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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 (7/22/2011) sp-6581

Ralph H. v. State, Dept. of Health & Social Services, Office of Children's Services (7/22/2011) sp-6581, 255 P3d 1003

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

RALPH H.,                                     ) 
                                              )       Supreme Court No. S-14012 
               Appellant,                     ) 
                                              )       Superior Court No. 3PA 07-00096 CN 
        v.                                    ) 
                                              )       O P I N I O N 
STATE OF ALASKA,                              ) 
DEPARTMENT OF HEALTH &                        ) 
SOCIAL SERVICES, OFFICE OF                    )       No. 6581 - July 22, 2011 
CHILDREN'S SERVICES,                          ) 
                                              ) 
               Appellee.                      ) 
                                              ) 

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

               Appearances:       Caitlin   Shortell,   Shortell   Gardner      LLC, 
               Anchorage,      for   Appellant.    Megan      R.  Webb,    Assistant 
               Attorney General, Anchorage, and John J. Burns, 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, Christen, 
                and Stowers, Justices. 

                STOWERS, Justice. 

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

I.      INTRODUCTION 

                In   March   2007,   after   receiving   39   protective   service   reports   involving 

allegations of abuse and neglect over the course of 15 years, the Office of Children's 

Services (OCS) removed five children from parents Ralph and Nell based on evidence 
of physical abuse, mental injury, and chronic neglect.1            OCS put the children in foster 

care and provided the parents with case plans.           In September 2007 Ralph and Nell had 

a sixth child, Faith.  After the superior court terminated parental rights to Faith's older 

brother, a separate trial was held with respect to Faith. Based on evidence of the parents' 

unremedied conduct and conditions that made Faith a child in need of aid, the superior 

court  concluded   that   it   was   in   Faith's   best   interest   to   terminate   Ralph's   and   Nell's 

parental   rights   to   her.  The   court   also   denied   Ralph's   motion   for   post-termination 

visitation privileges.     Ralph appeals the termination order and the denial of the motion 

for continued visitation; Nell does not. 

                A review of the record reveals that the superior court did not clearly err in 

finding that Ralph had not timely remedied the conduct and conditions that placed Faith 

at substantial risk of harm, did not clearly err in finding that terminating Ralph's parental 

rights was in Faith's best interest, and properly concluded that Ralph failed to show that 

ordering continued visitation after termination of parental rights was in Faith's best 

interest.   We therefore affirm. 

II.     FACTS AND PROCEEDINGS 

        A.      Facts 

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

The Office of Children's Services first became involved with the family due to reports 

of chronic neglect and physical abuse starting in 1992.             From 1997 to 2006 the family 

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

                                                  -2-                                               6581 

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

had an open file with the Department of Health and Social Services, Division of Public 
Health (the Division).2      Division personnel considered the family "high risk," and OCS 

participated with the Division to provide services to the family.3             In March 2007, after 

receiving 39 protective service reports involving allegations of abuse and neglect over 
a 15-year period4 and finding evidence of "physical abuse, mental injury, and chronic 

neglect,"5 OCS removed Ava, Bella, Daria, Emma, and Rex from their parents' care and 

filed   an   Emergency   Petition   for   Adjudication  of   Children   in   Need   of   Aid   and   for 

Temporary Custody. 

                Upon removing the children from the family home, OCS placed the children 

in foster homes throughout the state.  An OCS social worker created a case plan for the 

family,   referred   Ralph   for   drug   and   alcohol   assessment,   referred   both   parents   for 

psychological assessments to determine what other services were necessary, arranged for 
supervised visits at the OCS office, and referred the children for counseling services.6 

                On      September       18,   2007,     Ralph     and    Nell     participated     in   a 

parenting/psychological evaluation with Dr. Michael Rose.                  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 a personality disorder with 

                2       Ralph H. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 246 P.3d 916, 918 (Alaska 2011). 

                3       Id. 

                4       The protective service reports included allegations of harsh discipline 

of the children, domestic violence, and pervasive, chronic neglect including unsanitary 
living conditions, head lice, insufficient food, and excessive alcohol abuse. 

                5       Ralph H., 246 P.3d at 919.
 

                6       Id.
 

                                                  -3-                                             6581
 

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

antisocial and passive-aggressive features. Dr. Rose recommended that Ralph participate 

in individual therapy for his personality disorder, particularly as it related to abusive 

parenting; abstain from the use of controlled substances and alcohol; comply with all 

OCS treatment recommendations; participate in marital therapy with Nell; and obtain 

employment to show that he could support his family.               Dr. Rose further recommended 

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

treatment goals. 
                On September 20, 2007, Ralph's and Nell's sixth living child,7 Faith, was 

born; OCS filed an Emergency Petition for Adjudication of Child in Need of Aid on the 

day of her birth based on its prior contact with the family. 

                On September 25 OCS created an updated case plan, which required Ralph 

to obtain and maintain employment; obtain appropriate housing; successfully complete 

parenting classes at Alaska Family Services; engage in individual therapy to develop 

non-abusive parenting skills; refrain from discussing the OCS case with his children; 

refrain from physical discipline and verbal aggression toward others; and complete an 

intake   assessment   and   follow   treatment   recommendations   provided   by   the   Family 

Violence Intervention Program. 

                OCS also created a safety plan so that Faith could remain with Nell at a 

domestic violence shelter in Palmer.  Nell and Faith entered the Alaska Family Services 

shelter on September 26, 2007.  After Nell failed to pay her rent on time or at all, failed 

to attend required classes, and repeatedly missed her 5 p.m. curfew, Nell was informed 

that she needed to leave the shelter by March 27, 2008. 

