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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Tessa M. v. State, Dept. of Health & Social Services, Office of Children's Services (05/09/2008) sp-6258

Tessa M. v. State, Dept. of Health & Social Services, Office of Children's Services (05/09/2008) sp-6258, 182 P3d 1110

     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

TESSA M., )
) Supreme Court No. S- 12802
Appellant,)
) Superior Court No. 4FA-05- 00038 CN
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMENT)
OF HEALTH & SOCIAL SERVICES,) No. 6258 May 9, 2008
OFFICE OF CHILDRENS SERVICES,)
)
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Randy M. Olsen, Judge.

          Appearances:  Robert R. Polley,  Kodiak,  for
          Appellant.  Megan R. Webb, Assistant Attorney
          General,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for Appellee.

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

          WINFREE, Justice.

I.   INTRODUCTION
          A mother appeals from an order terminating her parental
rights.  She argues  that the trial courts findings that (1)  she
had  failed  to  remedy  her conduct,  and  (2)  terminating  her
parental  rights  was in the childs best interests,  are  clearly
erroneous and therefore the court had no legal basis to terminate
her parental rights.  The trial courts findings are supported  by
the evidence presented at trial, and we affirm the termination of
parental rights.
II.  FACTS AND PROCEEDINGS
          Tammy  is  the daughter of Tessa and Tom.1   Tammy  was
          almost three years old when in April 2005 she suffered severe
immersion burns from scalding water at the familys home.2   Tessa
had  been  at  work but returned home when Tom called  for  help.
Tessa  and  Tom then took Tammy to Fort Wainwrights  Basset  Army
Hospital emergency room; the next day she was transferred to  the
Trauma  Burn  Unit at Harborview Hospital in Seattle, Washington.
Tammy  was  treated at Harborview for life-threatening burns  and
related complications for two and one-half months.
          Tom  claimed that Tammy climbed into a tub of hot water
while  he was in another room.  The treating physician at  Basset
did not believe that explanation because of Tammys burn patterns,
and  instigated a criminal investigation.  The Harborview doctors
noted that Tammys burn pattern was consistent with being forcibly
restrained  for  a  prolonged period of time in  scalding  water.
Basset  and  Harborview doctors also noted  dozens  of  marks  on
Tammys  thighs  and indicated that they likely represented  prior
whipping incidents.
          The  day  after Tammy was burned, the State of  Alaska,
Department  of  Health and Social Services, Office  of  Childrens
Services (OCS) filed an emergency petition for temporary  custody
of  Tammy and for an adjudication that she was a child in need of
aid.   The  petition  referred  to a previous  domestic  violence
incident involving Tessa and Tom and the doctors statements about
Tammys  burns and prior scarring.  Superior Court Judge Randy  M.
Olsen granted OCS temporary custody of Tammy.
          Tammy  returned to Fairbanks in mid-June  2005  with  a
foster  mother and began living with her, but saw Tessa  and  Tom
during  supervised one-hour visits twice weekly.   In  July  2005
Tessa  and Tom stipulated that Tammy was a child in need  of  aid
under  AS  47.10.011(6) and (8),3 and Tammy was  placed  in  OCSs
custody for one year.
          OCS had created a case plan for Tessa while she was  in
Seattle  with  Tammy.  After her return, Tessa completed  initial
parenting  classes with Fairbanks Counseling and  Adoption  (FCA)
and  her  visits  with  Tammy  were  increased.   Tessa  obtained
substance  abuse, behavioral, and psychological  evaluations  and
attended  individual counseling sessions.   Tessa  and  Tom  also
began  marriage  counseling at FCA in July 2005, but  this  ended
after  two sessions due to domestic violence concerns.  In August
2005 Tom deployed to Iraq.
          Tessa  continued individual counseling with  FCA  until
the  services  ended  for lack of funding.  FCA  counselor  Randy
Lewis reported (and later testified) that Tessa seemed to believe
her  circumstances were caused by external forces and she did not
need  to  learn stress reduction, anger management,  or  conflict
resolution  techniques,  and that she had  made  little  progress
toward  recognizing  her problems.  FCA  referred  Tessa  to  the
Resource   Center   for  Parents  and  Children   (RCPC)   family
reunification program.
          In  December  2005 RCPC family service  worker  Rachael
Coady supervised twice-a-week visits between Tessa and Tammy  and
met  separately  with Tessa weekly to work on  parenting  skills.
Coady  testified  at the termination trial that Tessa  failed  to
recognize  that she might be contributing to unhealthy or  unsafe
          parenting methods at home. . . . [Tessa] stated there was nothing
that  she  needed to work on; that she was a good  mother.   RCPC
discontinued Tessas services in February 2006 due to her lack  of
interest in improving specific parenting skills and her  lack  of
motivation for change.
          In March 2006 Judge Olsen held a permanency hearing and
found  that  Tessa and Tom had not made substantial  progress  in
remedying  the  conduct and conditions that  harmed  Tammy.   The
permanency plan remained reunification, with a concurrent plan of
adoption; OCS explained it would wait for military authorities to
decide  whether to bring criminal charges before making  its  own
decision about filing a petition to terminate parental rights.
          OCS  referred Tessa to Carol Brice, an expert in  early
child  development,  child  abuse and neglect,  and  bonding  and
attachment.   Tessa  worked with Brice  for  two  months.   After
