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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ralph H. v. State, Dept. of Health & Social Services, Office of Children's Services (2/4/2011) sp-6536

Ralph H. v. State, Dept. of Health & Social Services, Office of Children's Services (2/4/2011) sp-6536, 246 P3d 916

        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 

RALPH H.,                                      ) 
                                               )       Supreme Court No. S-13852 
                Appellant,                     ) 
                                               )       Superior Court No.  3PA-07-00082 CN 
        v.                                     ) 
                                               )       O P I N I O N 
STATE OF ALASKA,                               ) 
DEPARTMENT OF HEALTH &                         )       No. 6536 - February 4, 2011 
SOCIAL SERVICES, OFFICE OF                     ) 
CHILDREN'S SERVICES,                           ) 
                                               ) 
                Appellee.                      ) 
                                               ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Palmer, Beverly Cutler, Judge. 

                Appearances:  Caitlin  Shortell,  Anchorage,         for  Appellant. 
                Megan   R.   Webb,   Assistant   Attorney   General,   Anchorage, 
                and    Daniel    S.  Sullivan,   Attorney     General,    Juneau,   for 
                Appellee.      Dianne    Olsen,   Law    Office   of   Dianne   Olsen, 
                Anchorage, for Krista Berghoff, Office of Public Advocacy, 
                Palmer, Guardian Ad Litem. 

                Before:       Carpeneti,    Chief   Justice,  Fabe,   Winfree,    and 
                Stowers, Justices.   [Christen, Justice, not participating.] 

                STOWERS, Justice. 

----------------------- Page 2-----------------------

I.     INTRODUCTION 

               Ralph appeals the superior court's judgment terminating his parental rights 

                       1 
to his only son, Rex.     The Office of Children's Services (OCS) removed Ralph's and 

                                                                                2 
Nell's five children after Ralph physically assaulted their oldest daughter.       OCS put the 

children in foster care and provided the parents with case plans.         The parents moved 

away from the community where the children were placed, which made visitation with 

Rex difficult.  OCS and the children's guardian ad litem (GAL) petitioned to terminate 

Ralph's and Nell's parental rights.      The superior court terminated Ralph's and Nell's 

parental rights to Rex after finding that OCS made reasonable efforts at reunification and 

that termination was in Rex's best interests. Because the superior court's factual findings 

were not clearly erroneous and its legal conclusions were correct, we affirm the judgment 

in all respects. 

II.    FACTS AND PROCEEDINGS 

               Ralph and Nell are the parents of Ava, Bella, Daria, Emma, Rex, and Faith. 

OCS involvement with the family due to chronic neglect and physical abuse began in 

1992. In May of 1992 eight-month-old Ava wastaken to Seward General Hospital "with 

serious bruising and abrasions[,] a possible fractured rib, [and] serious physical injuries." 

OCS assumed emergency custody of Ava. 

               Over the next eight years, OCS received approximately 23 reports of harm 

on the family. The reports involved allegations of physical abuse or instances of neglect. 

Throughout      this  time,  Ralph  and   Nell  neither  acknowledged     nor  addressed    their 

parenting problems through the services that OCS offered.  A pattern developed in that 

        1 
               We use pseudonyms to protect the family's privacy. 

       2 
               The youngest child, Faith, had not yet been born. 

                                              -2-                                           6536 

----------------------- Page 3-----------------------

OCS would begin to investigate a report of harm or engage the family in services, but the 

parents would move the family to another community. 

               From 1997 until 2006 the family had an open file with the Department of 

Health and Social Services, Division of Public Health (Public Health).              Public Health 

personnel considered the family "high risk."           The Public Health file shows chronic 

neglect because of repeated infestations of head lice, poor parenting, and lack of housing, 

clean clothing, and food.      OCS worked with Public Health to provide services to the 

family. 

               In 2001, when the family lived in Homer, OCS social workers attempted 

to engage the parents but the family moved further and further out of town.  The family 

then moved to Seward, but abandoned their rented home in July 2001, leaving it in a 

filthy state. 

               The family next moved into a camper parked illegally near Resurrection 

Bay.     After   receiving   another   report   of   neglect,   an   OCS   social   worker   arranged 

wrap-around services for the family.        These services included referrals to or assistance 

provided   by   a   number   of   agencies   and   programs:   Public   Health,   Infant   Learning 

Program, a parent training program, Head Start, the school district, a mental health 

program, law enforcement, and OCS.            Despite this, the family moved to the Mat-Su 

Valley.   The social worker transferred the case file to the OCS office there. 

               Between 2002 and 2004 multiple reports of harm were filed against the 

family in the Mat-Su Valley.  Social workers arranged food donations, conducted home 

visits to monitor the status of the home, spoke to Ralph and Nell about getting assistance 

through Alaska Housing Finance Corporation, offered to pay for repair of the family's 

                                                              3 
heating system, and referred the family to Dual Track.          At the end of the program, Dual 

        3 
               Dual Track is a program within the State of Alaska, Department of Health 
                                                                                    (continued...) 

