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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sarah G. v. State, Dept. of Health & Social Services, Office of Children's Services (12/2/2011) sp-6621

Sarah G. v. State, Dept. of Health & Social Services, Office of Children's Services (12/2/2011) sp-6621

        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 

SARAH G.,                                     ) 
                                              )       Supreme Court No. S-14150 
                       Appellant,             ) 
                                              )       Superior Court Nos. 
        v.                                    )       3PA-10-00012/13/14/15 CN 
                                              ) 
STATE OF ALASKA,                              )       O P I N I O N 
DEPARTMENT OF HEALTH &                        ) 
 
SOCIAL SERVICES, OFFICE OF                    )       No. 6621 - December 2, 2011
 
CHILDREN'S SERVICES,                          )
 
                                              ) 
                       Appellee.              ) 
                                              ) 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial District, Palmer, Gregory Heath, Judge. 

               Appearances:        Olena    Kalytiak    Davis,    Anchorage,      for 
               Appellant.     Joanne M. Grace, Assistant Attorney General, 
               Anchorage, and John J. Burns, Attorney General, Juneau, for 
               Appellee. 

               Before:  Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
               and Stowers, Justices. 

               CARPENETI, Chief Justice. 

I.       INTRODUCTION 

               Four children were removed from their parents' care based on domestic 

abuse in the parents' relationship.      The parents later divorced and the mother was able 

to regain custody, but thereafter she entered into another abusive relationship.           Two of 

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her sons physically intervened in one violent confrontation between the mother and her 

new partner and notified the police of the abuse.  The State took the boys and their two 

younger siblings into temporary custody.            Their mother appeals the superior court's 

finding that all four children were children in need of aid under AS 47.10.011(8), (10), 

and (11), and that the two eldest children were also in need of aid under AS 27.10.011(4) 

and (6).   Because we conclude that continued exposure to domestic violence placed the 

children at substantial risk of injury, we affirm the superior court's   finding that the 

children are children in need of aid. 

II.     FACTS AND PROCEEDINGS 

                Sarah is the biological mother of Wes (age 19), Marco (age 15), Dustin (age 
11), and Skyla (age 9).1     The children are Indian children under the Indian Child Welfare 

Act (ICWA).2      Their biological father, Wilson, was married to Sarah for eight years and 

in   a   relationship   with   her   for   over   15   years. Throughout   the   couple's   relationship, 

Wilson   abused   Sarah   and   the   children,   and   was   convicted   on   several   occasions   of 
assaulting Sarah.3   Sarah has bipolar disorder, which causes mood swings, and she can 

become violent towards Wilson if her disorder is not controlled by medication.   She has 

been taking medication for her disorder since 2004.               Wilson testified that Sarah has 

struggled with substance abuse, which brought out similarly violent behavior towards 

Wilson. 

        1       In order to protect the privacy of the parties, we use pseudonyms. 

        2       25 U.S.C.  1903. 

        3       For a detailed history of the relationship between Sarah and Wilson see 

Wilson W. v. State of Alaska, Dep't of Health & Soc. Servs., Office of Children's Servs., 
185 P.3d 94, 96 (Alaska 2008). 

                                                  -2-                                            6621
 

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                In October 2006, the Office of Children's Services (OCS) removed the 

children from Sarah and Wilson's care because the "ongoing pattern of physical assaults 

against [Sarah]" put the children at risk.         The superior court granted OCS temporary 

custody,     and   in  Spring   2007   found    that  the  children   were    in  need   of  aid  under 
AS 47.10.011(8) and AS 47.10.011(9).4 

                In June 2009, the children were returned to Sarah's custody.                 Near that 

time, Sarah and Wilson divorced and Sarah obtained a restraining order against Wilson. 

At some point, Sarah began a relationship with Frank.  After the children returned home, 

OCS received several reports of harm, all of them involving drinking. 

                Full OCS involvement resumed in February 2010, based on two reports. 