observing  Tessa  and Tammy together and working  with  Tessa  in
individual sessions, Brice concluded that Tessa and Tammy  shared
a  reciprocal  emotional attachment bond.   Brice  reported  that
Tessa  was  receptive  to parenting education  and  committed  to
raising  Tammy  in  a  safe, healthy, stimulating  and  nurturing
environment  that will ensure her potential for  success  in  all
arenas[.]   Based on this assessment, OCS modified the visitation
schedule  in  May  2006 to include unsupervised visits  to  begin
Tammys transition back to Tessa.
          In June 2006 OCS filed a petition to extend its custody
of  Tammy.  The petition referred to the transition process  then
underway to expand Tessas visitation to include overnight  visits
and  a  trial six-month home visit.  Judge Olsen entered an order
extending custody for up to one year, making findings that Tammys
permanency  plan was family reunification with a concurrent  plan
of adoption, but that it was contrary to Tammys welfare to return
her to Tessa at that time.
          Tammy showed signs of regression after the unsupervised
off-site visits.  Her foster mother reported that Tammy  was  not
talking  as  much,  did  not  want  to  eat,  was  becoming  less
independent, was crying more, and had less motivation.  She  also
reported  that after her visits with Tessa, Tammy was  withdrawn,
would not interact with other children, and often would sleep for
long periods.
          After  an  unsupervised visit in July 2006, the  foster
mother  noticed that Tammys eyes were swollen and she was  having
trouble focusing.  The social worker supervising Tammys return to
the foster mother told her that Tessa had explained it was due to
an  allergic  reaction to cats.  The foster mother reported  (and
later  testified) that when she questioned Tammy, Tammy responded
that  her  mother had hit her in her eye.  OCS case worker  Susan
Desrosiers  reported (and later testified) that two  days  later,
she  also asked Tammy about the incident and that Tammy indicated
that her mother had hit her.
          In  August 2006 OCS initiated counseling for Tammy with
therapist  Heather Monberg.  Tom returned from Iraq in  September
2006 but was restricted from visiting Tammy due to a military no-
contact  order.   When Tammy was informed that Tom  had  returned
home, she asked to visit him as long as Monberg was present.  The
military allowed this conditional visitation, but Monberg  became
concerned  about the stress Tammy experienced while visiting  her
parents  and  recommended that visits be  reduced  in  frequency.
Tammy  then  visited with Tessa and Tom once each  week  for  two
hours.
          In Fall 2006 OCS notified Tessa that it was considering
a  petition to terminate parental rights based in part on  Tessas
refusal to acknowledge that Tammy had been abused or to learn how
to  address the impact of that abuse on Tammy.  In November  2006
Carol  Brice conducted a re-assessment of the bond between  Tammy
and  Tessa.   Brice  reported  that  Tammy  exhibited  signs   of
disrupted attachment relationship with her mother and that  their
relationship was anxious, disorganized, and insecure.  Brice also
reported that Tammys remaining positive emotional attachment with
her  mother  emerged  and  resulted from  the  secure  attachment
relationships she was experiencing in her foster home.
          In early January 2007 OCS filed a petition to terminate
Tessa  and Toms parental rights.  Days later, a military tribunal
convicted Tom of maiming Tammy and sentenced him to four years of
incarceration.4
          In  March 2007 Tessa began counseling sessions with Dr.
Claudia  French and started exploring issues about  her  marriage
and her initial response to Tammys burns.  French later testified
that  Tessa  had been very reflective and was in  a  position  to
examine  things more clearly, but she also testified  that  Tessa
did not mention the scars on Tammys legs.
          Trial  was  held  in May and June 2007.5   Judge  Olsen
found  clear and convincing evidence that Tessa had not  remedied
her  conduct  or  home conditions, elaborating that  he  did  not
believe Tessa demonstrated an understanding of Tammys needs or  a
desire  to provide for those needs.  He similarly found by  clear
and  convincing  evidence that returning [Tammy to  Tessa]  would
place  [Tammy]  at  a  substantial risk of further  physical  and
mental injury.  Finally, he found beyond a reasonable doubt  that
it  was in Tammys best interests for Tessas parental rights to be
terminated.6   Judge Olsen therefore terminated  Tessas  parental
rights.
III. DISCUSSION
     A.   Standard of Review
          In a case involving the termination of parental rights,
we  review  a  trial  courts findings of fact for  clear  error.7
Findings  are  clearly  erroneous only if,  after  reviewing  the
record  in  the light most favorable to the prevailing party,  we
are  left with a definite and firm conviction that a mistake  has
been  made.8  When reviewing factual findings we ordinarily  will
not   overturn  a  trial  courts  finding  based  on  conflicting
evidence,9  and  we will not re-weigh evidence  when  the  record
provides clear support for the trial courts ruling;10 it  is  the
function  of  the  trial  court, not  of  this  court,  to  judge
witnesses credibility and to weigh conflicting evidence.11 Whether
a  trial courts findings are consistent with the child in need of
aid  statutes  is  a  question of law that  we  review  de  novo,
adopting  the  rule of law that is most persuasive  in  light  of
precedent, reason, and policy.12
     B.   Tessa  Failed To Remedy Her Conduct Within a Reasonable
          Time  and Returning Tammy to Tessa Would Place  Her  at
          Substantial Risk of Harm.
          