                                                -3-                                             6536 

----------------------- Page 4-----------------------

Track   referred   the   family   to   the   Salvation   Army   Family   Services   Program.       After 

receiving reports of neglect based on poor school attendance, a social worker referred the 

family back to Dual Track, which provided additional services. 

                The   family   had   moved   to   Homer   by   September   2006.        OCS   received 

another report alleging that the family was homeless and that the children missed school 

because of head lice.  A social worker and school staff found a cabin for the family and 

provided mattresses and laundry cards to help the family get rid of the lice.  The social 

worker also created a case plan in December 2006 that required Ralph and Nell to seek 

consistent employment, maintain clean and adequate housing, and work with school 

nurses to get rid of the lice. 

                On March 30, 2007, OCS received a report alleging that Ralph had "pulled 

[Ava's] hair and scratched her face." Avatold the social worker that she had argued with 

her   father,   and   that   when   she   tried   to   leave   the   home,   Ralph   "grabbed   her   face   by 

reaching over her from behind and his fingernails caused a cut on her nose."                   Ava said 

Ralph then "pulled her hair and forced her back into the home."  She said that her father 

had previously slapped her face and back, and that he had kicked her.  The social worker 

testified that Ava had "marks on her head from being hit by her father."  Ava's siblings 

corroborated Ava's allegations and expressed concern about the condition of their home. 

        3 
                (...continued) 
and Social Services, which enables the department to refer low risk reports of harm to a 
community-based non-profit social services agency.                 Dept. of Health & Soc. Servs., 
Family Preservation Component, State of Alaska FY2002 Governor's Operating Budget 
(Jan. 05, 2001),http://omb.alaska.gov/ombfiles/02_budget/Budget/H%26SS/comp1628.pdf. 

                                                   -4-                                             6536
 

----------------------- Page 5-----------------------

                Based on the evidence of physical abuse, mental injury, and chronic neglect, 

OCS assumed custody of all five children and put them in foster care.                  An OCS social 

worker created a case plan for the family.  OCS referred Ralph for a substance abuse 

assessment, referred both parents for psychological assessments to determine what other 

services were necessary, and arranged for supervised visits at the OCS office. The social 

worker also referred the children to counseling services. 

                After their removal, the children remained in the Homer area to facilitate 

visits with their parents.     Rex's initial placements included two different Homer foster 

homes.  He participated in a behavioral health assessment which recommended that he 

receive mental health services.  Due to his aggressive behavior and the unavailability of 

a   closer   placement,   Rex   was   moved   to   a   foster   home   in   Kasilof   where   he   began 

individual therapy at Nakenu Family Services. The record does not suggest that Rex has 

left this foster home. 

                OCS   sought   to   coordinate   regular   visits   between   the   parents   and   the 

children.   Visits with Rex were scheduled twice a month in Kenai.  Ralph and Nell were 

responsible for buying gas for the first monthly trip and OCS paid for gas for the second. 

In September 2007, shortly after the children were taken into OCS custody, the parents 

moved away from their children, back to the Mat-Su Valley. 

                OCS prepared another case plan in September 2007, which required that 

Ralph complete an Alaska Family Services (AFS) parenting class in Palmer.                        It also 

required   that   he   participate   in   individual  therapy,   show   that   he   could   refrain   from 

aggressive   behavior,   participate   in   an  intake   assessment   at   AFS's   Family   Violence 

Intervention Program, and follow that assessment's treatment recommendations.                         An 

OCS social worker wrote a letter to Alaska Housing Finance Corporation to assist Ralph 

and Nell with housing. 

                                                   -5-                                             6536
 

----------------------- Page 6-----------------------

               Ralph finished the Family Violence Intervention Program in June 2008. 

Ralph   and   Nell   participated   in   psychological  evaluations   with   Michael   Rose,   Ph.D. 

Dr. Rose concluded that Ralph met the diagnostic criteria for Child Abuse/Neglect, 

Partner Relational Problem, and Cannabis Abuse.  Dr. Rose also diagnosed Ralph with 

"personality     disorder   with  antisocial   and   passive-aggressive     features."   Dr.    Rose 

recommended   that   Ralph's   visits   with   his  children   be   supervised   until   he   showed 

progress in his treatment. 

               Rex was evaluated by Paul Turner, Ph.D., in January 2008 because of abuse 

in his home.  He told Dr. Turner that his father would "yell, scream, and throw things at 

people."     He also described his father "smacking" a sister, and stated that his father 

spanked him very hard with a paddle. 

               During 2008 Ralph attended the Family Violence Intervention Program. 

However, he was not considered to have completed the program because he failed to pay 

for the program in full which demonstrated a lack of accountability.  At the time of the 

termination trial Ralph was under a recommendation to redo the program because of his 

ongoing aggressiveness. 

                OCS continued to offer the parents visits with the children to promote 

reunification but the parents' visits with Rex were inconsistent.            To help with travel 

expenses, the social worker gave gas vouchers to Ralph and Nell and arranged for OCS 

to provide airfare and mileage reimbursements so they could fly to some visits.  Despite 

this offered assistance, Ralph and Nell failed to visit Rex regularly.  Between October 

2007 and June 2008, they visited Rex just once, at Christmas 2007. 