First, OCS received a report in which Dustin stated, "my mom's boyfriend always hits 

me, and he almost killed my mom."  Later that same month, Alaska State Troopers went 

to   Sarah's   home   in   response   to   a   911   call   from   Wes   reporting   "big   time   domestic 

violence."     That   night,   Sarah,   Frank,   Wes,   and   Marco   were   involved   in   a   physical 

altercation during which Frank assaulted Sarah. Wes and Marco retaliated against Frank, 

and both Wes and Marco were injured.             The boys tried to call 911, but Sarah knocked 

the phone out of their hands.         Eventually Wes was able to call for help.            The police 

arrested Sarah, Wes, and Marco. 

                OCS then filed an emergency petition for temporary custody.                According 

to the petition, the children reported that they did not feel safe at home and that Frank 

had assaulted Sarah on multiple occasions.            They also said that Frank often punched 

Marco and had choked him on multiple occasions. The children reported being spanked 

with belts by both Sarah and Frank, leaving bruises and marks.   Sarah was bruised and 

discolored on much of her face, which she attributed to falling on a casserole dish after 

        4       Id. at 99.  We affirmed the superior court's findings.  Id. at 96. 

                                                  -3-                                               6621 

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struggling with Marco, as well as falling down and hitting her cheek with her knee the 

previous week. 

        A.      The Children's Placements Following OCS Custody 

                After OCS assumed custody, all of the children required extraordinary care. 

After release from the Mat-Su Youth Facility, Marco was placed in a foster home and 

Wes was placed at the Dorothy Saxton Youth Shelter.                 Wes ran away from the Youth 

Shelter and upon return to OCS custody was placed in the same foster home as Marco. 

Wes started substance abuse treatment and was doing "pretty well" in the foster home at 

the time of trial.   Marco exhibited some "behavioral issues" at the foster home and was 

placed in Dorothy Saxton for a few days, but since then had become "pretty stable." OCS 

first placed Skyla in a foster home but she was admitted to North Star Hospital after she 

exhibited "out of control behavior."         She was then moved to a therapeutic foster home 

where she had been fairly stable at the time of trial.  Dustin was diagnosed with a variety 

of significant mental disorders and was admitted to North Star Hospital.                 He was then 

transferred   to   a   residential   facility   in   Fairbanks   but   after   exhibiting   aggressive   and 

sometimes violent behavior he was readmitted to North Star Hospital. 

        B.      Superior Court Hearings 

                On five separate days between June 4, 2010, and November 19, 2010, the 
superior court conducted hearings on whether the children were in need of aid.5              The court 

        5       All parties have an interest in speedy resolution of CINA cases.               That it 

took over five months to complete a five-day evidentiary hearing on   adjudication is 
extremely      troubling.   Although     multiple   continuances     were    caused   by   scheduling 
conflicts and both Sarah's and Wilson's failure to personally attend trial on days they 
were scheduled to testify, both courts and practitioners must be vigilant in ensuring a 
speedy resolution of CINA cases because children's time-sensitive interests are at stake. 
CINA   trial   courts   that   experience   frequent   episodes   of   drawn-out   adjudication   and 
termination hearings must re-examine their scheduling practices. 

                                                  -4-                                            6621
 

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heard testimony from OCS staff; Sarah; her ex-husband, Wilson; her eldest son, Wes; and 

expert testimony from the Director of Domestic Violence Programs at Alaska Family 

Services.    At the conclusion of the hearings, the superior court found all four children 

were in need of aid under AS 47.10.011(8) (mental injury), (10) (substance abuse), and 

(11) (parent's mental illness).       The superior court also found that Wes and Marco were 

in need of aid under subsections (4) (failure   to   provide treatment) and (6) (failure to 

supervise).  Sarah appeals, arguing that her children are not children in need of aid under 

any subsection. 

III.	   STANDARD OF REVIEW 

                In a child in need of aid case we review the superior court's factual findings 
for clear error.6   We will reverse only if left with "a definite and firm conviction that a 

mistake has been made."7 

IV.	    DISCUSSION 

        A.	     The   Superior   Court   Did   Not   Err   In   Adjudicating   The   Children   As 
                Children In Need Of Aid Under AS 47.10.011(8)(B)(ii). 