          Under AS 47.10.088(a)(2),13 the termination of parental
rights  requires a finding by clear and convincing evidence  that
either  the parent has not remedied harmful conduct or conditions
or  the  parent  has  failed  to make enough  progress  within  a
reasonable time so that there still is a substantial risk of harm
to  the child if returned to the parent.  Here, Judge Olsen found
by  clear and convincing evidence that Tessa had not remedied her
conduct  and that regardless of any progress, there still  was  a
substantial risk of harm to Tammy if she were returned to Tessa.
          Tessa  argues  that  this  court  should  take  a  more
objective  view of her actions rather than utilize the subjective
and arbitrary standards applied by OCS and, presumably, the trial
court.14   For  example, Tessa points out  that  she  engaged  in
parenting  education and also agreed to pay  for  some  of  Carol
Brices  services,  which  is above and beyond  what  is  normally
expected  from OCS clients.  She also notes that she consistently
attended visitation with Tammy.  To contrast her stated objective
conduct  to  what  she  views  as OCSs  inappropriate  subjective
standards  for  evaluating  her parenting  ability,  Tessa  gives
specific  examples of trial testimony:  Carol Brices  disapproval
of Tessa using sessions to braid Tammys hair; Carmen Brooks (OCS)
criticism  of  Tessas  insistence  that  Tammy  speak  with   her
relatives  on the phone; Beth Gambrells (FCA) comment that  Tessa
did  not  offer Tammy a drink when Tammy was thirsty; and Rachael
Coadys  (RCPC) testimony that Tessa was bribing Tammy with treats
from McDonalds at the end of scheduled visits.
          We  agree  with  Tessa that these  criticisms  are  not
determinative of her parenting ability, but we conclude that they
were  unnecessary to OCSs case.  We also conclude  that,  despite
the  objective evidence supporting Tessas arguments, when all  of
the  evidence is viewed in the light most favorable to OCS  there
is  ample support for Judge Olsens findings that Tessa failed  to
remedy her conduct and that Tammy would be at substantial risk of
harm if she were returned to Tessa.15
          Carol  Brice testified that Tessa failed to  comprehend
Tammys  needs.  Brice first had a positive outlook for Tammy  and
Tessas  relationship, but her hope for reunification deteriorated
as  Tessa failed to develop an understanding of Tammys needs  and
to  change her behavior to meet them.  Brice stated, Most of  the
time  [Tessa] could not allow herself to understand or comprehend
or  meet  her childs needs at the level the child was  expressing
the  needs.   Brice  testified that there was  [n]o  empathy,  no
concern about the extent of these injuries, how it happened,  how
it affected [Tammy].  Counselors from both FCA and RCPC testified
that  Tessa  failed to recognize that she needed to work  on  her
parenting skills.  Moreover, Tessa conceded at trial that she had
not  always focused on Tammys needs and had not realized that her
approach  to  situations with Tammy was  a  problem.   The  trial
testimony as a whole shows that Tessa failed to make the  changes
required  to meet Tammys needs, which supports the findings  that
          Tessa failed to remedy her conduct and that Tammy still was at
substantial risk of harm.
          Judge  Olsen  found that even prior to the burn  injury
Tammy   had   been  systematically  abused.16   Susan  Desrosiers
testified  that in order to make progress after the  burns  Tammy
suffered, the parents would have to acknowledge what happened  to
their  child.  Desrosiers stated that Tessa did not really  begin
to  make  this acknowledgment until December 2006, and then  more
fully in April 2007.  This was two years after OCS created a case
plan  for  Tessa,  and  just  before trial.   Even  this  belated
acknowledgment  of  abuse  was  not  complete   Tessa  failed  to
acknowledge  Tammys  scars  during her counseling  sessions  with
Dr.  French,  Tessa testified at trial that she did not  remember
how  Tammy obtained the unusual scarring on her thighs,17 and  at
trial Tessa continued to deny hitting Tammy in July 2006.18
          Judge   Olsen   stressed  that  Tammy  was   incredibly
emotionally damaged and endured emotional and physical abuse  and
that  Tessa either did not protect Tammy or contributed to Tammys
harm,  or both.  To remedy her conduct and demonstrate that Tammy
would  not  be  at substantial risk of harm if returned  to  her,
Tessa  would  have  had to end the abuse, address  Tammys  severe
emotional  damage  caused  by  the  prior  abuse,  come   to   an
understanding  of  Tammys  needs, and develop  a  desire  and  an
ability  to respond to those needs.  Judge Olsen found  by  clear
and convincing evidence that Tessa failed to do so.  That finding
is adequately supported by the record.
     C.   Termination  of Tessas Parental Rights  Was  in  Tammys
          Best
          Interests.