                In April 2009 Nell asked about restarting visits, but visits did not resume 

because Rex's therapist recommended that in-person visits with Ralph and Nell should 

not continue.    Other reunification efforts continued through 2009 with an OCS social 

                                                 -6-                                           6536
 

----------------------- Page 7-----------------------

worker again updating the parents' case plans.  The social worker conducted home visits 

and spoke with the parents about services including couples and individual therapy. 

                 OCS initially filed a petition to terminate parental rights of all the children 

when Rex was eight.           After doing so, OCS once again referred Ralph and Nell for 

psychological evaluations with Dr. Rose. Based on the results of Dr. Rose's evaluations, 

OCS decided it was in the children's best interests to give the parents further access to 

reunification services. Ralph and Nell sought a six-month continuance of the termination 

trial.   The children's GAL opposed this request but OCS did not. 

                The superior court denied the continuance with respect to Rex.  Based on 

this ruling, OCS attempted to withdraw its termination petition as to Rex.                   The GAL 

objected and the superior court refused to allow OCS to withdraw its petition.  Instead, 

the court permitted the GAL to prosecute OCS's petition to terminate parental rights to 

      4 
Rex.    By the conclusion of the termination trial, Rex had been in foster care for over two 

years. 

                The superior court terminated parental rights to Rex.             The superior court 

concluded   that   Rex   was   a   child   in   need   of  aid   (CINA)   pursuant   to   Alaska   Statute 

47.10.011(1) (abandonment), (6) (physical harm), (8) (mental injury), (9) (neglect), and 

(11) (mental health).  The superior court further concluded that the parents failed within 

a reasonable time to remedy the conduct or conditions that placed Rex at risk of harm, 

and that OCS made reasonable efforts to reunify the family. It also concluded that it was 

in Rex's best interests for Ralph's and Nell's parental rights to be terminated. 

                Ralph appeals that order; Nell does not. 

        4 
                Neither the appellant nor OCS challenged the superior court's denial of 
OCS's motion to withdraw the petition to terminate parental rights or the court's order 
that the GAL was authorized to present evidence in support of the petition filed by OCS. 
We therefore have no occasion to address these issues in this case. 

                                                   -7-                                               6536 

----------------------- Page 8-----------------------

III.    STANDARD OF REVIEW
 

               We review a superior court's  factual findings regarding termination of 

                                5 
parental rights for clear error.  A finding is clearly erroneous when a review of the entire 

record leaves this court with "a definite and firm conviction that the superior court has 

                   6 
made a mistake." 

               We review de novo whether the superior court's findings satisfy applicable 

CINA statutes and rules, adopting "the rule of law that is most persuasive in light of 

                                   7 
precedent, reason, and policy." 

               We will reverse factual findings under the clearly erroneous standard only 

if, after a review of the entire record in the light most favorable to the party prevailing 

                                                                                               8 
below, we are left with a definite and firm conviction that a mistake has been made. 

Conflicting evidence is generally insufficient to overturn the superior court, and we will 

not reweigh the evidence when the record provides clear support for the superior court's 

       9 
ruling. 

               Whether the parent has remedied the conduct or conditions that places the 

children at substantial risk of physical or mental injury, and whether returning the child 

       5 
               Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 
Servs., 77 P.3d 715, 717 (Alaska 2003). 

       6 
               Id. (quoting G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & 
Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003)). 

       7 
               Id. (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)). 

       8 
               Jon S. v. State, Dep't of Health & Social Servs., Office of Children's Servs., 
212 P.3d 756, 761 (Alaska 2009) (internal citations omitted). 

       9 
               Maisy W. v. State, Dep't of Health & Social Servs., Office of Children's 
Servs., 175 P.3d 1263, 1268 (Alaska 2008). 

                                               -8-                                         6536
 

----------------------- Page 9-----------------------

to the parent would place the child at substantial risk of physical or mental injury, are 

                                                                             10 
factual determinations and will only be reversed for clear error. 

IV.	    DISCUSSION 

                The superior court must make four separate findings before terminating 

parental rights.   The court must find by clear and convincing evidence that:  (1) the child 

                                                                11 
is a child in need of aid, as defined in AS 47.10.011;             (2) the parent has not remedied 

                                                                                        12 
the conduct or conditions that placed the child at substantial risk of harm;               and (3) OCS 

has made reasonable efforts, as defined in AS 47.10.086, to reunify the child with the 

         13 
parent.     The court must find by a preponderance of the evidence that (4) termination of 

                                                            14 
parental rights is in the best interests of the child. 

                Ralph does not contest that termination of his parental rights was in Rex's 

best interests. 

        A.	     The Superior Court Did Not Err By Finding That Rex Was A Child In 
                Need Of Aid Under AS 47.10.011(1), (6), (8), (9), and (11). 