                Under AS 47.10.011(8)(B)(ii), the court may find a child to be a child in 

need of aid if it finds, by a preponderance of the evidence, that "conduct by or conditions 

created by the parent, guardian, or custodian have . . . placed the child at substantial risk 

of mental injury as a result of . . . exposure to conduct by a household member . . . against 

another     household     member      that  is  a  crime."      The    superior   court   found    "by    a 

preponderance   of   the   evidence   that   [Sarah]   has   a   continued   tendency   to   enter   into 

physically   abusive   relationships,   creating   a   substantial   risk   of   mental   injury   for   her 

children."    The superior court cited Sarah's own testimony that all four children suffer 

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

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

        7       Id. 

                                                   -5-                                             6621 

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from post-traumatic stress disorder   from her abusive relationship with the children's 

father, and expert testimony about the detrimental impact of witnessing domestic violence 

on children's brains.  Though Sarah and Wes testified that domestic violence was not an 

issue in the home, the superior court found that this testimony was not credible based on 

evidence that both Sarah and the children had injuries indicating domestic violence. 

                Sarah   disputes   the   superior   court's   findings   on   two   grounds.   First,   she 

argues that no evidence supports the finding that she has a "continued tendency" to enter 

physically abusive relationships.         While acknowledging that she followed her abusive 

marriage to Wilson with a "troubled relationship" with Frank, Sarah claims that this does 

not show a tendency toward entering abusive relationships.   She argues that the superior 

court's holding compels the conclusion that any woman who fails to sever all contact with 

an abusive partner at the first sign of violence would show a "continued tendency" to 

enter abusive relationships. 

                The     State  counters    that  ample    evidence     supports    the  superior   court's 

findings that Sarah was unwilling to admit that violence was an issue in her home, that 

the   danger   of   domestic   violence   had   not   necessarily   passed   as   Sarah   has   aggressive 

tendencies, and that Sarah's relationship with Frank supports a finding that Sarah has a 

"continued inability to notice and address developing domestic violence situations." 

                We   are persuaded by the State's argument. Though Sarah claims that a 

succession of two bad relationships does not constitute a "continued tendency" toward 

abusive   relationships,   no   evidence   at   trial   supported   a   finding   that   Sarah   has   ever 

successfully had a non-violent relationship.  Importantly, the children's entire lives have 

been lived in the shadow of their mother's abusive relationships.                 The record contains 

clear support for the superior   court's finding that Sarah had a tendency to enter and 

remain in abusive relationships. 

                                                    -6-                                             6621
 

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                Second, Sarah argues that no evidence at trial showed that her relationships 

created a "substantial risk of mental injury" to her children.             She claims that testimony 

about the detrimental impact of domestic violence on children's brains lacked specific facts 

about these children and was therefore not credible.             Sarah argues that her relationship 

with Frank and recent domestic violence incidents are "moot" because the relationship is 
over and Frank has moved out of the state.8 

                The State counters that termination of a relationship does not render the issue 

moot - a trial court should look at the totality of the evidence when determining whether 

a child is in danger of harm.       The State also argues that all the children are "particularly 

vulnerable to mental injury from exposure to domestic violence," as evidenced by their 

mental health issues and "continuing struggles in state custody." 

                We find the State's argument persuasive.            First, Sarah's argument that her 

relationship   with   Frank   is   now   moot   has   no   merit. In   the   context   of   termination   of 

parental rights proceedings, which first require a CINA finding, we have said that the court 
"may consider . . . evidence of parental conduct predating the CINA adjudication."9                  The 

same reasoning applies here.        Though Sarah tries to diminish the importance of her past, 

it does not become irrelevant simply because her relationships with Wilson and Frank are 

over. 

                Sarah's claim that there was no evidence that her relationships created a 

substantial risk of injury to her children also lacks merit.         Domestic violence was clearly 

        8       As to Wilson, Sarah acknowledges that AS 47.10.011 permits the court to 

look at past conduct or conditions, but argues that her relationship with Wilson should 
not determine whether the children are in need of aid in the present. 

        9       Danielle A. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 215 P.3d 349, 354-55 (Alaska 2009) (quoting A.H. v. State, Dep't of Health & 
Soc. Servs., 10 P.3d 1156, 1161 (Alaska 2000)) (internal quotation marks omitted). 