          When   terminating  parental  rights,  a  court   shall
consider the best interests of the child.19  [T]he best interests
of  the  child,  not those of the parents, are paramount.20   The
court may order termination only if OCS proves by a preponderance
of  the  evidence that termination of parental rights is  in  the
best interests of the child.21  Judge Olsen found not merely by a
preponderance  of  the evidence, but . . .  beyond  a  reasonable
doubt  that  it was in Tammys best interests to terminate  Tessas
parental rights.
          Tessa  argues that she has a vital bond and  attachment
with  Tammy that continued despite the disruption of foster care.
Tessa  further  argues that the differences  in  Tammys  behavior
while in her foster mothers care, compared to Tessas care, cannot
be  attributed to failures on Tessas part and should not be  seen
as a demonstration that Tammys best interests are served by being
in  a foster home rather than with her mother.  Tessa thus argues
that the trial courts finding is clearly erroneous.  The evidence
presented at trial belies this argument; when viewed in the light
most favorable to OCS, it adequately supports the courts finding.
          Tammys  therapist,  Heather  Monberg,  testified   that
Tammys  lack  of emotional connectedness with Tessa seems  to  be
reflected  in  [Tammys] behavior.  Monberg testified  that  Tammy
appears to feel safe with her foster mother and that she  is  the
person  with whom Tammy has the most potential.  Finally, Monberg
          stated her opinion that it was not in Tammys best interests to
return  to Tessas household because it was not an environment  in
which Tammy could thrive.
          Carol  Brice described Tessas bond with Tammy as  based
on  possession.  It was Brices opinion that she had not seen  the
changes  that we need to see . . . to assure us that  this  child
would  grow  up  in  a  stress-free,  a  violence[-]free  .  .  .
environment.  Brice also said that Tammy never fully  engaged  in
what  I would hope to see as a happy, rejoicing reunion with  her
mother.
          OCSs  Susan  Desrosiers testified that  if  Tammy  were
returned  to  her mother she would not develop in a  healthy  way
because of stress and anxiety and would be at risk for additional
physical  and emotional abuse, and that Tammy needs to  be  in  a
safe,   nurturing,   loving   environment   and   [Tessa]   hasnt
demonstrated that she can provide that for her child.  Tammys pre-
school teacher testified that Tammy continued to experience  very
significant developmental delays in speech and communication, and
that she refused to engage in gross motor activities despite  the
fact  that  she  had the physical ability to move around  like  a
typical child.
          Given  this testimony Judge Olsen easily could find  by
at  least  the  necessary preponderance of the evidence,  if  not
beyond  a  reasonable  doubt,  that  the  termination  of  Tessas
parental rights was in Tammys best interests.
IV.  CONCLUSION
          The  record  contains  sufficient evidence  to  support
Judge  Olsens  findings that Tessa failed to remedy  the  conduct
that  placed  Tammy at risk, that returning Tammy to Tessa  would
place  Tammy  at  substantial risk of harm, and that  it  was  in
Tammys  best interests to terminate Tessas parental  rights.   We
therefore AFFIRM the order terminating Tessas parental rights.