                In order to terminate a parent's rights and responsibilities, a superior court 

must   find   by   clear   and   convincing   evidence   that   the   child   has   been   subjected   to 

conditions or conduct that would render the child to be a child in need of aid pursuant to 

        10 
                Barbara P. v. State, Dep't of Health & Social Servs., Office of Children's 
Servs., 234 P.3d 1245, 1250 (Alaska 2010). 

        11 
                AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A). 

        12 
                AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(I)-(ii). 

        13 
                AS 47.10.088(a)(3); CINA Rule 18(c)(2)(A). 

        14 
                CINA Rule 18(c)(3). 

                                                   -9-	                                            6536
 

----------------------- Page 10-----------------------

                   15 
AS  47.10.011.          The   superior   court   found   Rex   was   a   child   in   need   of   aid   under 

AS 47.10.011(1), (6), (8), (9), and (11). 

                 1.       AS 47.10.011(1):   Abandonment 

                 Under   AS   47.10.011(1),   a   child   may   be  in   need   of   aid   if   "a   parent   or 

guardian has abandoned the child as described in AS 47.10.013, and the other parent is 

absent or has committed conduct or created conditions that cause the child to be in need 

of aid under this chapter." 

                 Alaska Statute 47.10.013 provides: 

                 For purposes of this chapter, the court may find abandonment 
                 of   a   child   if   a   parent   or   guardian   has   shown   a   conscious 
                 disregard   of   parental   responsibilities   toward   the   child   by 
                 failing    to   provide     reasonable     support,     maintain     regular 
                 contact,     or  provide     normal     supervision,     considering      the 
                 child's age and need for care by an adult.  Abandonment of a 
                 child also includes instances when the parent or guardian, 
                 without justifiable cause 
                                                     . . . 

                 (2)    has    made      only    minimal      efforts    to   support     and 
                 communicate with the child; 

                 (3)  failed   for   a   period   of   at   least   six   months   to   maintain 
                 regular visitation with the child[.] 

In addition to conscious or "willful" disregard, there also must be evidence that the 

                                                                                                 16 
parental conduct resulted in the destruction of the parent-child relationship. 

         15 
                 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A). 

         16 
                 Rick P. v. State, OCS, 109 P.3d 950, 957 (Alaska 2005) (citing G.C. v. 
State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 651-52 
(Alaska 2003)). 

                                                     -10-                                                  6536 

----------------------- Page 11-----------------------

                                                                                 17 
                 The superior court found beyond a reasonable doubt                 that Rex was a child 

in need of aid pursuant to AS 47.10.011(1) based on Ralph's and Nell's failure to visit 

Rex   for   a   seven-month   period   in   2008,   their   failure   to   make   regular   visits   between 

December 2008 and September 2009, and their failure to send any correspondence or 

pictures to Rex.   Ralph does not dispute these findings. 

                 The superior court found that this lack of visitation was not excused by the 

distance separating Ralph's and Nell's home from Rex's placement because the parents 

had "placed themselves in the position of being so far away from Rex and the department 

did make reasonable efforts in helping to provide them with gas money and opportunity 

for visits." 

                 There is substantial evidence that Ralph failed to maintain regular contact 

with Rex.   In September 2007 Ralph and Nell moved from Homer to the Mat-Su Valley 

when Rex was placed in a foster home on the Kenai Peninsula. The superior court found 

that Ralph and Nell moved to the Mat-Su Valley with "no clear benefit to the children 

or parents."      As previously mentioned, none of the children's placements were in the 

Mat-Su Valley. For therapeutic reasons, it was decided that Rex needed to remain on the 

Kenai Peninsula and that visits should occur there.                Ralph's and Nell's visits became 

infrequent and irregular despite OCS's offers of gas vouchers, airfare, and mileage to 

defray the cost. 

        17 
                 Ralph states in his brief that "[a]ppellant's brief will also explore how the 
court's order applied the incorrect standard by stating that this finding had been proven 
beyond   a   reasonable   doubt   when   the   applicable   standard   of   proof   is   by   clear   and 
convincing evidence." Ralph failed to meaningfully develop this argument, and his claim 
is waived.     We note, however, that even though AS 47.10.088(a)(1) and CINA Rule 
18(c)(1)(A)   require   the   court   to   make   a   child   in   need   of   aid   finding   by   clear   and 
convincing   evidence,   it   is   not   error   for   a   court   to   make   such   a   finding   by   a higher 
standard of proof, which is what the court did in this case. 

                                                    -11-                                              6536
 

----------------------- Page 12-----------------------

                 There   is   also   evidence   that   the   lack   of   consistent   contact   led   to   the 

destruction of the parent-child relationship.  Dr. Turner testified that if Rex had not seen 

Ralph and Nell in the previous eight months, there could be substantial risks in restarting 

visits, including exacerbating Rex's Reactive Attachment Disorder, his Oppositional 

Defiant Disorder, and an increased risk of serious psychopathology later in life.  Social 

worker Katheryne Calloway testified that due to the long time since Rex's last visit with 

his parents, she would be concerned about renewing contact, particularly because Rex 

"talked about it being difficult for him to not know what's happening, for his parents to 

come to visits and his parents to stop coming to visits." 

