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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jamie H. v. State, Dept. of Health & Social Services, Office of Children's Services (10/10/2014) sp-6957

Jamie H. v. State, Dept. of Health & Social Services, Office of Children's Services (10/10/2014) sp-6957

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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                   THE SUPREME COURT OF THE STATE OF ALASKA  



JAMIE H.,                                            )  

                                                     )        Supreme Court No. S-15346  

                  Appellant,                         )  

                                                     )        Superior Court No. 3KN-11-00024CN  

         v.                                          )  

                                                     )  

STATE OF ALASKA,                                     )        O P I N I O N  

DEPARTMENT OF HEALTH &                               )  

SOCIAL SERVICES, OFFICE OF                           )        No. 6957 - October 10, 2014  

CHILDREN'S SERVICES,                                 )  

                                                     )  

                  Appellee.                          )  

_______________________________  )  



                  Appeal from the Superior Court of the State of Alaska, Third  

                  Judicial District, Kenai, Anna Moran, Judge.  



                  Appearances:  Megan Webb, Assistant Public Defender, and  

                                                                       

                  Quinlan Steiner, Public Defender, Anchorage, for Appellant.  

                                                   

                  Janell M. Hafner,  Assistant Attorney General, Anchorage,  

                                            

                  and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  

                  Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                     

                  Bolger, Justices.  



                  BOLGER, Justice.  


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

I.            INTRODUCTION
  



                                                                                                                                                1  

                           Jamie and Anna are the parents of Ian, a young teenager.   The Office of  



Children's Services (OCS) sought termination of Jamie's, but not Anna's, parental rights   



to Ian.  In closing argument, Jamie asserted that termination of his parental rights was not                                                          



in Ian's best interests because OCS had not identified any permanent placement.  But the                                                   



superior court did not specifically address this issue in its findings when it ordered the                  



termination of Jamie's parental rights.  Jamie appeals, arguing that the termination should  



                                                                                                                                                 

be vacated because the decision does not clearly state that termination of Jamie's parental  



                                                                                                                          

rights was for purposes of freeing Ian for adoption or other permanent placement.  But  



                                             

we conclude that the superior court did not err when it found that termination was in  



Ian's best interests.  



II.           FACTS AND PROCEEDINGS  



              A.           The Family  



                                                                                                                                 

                           Jamie and Anna were a couple for many years.   They both have mental  



health  issues,  addiction  issues,  and  extensive  criminal  histories.    Jamie  began  using  



                                                                                                                                                       

marijuana when he was 12 years old, after he was seriously injured in a car accident, and  



                                                                                                                        

by age 13, he was using methamphetamine.  Anna's uncle sexually abused her, starting  



                                                           

when she was six years old, and her mother and grandmother were aware of the abuse  



                                                                                                               

but did nothing to stop it.  At age 16, Anna had a baby, whom she eventually gave up for  



adoption.  Soon after that, Anna began using methamphetamine.  



                                                              

                           Jamie and Anna had two other children when they lived in Oklahoma, but  



                                                                                                                                                               

those children have always lived with Jamie's mother and step-brother and were not  



                                                                                                                          

parties to these proceedings. Before Anna became pregnant with Ian (born in 2000), and  



              1            We use pseudonyms to protect the parties' privacy.  



                                                                                     -2-                                                                                     6957  


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during       the    first    six     months       of    her     pregnancy,         both      parents       regularly       used  



                                                                                                        

methamphetamine.  They stopped using when they realized Anna was pregnant, but after  



Ian's  birth  they  went  back  to  abusing  drugs  and  alcohol,  with  periods  of  sobriety.  



                                                                        

Although Ian lived with his parents during his early years, by the time he was four, he  



                                                                                  

and his two non-party siblings were living with Ian's grandmother in Oklahoma while  



                                                             

his parents lived elsewhere.  According to Jamie, Ian was exposed to domestic violence  



by Jamie's brother during that time.  



                                                                                                     

                    Jamie, Anna, and Ian moved to Alaska in 2004. Once in Alaska, Jamie and  



Anna had three more children; Kirsty was born in 2006, James was born in 2008, and  



Jon was born in 2010.  The couple's relationship was chaotic and physically abusive, and  



                                                                                  

apparently they were separated at the time of trial.  All four children have special needs.  



