You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Carl N. v. State, Dept. of Health & Social Services, DFYS (12/10/2004) sp-5852
Carl N. v. State, Dept. of Health & Social Services, DFYS (12/10/2004) sp-5852
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
CARL N., )
) Supreme Court No. S-11213
Appellant, )
) Superior Court No.
v. ) 3AN-95-00370 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, DIVISION ) [No. 5852 - December 10, 2004]
OF FAMILY & YOUTH SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, 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 father of an Indian child appeals the termination
of his parental rights. He challenges three findings of the
superior court: (1) that he failed to remedy the conduct that had
placed his child at risk of harm; (2) that returning the child to
the father would likely result in serious emotional harm; and (3)
that the termination was in the childs best interests.
Specifically, the father argues that he was diagnosed with
bipolar disorder just months before the termination trial, and
that he was making significant progress and was leading a sober,
stable lifestyle by the time of the trial. He also argues that
the childs severe emotional problems made adoption unlikely, and
therefore that working toward reunification with the father was
in the childs best interests. Because the record supports each
of the superior courts findings, we affirm the termination of
parental rights.
II. FACTS AND PROCEEDINGS
A. Facts
Caden, an Indian child under the Indian Child Welfare
Act (ICWA),1 was born to Carl and Karen on January 11, 1994.2
Carl lived with Karen and his son for eight months before he was
incarcerated in September 1994. When he was released in June
1995, he spent a month with the child and the mother until a
domestic violence order was issued against him.
In August 1995 Karen voluntarily placed Caden in state
custody because she felt unable to care for him. Karen
originally expressed an interest in giving Caden up for adoption
but agreed to work toward reunification when Carl opposed the
adoption. For nine months to a year Carl moved to Fairbanks and
was essentially not in touch with Caden. In her August 1997
affidavit, a social worker with the Division of Family and Youth
Services (DFYS) stated that Karen had successfully completed her
case plan, but that Carl had not complied with the case plan and
only visited Caden sporadically. In September 1997 the superior
court returned Caden to his mothers custody.
In 1997 Carl was convicted of larceny and spent part of
1997 and 1998 in jail. In 1999 Karen, who had had a second child
with another man, was homeless and having difficulties caring for
Caden and his half-brother. Caden went to live with his father,
while his half-brother was taken into the states custody. Caden
lived with Carl from June 1999 until November 1999. On November
4, 1999, DFYS removed Caden from Carls care and placed him in a
foster home. DFYS assumed custody of the child because Carl had
left Caden with Karen even though DFYS had warned him that it
was not safe to do so, and because DFYS was concerned about Carls
criminal history and his prior failure to complete a case plan.
Both parents stipulated that Caden was a child in need of aid.
In November 1999 DFYS prepared a case plan to return
Caden home. The case plan specified adoption as a concurrent
plan goal, stating: Parents may continue to work on goals to
have their children return home, but it must be understood that
it is a time limited process.
The case plan called for Carl to address any substance
abuse and mental health issues prior to reunification with his
son. Carl has a history of depression and drug and alcohol
dependence. In January 2000 Carl received a substance abuse
assessment that recommended outpatient treatment. He completed a
sixteen-hour chemical dependency program but did not complete an
outpatient treatment program. At this time his caseworker
expressed concern that Carl was not visiting Caden regularly and
that this inconsistency caused Caden to become angry and fearful.
Carl was arrested in May 2000. From that time until
August 2002 he never lived independently in the community; he was
in jail, in a halfway house, under house arrest, or in a
residential treatment facility. He entered a residential
treatment program in November 2000 and completed the program in
February 2001. That month, he was convicted of failing to stop at
the direction of an officer and again placed in jail. While at a
halfway house in the fall of 2001, Carl entered an outpatient
substance abuse program and completed the program in April 2002.
In June 2002 he had a cocaine relapse. He turned himself in and
was returned to jail. He was released on parole in August 2002.
In August 2002 Carl was diagnosed for the first time
with bipolar disorder and began treatment. After his release
from jail he attended one treatment team meeting for Caden but
then stopped contacting the department; the social worker was
unable to locate him for months. In September his parole officer
placed him in a urinalysis program. He provided a dilute sample
at his first appointment and failed to appear for additional
urinalysis appointments. After his September meeting with his
parole officer, he absconded from parole and was arrested in
January 2003. He was released eleven days later and placed in an
intensive surveillance parole program. He was still in that
program during the termination trial in March 2003. At the time
of the trial he had successfully completed three weeks of
urinalysis monitoring.