                7       Ralph's and Nell's third child, Chloe, died at the age of 4 months in 

October 1994.        OCS records indicated that she may have died of SIDS, and that an 
autopsy may have been done, but there is no information in the OCS file regarding the 
autopsy results. 

                                                  -4-                                               6581 

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

                 On March 21, 2008, OCS petitioned for Faith's removal from Ralph's and 

Nell's custody because the parents continued to expose Faith to secondhand smoke after 

OCS   told   them   repeatedly   that   they   could   not   smoke   around   Faith   because   of   her 

respiratory syncytial virus bronchiolitis (RSV); Nell continually asked OCS to extend her 

5 p.m. shelter curfew and then repeatedly missed the curfew; Nell was taking Faith to an 

unlicensed daycare provider after OCS told her that Faith needed to be in a licensed 

daycare facility; and Nell had been evicted from the shelter and thus would no longer 

have the supervised environment she required to be able to care for Faith.  The petition 

for   removal   stated   that   to   establish   that   placement   or   supervision   was   no   longer 

necessary, Ralph and Nell would have to demonstrate:                   (1) "a significant period of 

stability," including stable housing, employment, and the ability to meet their own basic 

needs for shelter, food, and other daily needs, and the ability to maintain their home and 

themselves in a "sanitary, hygienic condition" for a sustained period of time; (2) the 

understanding that they must provide their children with "appropriate parental structure" 

by showing that they had the ability to respond to their children's needs and behaviors, 

that Ralph had learned to manage his anger without the use of physical violence, and that 

Nell understood the impact of physical abuse on her children and could intervene if her 

children were being exposed to violence; and (3) that they had taken "full responsibility 

for the neglect to which they [had] subjected their children" and adopted a "sustained 

commitment to change." 

                On January 25, 2008, Ralph and Nell entered a stipulation agreeing that 

Faith was a child in need of aid "for adjudication purposes" under AS 47.10.011(9) as 

                                                   -5-                                            6581
 

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a result of Ralph's and Nell's neglect of their other children.8  On April 4, 2008, the court 

authorized Faith's placement in foster care. 

                In March 2008 Faith's foster parents took partial emergency custody of 

Faith:   Faith lived with her foster parents for three or four days each week and with her 

adult half-sister the remainder of the week.            In February 2009 Faith began full-time 

placement with her foster parents. 

        B.      Proceedings 

                 On December 18, 2008, OCS filed a Petition for Termination of Parental 

Rights to Ava, Bella, Daria, Emma, Rex, and Faith, claiming that Ralph and Nell had not 
timely remedied their behaviors.9        By the time of trial, alternate permanent arrangements 

had   been   made   for   all   of   the   children   except   Rex   and   Faith. The   court   granted   a 
continuance of the trial with respect to Faith but proceeded with respect to Rex.10                  The 

superior court terminated parental rights to Rex because it found that Ralph and Nell had 

failed within a reasonable time to remedy the conduct or conditions that placed Rex at 
risk of harm; we affirmed.11 

                Trial on the petition to terminate parental rights to Faith took place on 

April 13, 14, 15, and June  8, 2010.           The superior court heard testimony from social 

worker   Anne   Holder,   psychologist   Dr.   Alfred   Collins,   OCS   visitation   supervisors 

                8       Although the record indicates that Ralph and Nell did not believe that 

Faith was a child in need of aid, Ralph concedes this issue in his brief. 

                9       For a full discussion of the court's findings regarding Ralph's and 

Nell's failure to timely remedy the behaviors and conditions that made Rex a Child in 
Need of Aid, see Ralph H. v. State, Dep't of Health & Soc. Servs., Office of Children's 
Servs., 246 P.3d 916 (Alaska 2011). 

                10      Id. at 920. 

                11      Id. at 920, 923. 

                                                   -6-                                             6581
 

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Cynthia Bergamo and Kiplynn Roundtree, Ava's foster mother, Faith's foster mother, 

OCS service specialist Raymond Edwards, Alaska Family Services case manager Heather 

Miller, clinician Catherine Okeson, and Ralph.  The court also incorporated most of the 
testimony heard during Rex's 2008 termination trial.12 

                On   September   8,   2010,   the   superior   court   issued   its   written   Findings, 

Conclusions,   and   Order   Terminating   Parental   Rights   and   Responsibilities   to   Faith, 

finding by clear and convincing evidence that:            (1) Ralph and Nell had failed to timely 

remedy the conduct or conditions that placed Faith at substantial risk of harm so that 

returning Faith to them would place Faith at substantial risk of physical or mental injury; 
and (2) termination of Ralph's parental rights was in Faith's best interest.13 

                 Ralph subsequently filed a Motion to Prohibit Cessation of Visitation, 

asking the court to order post-termination visitation with Faith.             Both OCS and Faith's 

guardian   ad   litem   (GAL)   opposed   Ralph's   motion.         After   holding   a   hearing   and 

reviewing the GAL's written response and Ralph's reply, the court denied the motion 

without prejudice because Ralph had failed to prove that ordering continued visitation 

was in Faith's best interest. 

                Ralph appeals the superior court's finding that he failed to timely remedy 

the conduct or conditions that placed Faith at substantial risk of harm, the court's finding 

                12      In its order terminating parental rights, the superior court noted that 

Ralph's and Faith's counsel objected to "certain pieces of the prior testimony," but the 
court stated that it would have made the same findings "even if the prior testimony was 
disregarded." 