          B.        OCS's Involvement With The Family  



                                                                                  

                    The  family's  first  encounter  with  OCS  was  in  2006,  when  the  agency  



                                 

investigated a report of harm claiming that the family's pet pit bull bit Ian's face.  The  



                                                                                                     

doctor who evaluated Ian determined that he suffered from attention deficit hyperactivity  



disorder with complex emotional trauma, and probable chronic post-traumatic stress  



disorder relative to a disruptive chaotic home environment and exposure to domestic  



               

violence and drug and alcohol use.  The doctor also noted that Ian had probable brain  



                                                                                                        

damage and recommended more assessments and medication.  Ian's mental illness and  



                                                                         

behavioral issues were compounded by his lack of care at home.  At age six, Ian had to  



                                                                                                   

feed himself, routinely stayed up until 2:00 in the morning, had to get himself up and off  



to school, and often left for school on an empty stomach.  



                    OCS initiated a plan to help Ian's parents manage his aggressive behavior.  



To  assist  in  parenting  education,  a  family  support  agent  with  Kenai  Peninsula  



                                                                                              

Community Care Center met with the parents twice a week for eight months.  According  



                                                               -3-                                                         6957
  


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

                                        

to the agent, Anna was relatively engaged, but Jamie showed little interest in parenting  



and  rarely  participated.    The  agent  eventually  discharged  the  family  from  in-home  



                                                                                                                              

services because they had missed several meetings in a row  and neither parent  had  



followed through with a structured routine or adequate supervision for Ian.  



                                                                                                 

                       OCS was not significantly involved with the family again until June 2011,  



                                                                                                  

when police called OCS to report that Anna was suicidal; Anna had called friends and  



                                                                                                                       

told them she was planning to leave James and Jon in the car while she walked into the  



                                                                        

                                     

forest to kill herself.   At that time, Ian and Kirsty were at home alone, and Jamie was in  



jail because of a domestic incident involving a firearm.  An OCS worker went to the  



home  and  discovered  that  the  children  were  very  hungry,  five-year-old  Kirsty  was  



                                                                                                           

wearing nothing but a diaper, and ten-year-old Ian was hoarding an empty peanut butter  



                                                                                

container.  There was plenty of food for the pit bulls in the yard, but no nutritious food  



                                           

for the children.  Ian and Kirsty were placed in one emergency foster home, and James  

                                                    2   Prins filed an Emergency Petition for Adjudication of  

                                                                  

and Jon were placed in another.  



Children in Need of Aid and for Temporary Custody, asserting that the children were in  

                                                                          

need of aid under AS 47.10.011(2), (8), (9), and (11).3  

                                                                                             



           2          Ultimately, Kirsty was moved to live in the same foster home as James and     



Jon.  



           3          AS 47.10.011 provides in pertinent part that the superior 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: (2) a parent being incarcerated, (8) conduct or conditions  

created by the parent that have resulted in mental injury to the child or placed the child  

                                                                       

at  substantial  risk  of  mental  injury  as  a  result  of  a  pattern  of  the  parent's  behavior,  

(9) parental neglect, or (11) parental mental illness or serious emotional disturbance that  

                                   

places the child at substantial risk of harm.  



                                                                      -4-                                                               6957
  


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

          C.        Ian's Situation  



                    Since Ian's removal from the family residence, he has lived in several long- 



         

term residential treatment facilities.  At the time of trial, Ian was at Family Centered  



                                 

Services of Alaska, a therapeutic foster home, where his stay was indefinite.  According  



                      

to  OCS,  Ian  was  diagnosed  with  dysexecutive  syndrome,  a  cognitive  disorder;  



                                                                                                                

oppositional defiant disorder; and mood disorder. In therapy, Ian would share that he  



                                                                                       

missed his mother, and he often looked forward to family sessions with her, but he rarely  



mentioned his father and did not ask to see him.  In fact, because of Ian's emotional  



                                                                                           

instability and his statements that he never wanted to see his father again, visitation with  



                                                                                      

Jamie has not been deemed therapeutically appropriate.  Since Ian was taken into OCS  



                                                                                  

custody in June 2011 he has had little or no contact with his father but has had some  



successful visits with his mother.  



