

intervene until a child has suffered actual harm.15  Martin

responds that the finding that he poses a risk of future harm is

          erroneous because his violent tendencies are not a condition

created by him.  We disagree.  We analyze the totality of the

States evidence in assessing the risk of future physical harm to

a child.16  Looking at all of the evidence, it is clear that

Martin has violent tendencies that pose a risk of future harm to

Amanda.  Martin kneed Hannah in the abdomen and shot her in the

buttock while she was pregnant, and repeatedly threatened Hannah,

her possessions, and her pets with guns.  While in jail, he

continued his threatening and controlling behavior toward Hannah,

and also threatened the social worker.  Martin himself admitted

that he entered into confrontations with other prisoners while in

jail, and that his attitude and disciplinary history in jail was

poor, but he argues that he never directed violence at Amanda.

We considered a similar argument in In re J.A.,17 where a parent

argued that the previous violence between the parents had never

placed the child in danger.  We rejected that argument, noting

that

          [t]he violent behavior of [the parents] need
          not have been directed at [the child] to
          place him in physical danger.  As another
          court has acknowledged, [m]any violent acts
          could be committed in the childs presence,
          but not directed toward the child, in such a
          manner as to actually endanger the childs
          physical well-being.[18]
          
Martins reckless use of firearms, including shooting Hannah when

she was pregnant with Amanda, shows that he would pose a

significant risk of harm to Amanda in the future.  Finally, and

contrary to Martins argument, it is irrelevant that much of the

testimony comes solely from Hannah, because the trial court found

her to be a credible witness, and we generally defer to the trial

court on the issue of witness credibility.19  We affirm the

finding of the superior court.

               b.   AS 47.10.011(8): substantial risk of mental harm
                    
          Alaska Statute 47.10.011(8) provides in part that a

child may be found in need of aid if conduct by or conditions

created by the parent . . . have . . . (B) placed the child at

          substantial risk of mental injury as a result of (i) a pattern of

rejecting, terrorizing, ignoring, isolating, or corrupting

behavior that would, if continued, result in mental injury.  The

superior court found that the pattern of domestic violence

described above constituted such terrorizing behavior that would,

if continued, result in mental injury to [Amanda].

          Martins arguments regarding this subsection are

essentially the same ones that he raises above: that Hannah is

not a reliable witness, that his acts have never injured Amanda

herself, and that his prior acts have not yet placed Amanda at

risk.  The statute itself directs the court to the question of

whether the child would be mentally injured if the behavior is

continued, thereby contemplating an analysis of future harm

similar to that in subsection .011(6).  As discussed above, the

trial courts factual findings were amply supported by the record,

and we agree that Martins acts constitute terrorizing behavior.

We have previously held that witnessing domestic violence is

mentally harmful to children.20  There was clear and convincing

evidence that Martins acts toward Hannah create a significant

risk of mental injury to Amanda if continued.

          2.   Alaska Statute 47.10.088(a)(1)(B): Martin did not make
               sufficient progress remedying the conduct or conditions likely to
               cause harm.
               
          Alaska Statute 47.10.088(a)(1)(B) requires the trial

court to find by clear and convincing evidence either that the

parent has not remedied his or her harmful conduct or conditions,

or that the parent has failed to make enough progress within a

reasonable time such that there is still a substantial risk of

harm to the child.  The superior court found by clear and

convincing evidence that Martin had not remedied his violent

conduct and anger management problems, because Martin compiled an

impressive list of infractions while incarcerated based on his

violent and confrontational behavior, to the point that he [was]

in administrative segregation, and was thus unable even to obtain

treatment for his poor anger management skills.  Martin protests

          the trial courts finding that he committed infractions while in

prison, arguing that the nature of his infractions was admitted

over hearsay objections.  But Martin himself admitted to

disciplinary problems and confrontations while in prison.  When

this testimony is taken together with the testimony of Hannah and

the social worker that Martin threatened them while he was in

custody, the evidence is clear and convincing that Martin did not

remedy his behavior and did not make sufficient progress under AS

47.10.088(a)(1)(B).

          In determining under AS 47.10.088(a)(1)(B) whether a

parent has remedied his or her conduct, we also consider factors

relating to the best interests of the child.21  Martin argues that

he was not given reasonable time to control his problems, did

well until visitation with Amanda was cut off, and will be in

jail for a sufficient length of time to be substantially improved

when he is released.  The guardian ad litem responds that a

decade is not a reasonable period of time to remedy his behavior

based on Amandas age or needs.22  We agree.  Amanda was not yet

two years old at the time of trial, and her need for permanency

must reasonably limit the length of time accorded to Martin to

remedy his behavior.  The legislature has found that children

under six years of age suffer tremendously when their bonding

processes are interrupted, such that it is important to provide

for an expedited placement procedure to ensure that all children,

especially those under the age of six years, who have been

removed from their homes are placed in permanent homes

expeditiously.23  By the time the trial ended in April 2002,

Amanda had been in foster care for eighteen months, three months

more than the upper limit set in AS 47.10.088(d)(1)24 for the

final disposition of a childs CINA placement.  We affirm the

trial courts finding that Martin had not remedied his conduct

within a reasonable time.