At the time of the termination trial, Caden was nine
years old. He had been diagnosed with bipolar and post traumatic
stress disorders. Psychologist Susan LaGrande testified at the
trial that the post traumatic stress disorder appeared to relate
to the instability or kind of chronic maltreatment, neglect, and
instability in his home life. Caden was prone to tantrums and
episodes of rage that placed himself and others in danger. His
behavior led to several hospitalizations, including a lengthy
stay that ended just weeks before the trial.
At the time of the trial, Caden had been in the same
foster home placement for nineteen months. Shortly before the
trial his foster mother told DFYS that she was no longer
considering adopting Caden because of his escalating behavioral
problems and hospitalizations. DFYS considered sending Caden to
a residential treatment program. When Cadens doctor and Dr.
LaGrande advised DFYS that Caden was not a good candidate for
residential treatment and recommended that he be returned to his
foster mother, DFYS reversed course. According to Dr. LaGrandes
testimony, although the foster mother was not willing to take on
the responsibility of adopting Caden, she was willing to take
care of him until he turned eighteen, given the limitations that
if hes not able to maintain or services arent sufficient to help
her maintain it then another decision is going to have to be
made. At the time of the trial DFYS was considering two
different options for Caden: locating a permanent adoptive
family, and keeping him in his current foster placement. Dr.
LaGrande testified that in her experience it was difficult to
find an adoptive family for a child with emotional difficulties
as severe as Cadens. DFYS was open to the possibility that Carl
could continue to play a role in his sons life provided that he
demonstrated stability and that, if Caden were adopted, his
adoptive parents did not object.
B. Proceedings
The Department of Health and Social Services filed a
petition to terminate Carl and Karens parental rights on March
26, 2002. The termination trial was held in March 2003. Karen
voluntarily relinquished her parental rights during the trial.
Dr. LaGrande testified that because of Carls recent
history of substance abuse and mental illness he was unable to
act as Cadens parent. She testified that to work toward
reunification, Carl would have to demonstrate that he was clean
and sober for a full year, and would then have to treat his
mental health issues and establish a track record of stability.
She estimated that it would be at least two years before
reunification could seriously be considered.
Dr. LaGrande also testified that the uncertainty
surrounding Cadens living situation was psychologically draining
for the child and was impeding his development. According to
LaGrande, Caden needed to know that the home where he lived would
be his home for a long period of time in the future so that he
could settle down and focus on his behavior at home and his
relationship with his foster parent. Dr. LaGrande concluded that
it was in Cadens best interests to resolve the issue of his
fathers parental rights quickly. Social worker Vivian Patton and
Cadens therapist, Gregory Galanos, also testified that it was
important for the parental rights issue to be resolved so that
Caden could move on psychologically and achieve permanence and
stability in his home life.
Carl also testified at the trial. Carls attorney
argued that Carl had only recently been correctly diagnosed and
treated for his bipolar disorder and that he had made significant
progress in the months prior to trial. He also argued that the
state had failed to meet its burden for the termination of
parental rights under ICWA and Child in Need of Aid (CINA) Rule
18.
The superior court made oral findings of fact and
conclusions of law on April 15, 2003 and entered an order
terminating Carls parental rights on August 18, 2003. The court
found by clear and convincing evidence that Caden was a child in
need of aid due to abandonment, neglect, substance abuse, and
mental illness, and that Carl had not remedied the conditions
that placed Caden at substantial risk of harm. The court found
that Carl was not past his bipolar disorder and that he was at
best . . . in the initial stages of recovery from substance
abuse. The court expressed concern that as recently as the fall
of 2002, Carl had failed to report to his parole officer or
comply with urinalysis testing. The court also found beyond a
reasonable doubt that returning Caden to Carls custody would
result in serious emotional damage to Caden. In making this
determination, the court relied in part on the expert testimony
of Dr. LaGrande. The court stated that Caden has severe
behavioral problems and expressed concern that Carl does not have
real insight into his childs problems and how to deal with those
problems. The court found that if Carl and Caden were reunited,
it is likely that Carl would abdicate the responsibility of
parenthood, causing very serious emotional damage to the child.