          D.        The Superior Court's Findings  



                                                  

                    In December 2012 OCS filed a petition to terminate Jamie's parental rights  



                                                                                                        

to all four children and Anna's rights to the three younger children only.  Before trial,  



Anna   relinquished   her   parental   rights   to   the   three   younger   children   with   the  



                                                  

understanding  that  if  the  court  did  not  terminate  Jamie's  parental  rights,  she  could  



withdraw her relinquishment.  As a result, neither party presented evidence regarding  



Anna's conduct.  



                    In  support  of  its  petition,  OCS  presented  evidence  regarding  Jamie's  



                                                                                      

personality disorders, substance abuse, criminal history, and failure to conform to social  



                                                           

norms.  OCS also presented testimony that Ian's behavior and trauma were attributed to  



                                                       

Jamie,  as  well  as  testimony  about  Ian's  mental  health  issues  and  need  for  security,  



stability, and permanence.  OCS representatives testified that they were looking into a  



                                                                                           

family placement for Ian with Jamie's aunt in Oklahoma, if and when Ian is discharged  



                                                               -5-                                                         6957
  


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

                                                                                                              

from the foster home.  Alternatively, OCS would try to find an adoptive placement for  



         

Ian.  OCS did not seek to terminate Anna's parental rights to Ian, with the hope that she  



                                                                                          

"might  be  able  to  parent  [Ian]  with  enough  wrap  around  supports,  but  if  not  she  is  



instrumental in [Ian's] therapy and recovery."  



                                                                                            

                    The superior court found that Ian was a child in need of aid pursuant to  



                                                     

AS 47.10.011(8) in part because  of Jamie's conduct, and that Jamie had not timely  



remedied his conduct; he failed to comply with the family preservation program, his  



participation in services with that agency was "virtually nonexistent," and he had not  



remedied  the  conditions  identified  in  2006  (exposure  to  domestic  violence)  which  



traumatized Ian.  



                                                                              

                    In September 2013 the superior court issued an order terminating Jamie's  

                               4  The court remarked that Jamie had missed the opportunity to help  

parental rights to Ian.                                                                                



Ian after Ian was diagnosed with complex emotional trauma and possible PTSD; instead  

                                                                                                 



                    [Jamie] destroyed his relationship with [Ian] to such an extent  

                                                     

                    that [Ian] wants nothing to do with his father and refuses to  

                                                                                          

                    talk about him.  It does not appear [Jamie] can remedy this  

                                                                                       

                    situation  in  a  reasonable  time.  .  .  .  Moreover,  [Jamie]  has  

                    done very little on his current case plan.  No reason exists to  

                                                                         

                    believe   [Jamie]   will   remedy   these   conditions   within   a  

                                                                                                

                    reasonable time, and [Ian] needs permanence.  



The  court  found  that  OCS  engaged  in  reasonable  efforts  to  provide  family  support  

                           



services, and that termination of Jamie's parental rights was in Ian's best interests.  Jamie  

                                                                                          



          4         The court declined to terminate Jamie's parental rights to the other three  



children because OCS did not present sufficient evidence linking the mental injuries  

                                                                                                      

suffered by the other children to Jamie's conduct.  Because the court did not terminate  

                                                                                                 

Jamie's parental rights to the other children, the court permitted Anna to withdraw her  

relinquishment of parental rights to them.  



                                                               -6-                                                         6957
  


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

appeals, but he does not dispute that the evidence presented at trial supports the court's  

                                                                                                     



findings.  



III.      STANDARD OF REVIEW  



                    The superior court's determination that termination of parental rights is in  

                                                                                                   



                                                                                                             5  

a child's best interests is a factual finding that we review for clear error.   A finding is  

                      



clearly  erroneous  if,  after  reviewing  the  record  in  the  light  most  favorable  to  the  

                                                                                 



prevailing party, we are left with a definite and firm conviction that the superior court  

                                                                                                 

                      6  We decide de novo whether the superior court's findings satisfy the  

was mistaken.  