_______________________________
     1    Pseudonyms are used for the family members.

     2     Tom  was  serving in the United States  Army  and  the
family  was  living in military housing on Fort Wainwright,  near
Fairbanks.

     3    AS  47.10.011 Children in need of aid.  [T]he
          court may find a child to be a child in  need
          of  aid if it finds by a preponderance of the
          evidence that the child has been subjected to
          any of the following:
          
               . . . .

               (6)   the child has suffered substantial
          physical harm, or there is a substantial risk
          that   the   child  will  suffer  substantial
          physical harm, as a result of conduct  by  or
          conditions  created  by  the  childs  parent,
          guardian,  or custodian or by the failure  of
          the   parent,   guardian,  or  custodian   to
          supervise the child adequately; [or]
          
               . . . .

               (8)  conduct by or conditions created by
          the parent, guardian, or custodian have
          
               (A)   resulted in mental injury  to  the
          child; or
          
               (B)   placed  the  child at  substantial
          risk of mental injury as a result of
          
               (i)     a    pattern    of    rejecting,
          terrorizing,    ignoring,    isolating,    or
          corrupting behavior that would, if continued,
          result in mental injury; or
          
               (ii)   exposure  to  [certain   domestic
          violence]; or
          


               (iii)      repeated exposure to [certain
          domestic violence.]
          