                13      The court also found by clear and convincing evidence that OCS 

made reasonable efforts as required by AS 47.10.086 to reunify Ralph and Nell with 
Faith.   Ralph does not appeal this finding. 

                                                  -7-                                             6581
 

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that terminating his parental rights was in Faith's best interest, and the court's denial of 

his motion for continued visitation.  Nell has not appealed. 

III.    STANDARD OF REVIEW 

                We review a superior court's factual findings regarding termination of 
parental rights for clear error.14     The superior court's finding that a parent has failed to 

timely remedy the harmful conduct or conditions that place a child at substantial risk of 
harm,15 and the court's determination that terminating parental rights is in the child's best 

interest16 are factual determinations that we review for clear error.  We will only reverse 

factual findings under the clearly erroneous standard if, after a review of the entire record 

in the light most favorable to the party prevailing below, we are left with a definite and 
firm conviction that a mistake has been made.17 

                Whether the superior court's factual findings comport with the requirements 
of the CINA statutes is a question of law reviewed de novo.18 

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 

                14      Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & 

Youth Servs., 77 P.3d 715, 717 (Alaska 2003). 

                15      Barbara   P.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 

Children's Servs., 234 P.3d 1245, 1253 (Alaska 2010). 

                16      Dashiell   R.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 

Children's Servs., 222 P.3d 841, 850 (Alaska 2009) (citing Frank E., 77 P.3d at 717). 

                17      Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 212 P.3d 756, 761 (Alaska 2009) (internal citations omitted). 

                18      Burke P. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 66 P.3d 1, 6 (Alaska 2003). 

                                                  -8-                                             6581
 

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

is a child in need of aid, as defined in AS 47.10.011;19 (2) OCS has made "reasonable 

efforts" to reunify the child with the parent, as defined in AS 47.10.086;20 and (3) the 

parent has not remedied or has failed to timely remedy the conduct or conditions that 
placed the child at substantial risk of harm.21  The court must find by a preponderance of 

the evidence that (4) termination of parental rights is in the child's best interest.22 

               On appeal, Ralph contests the superior court's finding that he did not timely 

remedy the conduct or conditions that placed Faith at substantial risk of harm, and the 

court's finding that terminating his parental rights was in Faith's best interest. Ralph also 

argues that the superior court erred in denying his post-trial motion to prohibit cessation 

of visitation. 

       A.	     The   Superior   Court   Did   Not   Err  In   Finding   That   Ralph   Had   Not 
               Timely Remedied The Conduct That Made Faith 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 
injury."23 In making this determination, "the court may consider any fact relating to the 

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

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

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

               22     CINA Rule 18(c)(3). 

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

                                              -9-	                                        6581
 

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best interest of the child."24     Factors the court may consider 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 made 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; and (5) the history of conduct or conditions created by the 
parent.25    The   court   "need   not   accord   a   particular   weight   to   any   given   factor."26 

"[W]hether the parent has remedied the conduct or conditions . . . that place the child at 

substantial risk . . . [is a] factual 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 judgment."27 

                 The   trial   court   found   that   Ralph   and   Nell   had   made   "some   positive 

changes,"      but   that  "due    to  the  overwhelmingly         lengthy    history   and   patterns    of 

dysfunction, the changes . . . [did] not rise to the level of remedying the conduct and 

conditions within a reasonable time."  The court based its conclusion on its findings that 

Ralph   and   Nell   continued   to   place   their   needs   ahead   of   Faith's   needs,   were   "not 

functioning at a level necessary to parent" Faith, were not able to understand Faith's 

needs as a "small, needy, active child," were still in denial about the role they played in 

the harm their children had suffered, and still needed additional services. 

                 24      AS 47.10.088(b). 

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

                 26      Barbara   P.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 

Children's Servs., 234 P.3d 1245, 1263 (Alaska 2010). 

                 27      234 P.3d at 1253. 

                                                   -10-                                              6581
 

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                 Ralph argues that the court erred in its findings regarding all five factors 
outlined in AS 47.10.088(b)(1)-(5).28            Although the superior court did not specifically 

discuss AS 47.10.088(b), a review of the court's findings in light of the five factors listed 

in AS 47.10.088(b) reveals that the court's ultimate determination that Ralph had not 

timely remedied the conduct and conditions that placed Faith at substantial risk of harm 

was not clearly erroneous. 

                 Ralph   argues   that   the   trial   court   erred   in   finding   that   Faith   had   a   low 

likelihood of returning to Ralph and Nell in a reasonable period of time because the trial 

court   acknowledged   that   Ralph   and   Nell   had made   progress,   such   as   maintaining   a 

cleaner   apartment   and   showing   positive   changes   in   Ralph's   second   psychological 

evaluation.      But the superior court ultimately found that Ralph and Nell "continue to 

place their own needs ahead of the needs of their child and [were] not functioning at a 

level necessary to parent [Faith]," and that even if "progress of internalization" continued 

at an "exponential rate, it would still be a year before reunification could be safely 

                 28      Ralph also argues that the trial court erred in considering "subjective" 

evidence, such as his "thinking errors," when making its determination that he had not 
remedied the conduct and conditions that placed Faith at substantial risk, citing G.C. v. 
State,   Dep't   of   Health   &   Soc.   Servs.,   67   P.3d   648,   651-52   (Alaska   2003),   for   the 
proposition that the court may only consider objective evidence of his remedial efforts. 
The legal standard discussed in G.C. applies only to determinations of whether a parent 
has   abandoned   a   child   under   AS   47.10.011(1),   not   the   court's   "failure   to   remedy" 
determination, which, "by its very nature, requires not just an evaluation of objective 
conduct, but also broader and more subjective considerations and judgments."  Tessa M. 
v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 182 P.3d 1110, 1114- 
15 n.14 (Alaska 2008). 