                                                                                                                   

requirements  of  the  child  in  need  of  aid  statutes,7  bearing  in  mind  at  all  times  that  

                                                                 

terminating parental rights is a drastic measure.8  

                                                                           



IV.       DISCUSSION  



                    The  rights  and  responsibilities  of  a  parent  regarding  a  child  may  be  

                                                                                                                      

terminated for purposes of freeing the child for adoption or other permanent placement.9  

                                                          



Jamie argues that termination of his parental rights to Ian was improper because there  



was no specific permanency plan for Ian and no intention of terminating Anna's parental  

                                                                                          



rights, even if Ian remains in therapeutic foster care. In support, Jamie cites A.B. v. State,  

                                                                                   



          5         Judith  R.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  



Servs., 289 P.3d 896, 900 (Alaska 2012) (citing Christina J. v. State, Dep't of Health &  

                                                                                                        

Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1104 (Alaska 2011)).  



          6         Id.  (citing  Maisy  W.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Office  of  

                                                                                                  

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



          7         Id. (citing  Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family  



& Youth Servs., 102 P.3d 932, 935 (Alaska 2004)).  



          8         Christina J., 254 P.3d at 1104 (quotations and citation omitted).  



          9         AS 47.10.088(a).  



                                                               -7-                                                         6957
  


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

                                                                10 

                                                                                                      

Department of Health & Social Services ,   wherein we held that when circumstances  



                                                                                                                        

create  a  risk  of the  child  becoming  a  "half-orphan,"  thereby  depriving  the  child  of  



                                                                                                            

potential financial support and inheritance rights, the superior court must determine  



whether  termination  was  for  the  purpose  of  freeing  the  child  for  adoption  or  other  



permanent placement and if not, then the court should decline to terminate parental  



rights.   



                     OCS argues that Jamie did not raise this argument before the superior court  



and thus cannot raise it now.  We disagree.  We have previously held:  



                                                                             

                    Arguments are considered on appeal if raised explicitly in the  

                                                   

                     superior court, or if the issue is "1) not dependent on any new  

                     or controverted facts; 2) closely related to the appellant's trial  

                                                                                                   

                     court arguments; and 3) could have been gleaned from the  

                                        

                    pleadings," or if failure to address the issue would propagate  

                                         [11] 

                     "plain error."  



                                                                                      

We conclude that Jamie preserved this issue for appeal when he asserted in his closing  



                                                                                                    

argument that termination of his parental rights was not in Ian's best interests because  



OCS had not identified any permanent placement.  



                                                                                               

                    It is permissible to terminate one parent's rights without legally changing  



                                                                                          

the relationship of the children to the other parent, so long as the statutory requirements  



                                                                                                                

for termination are met and the superior court makes findings that the goal of terminating  



                                                                                                                                 12  

                                                                                                                                     

the parent's rights is to free the children for adoption or other permanent placement. 



          10         7 P.3d 946, 954-55 (Alaska 2000).  



          11        Sea Lion Corp. v. Air Logistics of Alaska, Inc.                       , 787 P.2d 109, 115 (Alaska  



 1990) (quoting State v. Nw. Constr., Inc., 741 P.2d 235, 239 (Alaska 1987)).  



          12        AS 47.10.088(h) ("The rights of one parent may be terminated without  



                                                                                                                (continued...)  



                                                                -8-                                                         6957
  


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

While difficulty finding permanent placement because of a child's severe behavioral  



                                                            13 

                                                                                                   

problems does not prevent termination,                          a court may terminate parental rights only if it  



                                                                                                                                    14  

                                            

finds by a preponderance of the evidence that termination is in the child's best interests. 



                                                                                                         

                     Although OCS stated in its petition that termination of Jamie's parental  



                                                                                                          

rights was for the purpose of freeing Ian for a permanent placement, the location of that  



                                     15  

                                         However, at the time of trial, Ian was not in Anna's care or  

placement was unclear. 



                                                             

custody, and his stay in the therapeutic foster home was indefinite.  Therefore, A.B. does  



                                                    

not apply - A.B. applies only if the child is still in the custody of the "non-offending"  



           16  

                                                                                   

parent.        Moreover, it is unlikely that OCS ever will place Ian permanently with Anna,  



          12(...continued)  



affecting the rights of the other parent."); see also K.B. v. State, Dep't of Health & Soc.  