          3.   Alaska Statute 47.10.088(a)(2): DFYS made reasonable efforts
               to provide family support services to Martin.
               
          1.   Alaska Statute 47.10.088(a)(2) requires the court to find by

          a preponderance of the evidence that DFYS has made reasonable

efforts to assist the parent in remedying harmful conduct or

conditions, as required by AS 47.10.086.  The superior court

found that DFYS did all it could reasonably do until its efforts

were excused by Martins long sentence.  Martin argues that DFYSs

efforts were unreasonable because it delivered only the first

case plan to him, a case worker met with him in person only once,

and later case plans required further classes and good behavior

even after he had been placed in maximum security.  But we agree

with the trial court that DFYS drew up a suitable case plan,

including parenting classes and drug monitoring, and implemented

it through telephonic contact until March 2001 when Martins

maximum security status  which resulted from Martins own actions

while in prison   precluded him from taking further classes.

DFYS also made reasonable efforts to provide Martin with

visitation until it became clear that the visitation was harmful

to Amanda.  While Martin is in prison, the Department of

Corrections rather than DFYS has primary responsibility for

providing  services to him;25 after Martin was sentenced, the

superior court was empowered to find that DFYS was not required

to make efforts under AS 47.10.086(c)(10) because Martin was

incarcerated and . . . unavailable to care for the child during a

significant period of the childs minority.  The superior court

made this finding.  The superior court did not err in finding

that DFYS complied with the reasonable efforts requirement.

          4.   Alaska Child in Need of Aid Rule 18(c)(2)(C) and AS
               47.10.088(c): Termination of Martins parental rights was in
               Amandas best interests.
               
          1.   The superior court found by a preponderance of the evidence

under Alaska Child in Need of Aid Rule 18(c)(2)(C) that

termination of parental rights was in Amandas best interests.

Martin disagrees and argues that it would be in the childs best

interests instead to be gradually transitioned back into the care

of her mother so that she could be raised by immediate family.

But the question whether it would be in Amandas best interests if

          Martins rights were terminated is different from the question

where Amandas permanent placement should be.  The court found

that Martin is an untreated violent offender with little prospect

at present of learning to control his behavior, Amanda does not

know him, and at nearly two years old, she was of an age at which

it was important not to disrupt the bonding that had occurred

between her and her foster parents.  These findings met AS

47.10.088(c)s requirement that the court . . . consider the best

interests of the child.

     B.   The Trial Court Properly Denied Martins Request To Stay the
          Termination Proceedings Pending Investigation of Placement of
          Amanda with Martins Relatives Under AS 47.14.100(e).
          
          A.   Martin claims that the trial court erred when it refused to

stay his termination trial pending placement of Amanda with his

relatives in Washington under AS 47.14.100(e), and in the

alternative asks that Amanda be placed with his relatives whether

his parental rights are terminated or not.  The existence of

relatives with whom Amanda might have been placed, a factor

affecting DFYS foster placements under Title 47.14 of the Alaska

Statutes, is unrelated to whether Martins parental rights should

have been terminated, a decision governed by AS 47.10.26

Therefore there was no reason to stay his termination trial

pending the outcome of that investigation.  Moreover, we have

recently held that [i]n 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.27  If Martin or his relatives wished to

challenge the placement of Amanda with a foster family, they

could have done so by asking for internal DFYS review or by

bringing the matter specifically to the superior court on its own

merits;28 but the superior courts termination order now renders

earlier issues of placement moot.29  The superior court properly

denied Martins stay request.

V.   CONCLUSION

          Because the superior court properly terminated Martins
parental rights under AS 47.10.088, and because placement issues
          were irrelevant to the termination proceeding, we AFFIRM the
decision of the superior court.
_______________________________
     1     Pseudonyms have been used throughout this  opinion  to
protect the identity of the parties.

     2     Lyman  v.  State,  824 P.2d 703,  705  (Alaska  1992);
Rapoport  v.  Tesoro  Alaska Petroleum Co.,  794  P.2d  949,  952
(Alaska 1990).

     3     V.S.B. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 45 P.3d 1198, 1203 (Alaska 2002).

     4     In  re J.L.F. & K.W.F., 828 P.2d 166, 170 n.12 (Alaska
1992),  superseded on other grounds by statute, ch. 99,   1,  SLA
1998.