Finally, the court found that termination of parental
rights was in the best interests of the child. Noting that
Cadens problems stemmed in part from instability in his home
life, the court found that leaving open the prospect of
reunification with his father would mean more years of
instability and a real likelihood that it would not come to
fruition. The court concluded that termination of parental
rights would give [Caden] an opportunity to have a start; to find
a therapeutic foster home or adoptive home and at least have the
prospect of real stability in the remaining years of his
childhood.
Carl appeals.
III. DISCUSSION
Termination of parental rights to an Indian child under
ICWA and the CINA rules and statutes requires that the superior
court make five findings. The trial court must find by clear and
convincing evidence that the child is in need of aid as described
in AS 47.10.0113 and that the parent has not remedied, within a
reasonable time, the conduct or conditions in the home that place
the child at substantial risk of physical or mental injury.4 The
court must find by a preponderance of the evidence that the
department has made active but unsuccessful efforts to provide
services and programs designed to prevent the breakup of the
family5 and that termination of parental rights is in the childs
best interests.6 Finally, the court must find by evidence beyond
a reasonable doubt, including qualified expert testimony, that
continued parental custody is likely to cause serious emotional
or physical damage to the child.7
In this case, Carl challenges three of the superior
courts findings: (1) that Carl has not remedied the conduct that
placed Caden at substantial risk of harm; (2) that return of
Caden to Carls custody was likely to result in serious emotional
damage to Caden; and (3) that the termination of parental rights
was in Cadens best interests.
A. Standard of Review
In a child in need of aid case, we will affirm the
superior courts factual findings unless they are clearly
erroneous.8 Whether the superior courts findings comport with
the requirements of ICWA or the CINA statutes and rules is a
question of law that we review de novo.9
B. The Superior Court Did Not Err in Finding that Carl
Failed To Remedy the Conduct that Placed Caden at Risk
Within a Reasonable Time.
Carl argues that the superior court erred in finding
that he had failed to remedy his conduct within a reasonable
time. He contends that his life has turned around since he was
correctly diagnosed and treated for bipolar disorder, and that in
the eight months between the diagnosis and the trial he had
stayed sober and made substantial progress in creating an
emotionally and financially stable environment for the return of
his son. He argues that his past drug treatment failures are not
predictive of his future conduct and that the court should have
focused on his behavior after the diagnosis was made.
But the record does not support Carls assertion that
his conduct changed dramatically once he began treatment for
bipolar disorder in August 2002. It is true that the social
worker testified that her meetings with Carl in the weeks before
the trial were much more positive than those in the past and that
he seemed to be making progress in identifying and working on his
problems. But in the months after his diagnosis, he also
submitted a dilute urine sample, failed to appear for urinalysis
tests, absconded from parole, and failed to maintain contact with
Cadens social worker. At the termination trial, Carls proven
track record of sobriety amounted to three weeks of successful
urinalysis monitoring as part of an intensive surveillance parole
program.
In determining whether a parent has failed to remedy
his conduct within a reasonable time, courts may consider any
fact relating to the best interests of the child, including the
likelihood of returning the child to the parent within a
reasonable time based on the childs age or needs.10 Dr. LaGrande
estimated that even if Carl continued to make progress it would
be at least two years before he could be reunified with Caden.
Given the evidence in the record that Caden needs to achieve
stability and permanence, the superior court could reasonably
find, as it did, that Carls recent efforts were too little, too
late.11
C. The Superior Court Did Not Err in Finding that
Returning Caden to Carl Would Likely Result in Serious
Emotional Damage.
Carl argues that the superior court also erred in
finding that the state met its burden of proving beyond a
reasonable doubt that returning Caden to Carls custody would
likely result in serious emotional damage to Caden. The superior
courts determination is supported by expert testimony in the
record. Dr. LaGrande testified that Caden is severely disturbed
and that he needs stable, consistent parenting in order to learn
to manage his behavior. She testified that Carl did not have the
requisite stability and parenting skills, stating that if Caden
were placed with his father, he isnt going to continue to grow,
hes going to . . . continue to have a decline in his behavior.
Moreover, Carl has at times failed to visit Caden regularly; Carl
dropped out of contact with DFYS for several months, less than a
year before the trial. The record supports the superior courts
finding that if Carl were given custody he would likely abdicate
the responsibility of parenthood and drop out of Cadens life, a
scenario that Dr. LaGrande testified would cause Caden serious
psychological harm.