                                                   -7-                                            6621
 

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a problem in Sarah's home, featuring prominently in both her marriage to Wilson and her 

relationship with Frank.       Her failure to acknowledge it magnifies the possibility of its 

recurrence.    In the domestic violence context, we have held that the mere witnessing of 
domestic violence is damaging to children.10         Because of this, we have found that domestic 

violence in the home, even if not committed against the children, poses a high risk of 
mental injury.11    OCS presented extensive testimony on the emotional and mental effects 

of domestic violence on children.         It is abundantly clear that domestic violence poses a 

significant risk to children who are present in the home. 

                Further, there was evidence not only that   the children were at risk of harm, 

but that they had actually suffered harm. Sarah's own testimony indicated that the children 

suffered     from   PTSD     and   required    intensive   therapy.    Testimony       from   OCS     staff 

throughout the hearings highlighted the children's struggles in OCS custody, indicating 

the damage caused by their exposure to violence in the home. 

                Both     Sarah's    tendency     to  enter   violent   relationships    and   that   those 

relationships create a risk of mental injury to her children are supported by the record.  We 

affirm the superior court's findings on these grounds. 

        B.	     Because We Affirm The Superior Court's Finding That The Children 
                Were In Need Of Aid Under AS 47.10.011(8)(B)(ii) We Do Not Reach 
                Sarah's Other Claims Of Error. 

        10      See A.H., 10 P.3d at 1161-62 (citing In re J.A., 962 P.2d 173, 178 (Alaska 

1998)).     ("[W]e    have   recognized    that  because    witnessing    domestic     violence   has   a 
'devastating impact' on children, domestic violence need not be directed toward the child 
or signify a significant risk of physical harm to a child to support a CINA finding."). 

        11      See,   e.g.,  Winston   J.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 

Children's Servs., 134 P.3d 343, 348 (Alaska 2006) (upholding a superior court finding 
that children were at substantial risk of mental injury from a father   who committed 
domestic violence against their mother before they were born). 

                                                   -8-	                                           6621
 

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                Sarah   additionally   challenges   the   superior   court's determination   that   her 

children were children in need of aid under AS 47.10.011(10) and (11) and that Wes and 

Marco were in need of aid under subsections (4) and (6).  Because only one statutory basis 

is required for a CINA finding, we do not need to address the superior court's other CINA 
findings.12 

                We note, however, that we are puzzled by the superior court's reference to 

"journal entries" used to support the court's finding that the children were in need of aid 

under AS 47.10.011(10).   Our review of the exhibit does not lead to the same conclusion. 

First, the handwritten entries appear to be Sarah's letters defending her husband, Wilson, 

from an assault charge rather than journal entries.  Second, the entries do not contain any 

indication of substance abuse; the only entry involving alcohol merely mentions going to 

a bar.    Instead the letters detail the writer's struggle with mental illness, violent mood 

swings, and problems adjusting to and obtaining proper medication.   A further review of 

the record indicates that 46 additional handwritten pages were offered but were ultimately 

withdrawn.  We are concerned that the superior court may have relied upon evidence that 

was not admitted, or that the exhibits were misnumbered, indicating a problem maintaining 

a proper record for review.       Nonetheless, testimony by Wilson was credited by the court 

and provided ample support for the superior court's finding that the children were in need 

of aid under AS 47.10.011(10) (substance abuse). 

V.      CONCLUSION 

                Because   the   superior   court   did   not   err   in   finding   that   Sarah's   extensive 

history of abusive relationships was likely to result in harm to the children we AFFIRM 

        12      AS 47.10.011; Jon S. v. State, Dep't of Health & Soc. Servs., Office of 

Children's Servs., 212 P.3d 756, 762 (Alaska 2009) (citing G.C. v. State, Dep't of Health 
& Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 651 (Alaska 2003)). 

                                                   -9-                                            6621 

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the superior court's finding that Marco, Wes, Dustin, and Skyla are children in need of aid 

under AS 47.10.011(8)(B)(ii). 

                                            -10-                                     6621
 
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