                 Ralph argues that he consistently visited Rex and relies on statements in the 

GAL's pre-disposition report from August 2007.  However, the superior court relied on 

the   lack   of   visitation   for   seven   months   in   2008   and   between   December   2008   and 

September 2009, not conduct prior to August 2007. 

                 Ralph also argues that his lack of visitation should have been excused 

because he was too poor to visit more often.  This argument is unconvincing in light of 

the fact that Ralph and Nell moved away from Rex to the Mat-Su Valley, and that OCS 

offered to assist the parents with gas vouchers, airfare, and mileage.  The superior court 

addressed this argument and found that the parents "placed themselves in the position of 

being so far away from Rex and the department did make reasonable efforts in helping 

to provide them with gas money and opportunity for visits." 

                 Ralph also argues that the superior court erred because he was a better 

                                                           18 
parent than the father in Jeff A.C., Jr., v. State.            As OCS noted in its brief, the facts 

        18 
                 117 P.3d 697 (Alaska 2005) (finding that father had abandoned his child 
when   he   made   no   effort   to   determine   whether   he   had   fathered   the   child,   and   once 
informed that he was the parent, expressed no desire to assume parental responsibility 
for one year thereafter). 

                                                   -12-                                                 6536 

----------------------- Page 13-----------------------

discussed inJeff A. C., Jr. do not set the minimum standard that must be reached to show 

abandonment. 

               Given this record the superior court's finding that Rex was a child in need 

                                                                    19 
of aid pursuant to AS 47.10.011(1) was not clearly erroneous. 

               2.     AS 47.10.011(6): Physical Harm 

               Under AS 47.10.011(6), a child may be in need of aid if "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 child's 

parent." The superior court found that Rex was at substantial risk of physical harm based 

on domestic violence in the family's home. 

               OCS argues that because the statutory provision looks to the risk of physical 

                                                                                          20 
harm, OCS need not wait until a child has suffered actual harm before intervening.           In 

considering whether such risk exists, the trial court may look to "the totality of the 

                    21 
State's evidence."     OCS argues that there was sufficient evidence to support the finding 

of substantial risk of harm to Rex. 

               Ralph   himself   acknowledged   his   physically   abusive   behavior.  At   the 

termination trial, Ralph testified about his own father abusing him and stated "I tried 

other things with my children and they didn't work, [so] I resorted to whippings and 

spankings."     He acknowledged that his assault on Ava, which led to OCS assuming 

custody of his children, was an act of violence.      He also testified that if OCS had not 

       19 
               OCS correctly argues that because the superior court also found that Nell 
caused Rex to be a child in need of aid and Ralph has not challenged this finding on 
appeal, AS 47.10.011(1)'s "other parent" requirement was met. 

       20 
               OCS cites Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family 
& Youth Servs., 79 P.3d 50, 54 (Alaska 2003). 

       21 
               Id. 

                                             -13-                                         6536
 

----------------------- Page 14-----------------------

removed Rex, his relationship with Rex would have been similar to Ralph's relationship 

with his own father. 

                 Ralph argues that there is no admissible evidence to support the finding that 

Rex was a victim of physical abuse. However, evidence about physical abuse of Rex was 

presented by Dr. Turner.          Ralph challenges the admission of social worker Katheryne 

Calloway's testimony about Rex's statements of physical abuse as inadmissible hearsay. 

Even if that testimony is excluded as hearsay there is still sufficient evidence to support 

the    superior    court's    finding    that  Rex    is  a   child   in   need    of  aid   pursuant     to 

AS 47.10.011(6). 

                 Given this record, the superior court's finding that Rex was a child in need 

of aid pursuant to AS 47.10.011(6) was not clearly erroneous. 

                 3.      AS 47.10.011(8): Mental Injury 

                 The   superior   court   found   that   Rex   was   a   child   in   need   of   aid   under 

AS 47.10.011(8).        The superior court did not specify which subsection of (8) it relied 

upon. 

                 Alaska Statute 47.10.011 provides: 

                 [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: 

                                                    . . . 

                 (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 

                                                   -14-                                              6536
 

----------------------- Page 15-----------------------

                                (ii)   exposure     to   conduct     by   a  household 
                                member, as defined in AS 18.66.990, against 
                                another household member that is a crime . . . ; 
                                or 

                                (iii)   repeated     exposure     to   conduct     by   a 
                                household member, as defined in AS 18.66.990, 
                                against   another   household   member   that   is   a 
                                crime . . . . 

                The superior court found that Rex suffered from "cognitive delays, limited 

self-esteem, attachment disruptions, anger and aggressive outbursts."  It also found that 

Rex was diagnosed with Reactive Attachment Disorder and severe Oppositional Defiant 

Disorder likely because of pathogenic parental care.  The superior court found that Rex 

had memories of physical abuse of himself and his siblings by his parents, and made 

findings about Ralph's pattern of abusive, aggressive, and threatening conduct. 

