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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vivian P. v. State (10/16/2003) sp-5744

Vivian P. v. State (10/16/2003) sp-5744

     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

VIVIAN P.,                         )
                              )    Supreme Court No. S-10784
             Appellant,            )
                              )    Superior Court No.
     v.                       )    3KO-01-00011 CP
                              )
STATE OF ALASKA,              )    O P I N I O N
DEPARTMENT OF HEALTH &   )
SOCIAL SERVICES, DIVISION     )    [No. 5744 - October 16, 2003]
OF FAMILY & YOUTH SERVICES,   )
                              )
             Appellee.             )
________________________________)



          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Kodiak,
          Donald D. Hopwood, Judge.

          Appearances:   Sharon Barr, Assistant  Public
          Defender,   and  Barbara  K.  Brink,   Public
          Defender, Anchorage, for Appellant.   Michael
          G.   Hotchkin,  Assistant  Attorney  General,
          Anchorage,  and  Gregg  D.  Renkes,  Attorney
          General, Juneau, for Appellee.

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

          FABE, Justice.


I.   INTRODUCTION

           The  superior  court terminated Vivian  P.'s  parental

rights.   Vivian  appeals  the trial court's  determination  that

Jason is a child in need of aid, that the Department of Health  &

Social Services, Division of Family & Youth Services (DFYS)  made

reasonable  efforts  to  reunite the family,  and  that,  in  the

alternative,  DFYS  was not required to make  reasonable  efforts

because the child had been subjected to mental and physical harm.

Because the superior court did not err in terminating Vivian P.'s

parental rights, we affirm its decision.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

           Jason  B. was born in December 1994 to Vivian  P.  and

Jason  B.,  Sr.1  The couple had a previous child, Anne.    Jason

lived  with his mother for about a year until she and  Jason  B.,

Sr.  were  both  incarcerated in California.  For the  next  four

years, Jason lived with his paternal grandmother.

           In  1999  Vivian was released on parole  and  regained

custody  of  Jason.  She married Mark P. and in  2000  moved  the

family to Kodiak, where she gave birth to another child.

            Jason,   who  has  attention  deficit  disorder   and

oppositional  defiant  disorder,  began  kindergarten   at   Main

Elementary  School  in  Kodiak.  While  Jason  had  some  initial

problems  adjusting, he started to settle into a school  routine.

But  on  three  separate  occasions in a nine-month  period  from

September 2000 to May 2001, Vivian withdrew Jason from school and

voluntarily checked him into North Star Hospital in Anchorage for

child psychiatric care.

           After  returning  to school after his  first  hospital

commitment, Jason's behavior regressed, and the school assigned a

team  of  counselors and special educators to help  him.   Vivian

claimed that Jason was having psychotic episodes, not eating, and

repeatedly  vomiting.   Neither  the  school  nor  any   hospital

employees observed Jason exhibiting these problems.

           After  withdrawing Jason from school and checking  him

into  the  North  Star Hospital a second time,  Vivian  told  Dr.

Lillibridge, a pediatric gastroenterologist, that Jason had  lost

twenty-five  percent of his body weight and was having  bouts  of

vomiting. Based on the mother's reports, Dr. Lillibridge  decided

to  surgically  place  a  feeding tube in  Jason.   Although  Dr.

Lillibridge instructed Vivian that the feeding tube was  only  to

be  used for home feedings, when Jason returned to school, Vivian

showed off Jason's feeding tube to four school employees and told

the  school officials to use the feeding tube at school.   During

this  meeting, Jason reportedly looked embarrassed and  defeated,

whereas  Vivian  reportedly  seemed happy  and  excited.   During

Jason's  third hospital stay, Dr. Lillibridge removed the feeding

tube.    Additionally,  Jason  reported  numerous  incidents   of

physical  abuse at home, including being hit with  a  hanger  and

being forced to eat jalapeno peppers as punishment.

     B.   Procedural History

          Due to Jason's repeated school absences, his reports of

being  abused,  and the insertion of a feeding tube,  the  school

filed  a  report  of  harm  with DFYS.  Subsequently,  DFYS  took

emergency  custody of Jason while he was at North  Star  Hospital

for  a  third  time.   DFYS  filed  a  petition  asking  for   an

adjudication  that Jason was a child in need of aid.   In  August

2001  Superior Court Judge Donald D. Hopwood found Jason to be  a

child  in need of aid, ruling that Vivian's conduct had inflicted

serious  physical  and  mental harm.  Jason  was  placed  in  two

successful  foster homes, eventually being sent to  his  paternal

grandmother  who  had raised him from the time  of  the  mother's

incarceration until her release.