                                                    -11-                                               6581
 

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considered."29     Legislative finding (5) in AS 47.05.065 indicates that children under the 

age of six must be placed in permanent homes "expeditiously": 

                 [N]umerous      studies   establish    that[:]  children     undergo     a 
                critical  attachment process  before  the   time  they   reach   six 
                years of age; [] a child who has not attached with an adult 
                caregiver  during  this  critical  stage  will      suffer   significant 
                emotional      damage        that   frequently     leads     to   chronic 
                psychological  problems  and   antisocial   behavior   when   the 
                child   reaches     adolescence     and     adulthood;     and   []  it  is 
                important to provide for an expedited placement procedure to 
                ensure that all children, especially those under the age of six 
                years, who have been removed from their homes are placed 
                in permanent homes expeditiously. 

The     superior   court's   substantiated    finding     that  reunification    could    not  be   safely 

considered for at least a year was thus an implicit finding that there was a low likelihood 

of reunification occurring within a reasonable period of time given Faith's young age and 

need for "expeditious" permanency. 

                Ralph   also   argues   that   the   superior   court   erred   by   "focusing   more   on 

subjective perceptions of [Ralph's] psyche" than on his objective efforts to remedy his 

conduct or conditions.        But the record contains numerous objective indicators that any 

                29       The   record   contains   ample   support   for   the   court's   finding   that 

reunification could not occur for at least a year.  Dr. Collins testified that reunification, 
if it occurred, "would need to be a very slow process that's monitored constantly to see 
how successful it'd be," and stated, "At this point, I think [Ralph and Nell] need a great 
deal of assistance, and I anticipate that they'll continue to need help for [some time], 
meaning years to come . . . ."  He   also noted that any progress made needed to be judged 
taking   Ralph's   low   starting   point   of   "extreme  social   maladaptation"   and   history   of 
"execrable"   parenting   into   account.       Similarly,   OCS   visitation   supervisor   Raymond 
Edwards testified that "given [Faith's] age, the history [and the] lack of acknowledging 
and recognizing the conditions of the home that existed prior . . . it would be potentially 
devastating if . . . [Faith] was returned home with the idea of reunification and OCS 
stepping away." 

                                                   -12-                                             6581
 

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

efforts Ralph made to remedy the conduct and conditions that placed Faith at risk of 

harm were "too little, too late."  Anne Holder testified that Ralph had not reentered the 

violence intervention program as of September 2009, notwithstanding OCS's request that 

he do so after displaying violence towards OCS workers:           Testimony admitted from 

Rex's termination trial revealed that after he had completed the first set of violence 

intervention classes, Ralph threatened to kill social worker Charlene Naulty if Rex wasn't 

returned to him and was escorted out of the OCS building for yelling at Naulty and 

calling her names; continued to yell and scream at foster parents; failed to demonstrate 

impulse control; and raised his voice at the GAL during a home visit with Rex.           Both 

Raymond Edwards and Ralph testified that Ralph had not yet paid the money he owed 
for his previous violence intervention program as of the time of trial.30       Ralph's own 

testimony revealed that he had made minimal efforts to obtain stable employment and 

to demonstrate that he had the ability to provide financially for his children's needs, place 

those needs above his own desires, and provide for the needs of his family rather than 
relying on others.31  Ralph's testimony also revealed that Ralph had made minimal efforts 

               30     Ralph began cutting lawns as community service to pay the balance 

he owed for his violence intervention classes just one week before Faith's termination 
trial, and indicated that he had not done community service work earlier because he had 
been "under doctor's orders for limited work," stating:  "I'm only allowed to sit for four 
hours or stand for four hours.  I can't lift anything over 10 pounds, and I'm not supposed 
to lift anything above my head."      But when the court later asked Ralph about these 
limitations, Ralph admitted that the doctor's work authorization actually states that he 
can work eight hours a day. 

               31     At the time of Faith's termination trial, Ralph was unemployed and 

had a suspended driver's license.     When asked what efforts he had made to find work, 
Ralph stated that he was going to "job service at least once or twice a month" to "surf the 
board to see what kind of cooks or cooks' helpers or jobs like that there are," and that he 
had applications "all over the Valley," including two specific prospects he hoped would 
work:   one on a houseboat in Ahtna, and one based out of Cordova and Valdez.          When 
                                                                               (continued...) 

                                             -13-                                         6581 

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

to remedy the conditions in his home that placed Faith at risk of harm from secondhand 
smoke.32    Ralph's failure to comply fully with any of the requirements of his case plan33 

thus supports the superior court's finding that Ralph's efforts were insufficient. 

                Ralph correctly argues that the trial court found that Faith "really hasn't 

suffered in a measurable amount like her siblings have . . . ." Social worker Anne Holder 

noted in her testimony that Faith is Ralph's and Nell's only child who has not yet been 

exposed to the pattern of harm that caused lifelong reactive attachment disorders in their 

                31(...continued) 

asked how he would manage Faith's care if he was hired for a job out of town, he 
asserted that he and Nell "would have to get daycare . . . [t]here's no doubt about it." 