                Under AS 47.10.011(8)(A), a court may determine a child is a child in need 

of aid if conduct or conditions created by the parent have resulted in mental injury to the 

child.    "Mental injury" is defined as "a serious injury to the child as evidenced by an 

observable      and    substantial    impairment      in  the   child's   ability   to  function    in   a 

developmentally appropriate manner"; "the existence of that impairment is supported by 

                                                   22 
the opinion of a qualified expert witness." 

                Dr. Turner and licensed clinical social worker Pat Truesdell, Rex's therapist 

of two years, testified about Rex's inability to function in a developmentally appropriate 

manner.     Dr. Turner diagnosed Rex with Reactive Attachment Disorder, a history of 

severe neglect, and severe Oppositional Defiant Disorder. Dr. Turner was of the opinion 

that   Rex's   problems   were   related   to   neglect,   exposure   to   domestic   violence,   and 

pathogenic parenting. Truesdell also diagnosed Rex with Reactive Attachment Disorder. 

        22 
                AS 47.10.990(21) incorporating the definition found in AS 47.17.290(9). 

                                                  -15-                                               6536 

----------------------- Page 16-----------------------

Truesdell      further   noted   that   Reactive    Attachment      Disorder     usually    begins   with 

pathogenic parenting. 

                There   is   sufficient   evidence   in   the   record   to   support   a   finding   by   the 

superior court that Rex was exposed to domestic violence and that he was a child in need 

of   aid   under   AS   47.10.011(8)(A).      The   superior   court's   findings   were   not   clearly 

erroneous. 

                4.      AS 47.10.011(9):   Neglect 

                The court may find a child to be in need of aid if "conduct by or conditions 

created by the parent, guardian, or custodian have subjected the child or another child in 

                                       23 
the same household to neglect."            Neglect is further defined in AS 47.10.014: 

                For purposes of this chapter, the court may find neglect of a 
                child if the parent, guardian, or custodian fails to provide the 
                child     with   adequate     food,   clothing,    shelter,   education, 
                medical attention, or other care and control necessary for the 
                child's physical and mental health and development, though 
                financially     able   to  do   so   or  offered    financial   or  other 
                reasonable means to do so. 

The superior court found that Rex was a child in need of aid based on neglect under 

AS 47.10.011(9). 

                Ralph had stipulated to adjudication that his children had been neglected. 

On appeal, his argument is:        "Although much was made of a long history of neglect in 

this case (OCS neglected to assume custody based on reports of harm from 1992 until 

2007), there was inadequate support for a finding of neglect at the time of the termination 

trial."   Ralph did not adequately brief his argument challenging the court's finding of 

        23 
                AS 47.10.011(9). 

                                                   -16-                                               6536 

----------------------- Page 17-----------------------

          24 
neglect,     and regardless, the record provides ample evidentiary support for the superior 

court's finding of neglect. 

                 5.      AS 47.10.011(11):   Mental Illness 

                 AS 47.10.011(11) provides that a court may find a child to be in need of 

aid   if   "the   parent,   guardian,   or   custodian   has   a   mental   illness,   serious   emotional 

disturbance,   or   mental   deficiency   of   a   nature   and   duration   that   places   the   child   at 

substantial risk of physical harm or mental injury."             The superior court found Rex was 

a child in need of aid under this subsection. 

                 Ralph admits that he has a mental illness but argues that there was not 

sufficient evidence that his mental illness placed Rex at substantial risk of physical harm 

or mental injury to support the superior court's finding. 

                 Dr. Rose was of the opinion that Ralph's personality disorder would give 

Ralph a "tendency not to consider the children's needs before his own needs, and to also 

behave in a somewhat over[-]controlling or arrogant fashion.                   Parents with antisocial 

features usually are somewhat authoritarian and aggressive in their parenting style."  Dr. 

Rose opined that Ralph's personality disorder combined with Rex's Oppositional Defiant 

Disorder   would   be   a   "bad   combination,   because   it   usually   leads   to   some   explosive 

confrontations." 

                 Ralph's mental illness combined with the mental injury suffered by Rex, 

namely his Reactive Attachment Disorder and Oppositional Defiant Disorder diagnosis 

        24 
                 Due to inadequate briefing this claim has no merit.  Frank E. v. State, Dep't 
of Health & Soc. Servs., Div. of Family & Youth Servs., 77 P.3d 715, 719 n.14 (Alaska 
2003)   (quoting Martinson   v.   Arco   Alaska,   Inc.,   989   P.2d   733,   737   (Alaska   1999)) 
(concluding that a party waives appellate consideration of an issue if it is inadequately 
briefed); City of Fairbanks v. Rice, 20 P.3d 1097, 1106 (Alaska 2000) (holding that issue 
was so "sparely briefed" as to be waived). 

                                                   -17-                                              6536
 

----------------------- Page 18-----------------------

likely caused by Ralph's pathogenic parenting, supports  a conclusion that Rex is a child 

in need of aid under AS 47.10.011(11). 