                                                                                                                 

Servs., Div. of Family & Youth Servs., Mem. Op. & J. No. 1034, 2001 WL 34818265, at  

                       

*2 (Alaska July 18, 2001).  



          13  

                            

                     See S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  

                         

Servs., 42 P.3d 1119, 1124-25 (Alaska 2002); see also Louise A. v. State, Div. of Family  

                                                                                                                         

& Youth Servs., Mem. Op. & J. No. 1162, 2004 WL 541373, at *3 (Alaska Mar. 17,  

                                                                                         

2004) ("Freeing a child for the possibility of a permanent, stable home is sufficient; there  

need not actually be an adoptive home at the time of termination.").  



          14         Child in Need of Aid Rule 18(c)(3).  



          15  

                                                                                                    

                     The issue is further complicated by the fact that the court did not terminate  

                                               

Jamie's parental rights to the other three children.  Jamie argues that, since he still has  

                                                                                                             

parental rights to the younger three children, there are continued efforts to create stability  

                              

in  the  home,  and  therefore,  continued  reunification  efforts  could  result  in  further  

                                                                                                            

stabilization for all four children.  Given Ian's unique disabilities and  therapeutic needs,  

combined with Jamie's history of parenting Ian, we disagree.  



          16         S.H., 42 P.3d at 1125 ("A.B. stands for the proposition that the risk of a  



          

child being 'half-orphaned' should be considered in the best interests analysis where  

                                                                                                                 (continued...)  



                                                                 -9-                                                          6957
  


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

given her parenting history and Jamie's continuing co-parenting of the younger three  



 children.  



                    OCS presented substantial undisputed evidence that termination of Jamie's  



                                                                                                       

parental rights was needed to protect Ian from his father; Jamie was an unfit parent and  



                                                         

 caused serious harm to Ian, such that Ian's health and safety were at risk, while Anna's  



                                                                                    

 continued involvement could benefit Ian's therapeutic plan, and terminating her rights  



                                                              17 

                                                                 Therefore the superior court did not clearly  

 could be psychologically harmful to Ian. 



 err in finding that termination of Jamie's parental rights was in Ian's best interests.  



           16(...continued)  



 [OCS] seeks to terminate only one parent's rights and the child will remain in the other  

                         

parent's custody. " (emphasis added)); see also Patience P. v. State, Dep't of Health &  

                                                                                                                     

Soc. Servs., Office of Children's Servs., Mem. Op. & J. No. 1417, 2102 WL 1232605,  

 at  *5  (Alaska  Apr.  11,  2012)  (stating  that  "[t]he  decision  in A.B.  was  subsequently  

                                

limited to the specific facts of that case"); cf. K.B., 2001 WL 34818265, at *2-3 (holding  

                                                                            

that, where permanency plan kept children in mother's physical custody, superior court  

                                                                                                              

 did not abuse its discretion when it found that father's parental rights were terminated  

                                                                                                 

to free children for permanent placement and that termination was in children's best  

                                                                                                            

interests);  Victor B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  

                                                                     

Mem. Op. & J. No. 1399, 2011 WL 6004329, at *3-7 (Alaska Nov. 30, 2011) (upholding  

                              

 superior court's finding that father failed to remedy domestic violence issues and that  

                                                                    

 continued custody would not be in the children's best interests, and concluding that  

                              

termination  of  father's  parental  rights  freed  children  for  permanent  placement  with  

                                                                      

mother).  



           17       See K.B., 2001 WL 34818265,  at *3 (upholding termination where superior  



                                                                                               

 court found that, where the children had lived in a "violent, frightening, dangerous,  

                                                                                       

 erratic environment" their entire lives, termination of the father's rights and permanent  

placement with mother would be an improvement that would serve the children's safety  

 and, thus, was in their best interests).  



                                                              -10-                                                         6957
  


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

V.     CONCLUSION  



              For  the  foregoing  reasons,  we  AFFIRM  the  superior  court's  judgment  



terminating Jamie's parental rights to Ian.  



                                           -11-                                     6957
  

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