           DFYS  filed a petition to terminate Vivian's  parental

rights  in  July 2002. After the adjudication that  Jason  was  a

child  in need of aid, but before the termination hearing, Vivian

returned to California without first saying goodbye to her son or

informing  DFYS of her plan to leave.  Upon checking  in  with  a

parole  officer  in  California,  she  was  re-incarcerated   for

violating  her parole, as she did not have the proper  permission

to  travel back to California.  Since being incarcerated,  Vivian

has  not  attempted  to contact Jason through  letters  or  phone

calls.

          The court held a termination hearing in August 2002 and

terminated Vivian's parental rights, issuing written findings  of

fact  and  conclusions  of law in support  of  that  decision  in

November 2002.  Vivian now appeals.

III. STANDARD OF REVIEW

           We  apply  the "clearly erroneous" standard of  review

when  analyzing  a trial court's findings of fact  regarding  the

termination of parental rights.2  "Clear error arises  only  when

our  review  of the entire record leaves us with a  definite  and

firm  conviction  that the superior court has made  a  mistake."3

"Whether the superior court's factual findings satisfy applicable

child in need of aid statutes and rules is a question of law that

we review de novo."4

IV.  DISCUSSION

            In   order   to  terminate  a  parent's  rights   and

responsibilities in a child in need of aid (CINA) case, the state

must show 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.[5]
          
           Moreover,  the state must prove by a preponderance  of

the evidence that DFYS has made reasonable efforts to reunite the

family  or  that reasonable efforts were not necessary because  a

parent  had  "subjected the child to circumstances  that  pose  a

substantial   risk  to  the  child's  health  or  safety;   these

circumstances include abandonment, sexual abuse, torture, chronic

mental injury, or chronic physical harm."6

                Vivian  appeals  the trial court's  determination

          that Jason is a child in need

of  aid, that DFYS made reasonable efforts to reunite the family,

and  that,  in  the  alternative, DFYS was not required  to  make

reasonable  efforts  because Vivian subjected  Jason  to  chronic

mental injury and physical harm.

          A.    Clear and Convincing Evidence Supports the  Trial
          Court's Determination that Jason Is a Child In Need  of
          Aid.
          
            The  trial  court  determined  based  on  clear   and

convincing evidence that Jason was a child in need of aid.  Laila

Gonzales, Jason's second foster parent; Mary Gray, a DFYS  social

worker; and Dr. Welby Jensen, a psychiatrist in Kodiak, testified

that  Jason told them that he was hit with hangers and belts  and

that  he  was  forced  to  eat jalapeno  peppers  as  a  form  of

punishment.  Moreover, Ms. Gray, a sixteen-year employee of DFYS,

testified that, in her expert opinion, Jason's reports  of  these

incidents  were  consistent and not likely  to  be  fabrications.

Physical  marks  on  Jason  supported  his  claims.   Dr.  Daniel

Mardones,  a  child  and  pre-teen  psychiatrist  at  North  Star

Hospital  in  Anchorage, testified that Vivian probably  suffered

from  Munchausen's  Syndrome By Proxy, a  mental  health  disease

marked  by a pattern of false reports that Jason showed signs  of

illness.  Dr. Jensen stated that his observations of Vivian's and

Jason's  conduct  were consistent with Dr. Mardones's  diagnosis.

Dr.  Mardones  also  testified  that  Jason  suffers  from  post-

traumatic  stress syndrome because of the alleged physical  abuse

and   the  feeding  tube  incident.   No  doctor  disputed   this

testimony.  Vivian's claims regarding Jason's psychotic  behavior

and  eating  problems were not verified by anyone, including  her

own  witnesses,  and  were deemed by the  superior  court  to  be

unreliable.  On the contrary, many witnesses claimed  that  Jason

was eating well and that his behavior had improved upon enrolling

in school in Kodiak.

           Joanna  McFarlin,  who works with  students  who  have

counseling issues at East and Main Elementary Schools in  Kodiak;

Jennifer Eubank, a special education teacher; and Patricia Gibbs,

a   school  administrator  and  Jason's  initial  foster  parent,

testified  that Vivian was callous toward Jason's  feelings  when

she  showed a room of four school officials Jason's feeding  tube

and  insisted, despite the doctor's orders to the contrary,  that

the  feeding  tube  be  used  at school.   During  this  meeting,

testimony indicated that Vivian seemed happy and excited with the

feeding   tube  and  Jason  looked  stunned  and  defeated.    In

particular, Ms. McFarlin testified:

          [Jason] . . . walked in really like he was in
          pain  and his lips were dry and kind of caked
          and [Vivian] looked - she smiled at all of us
          and she looked happy and she explained that -
          she  had him sit down and she lifted  up  his
          shirt and she showed us that he had a feeding
          tube  and  she looked - I mean the only  word
          that  comes to my mind is gleeful and [Jason]
          looked  like  he was in pain  and  he  looked
          embarrassed.
          