                The superior court's finding that Rex was a child in need of aid pursuant to 

AS 47.10.011(11) was not clearly erroneous. 

        B.	     The Superior Court Did Not Err By Finding That The Parents Had 
                Not Remedied The Conduct Or Conditions That Made Rex A Child In 
                Need Of Aid. 

                Before a court may terminate parental rights, it must find by clear and 

convincing evidence that the parent "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 

         25 
injury."     In making this determination, "the court may consider any fact relating to the 

                               26 
best interest of the child."      Factors include, but are not limited to: (1) the likelihood of 

returning the child to the parent within a reasonable time based on the child's 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 harm will continue; 

                                                                                27 
and (5) the history of conduct or conditions created by the parent. 

                We recently clarified the standard of review for this "remedying the harmful 

conduct" determination in Barbara P. v. State, Department of Health & Social Services, 

                                     28 
Office of Children's Services.           We held that "whether the parent has remedied the 

conduct   or   conditions   .   .   .   that   place   the   child   at  substantial   risk   .   .   .   [is   a]   factual 

        25 
                AS 47.10.088(a)(2)(B). 

        26 
                AS 47.10.088(b). 

        27 
                AS 47.10.088(b)(1)-(5). 

        28 
                234 P.3d 1245, 1253 (Alaska 2010). 

                                                  -18-	                                            6536
 

----------------------- Page 19-----------------------

determination best made by a trial court after hearing witnesses and reviewing evidence, 

not [a] legal determination[] to which an appellate court should apply its independent 

              29 
judgment."        We thus review the superior court's "remedying the harmful conduct" 

                                   30 
determination for clear error. 

                The   record   contains   sufficient   evidence   to   support   the   superior   court's 

finding that Ralph had not remedied the conduct and conditions that placed Rex at 

substantial risk of harm, as well as the finding that Ralph failed to remedy within a 

reasonable time. 

                Even though Ralph attended AFS's Family Violence Intervention Program, 

he was not in compliance because he failed to pay the program fees in full, and payment 

of   such    fees  is  considered     necessary    to  demonstrate     that  a  parent    has  accepted 

accountability   for   his   behavior.     Of   greater   significance,   even   after   attending   the 

program, Ralph threatened to kill a social worker if his son was not returned to him.  This 

fact is clear evidence that Ralph had not remedied his violent conduct. 

                Dr. Rose, who reevaluated Ralph just before the termination trial, testified 

that Ralph continued to be self-absorbed, which limited his ability to be empathetic to 

Rex's needs. Dr. Rose testified that Ralph still saw little need for his behavior to change. 

Cathy Okeson, Ralph's mental health therapist, testified that Ralph did not yet accept 

responsibility for his own behavior. 

                Ralph's own testimony at the termination trial supported a finding that he 

had failed to remedy his conduct - Ralph admitted that he moved to the Mat-Su Valley 

to meet his own needs.  Ralph also blamed his continued marijuana use on others when 

he testified:  "I've been waiting for someone to tell me, you got to quit." 

        29 
                Id. 

        30 
                Id. 

                                                  -19-                                               6536 

----------------------- Page 20-----------------------

                 Ralph argues that he has substantially complied with his treatment plan. 

However, we have noted that "[c]ompliance with treatment plans does not guarantee that 

parental rights will not be terminated because it cannot guarantee that adequate parenting 

                                                               31 
skills will be acquired from the treatment regimen."               Based on the testimony discussed 

above there was sufficient evidence to find that Ralph did not benefit from treatment to 

such   an   extent   that   he   had   remedied   the   conduct   and   conditions   that   placed   Rex   at 

substantial risk of harm. 

                 The superior court did not err in finding that Ralph had not remedied the 

conduct or conditions that made Rex a child in need of aid. 

        C.	      The     Superior     Court     Did   Not    Err    By   Finding     That    OCS     Made 
                 Reasonable Efforts. 

                 Alaska Statute 47.10.086 provides: 

                 [T]he   department   shall   make   timely,   reasonable   efforts   to 
                 provide family support services to the child and to the parents 
                 or   guardian     of   the  child   that   are   designed     to  prevent 
                 out-of-home   placement   of   the   child   or   to   enable   the   safe 
                 return of the child to the family home, when appropriate, if 
                 the child is in an out-of-home placement. The department's 
                 duty    to   make    reasonable      efforts   under    this  subsection 
                 includes the duty to 

                 (1) identify family support services that will assist the parent 
                 or guardian in remedying the conduct or conditions in the 
                 home that made the child a child in need of aid; [and] 

                 (2) actively offer the parent or guardian, and refer the parent 
                 or   guardian    to,  the   services   identified    under   (1)   of  this 
                 subsection . . . . 

        31 
                 V.S.B. v. State, Dept. of Health & Social Servs., Div. of Family & Youth 
Servs., 45 P.3d 1198, 1208 (Alaska 2002). 

                                                   -20-	                                                6536 

----------------------- Page 21-----------------------

In making determinations under AS 47.10.086, the superior court's primary consideration 

                                 32 
is the child's best interests. 