     5      In  re  Friedman, 23 P.3d 620, 625 (Alaska 2001)  (We
ordinarily   will  not  disturb  findings  of  fact   made   upon
conflicting evidence.).

     6    V.S.B., 45 P.3d at 1203.

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

     8     R.J.M.  v.  State,  946 P.2d 855,  861  (Alaska  1997)
(quoting J.L.F., 828 P.2d at 170), both of these cases superseded
on other grounds by statute, ch. 99,  1, SLA 1998).

     9    AS 47.10.088(a)(1)(A).

     10    AS 47.10.088(a)(1)(B).

     11    AS 47.10.088(a)(2) (citing AS 47.10.086).

     12    Alaska Child in Need of Aid Rule 18(c)(2)(C); see also
AS 47.10.088(c).

     13      Martin  additionally  challenges  the  trial  courts
termination   of  his  parental  rights  on  the  basis   of   AS
47.10.080(o).   Because  we  affirm  the  trial  courts   holding
terminating  parental  rights  under  AS  47.10.088,  it  is  not
necessary  to reach the issue of whether Martins parental  rights
were also properly terminated under AS 47.10.080(o).

     14     The trial court found that Amanda was a child in need
of   aid   on   three  grounds:   AS  47.10.011(2)  (one   parent
incarcerated,  the  other  parent absent  or  created  conditions
causing  child to be in need of aid, and incarcerated parent  has
not  made  adequate arrangements for the child), AS  47.10.011(6)
(child  has  suffered  or  is at substantial  risk  of  suffering
substantial physical harm as result of parents conduct),  and  AS
47.10.011(8)  (child  has suffered or is at substantial  risk  of
suffering  mental  injury as result of parents conduct).   Martin
challenges all three bases for the trial courts child in need  of
aid  finding.   Because we affirm the trial courts  holding  that
Amanda was a child in need of aid on the bases of AS 47.10.011(6)
and  (8), it is not necessary to reach the third issue of whether
she  was  also  a  child  in need of  aid  on  the  basis  of  AS
47.10.011(2).

     15     See O.R. v. State, Dept of Health & Soc. Servs.,  968
P.2d 93, 98 (Alaska 1998) (holding that state is not required  to
wait for actual harm to child before intervening on the basis  of
AS 47.10.011(6) due to parental neglect).

     16    In re J.A., 962 P.2d 173, 178-79 (Alaska 1998).

     17    962 P.2d 173 (Alaska 1998).

     18     Id.  at  178 (quoting Lane v. Jefferson County  Child
Welfare  Unit,  564  S.W.2d  130,  132  (Tex.  Civ.  App.  1978),
overruled on other grounds by In re B.B. and P.P., 971 S.W.2d 160
(Tex. Civ. App. 1998)).

     19     See, e.g., Erica A. v. State, Dept of Health  &  Soc.
Servs.,  Div.  of  Family & Youth Servs., 66 P.3d  1,  8  (Alaska
2003).

     20     J.A.,  962 P.2d at 178; Borchgrevink v. Borchgrevink,
941 P.2d 132, 140 (Alaska 1997).

     21    AS 47.10.088(b).

     22    AS 47.10.088(b) provides that in making a determination
about  whether  a parent has remedied the conduct  or  conditions
placing  the  child at substantial risk of harm,  the  court  may
consider  any fact relating to the best interests of  the  child,
including (1) the likelihood of returning the child to the parent
within a reasonable time based on the childs age or needs.

     23    AS 47.05.065(5).

     24     AS  47.10.088(d) provides in relevant part  that  the
department shall petition for termination of a parents rights  to
a  child, without making further reasonable efforts, when a child
is  under  the  jurisdiction of the court under AS 47.10.010  and
47.10.011, and (1) the child has been in foster care for at least
15 of the most recent 22 months.

     25     A.M.  v.  State, 945 P.2d 296, 305-06 (Alaska  1997),
superseded on other grounds by statute, ch. 99,  1, SLA 1998.

     26     See, e.g., Erica A. v. State, Dept of Health  &  Soc.
Servs.,  Div.  of Family & Youth Servs., 66 P.3d  1,  10  (Alaska
2003)  (holding that failure of DFYS to place child with relative
does not entitle parent to reversal of termination order).

     27    Id.

     28    Adoption of L.E.K.M., 70 P.3d 1097, 1101 & n.12 (Alaska
2003);  Erica A., 66 P.3d at 10; In re W.E.G. & J.R.G., 710  P.2d
410, 413 (Alaska 1985).

     29    Erica A., 66 P.3d at 10.