           Lola  Ann  Lind,  a case manager at Providence  Kodiak

Island  Mental  Health Center, testified that  when  she  visited

Vivian's home, Vivian seemed to show more affection for  her  cat

than  for  Jason.   Janet Brenteson, a DFYS social  worker,  also

testified  that Vivian seemed unattached to Jason, as Vivian  did

not react warmly when she saw Jason after he had been placed in a

foster home.

           In  support of its ruling, the trial court found  that

Jason  had suffered multiple incidents of being hit with  hangers

and  belts, that Vivian force-fed him, and that he was forced  by

his  stepfather to eat jalapeno peppers as a form of  punishment.

The court also found that Vivian likely suffers from Munchausen's

Disorder  by Proxy.  According to the trial court, Vivian,  as  a

result  of  this  disorder, manufactured claims  that  Jason  was

suffering  psychotic  episodes,  encountering  serious  bouts  of

vomiting,  and  losing  up to twenty-five  percent  of  his  body

weight.  The court noted that no other person who observed  Jason

on  a  regular basis agreed with Vivian's assessment  of  Jason's

lack   of  well-being.   According  to  the  superior  court,   a

pediatrician,   relying  on  Vivian's  reports  and   assessment,

inserted  a  feeding  tube into Jason, which  was  later  removed

because it was deemed unnecessary.  The superior court held  that

as  a  result  of  the physical abuse and the  insertion  of  the

feeding tube, Jason suffered from post-traumatic stress syndrome.

           Moreover,  the court found that Vivian withdrew  Jason

from  school  and  checked  him  into  a  children's  psychiatric

hospital  three times during a nine-month period.  It also  found

that  Vivian  exhibited little attachment to Jason,  seemed  more

interested in her cat, and seemed oblivious or indifferent to her

son's feelings when she spoke to others about him in his presence

and  callously  showed off his feeding tube.  Vivian,  the  court

found, left Alaska without saying goodbye to Jason when he was in

foster  care.   The  record supports the  trial  court's  factual

determinations.

           The  trial court concluded that Jason was a  child  in

need  of  aid because of Vivian's incarceration, her  failure  to

obtain necessary treatment for Jason, physical harm and threat of

continued physical harm caused to Jason by Vivian, mental  injury

and  the  threat of continued mental injury caused  to  Jason  by

Vivian, and the risk that Jason would be harmed or injured due to

Vivian's mental illness.7  The trial court found the evidence  to

be  so  overwhelming that it determined beyond a reasonable doubt

that  Jason  was  a  child in need of aid.  We agree  that  these

factual findings satisfied the CINA statutes.

          B.    DFYS  Did Not Make Reasonable Efforts To  Reunite

          Vivian and Jason.

           Vivian argues that the court erred in determining that

DFYS  made  reasonable efforts to reunite Vivian and Jason.   The

superior  court  found that the state had engaged  in  reasonable

efforts to assist Vivian in being reunited with her child because

before  DFYS removed Jason from Vivian's home, "service providers

normally involved by DFYS attempted to correct the situation  and

provide  assistance" and Vivian "did not avail herself  of  those

services."  The superior court also found that "efforts to assist

[Vivian] continued after DFYS became involved, and [Vivian] still

did not utilize the offered services or change her behavior."

          In making this finding, the superior court implied that

DFYS  did not have to make reunification efforts because services

were provided by school personnel before commencement of the CINA

proceeding:

          Before   the   DFYS  folks  became   involved
          directly  in  this, there were  huge  efforts
          made  by  many  other service providers,  the
          same  ones  that the department  would  refer
          people  to and utilize and in fact did  after
          they   became   involved   to   correct   the
          situation.  .  .  .   I  can't  require   the
          department  to simply cover the  same  ground
          that  was  done  before and did  not  succeed
          although services were offered.
          
           But  under  AS 47.10.086(a), DFYS must make reasonable

efforts to reunite the family.  Furthermore, in A.M. v. State, we

noted  that  "[w]e  have never suggested that the  scope  of  the

State's  duty to make active remedial efforts should be  affected

by  a  parent's  motivation or prognosis before remedial  efforts

have  commenced."8   And  there is good reason  to  require  that

reasonable efforts be made after DFYS's intervention.   Prior  to

DFYS's  intervention, a parent is unaware that  failure  to  take

advantage of services provided could lead to the loss of parental

rights.   After DFYS intervention, that parent is  aware  of  the

consequences  of  non-compliance and may have more  incentive  to

take advantage of services offered to improve the home.