                The superior court concluded that OCS made reasonable efforts to prevent 

the children's removal and, after OCS assumed custody of the children, to reunify the 

family. 

                OCS   argues   that   it   had   provided   referrals   for   Ralph   to   Public   Health, 

parenting   classes,   the   Infant   Learning   Program,   Head   Start,   mental   health   services, 

Alaska Housing Finance Corporation, and wrap-around services through the Dual Track 

program.     OCS also points out that it arranged for food donations and laundry cards, 

conducted home visits, offered to pay for repair of the family's heating system, found a 

cabin and mattresses for the family, and tried to help Ralph get a job. 

                OCS also argues that it worked with the family after assuming custody of 

the children by developing case plans that detailed child-protection issues and services 

to remedy these issues.       OCS made many referrals to help with reunification; referrals 

were made for multiple psychological assessments with Dr. Rose, to parenting classes, 

to anger management and domestic violence programs, to both individual and couples 

therapy, and to Alaska Housing Finance Corporation for assistance with housing.  Ralph 

was also referred for a drug and alcohol assessment.  OCS offered the parents assistance 

with rent. 

                OCS further argues that it tried to help with the cost of visiting the children 

by providing gas vouchers and plane tickets or offering mileage reimbursements.  OCS 

referred the children to a variety of mental health services and educational services. 

                Ralph argues that "efforts made by state agencies prior to OCS custody 

cannot support a finding of reasonable efforts for a case that began in 2007."  However, 

        32 
                AS 47.10.086(f). 

                                                  -21-                                                6536 

----------------------- Page 22-----------------------

in assessing whether reasonable efforts were made, the court considers all of OCS's 

                                                             33 
efforts, not just those within a specific time period. 

                Ralph   also   argues   that   the   superior   court   erred   because   an   OCS   social 

worker did not refer him to services to teach him how to parent Rex with his Reactive 

Attachment Disorder and Oppositional Defiant Disorder diagnoses. OCS argues that this 

would have occurred in family therapy, in which Truesdell could teach Ralph how to 

address Rex's Reactive Attachment Disorder and Oppositional Defiant Disorder.                      The 

recommendation for family therapy would have needed to come from Truesdell, who 

could evaluate its appropriateness for Rex.  However, Truesdell recommended that Rex 

not have in-person contact with his parents, which precluded family therapy after that. 

OCS social worker Katheryne Calloway testified that since Rex was not at a point where 

family therapy with Ralph and Nell was appropriate, OCS's decision not to offer this 

service was appropriate. 

                In light of this record, the superior court's finding that OCS had made 

reasonable efforts to provide family support services to Ralph is not clearly erroneous. 

        D.	     Termination   Of   Ralph's   Parental   Rights   Did   Not   Violate   His   Due 
                Process Rights Under The Alaska And United States Constitutions. 

                Ralph argues that termination of his parental rights to Rex violated Ralph's 

due process rights under the Alaska and United States Constitutions.  Ralph's argument 

is conclusory, and he cites to no authority demonstrating that any of OCS's actions 

constituted a violation of substantive due process.  While we consider this claim waived 

                                                                    34 
for inadequate briefing, we note that in Matter of T.W.R.              we stated: 

        33 
                See Erica A. v. State, Dept. of Health & Social Servs., Div. of Family & 
Youth Servs., 66 P.3d 1, 7 (Alaska 2003). 

        34 
                887 P.2d 941 (Alaska 1994) (internal citations and quotations omitted), 
overruled on other grounds by Matter of S.A., 912 P.2d 1235, 1237 (Alaska 1996)). 

                                                  -22-	                                             6536 

----------------------- Page 23-----------------------

                 [T]he private interest of a parent whose parental rights may 
                 be terminated is of the highest order. However, parental rights 
                 may be terminated where such steps are necessary to protect 
                 the welfare, health and even lives of the children. This is a 
                 situation   where   the   State's   interest   in   the   welfare   of   the 
                 children involved, outweighs the interest of the parents. The 
                 superior court found by clear and convincing evidence that 
                 despite her progress, [plaintiff] had demonstrated an inability 
                 to   care   for   her   children   which   could   not   be   cured   in   the 
                 foreseeable future or soon enough to allow her to care for her 
                 children without exposing them to a risk of abuse and neglect. 
                 In such a situation it is not arbitrary to terminate parental 
                 rights.[35] 

Accordingly, termination of parental rights does not violate due process provided, as in 

this case, that appropriate findings have been made by the superior court to support 

terminating the parent's parental rights. 

IV.     CONCLUSION 

                 We AFFIRM the superior court's findings that Rex is a child in need of aid 

pursuant   to   AS   47.10.011(1),   (6),   (8),  (9),   and   (11);   that   Ralph   did   not   remedy   the 

conduct or conditions that made Rex a child in need of aid; that OCS made reasonable 

efforts; and the order terminating Ralph's parental rights to Rex. 

        35 
                 Id. at 947. 

                                                   -23-                                                 6536 
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