     4    The record does not reflect when the militarys charging
decision  was made or how that related to OCSs decision  to  file
the  petition  for termination of parental rights, nor  does  the
record reflect when the military trial actually took place.   OCS
noted Toms conviction in amended petition paperwork filed in late
January.

     5     Tom  appeared  briefly at trial  (telephonically)  and
waived  his continuing presence.  Tom agreed that he  was  in  no
position  to  dispute  termination of his  parental  rights,  but
expressed  support  for  Tessas efforts to  retain  her  parental
rights.   Toms parental rights were terminated at the  conclusion
of the trial and he is not a party to this appeal.

     6     Judge Olsen also found that Tammy still was a child in
need  of aid under AS 47.10.011, and that OCS had made reasonable
(but  unsuccessful) efforts to provide family support  to  enable
Tammy  to  return home as required by AS 47.10.088(a)(3)  and  AS
47.10.086.   Judge Olsen thus made all of the findings  necessary
for  the  termination  of Tessas parental rights,  but  only  the
findings noted above are at issue in this appeal.

     7     Martin  N. v. State, Dept of Health & Soc. Servs.,  79
P.3d 50, 53 (Alaska 2003).

     8     Brynna  B. v. State, Dept of Health & Soc. Servs.,  88
P.3d  527,  529  (Alaska 2004) (quoting A.B. v.  State,  Dept  of
Health & Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).

     9     Martin  N.,  79 P.3d at 53 (citing In re Friedman,  23
P.3d 620, 625 (Alaska 2001)).

     10    D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 214 (Alaska 2000).

     11     In  re  Adoption of A.F.M., 15 P.3d 258, 262  (Alaska
2001)  (citing Knutson v. Knutson, 973 P.2d 596, 599-600  (Alaska
1999)).

     12    E.g., Brynna B., 88 P.3d at 529.

     13     AS  47.10.088.  Involuntary termination  of
          parental  rights  and responsibilities.   (a)
          Except  as  provided in AS 47.10.080(o),  the
          rights  and  responsibilities of  the  parent
          regarding  the  child may be  terminated  for
          purposes  of freeing a child for adoption  or
          other  permanent placement if the court finds
          by clear and convincing evidence that
          
               . . . .
          
               (2)  the parent
          
               (A)   has  not remedied the  conduct  or
          conditions in the home that place  the  child
          at substantial risk of harm; or
          
               (B)   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; and
          
               (3)   the  Department has complied  with
          the  provisions  of  AS 47.10.086  concerning
          reasonable efforts.
          
     14    Tessa relies on E.J.S. v. State, Department of Health &
Social Services, 754 P.2d 749, 750 (Alaska 1988), which describes
an  objective test to determine whether or not a child  has  been
physically  abandoned  by a parent.  In the abandonment  context,
courts look at parental conduct rather than wishful thoughts  and
hopes  because the parents subjective intent ignores the  reality
of  the childs existence in a foster home while the absent parent
retains  parental rights.  D.M. v. State, 515 P.2d 1234,  1236-37
(Alaska  1973).  The determination before us here,  by  its  very
nature, requires not just an evaluation of objective conduct, but
also  broader  and more subjective considerations and  judgments.
We  particularly  note AS 47.10.088(b), which  provides  that  in
determining  whether  a parent has remedied  conduct,  the  trial
court may consider any fact relating to the best interests of the
child, including:

          (1)  the likelihood of returning the child to
          the parent within a reasonable time based  on
          the childs age or needs;
          
          (2)   the  amount of effort by the parent  to
          remedy  the conduct or the conditions in  the
          home;
          
          (3)  the harm caused to the child;
          
          (4)   the likelihood that the harmful conduct
          will continue; and
          
          (5)   the history of conduct by or conditions
          created by the parent.
          