           Consequently, to the extent that it relied on services

offered  and refused prior to DFYS's involvement with the  parent

to  reach  its conclusion that reasonable efforts had been  made,

the trial court erred.9

          C.    While  DFYS  Needed the Court's  Approval  Before
          Ceasing  Reasonable Efforts, the Court Did Not  Err  in
          Determining Reasonable Efforts To Be Unnecessary.
          
           In the alternative, the superior court ruled that DFYS

was  excused  from  the requirement to make  reasonable  efforts.

Alaska  Statute 47.10.086(c)(1) provides that "reasonable efforts

.  . . are not required if the court has found by a preponderance

of  the evidence that the parent . . . has subjected the child to

circumstances that pose a substantial risk to the child's  health

or  safety."   According  to  the statute,  "these  circumstances

include  abandonment,  sexual  abuse,  torture,  chronic   mental

injury,    or    chronic   physical   harm."    Alaska    Statute

47.10.086(c)(1) incorporates into Alaska law the federal Adoption

and  Safe  Families  Act of 1997 (ASFA),  which  is  designed  to

eliminate  remedial requirements in extreme circumstances.10   At

the termination hearing, Judge Hopwood determined that Vivian and

Mark  P.  "continuously  physically and mentally  abused  [Jason]

during their nine months together in Kodiak." The superior court,

therefore, concluded that "[Vivian] subjected [Jason] to  .  .  .

chronic   mental  injury  or  chronic  physical   harm,"   making

reasonable efforts unnecessary.

           Vivian  argues that the court's determination  at  the

termination hearing that reasonable efforts were unnecessary  was

erroneous because AS 47.10.086 anticipates a hearing at which the

court  decides  whether reasonable efforts  are  required.   "The

plain  language of the statute requires notice and an opportunity

to be heard before the state can stop making reasonable efforts."

But  Vivian  never  raised  this  objection  at  trial.   At  the

beginning  of  the termination trial, the state argued  that  the

"reasonable efforts requirement . . . can be dispensed with if we

simply   show  that  the  parent  has  subjected  the  child   to

circumstances  .  .  . [that] include chronic  mental  injury  or

chronic  physical  harm," and "the court  can  see  .  .  .  this

requirement  by  reading 47.10.086(c)(1) and  (c)(7)."   Vivian's

attorney did not object to this argument, instead responding,  "I

don't  dispute the statutory outline that the state . .  .  [has]

made  today."   Vivian's attorney acknowledged that "[t]he  court

did  make  findings  last year that physical  harm  had  in  fact

occurred  at the hands of [Vivian]" and conceded that  the  court

"may  determine that reasonable efforts are not required  but  it

also  may  determine  that  reasonable  efforts  were  required."

Despite conceding that the court could find reasonable efforts to

be  unnecessary, Vivian asked the court "to find that  reasonable

efforts  were necessary and that they were not made."   To  which

the  court  responded:  "How would I do that if from  the  August

2001   findings   and   conclusions  there's   already   been   a

determination that [Jason] suffered substantial physical harm  as

a  result  of abusive and neglectful conduct by the mother?"   By

conceding  that  the court could find reasonable  efforts  to  be

unnecessary, Vivian failed to preserve this issue for appeal.  We

will not address an issue on appeal that was not raised at trial.11

           But  we  agree  with  Vivian's  observation  that  the

statutory framework prevents DFYS from deciding on its own, prior

to  a hearing or order by the court, that reasonable efforts  are

unnecessary   and   can  be  dispensed  with   pursuant   to   AS

47.10.086(c)(1).  The statutory language instructs the court, and

not  DFYS,  to  make  the determination regarding  the  need  for

reasonable  efforts:   "The court may determine  that  reasonable

efforts  .  . . are not required . . . ."12  The statute  further

requires  a court to hold a permanency hearing thirty days  after

determining that reasonable efforts are not necessary:   "If  the

court determines . . . that reasonable efforts under (a) of  this

section are not required to be provided, the court shall  hold  a

permanency  hearing  for  the child  within  30  days  after  the

determination."13  The cessation of reasonable efforts should only

occur  when  a  court determines those efforts to be unnecessary.