                32      Cynthia   Bergamo,   the   OCS   visitation   supervisor,   testified   that 

visitation was moved to McDonalds because Ralph's and Nell's apartment "was very 
stuffy and smoky," which caused Faith's eyes to turn red and was especially problematic 
because   of   Faith's   RSV.    When   asked   if   he   had   remedied   the   smoke   smell   in   his 
apartment, Ralph stated that he "went and bought an air purifier" and that he keeps the 
windows open and has fans "blowing fresh air in almost constantly." Ralph also testified 
that both Ralph and Nell smoke in their car, but that "if Faith were to come home, that 
would stop immediately and [they] would clean it out top and bottom." 

                33      After Ralph's parental rights to Rex were terminated, OCS created 

an updated case plan for Ralph that required Ralph to:              (1) engage in couples therapy 
with   Nell   and   individual   therapy   aimed   at   developing   non-abusive   parenting   skills, 
problem solving skills, and coping without violence skills; (2) demonstrate the ability to 
refrain from using aggressive behavior and all forms of physical discipline and verbal 
aggression towards all people when in conflict or when facing stress and frustration; 
(3) complete another intake with the Family Violence Intervention Program, follow 
treatment recommendations, and pay the balance he owed for his previous participation 
in the program; (4) maintain stable employment, and demonstrate that he has the ability 
to provide for his children's needs and place those needs above his own desires by 
honoring his financial obligations and providing for his family's needs rather than relying 
on government or private organizations or individuals; and (5) pass random urinalysis 
tests.   Testimony at Faith's termination trial revealed that Ralph had not fully complied 
with any of these requirements. 

                                                 -14-                                            6581
 

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

older children.   But Ralph fails to acknowledge that he has not yet had an opportunity to 

parent Faith because she was removed from his custody immediately upon birth and had 

been out of Nell's custody for 80% of her life at the time of her termination trial.                 The 

superior court's analysis therefore properly focused on Ralph's and Nell's history of 

abuse   and   neglect   and   the   likelihood   that   the   pattern   of   abuse   and   neglect   would 

continue, rather than harm already suffered. 

                Alaska Statute 47.10.088(b)(5) specifically authorizes the court to consider 

"the   history   of   conduct   by   or   conditions   created   by   the   parent"   when   making   its 

determination about whether a parent has remedied his conduct, and we have directed 

trial courts to consider the totality of the State's evidence in assessing the risk of future 
harm to children.34    Testimony from Faith's termination trial and testimony adopted from 

Rex's termination trial combined reveal that Ralph and Nell have an extensive history 
of physical and mental abuse and neglect of their children that dates back to 1992.35 

                In   addition,   several  witnesses  testified  that  Ralph's  apparent  failure   to 

internalize his treatment and accept responsibility for the harm he caused to his older 

children made it very likely that Ralph would continue his past pattern of abuse and 
neglect if Faith was returned to his custody.36             Although Ralph testified that he had 

                34      Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family & 

Youth Servs., 79 P.3d 50, 54 (Alaska 2003). 

                35      See Ralph H. v. State, Dep't of Health & Soc. Servs., 246 P.3d 916, 

918-20 (Alaska 2011).         At Faith's termination trial, Holder also testified that " 'a clear 
and definite pattern' of behavior" extended back to 1993, in which Ralph and Nell would 
"rise to the challenge" of parenting while receiving an array of services from OCS, but 
once the services were no longer in place, Ralph and Nell "were not able to sustain the 
changes" they made. 

                36      Holder noted that Ralph had yet to complete critical elements of his 

case plan, stated that she had "no reason to believe that [Ralph had] internalized any of 
                                                                                          (continued...) 

                                                  -15-                                                6581 

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

accepted   responsibility   for   the   harm   he   caused   his   children,37  both   Dr.   Collins   and 

Ralph's mental health therapist, Cathy Okeson, testified that Ralph had neither accepted 
responsibility for the harm nor internalized the treatment he had received.38 

                36(...continued) 

the need for change," and expressed concern that Faith would be exposed to her parents' 
"significant harmful parenting patterns" if services ended after reunification.  Similarly, 
Dr. Collins stated that Ralph's and Nell's "track record" was "very consistent," "goes on 
for a very long time," and was supported by Dr. Rose's findings that both Ralph and Nell 
have personality disorders that cause "long-standing patterns of behavior that are, by 
their very nature, extremely resistant to change."  Dr. Collins concluded that Ralph had 
still   not   taken   responsibility   for   the   actions   that   led   to   his   children's   removal,   and 
explained why doing so was essential to Ralph's ability to care for Faith:                 "[I]f [Ralph 
doesn't] understand why it happened in the first place, [he's] not likely to change the 
behavior that caused it to happen."   When asked what he thought would happen if Faith 
was    released    to  Ralph    and   Nell  without    supervision     and   oversight    by  the   court, 
Dr. Collins stated:   "I think it's likely that they would fall into the same pattern of abuse 
and neglect that they were in before.  Perhaps not as bad, though." 

                37       On June 8, 2010, Ralph testified that his five older children were 

removed by OCS because he "was a lousy parent [who] was neglectful [and] verbally and 
physically abusive," and that Faith was removed out of fear that he hadn't changed.  He 
stated that he had changed the way he addresses people and how he expresses his feelings 
after he "went to parenting classes [and] Family Violence Intervention class," which 
made him "see just how much [he] hurt [his] children," noting that he had completed 
these classes two years prior to Faith's termination trial.             Ralph also testified that he 
decided to "change" because he knew if he didn't change "there was no possibility for 
[his] children to ever come home," that he recognized that he "was bitter [and] blamed 
everybody else for [his] problems except the person who was really to blame, and that 
was [himself]," and that he had "taken responsibility for [his] actions." 

