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. Stanley B. v. State, DFYS (06/04/2004) sp-5811

Stanley B. v. State, DFYS (06/04/2004) sp-5811

     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


STANLEY B.,                   )
                              )    Supreme Court No. S-10978
             Appellant,            )
                              )     Superior Court No.  4FA-00-89
CP,
     v.                       )                   4FA-00-90 CP
                              )
STATE OF ALASKA, DFYS,        )    O P I N I O N
                              )
             Appellee.             )    [No. 5811 - June 4, 2004]
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Charles R. Pengilly, Judge.

          Appearances:  Michelle McComb, Law Offices of
          Michelle  McComb, Fairbanks,  for  Appellant.
          R.  Poke Haffner, Assistant Attorney General,
          Fairbanks,  and  Gregg  D.  Renkes,  Attorney
          General, Juneau, for Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          This appeal arises from the termination of Stanley  B.s

parental rights to his two children, Sean B. and Sarah  B.1   The

Division  of  Family  and  Youth Services  (DFYS)  petitioned  to

terminate  Stanleys  parental  rights  because  of  his   current

incarceration and his history of criminal activity and  substance

abuse.   At  the  termination trial,  the  superior  court  under

authority of AS 47.10.080(o) and AS 47.10.088 terminated Stanleys

rights  to  his  children.  Stanley appeals the  superior  courts

findings  that Sean and Sarah were children in need of aid,  that

          DFYS had made reasonable efforts to provide family support

services,   and  that  termination  served  the  childrens   best

interests.    He   also  argues  that  he  received   ineffective

assistance of counsel at the trial.  We affirm in all respects.

II.  FACTS AND PROCEEDINGS

          Stanley  B. and Belinda F. are the parents of  Sean  B.

(born  in  January  1996) and Sarah B. (born in  December  1997).

Stanley  was  arrested  for  theft  by  receiving  in  1999   and

incarcerated.  Soon after his arrest, Stanley was released  to  a

third-party  custodian and then to a rescue mission.   After  his

arrest, Belinda cared for the children until she was arrested  on

a  drug-related  charge.  The children were  placed  with  family

friends;  when the family friends refused to continue to  provide

care,  the  children  were taken into state custody.   The  state

assumed custody of the children on June 23, 2000.  At that  time,

there  was  a  warrant  out for Stanleys arrest  because  he  had

violated the terms of his release.  He was eventually caught  and

reincarcerated.  The superior court entered an order on July  20,

2000 giving DFYS temporary custody of the children.  On August 24

the parties stipulated that the children were children in need of

aid  under  AS 47.10.011(6) and (10); the superior court  entered

findings and orders of adjudication to that effect on August  29,

2000.

          Stanley  remained in jail until May 2001, when  he  was

released  to a halfway house.  After violating the conditions  of

his  parole  by  attempting to smuggle marijuana  into  Fairbanks

Correctional  Center, he was reincarcerated until  September  17,

2001.   The  superior  court conducted a  permanency  hearing  on

October   19,  2001  and  approved  DFYSs  permanency   plan   of

reunification with the father or adoption if reunification proved

unattainable.   Stanley was rearrested two months later  when  he

and  Belinda committed a robbery that he characterized as a  drug

deal  gone bad.  He was given a six-year sentence to serve.  DFYS

filed  a  Petition for Termination of Parental Rights on  January

22,  2002.  Belinda relinquished her parental rights to Sean  and

Sarah  in  May 2002.  The superior court terminated her  parental

rights on July 17, 2002.

          DFYSs  September  2000 case plan  directed  Stanley  to

provide  the  names  and addresses of any person  he  wished  the

division  to  consider  for placement of the  children.   Stanley

provided the names of several relatives and friends.  DFYS denied

all of Stanleys initial placement preferences.  The children were

placed  with  a  preadoptive  family  in  September  2002.    The

termination trial took place on January 7, 2003.  Superior  Court

Judge Charles R. Pengilly entered his written findings and orders

terminating Stanleys parental rights on January 29, 2003.

          Stanley appeals.