Carl argues that State, Department of Health & Social
Services v. M.L.L.12 supports his argument. In M.L.L., we
affirmed the trial courts finding that the state had not met its
burden under ICWA for termination of parental rights.13 In that
case, we stressed that much of the past conduct that had put the
children at risk had been sufficiently remedied to create a
reasonable doubt as to future harm. The mother in M.L.L. had,
for example, been sober for over three years and had maintained a
violence-free household with a new husband.14 Carl, by contrast,
has not remedied the conduct that originally put Caden at risk of
harm. The superior court did not err in finding beyond a
reasonable doubt that returning Caden to Carls custody would
likely result in serious emotional harm.
D. The Superior Court Did Not Err in Finding that
Terminating Carls Parental Rights Was in the Best
Interests of the Child.
Carl also argues that the superior court erred in
finding that the termination was in Cadens best interests. He
points out that Cadens foster parent was not interested in
adoption, and that Dr. LaGrande testified that it could be
difficult to find adoptive parents for a child with such severe
emotional problems. He argues that termination would not lead to
a permanent placement for Caden and that allowing Carl to work
toward reunification would give Caden his best chance at
stability and permanence.
The state argues that its plan pursuing the
possibility of adoption while considering whether it would be
better for Caden to remain with his foster parent for the
remainder of his childhood was the best approach. The state
points to evidence in the record that the foster parent was
committed to caring for Caden until he turned eighteen provided
that his behavior remained under control. The state also
emphasizes that regardless of his placement, Caden needed to
resolve the issue of his fathers parental rights because the
continuing uncertainty about whether he would return to his
father was harming him and impeding his development.
The record supports the superior courts finding that
the termination would be in Cadens best interests. Dr. LaGrande,
social worker Patton, and Cadens therapist all testified that the
resolution of the parental rights issue was important to Cadens
emotional well-being. When asked whether the foster parents
decision not to adopt Caden changed her opinion that Carls
parental rights should be terminated, Dr. LaGrande responded:
No, I think the parental rights issue still
needs to be resolved so that he understands
that piece. . . . [T]hats a thing thats not
going to happen, hes not going home, he has
to focus on his behavior here and focus on
that relationship with [the foster parent].
I I think that to have it hanging out there,
that uncertainty, in my experience is very
draining on kids.
At the time of the termination trial, Caden had been in the
states custody for over three years. Dr. LaGrande testified that
it would be at least another two years before Caden could be
reunified with Carl. It was not clearly erroneous for the
superior court to find that Caden needed stability and could not
afford to wait any longer for Carl to be ready to serve as his
parent.15
IV. CONCLUSION
Because the record supports each of the superior courts
challenged findings, we AFFIRM the termination of Carls parental
rights.
_______________________________
1 25 U.S.C. 1901-23, 1951 (2002).
2 This opinion uses pseudonyms for all family members.
3 AS 47.10.088(a)(1)(A); CINA Rule 18(c)(1)(A).
4 AS 47.10.088(a)(1)(B); CINA Rule 18(c)(1)(A).
5 25 U.S.C. 1912(d) (2002); CINA Rule 18(c)(2)(B).
6 CINA Rule 18(c)(2)(C).
7 25 U.S.C. 1912(f) (2002); CINA Rule 18(c)(3).
8 Brynna B. v. State, Dept of Health & Soc. Servs., 88
P.3d 527, 529 (Alaska 2004).
9 Sherry R. v. State, Dept of Health & Soc. Servs., 74
P.3d 896, 901(Alaska 2003) (CINA rules and statutes); J.J. v.
State, Dept of Health & Soc. Servs., 38 P.3d 7, 8 (Alaska 2001)
(ICWA).
10 AS 47.10.088(b)(1).
11 Cf. J.H. v. State, Dept of Health & Soc. Servs., 30
P.3d 79, 86-87 (Alaska 2001) (holding that despite mothers
progress in attempting to conquer substance abuse, she had failed
to remedy her conduct within a reasonable time).
12 61 P.3d 438 (Alaska 2002).
13 Id. at 445.
14 Id. at 443-44.
15 See J.H., 30 P.3d at 87 (upholding finding that
termination was in childs best interests where mother had at
times showed significant progress in treating substance abuse
problem but child needed stability and could not afford to wait
any longer for mother to be ready to provide maternal
relationship).