                38      Dr. Collins concluded after his February 2010 evaluation of Ralph 

that Ralph seemed unable to take responsibility for the loss of his children, and that he 
blamed Faith's foster parents and OCS for the loss of Faith.                  Dr. Collins ultimately 
concluded that the improvements shown by Ralph and Nell were "significant but not 
internalized," explaining: 
                                                                                         (continued...) 

                                                  -16-                                                6581 

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

                 Thus, given the extensive testimony offered regarding the low likelihood 

of reunification occurring within a year, Ralph's minimal efforts to remedy the conduct 

and conditions that placed his children at risk of harm, Ralph's history of abusing and 

neglecting his older children, Ralph's inability to accept responsibility for the harm he 

caused to his older children, and Ralph's failure to internalize the treatment he had 

received,  the  superior  court's  determination  that  Ralph  failed to  timely  remedy  the 

conduct and conditions that placed  Faith  at substantial risk  of harm was not  clearly 

             39 
erroneous. 

                 38(...continued) 

                 [Ralph and Nell] must still rely on outside sources of support 
                 for their developing parenting skills and would be unable to 
                 sustain their gains without ongoing therapy and other support. 
                 . . . The progress is moderate at this point, but falls far short 
                 of compelling evidence of capability to parent a two year old 
                 child. 

Similarly, therapist Okeson testified that notes from her sessions with Ralph stated that: 
in June and July 2009 Ralph was "not taking full responsibility" for what happened with 
his    children   and   hadn't    internalized    what    he   and   Okeson     were   "processing";      in 
October 2009 Ralph was angry, resentful, "continuing to play the victim," and "didn't 
understand about his relationship with his daughters"; in November 2009 Ralph wasn't 
able to understand why two of his children would not want to return to his care, stated 
that the children would be "dead to him" if they changed their names after being adopted, 
and   was   not   taking   responsibility   for   his   actions;   and   in   January   2010   Ralph   was 
"derogatory and aggressive" towards his eldest daughter but "felt that he dealt with [her] 
just fine," and continued to "play the victim ." Okeson identified Ralph's views about his 
children as "thinking errors," and stated that she believed Ralph would need to continue 
therapy for "a minimum of . . . another 6 months to a year." 

                 39      Cf. Tessa M. v. State, Dep't of Health & Soc. Servs., 182 P.3d 1110, 

 1116 (Alaska 2008) (mother's acknowledgment that her child had been abused until "just 
before trial," two years after OCS created a case plan, supported the finding that mother 
had not remedied her conduct and that her child would be at substantial risk of harm if 
returned to her). 

                                                   -17-                                              6581
 

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

        B.	      The Superior Court Did Not Err In Finding That Terminating Ralph's 
                 Parental Rights Was In Faith's Best Interest. 

                 Before     terminating     parental    rights,  a  superior     court   must   find   by   a 
preponderance of the evidence that termination is in the child's best interest;40 the court's 

determination is reviewed for clear error.41         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 ruling.42 

                 The superior court found by clear and convincing evidence that terminating 

Ralph's parental rights was in Faith's best interest. In making its determination, the court 

balanced both "the harm to Faith in terminating versus not terminating the parental 

rights," as well as "the harm to Faith in terminating the bond with Ralph and Nell versus 

terminating the bond with [her foster parents]."             The court concluded that "the balance 

on both accounts" weighed in favor of finding that terminating parental rights to Faith 

was   in   Faith's   best   interest.    The   court   relied   specifically   upon   its   findings   that: 

terminating parental rights to Faith would prevent Faith from suffering the harm that had 

been caused to her siblings; Faith's primary bond was with her foster parents; Faith's 

foster mother seemed "sincere in her desire to foster any relationships that would be 

healthy for Faith"; Faith had a "blood sibling"(sister Emma) in her foster home; Faith had 

been in foster care for more than 80% of her life; and there was no evidence that "further 

delay of the termination proceedings would result in [Ralph and Nell] following through 

                 40      Dashiell   R.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 

Children's   Servs.,   222   P.3d   841,   850   (Alaska   2009)   (citing   CINA   Rule   18(c)(3); 
AS 47.10.088(c)). 

                 41	     Id. 

                 42      Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 175 P.3d 1263, 1267 (Alaska 2008). 

                                                    -18-	                                             6581
 

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

with the case plan at a level that would result in reunification" such that a delay would 

be beneficial. 

                Ralph argues that the superior court erred in finding that the "balance on 

both accounts" favored terminating parental rights.            Specifically, Ralph argues that "it 

was patently impossible for [Faith's] bond with her biological parents to be stronger than 

her bond with the foster parents" because of the "early removal" of Faith from Ralph's 

and Nell's home, and that the superior court "gave insufficient weight to the evidence of 

Ralph's progress and the bond between Ralph and Faith."                 Ralph also argues that the 

superior   court   "misconstrued   [Ralph's]   mettle   in   testifying   on   his   own   behalf"   as 

"thinking errors," and he asks us to conduct an independent review of the record to 

determine whether the superior court's findings satisfy the CINA statute and rules. 

                Ralph concedes that it is appropriate for a trial court to consider a child's 
bond with foster parents in making the best interest finding,43 and that it is in the trial 

court's discretion as to how to weigh the evidence of the parental bond.                     Although 

Dr. Collins noted that there was an attachment between Ralph and Nell and Faith, he 

ultimately concluded that Faith's primary attachment was with her foster parents.                   He 

also testified that taking Faith away from her foster parents "at this point . . . could 

definitely cause problems for her later on since they are her primary attachment figures 

right now . . . [because Faith] has been with [her foster parents] since the age of six 

months."     When asked whether severing the bond with Ralph and Nell or severing the 

bond with Faith's foster parents would result in more harm, Dr. Collins stated that, 

though "severing [the bond with] either one of them would be traumatic for [Faith]," 

"[p]robably severing the relationship with the [foster parents] would be more so." 