III. DISCUSSION

     A.   Standard of Review

          We  apply the clearly erroneous standard when reviewing

the  factual  findings that support the termination  of  parental

rights.2  We determine that a finding is clearly erroneous when a

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

conviction that the superior court has made a mistake. 3  Whether

the  factual findings are sufficient to satisfy the child in need

of  aid  (CINA) statutes and rules is a question of law  that  we

review de novo.4  Under this standard, we  adopt the rule of  law

that  is  most  persuasive  in light of  precedent,  reason,  and

policy. 5

     B.   The  Superior Court Did Not Clearly Err in Finding that
          Sean and Sarah Were Children in Need of Aid.
          
          Except as provided in AS 47.10.080(o), a superior court

may terminate parental rights if it finds by clear and convincing

evidence  that  the  child is a child in need  of  aid  under  AS

47.10.011,6 and that the parent has failed to remedy the  conduct

or  conditions  in the home that place the child  at  substantial

risk  of harm, or has failed to  remedy the conduct or conditions

within a reasonable period of time.7 The court must also find  by

a  preponderance  of the evidence that DFYS has  made  reasonable

efforts to provide family support services,8 and that termination

          serves the best interests of the child.9  Per AS 47.10.080(o), a

court   may  determine  that  incarceration  of  the  parent   is

sufficient  grounds for determining that a child is  a  child  in

need  of  aid  under  AS  47.10.011 if  it  finds  by  clear  and

convincing  evidence that: (1) the period of  incarceration  that

the  parent  is scheduled to serve during the childs minority  is

significant; (2) there is no other parent who will care  for  the

child;  and  (3)  the  incarcerated parent  has  failed  to  make

adequate  provisions for care of the child during the  period  of

incarceration.   If these conditions are met, the superior  court

is  authorized  to  terminate parental  rights.10   Under  either

provision   AS  47.10.088  or AS 47.10.080(o)    the  termination

order is entered under the authority of AS 47.10.080(c)(3).

          1.   Alaska Statute 47.10.080(o)

          The  superior court found that termination of  Stanleys

parental  rights was authorized under AS 47.10.080(o).  It  noted

that  [n]o  party disputes that [Stanleys six-year] incarceration

is significant for purposes of AS 47.10.080(o)(1).  It found that

the   termination  of  Belindas  parental  rights  satisfied   AS

47.10.080(o)(2).   Additionally, it found that  Stanley  had  the

burden to make adequate provisions for care of the child, despite

the  fact  that his children were in DFYS custody  when  he  most

recently  returned to jail.  The court found that Stanley  failed

to meet the burden of making adequate provisions.

          Stanley disputes the superior courts interpretation  of

AS  47.10.080(o),  arguing  that he  had  no  authority  to  make

adequate provisions for care of his children because they were in

DFYS  custody  at  the  time  of his  November  2001  arrest  and

subsequent incarceration.

          The    superior   court   correctly   interpreted    AS

47.10.080(o)(3).   The statute obligates the incarcerated  parent

not  the  state   to  arrange for the childrens  care.   Stanleys

burden  was  not relieved by the fact that his children  were  in

DFYS custody when he returned to jail.  As the state argues,  the

statute  is  not  intended  to give parents  whose  children  are

          already in state custody when they are incarcerated an advantage

over  parents whose children are in their own custody  when  they

are incarcerated.  Although the state should not disadvantage  an

incarcerated  parent  by blocking his efforts  to  make  adequate

provisions  for his children, it is not obligated to  make  those

provisions for him.

          Stanley   provided  DFYS  with  the  names  of  several

relatives  and  friends with whom he wanted the children  placed.

The  superior court found that DFYS had made more than reasonable

efforts to consider Stanleys stated preferences.  Having reviewed

the record, we agree.  Because none of Stanleys placement options

was  facially adequate, the conditions for termination  under  AS

47.10.080(o) were met.

          2.   Alaska Statute 47.10.011

          The  superior court also found that Sean and Sarah were

children in need of aid under both AS 47.10.011(2) and (10).   In

accordance  with  AS 47.10.088(a)(1)(A), the  court  applied  the

clear  and  convincing  standard  of  proof  in  finding  at  the

termination stage that the children were in need of aid.

          Alaska  Statute 47.10.011(2) states that  a  court  may

find  a  child  to be a child in need of aid if it finds  that  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.   The  superior court found  the  evidence  that

supported  termination of parental rights under  AS  47.10.080(o)

(the  significant period of Stanleys incarceration,  the  mothers

unavailability,  and  the  unsuitability  of  Stanleys  placement

proposals) was clear and convincing evidence that Sean and  Sarah

were  children  in  need of aid for purposes of AS  47.10.011(2).

These findings were not clearly erroneous.