     15     Tessa also suggests that OCS and the various  service
providers  were  biased  against  her,  and  therefore  did   not
recognize  her actual progress, because of their suspicions  that
she was involved in Tammys burning.  This seems a valid basis for
vigorous  cross-examination during trial  and  artful  persuasion
during  closing  argument, but lends little to Tessas  appeal  in
light  of  the  applicable standard of review.   Moreover,  Judge
Olsen expressly noted that OCS initially presumed that the father
was the problem and attempted to restore the child to her mother.
If  this  were not the case, it is unlikely that OCS  would  have
made  such impressive attempts to assist Tessa with reunification
efforts.   As Judge Olsen noted, [OCS] devoted a huge  amount  of
resources to this family and provide[d] many opportunities to the
parents to provide for return of [Tammy] to her family.  Lots  of
services  were  offered  including multiple  parenting  programs,
individual  and  marital counseling, visits, various  assessments
for substance abuse and anger management.  A great deal of effort
was made to assist the parents in remedying their behavior but it
was  not successful.  As we noted earlier, Tessa does not  appeal
Judge Olsens finding (by clear and convincing evidence) that  OCS
made reasonable efforts to assist the family.  See supra note 6.

     16    Specifically, in his July 17, 2007, findings and order,
Judge Olsen stated:

          The  court  finds  there was  systematic,  on
          going, emotional and physical abuse . .  .  .
          With  regard  to  the  non-burn  injuries  to
          [Tammy]  it appears, from the photos admitted
          into  evidence,  that someone struck  [Tammy]
          with  [a] coat hanger and left scars  on  her
          thighs.   The jackstraw scars also  found  on
          her thighs were due to repeated instances  of
          being  struck  by  a thin object  such  as  a
          ruler,  cord,  or belt.  [Tessa] acknowledged
          that  [Tammy] had scar[r]ing on her face near
          her  eye.  While the mother blamed the father
          for  these various whipping scars to [Tammy],
          the  court  notes  at the time  of  the  burn
          injuries  and  observations of  the  whipping
          scars,  [Tom] had only recently  returned  to
          the home, having been out of the home for two
          months  shortly before the date  [Tammy]  was
          burned.     [Tessa]    acknowledged    having
          arguments  with [Tom] regarding  his  use  of
          corporal   punishment   of   [Tammy].    This
          testimony  verifies  to the  court  that  the
          scar[r]ing was noticeable and the father  was
          abusive.   The court finds that the  injuries
          which  le[]d  to the whipping scars  occurred
          either before the father left for training in
          January 2005 or were committed in his absence
          by the mother.
          
     17     Despite this memory lapse, Tessa concedes  on  appeal
that Tammy was subjected to inappropriate discipline amounting to
physical abuse and that she had inappropriately struck Tammy with
a  belt on rare occasions.  Tessa claimed she had learned new and
appropriate forms of discipline, but Judge Olsen found that Tessa
was not credible about her lack of knowledge of the extent of the
harm Tammy suffered before the burns and thus her other testimony
was   suspect:   The  court  clearly,  and  unequivocally,  finds
portions  of  the mothers testimony unbelievable,  at  times  not
truthful,  and frequently hedging.  Because of this  finding  the
court  considers [Tessas] testimony with suspicion.  We defer  to
Judge Olsen on this credibility determination.

     18     Tessa  argues  that  OCS did not  produce  sufficient
evidence to prove that she hit Tammy in July 2006.  Two different
people  testified that Tammy communicated to them that Tessa  had
hit her, while Tessa testified that she did not hit Tammy.  As we
already  have  noted,  Judge Olsen found that  Tessa  was  not  a
credible  witness and we defer to his credibility  determination.
See supra note 17.  Judge Olsens finding that Tessa hit Tammy  in
July 2006 is not clearly erroneous and will not be set aside.

     19    AS 47.10.088(c).

     20    A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 260 (Alaska 1999).

     21     CINA Rule 18(c)(3).

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