                The trial court may also consider a child's need for permanency at the time 

                43      See M.W. v. State, Dep't of Health & Soc. Servs., 20 P.3d 1141, 1147 

(Alaska 2001). 

                                                  -19-                                              6581 

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

of the termination trial when making its best interest determination.44                    As discussed 

above,45 the legislature has recognized that children under six can suffer "significant 

emotional damage"46  if they do not have permanency in their lives.  Holder emphasized 

Faith's need for permanency given her young age and the length of time she had been out 

of her parents' care, noting that Faith had been living with her foster parents for almost 

two years at the time of trial, had formed a bond with her foster parents, and had learned 

her foster parents' structure and routines.  Holder noted specifically that "the child's best 

interest, indeed, is to achieve permanency within a relatively short period of time in the 

life of the case" and concluded that she "would be gravely concerned about changing 

[Faith's] environment and family home at this point."                 Similarly, Raymond Edwards 

testified that "children need permanency, particularly . . . small children.  It is absolutely 

critical for their development. . . . [Faith is] doing well [with her foster parents].  I don't 

believe [Ralph and Nell] would be able to provide her with a safe environment [that] 

would meet her needs for the next . . . 16, 18, 20 years." 

                 Although Ralph correctly notes that both the amount of time that Faith has 

been   with   her   foster   parents   and   the   bond   Faith   has   formed   with   her   foster   parents 

resulted from OCS's removal of Faith from Ralph's custody shortly after her birth, Ralph 

fails to acknowledge that the reason for Faith's removal was Ralph's history of abusing 

and neglecting his older children. Ralph's argument that the trial court failed to consider 

his "determination and capability to change" is also unpersuasive; the superior court 

                 44      See Dashiell R., 222 P.3d at 850-51 (holding that trial court's finding 

that children were in immediate need of a "permanent, stable relationship" was sufficient 
to support trial court's finding that termination of parental rights was in children's best 
interest). 

                 45      See supra  Part IV.A.1. 

                 46      AS 47.05.065. 

                                                   -20-                                              6581
 

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

found   specifically   that   "there   is   no   evidence   that   further   delay   of   the   termination 

proceedings would result in Ralph following through with the case plan at a level that 

would result in reunification, so that a delay would not be beneficial to the child," and 
this finding was amply supported by the record.47 

                Because the superior court properly considered evidence of the bond Faith 

had with her foster parents and Faith's need for permanency, and because the record 

provides     ample     support    for  the   superior    court's   findings,    the   superior    court's 

determination that terminating Ralph's parental rights was in Faith's best interest was not 

clearly erroneous. 

        C.	     The Superior Court Did Not Err When It Declined To Grant Ralph 
                Post-Termination Visitation Privileges With Faith. 

                Finally, Ralph appeals the superior court's denial of his post-trial motion 

to prohibit cessation of visitation, arguing that testimony from Faith's termination trial 

indicated that continuing visitation would be in Faith's best interest. Specifically, Ralph 

notes that Heather Miller testified about one visit when Ralph and Nell "handled the 

situation as best as any parent could" after Faith indicated that she did not want the visit 

to end, and that Dr. Collins testified that it would be detrimental for Faith's bond with 

her parents to be severed and in Faith's best interest to continue that relationship. 

                After holding a hearing on the motion, the superior court denied Ralph's 

motion without prejudice, finding that Ralph had failed to prove that ordering continued 

visitation after Ralph's parental rights had been terminated was in Faith's best interest. 

                47      The extensive evidence offered attrial regarding Ralph's long history 

of abusing and neglecting his children, OCS's repeated attempts to assist Ralph, and 
Ralph's   only   recent,   minimal,   and   insufficient   attempts   to   change   the   behavior   and 
conditions that rendered all six of his children "in need of aid" supports the superior 
court's finding that continuing to wait for Ralph to complete his case plan nearly two 
decades after a case plan was first established for him was not in Faith's best interest. 
See supra Part IV.A. 

                                                  -21-	                                            6581
 

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

At the hearing, the superior court specifically noted that neither party had presented 

additional evidence regarding whether ordering continued visitation between Faith and 

Ralph was in Faith's best interest and concluded that, although it was not finding that it 

was not in Faith's best interest to have continued contact with her parents, Ralph had not 

met his burden of proving "by a preponderance of the evidence" that it was "more to 

[Faith's] benefit to . . . order [continued contact with Ralph] than not."  We agree. 

                After a trial court terminates parental rights, the parent retains no residual 
parental rights to the child.48    Although there is no CINA statute that expressly grants the 

superior court the authority to order post-termination visitation,49 we have not foreclosed 

the   possibility   that   the   superior   court   could   authorize   post-termination   visitation   in 
"extraordinary circumstances."50         In such circumstances, post-termination visitation will 

only be permitted "to the extent that the authorized visitation is in the best interest of the 
child."51 

                In Burke P., we concluded that the trial court did not err when it declined 
to find extraordinary circumstances supporting post-termination visitation.52                   The trial 

court in that case based its decision on testimony from the GAL that the children "needed 

                48       C.W. v. State, Dep't of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 

2001). 