Consequently, DFYS can not unilaterally determine that reasonable

efforts   are   unnecessary,  waiting   until   the   termination

proceedings to argue that they are excused.14

          But the fact that DFYS is precluded from determining on

its  own  that  reasonable  efforts  are  unnecessary  under   AS

47.10.086(c)(1)  does  not preclude the  court  from  determining

after  commencement  of a termination trial that  the  reasonable

efforts requirement is excused.  Indeed, we decided on appeal  in

J.S.  v.  State  that unification efforts were excused.  In  that

case,  a sexually abusive father appealed the termination of  his

parental rights, claiming that the state did not meet the  Indian

Child  Welfare  Act's requirement for active remedial  efforts.15

The superior court had "found that it was uncontroverted that the

state   failed   to  offer  any  type  of  active   remedial   or

rehabilitative services to Jack."16  Consequently, "[t]he superior

court  held the record open for sixty days in order to allow  the

state  to  develop  and offer a treatment plan  to  Jack."17   In

reviewing  the  superior court's ruling on remedial  efforts,  we

concluded  that  remedial efforts were unnecessary  because  ASFA

excused  them  due  to sexual assault.18  We reasoned  that  "the

enactment  of  [ASFA]  convinces us that  it  is  the  policy  of

Congress to not require remedial measures in situations  where  a

court has determined that a parent has subjected his or her child

to  sexual abuse."19  We further explained that "[t]his provision

of   the   federal  act  has  been  adopted  in  Alaska   as   AS

47.10.086(c)(1)," which eliminates the remedial  requirements  in

cases involving chronic physical and mental abuse in addition  to

sexual  abuse.20  Thus, we concluded that the superior court  did

not  err  in  terminating  the father's parental  rights  because

rehabilitative  efforts are not necessary in  AS  47.10.086(c)(1)

cases.

           At the adjudication hearing in this case, the superior

court  found beyond a reasonable doubt that Jason was a child  in

need  of aid because, in part, the physical harm he suffered  "is

substantial  and likely would continue to be substantial  .  .  .

[and]  [t]he  mental  injury exists now, and  he  remains  at  an

extraordinary risk of continuing mental injury."  Had DFYS  asked

the  superior court at the adjudication hearing to determine that

reasonable  efforts  were not necessary because  Jason  had  been

subjected  to chronic mental injury or physical harm,  the  court

could  have  found  reasonable efforts to  be  unnecessary.   The

evidence  in the record supports the superior court's alternative

conclusion  at  the  termination hearing that reasonable  efforts

were unnecessary, and we affirm its decision.

V.   CONCLUSION

          Because the trial court did not err in finding Jason to

be  a  child in need of aid, and because the trial court did  not

err  in  finding reasonable efforts to be unnecessary, we  AFFIRM

the decision to terminate Vivian P.'s parental rights.

_______________________________
1         Pseudonyms are used to protect the parties' privacy.
2    S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family
& Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002).
3    Id.
4    Id. at 1122-23.
5    AS 47.10.088.
6    AS 47.10.086(c)(1); AS 47.10.088(a)(2).
7    AS 47.10.011(2), (4), (6), (8), (11).
8     891 P.2d 815, 827 (Alaska 1995), overruled on other grounds
by  In  re  S.A.,  912  P.2d 1235, 1239 (Alaska  1996)  (emphasis
added).
9     The  only evidence which suggests that DFYS made reasonable
efforts  after  its  intervention comes from Mary  Gray,  a  DFYS
social  worker,  who testified that "prior to  DFYS  intervention
those services were - were being made available and they were not
taken  advantage of at that time either.  And certainly  for  the
last  15 months they have been in a formal way [provided] by DFYS
administratively  as  well as through the  court."  However,  the
trial  court apparently did not rely on her testimony when making
its  findings  of reasonable efforts, instead erroneously  taking
into  account "all of the efforts that were done even before  the
state became involved."  A preponderance of the evidence does not
show that DFYS made reasonable efforts to reunite the family.
10         J.S. v. State, 50 P.3d 388, 392 & n.13 (Alaska 2002).
11     Brandon  v. Corr. Corp. of Am., 28 P.3d 269,  280  (Alaska
2001).
12    AS 47.10.086(c).
13    AS 47.10.086(d)(1).
14    As a matter of policy, requiring DFYS to seek from the court
a  determination that reasonable efforts are excused will help to
prevent post-hoc justifications for failing to provide reasonable
efforts.   DFYS must first ask a superior court for a  reasonable
efforts hearing before ceasing to make such efforts.
15    50 P.3d 388, 389, 391 (Alaska 2002).
16    Id. at 390.
17    Id.
18    Id. at 391-92.
19    Id. at 392.
20    Id. at 392 n.13; AS 47.10.086(c)(1).