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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,
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            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).