                49       Ralph argues that "there is a provision allowing post-relinquishment 

visitation    under     AS   47.10.089(d)-(j),"       but  AS    47.10.089      deals   with    voluntary 
relinquishment of parental rights, not involuntary termination of parental rights, and thus 
is not applicable in this case. 

                50      Burke P. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 162 P.3d 1239, 1248 (Alaska 2007). 

                51       C.W., 23 P.3d at 58. 

                52       162 P.3d at 1248. 

                                                   -22-                                             6581
 

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

permanency in their lives," evidence that the children had been placed in foster homes 

that   expected     to  adopt   them,   and   evidence    that   the  father   was   in  an  adversarial 

relationship with the prospective adoptive families, which "could clearly interrupt the 
children's sense of permanency with [their foster] families."53  We concluded that it was 

therefore "unlikely that such visitation would have been in the children's best interest."54 

                Similarly, the record in this case reveals that Faith needs permanency in her 

life, that Faith has been placed with a foster family that intends to adopt her, and that 

Ralph   has   expressed   feelings   of  animosity   towards   OCS   workers   and   Faith's   foster 

parents. As discussed above, Anne Holder, Raymond Edwards, and Dr. Collins testified 
to the need for permanency in Faith's life, especially given her young age,55 and Faith 

had lived for over two years part-time and over one year full-time at the time of trial with 

a foster family that planned to adopt her.  Dr. Collins's testimony at Faith's termination 

trial also indicated that Ralph blamed Faith's foster parents and OCS for Faith's removal, 

and testimony adopted from Rex's termination trial revealed that Ralph's relationship 

with OCS workers and his older children's foster parents had become adversarial and 

hostile after OCS petitioned for removal of the children, indicating that Ralph's feelings 

of   animosity   towards   Faith's   foster   parents   could   result   in   a   similarly   adversarial 

relationship if the court ordered continued visitation. 

                In addition, the record contains conflicting testimony regarding the impact 

that continued visitation with Ralph would have on Faith.               As the superior court noted 

at the motion hearing, Dr. Collins testified that "[i]t would be better not to have either 

[Faith's    foster   parents'    or  Ralph's    and   Nell's]    relationships    [with   Faith]   totally 

                53      Id. 

                54      Id. 

                55      See supra Part IV.B. 

                                                  -23-                                                6581 

----------------------- Page 24-----------------------

terminated" because "there is definitely a [warm] bond between [Ralph and Nell and 

Faith] . . . ," and Heather Miller, the case manager who supervised visitations with Faith, 

testified that Faith had indicated that she did not want to leave at the end of some visits 

with Ralph and Nell. But OCS visitation supervisor Cynthia Bergamo and Faith's foster 

mother both testified that Faith had exhibited signs that visitation sessions with her 

parents had recently begun to cause her distress:             Bergamo described one incident in 

which "[Faith] was crying [and] saying no, she didn't want to leave the foster parent, she 

didn't want to get in the vehicle" prior to a visit,  and Faith's foster mother testified that 

Faith had recently begun to bite herself, pull her hair, rip her clothes off, and make 

"blood-curdling screams" on parent visitation days.  Her foster mother also testified that 

Faith had begun to throw "20-minute tantrums," have nightmares that were "horrific, to 

the point of [making Faith] unconsolable" before visitation days, and that Faith would 

say "they don't like me" when asked why she didn't want to go see Ralph and Nell. 

Thus, although some evidence presented at trial supported a finding that continuing 

visitation might be beneficial to Faith, other evidence suggested that continuing visitation 

with Ralph could actually be harmful to Faith. 

                Because termination of parental rights results in automatic cessation of 

visitation and the record before the superior court did not clearly show that continuing 

visitation would be in Faith's best interest, we conclude that the superior court did not 

err   in   determining   that   Ralph   failed   to   meet  his   burden   of   showing   that   continued 
visitation was in Faith's best interest.56 

                56      We also note that Ralph failed to renew his motion for continued 

visitation after his initial motion was denied without prejudice.  As OCS points out, 
because the motion was denied without prejudice, Ralph could have renewed his motion 
and presented new evidence in an attempt to establish that continued visitation was in 
Faith's best interest.     Ralph argues that he had "no viable way to present evidence of 
                                                                                         (continued...) 

                                                  -24-                                               6581 

----------------------- Page 25-----------------------

V.      CONCLUSION 

               For the foregoing reasons, we AFFIRM the superior court's findings that 

Ralph failed to timely remedy the conduct or conditions that placed Faith at serious risk 

of harm and that termination of parental rights was in Faith's best interest, the superior 

court's order terminating Ralph's parental rights to Faith, and the superior court's denial 

of Ralph's motion to prohibit cessation of visitation. 

(...continued) 
extraordinary circumstances" because "there was no way for [Ralph]to showthat [Faith] 
missed him if he was no longer provided visits with her, and the witness who would 
testify to that was the foster parent who wanted to adopt her and would thus have no 
motivation to be forthcoming," and that "OCS,not [Ralph],was the only party positioned 
to offer" new evidence to establish the existence of extraordinary circumstances.  But the 
superior court made clear that Ralph could have offered additional testimony from Dr. 
Collins,  Mr.   Edwards,    or  any   trained   social  worker,  psychiatrist,   or  psychologist 
regarding  the  benefits  of  continued  visitation  for  children  after  parental  rights   are 
terminated, or he could have called Faith's foster mother to testify about Faith's recent 
behavior.  Such evidence was not solely in OCS's possession and Ralph did not need 
access to Faith in order to present such evidence. 

                                               -25-                                           6581 
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