          Alaska Statute 47.10.011(10) authorizes a court to find

a child to be a child in need of aid if it finds that

          the  parent, guardian, or custodians  ability
          to  parent has been substantially impaired by
          the   addictive  or  habitual   use   of   an
          intoxicant, and the addictive or habitual use
          of   the   intoxicant  has  resulted   in   a
          substantial risk of harm to the child;  if  a
          court has previously found that a child is  a
          child  in  need of aid under this  paragraph,
          the  resumption of use of an intoxicant by  a
          parent,  guardian,  or custodian  within  one
          year  after  rehabilitation  is  prima  facie
          evidence  that  the  ability  to  parent   is
          substantially impaired and the  addictive  or
          habitual  use of the intoxicant has  resulted
          in a substantial risk of harm to the child as
          described in this paragraph.
          
          The  superior  court  found that there  was  clear  and

convincing  evidence the children were in need of  aid  under  AS

47.10.011(10)   because  it  found  Stanley  has  a   significant

addiction to substances including alcohol and cocaine,  and  that

addiction  impairs  his ability to parent his children,  in  part

because it induces him to repeatedly indulge in criminal behavior

which  results in his incarceration and unavailability  to  them.

The court also found that Stanley has never completed a substance

abuse  treatment  program and the likelihood of  his  spontaneous

recovery without serious treatment is low.

          Stanley  testified at trial that he  used  cocaine  and

marijuana   prior   to  his  November  2001   arrest.    He   was

reincarcerated  in  July  2000 when he  violated  his  parole  by

attempting  to  smuggle  marijuana  into  Fairbanks  Correctional

Center.  His Stipulation to Adjudication and Disposition of Child

in Need of Aid, which he personally signed in August 2000, states

that  he  needs  to  deal with his substance abuse  problem.   He

admitted at trial that he continues to need drug treatment.

          Although  Stanley disputes the superior courts  finding

that  his addiction substantially impaired his ability to parent,

the  evidence  indicates that Stanley Bs drug addictions  are  at

least   partially   responsible  for   his   current   and   past

incarcerations,  and  that his frequent  and  prolonged  absences

while  incarcerated substantially impair his  ability  to  parent

Sean  and Sarah.  There is also evidence that those absences  are

harmful to the children.  This evidence was sufficient to satisfy

the  clear and convincing standard.  Thus the superior court  did

not  clearly err in finding that Sean and Sarah were children  in

need of aid under AS 47.10.011(10).

     C.   The  Superior Court Did Not Clearly Err by Finding that
          Stanley  Had Not Remedied the Conduct or Conditions  in
          the  Home that Place Sean and Sarah at Substantial Risk
          of Harm.
          
          To  satisfy AS 47.10.088(a)(1)(B)(i), a court must find

that the parent has not remedied the conduct or conditions in the

home  that  place  the child at substantial risk  of  harm.   The

superior  court  found that Stanleys repeated incarcerations  and

substance abuse placed his children at substantial risk of  harm.

It  also found that Stanley had never completed a substance abuse

treatment  program and that he was not likely to recover  without

serious  treatment.  Stanley testified at the  termination  trial

that  he  continues to need drug treatment.  The courts  findings

were sufficient to satisfy AS 47.10.088(a)(1)(B)(i).

     D.    The Superior Court Did Not Clearly Err in Finding that
DFYS  Had       Made Reasonable Efforts To Provide Family Support
Services.

          Before  a court may terminate parental rights under  AS

47.10.088,  it must find by a preponderance of the evidence  that

DFYS  has  made  reasonable  efforts to  provide  family  support

services.11  Family reunification efforts are not required  where

the conditions set forth in AS 47.10.080(o) are met.12  Likewise,

under  AS  47.10.086(c)(10), the court may, for similar  reasons,

dispense  with  the  reasonable efforts finding.13   Stanley  was

sentenced  to six years of incarceration.  Because this qualifies

as  a  significant  period of his childrens minority  within  the

meaning  of  AS  47.10.086(c)(10), the court  was  authorized  to

dispense with the requirement of providing services to him.

          Nevertheless,  the superior court found that  DFYS  has

made  reasonable  efforts to provide family support  services  to

Stanley.  After Stanleys September 17, 2001 release, DFYS had  no

real opportunity to provide him any services in the brief time he

was  out  of custody before he committed his new offense and  was

rearrested  on  November  28,  2001.   DFYS  arranged  visitation

          between Stanley and his children during the new incarceration

until  the  superior court ordered otherwise.  While  Stanley  is

incarcerated,  the  Department of Corrections (DOC)  rather  than

DFYS  has primary responsibility for providing services to him.14

Stanley testified that he receives substance abuse treatment  and

parenting  classes from DOC.  The superior court did not  clearly

err  in finding that DFYSs reunification efforts, when considered

in their entirety, satisfy AS 47.10.086.15

     E.    The Superior Court Did Not Clearly Err in Finding that
Termination         of Parental Rights Served the Best  Interests
of Sean and Sarah.

          A  superior  court must consider the best interests  of

the children before it may terminate parental rights.16  Here the

superior  courts findings state: It is in the best  interests  of

these  children to terminate the parental rights of their father.

Their  need  for  a  stable  home and a  permanent  placement  is

critical.

          These  findings  are  not clearly erroneous.   Stanleys

inability  to  demonstrate that he can maintain sobriety  outside

jail  and his repeated incarcerations indicate that he is  not  a

reliable  parent.   A  temporary  placement,  until  Stanley   is

released  from prison, would not satisfy the childrens  immediate

need  for  permanency  and  stability.   Given  their  ages,  the

children  risk long-term harm if permanent placement is not  made

immediately.

     F.    Stanley  Did  Not  Receive Ineffective  Assistance  of
Counsel During           Termination Proceedings.

          Stanley  argues that he received ineffective assistance

of  counsel  at  the termination trial.  He claims  that  various

failures  on the part of his attorney amount to a denial  of  his

due process right to effective assistance of counsel.

          A   parent   has  a  due  process  right  to  effective

assistance  of  counsel  in  a  termination  of  parental  rights

proceeding.17  Whether this right was violated is a  question  of

law  we  consider de novo.18  The test is two-pronged: first,  we

must  find  that the counsels conduct either generally throughout

the trial or in one or more specific instances did not conform to

the standard of competence; second, the parent must show that the

lack  of competency contributed to the conviction.19  We  do  not

need  to  address  the  first  prong,  because  Stanley  has  not

demonstrated how any of the alleged errors actually  harmed  him.

He  therefore has not satisfied the second prong of the test.  We

consequently   conclude  that  the  contention   of   ineffective

assistance of counsel is without merit.

IV.  CONCLUSION

          We  AFFIRM  the  superior courts  decision  terminating

Stanleys parental rights to Sean and Sarah.

_______________________________
     1    This opinion uses pseudonyms for all family members.

     2     Frank E. v. State, Dept of Health & Soc. Servs.,  Div.
of Family & Youth Servs., 77 P.3d 715, 717 (Alaska 2003).

     3     G.C.  v. State, Dept of Health & Soc. Servs., Div.  of
Family & Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003) (quoting
S.H.  v.  State, Dept of Health & Soc. Servs., Div. of  Family  &
Youth Servs., 42 P.3d 1119, 1122 (Alaska 2002)).

     4    Frank E., 77 P.3d at 717.

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

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

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

     8    AS 47.10.088(a)(2).

     9    AS 47.10.088(c).

     10    AS 47.10.080(c)(3).

     11    AS 47.10.088(a)(2).

     12     Cf.  Frank E. v. State, Dept of Health & Soc. Servs.,
Div.  of Family & Youth Servs., 77 P.3d 715, 722-23 (Alaska 2003)
(Matthews, J., concurring).

     13    AS 47.10.086(c)(10) provides:

          The   court  may  determine  that  reasonable
          efforts of the type described in (a) of  this
          section  are  not required if the  court  has
          found by a preponderance of the evidence that
          the parent or guardian is incarcerated and is
          unavailable  to care for the child  during  a
          significant  period of the  childs  minority,
          considering the childs age and need for  care
          by an adult.
          
(Emphasis added.)

     14    Martin N. v. State, Dept of Health & Soc. Servs., Div.
of  Family & Youth Servs., 79 P.3d 50, 56 (Alaska 2003); T.F.  v.
State,  Dept  of  Health & Soc. Servs., Div. of  Family  &  Youth
Servs., 26 P.3d 1089, 1096 (Alaska 2001).

     15     Frank  E.,  77 P.3d at 720 (stating that  we  examine
states  reunification  efforts in  their  entirety  to  determine
whether they were reasonable).

     16    AS 47.10.088(c).

     17     S.B. v. State, Dept of Health & Soc. Servs., Div.  of
Family & Youth Servs., 61 P.3d 6, 10 (Alaska 2002).

     18    Id.

     19    V. F. v. State, 666 P.2d 42, 46 (Alaska 1983).