| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Josephine B. v. State, Dept of Health & Social Services, Office of Children's Services (08/24/2007) sp-6150
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JOSEPHINE B., | ) |
| ) Supreme Court No. S- 12399 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-05-00058 CN | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH AND | ) No. 6150 - August 24, 2007 |
| SOCIAL SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Douglas L. Blankenship, Judge.
Appearances: Kathleen Murphy, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. Megan R.
Webb, Assistant Attorney General, Anchorage,
and Talis J. Colberg, Attorney General,
Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Josephine B. appeals a superior court order that
adjudicated her daughter Ashley a child in need of aid under AS
47.10.011(8) because she had suffered mental injury. We affirm.
The superior court applied the correct legal standard and its
factual findings are not clearly erroneous.
II. FACTS AND PROCEEDINGS
Josephine B. lived in Fairbanks with her husband Jacob
and three children from her previous marriage: Benjamin, Ashley,
and Rafe (born in 1991, 1992, and 1994, respectively).1 In
October 2003 Roger A., the childrens biological father, filed
with the Office of Childrens Services (OCS) a report of harm that
alleged that Josephine and Jacob were physically and emotionally
abusing the children.2 In response, OCS sent two social workers
to their home. During the investigation Josephine and Jacob
denied the social workers access to the children. Because
Josephine and Jacob had refused to cooperate and because the
Fairbanks Police Department had indicated that the children were
seen and there was no evidence of abuse, OCS closed the case.
In March 2005 OCS received another report that Jacob
was physically and mentally abusing the children, this time from
an anonymous source. OCS again sent a social worker to the home
but Jacob prevented him from interviewing the children without a
court order. OCS obtained a court order and Jacqueline Swart, an
OCS social worker and children services specialist, interviewed
the children at a police station in May. During the interview
Ashley was the only child willing to discuss the conditions in
the home and she denied all of the allegations of harm. After
the interview Swart reported that she felt the children had been
coached not to answer her questions. Swart closed the
investigation.
Later that year, Ashley began to sleep over at the home
of Fran LoDuca, a family friend, where she helped LoDuca with
housework and babysitting. On October 6, 2005 Ashley contacted
social worker Swart from a telephone at LoDucas house and told
Swart that almost all of the allegations of harm that they
discussed in the May interview were true. Ashley said that she
and the other children were being subjected to a military
discipline technique in which the children were forced to hold a
push-up position while being swatted with a wooden paddle.
Ashley also told Swart that Jacob was drinking almost every
evening and when he drank he threw bottles and bottle caps at the
children.
The next day Swart interviewed Ashley at LoDucas house.
Ashley told Swart that she was very fearful and that she did not
want to go home. She explained that her brothers were being hit
almost every day, that she had recently been hit, and that her
brothers had acted in a sexually inappropriate manner toward her.
When LoDuca refused to allow Ashley to return home, Josephine and
Jacob went to LoDucas house with a police escort and retrieved
her.
On October 31, 2005 OCS filed a non-emergency petition
for adjudication of the B. children as children in need of aid.
A short time later, when Josephine was out of the house on an
errand, Ashley telephoned Swart and asked in a panicked tone to
be removed from the home. When Josephine returned from her
errand, Ashley abruptly hung up.
After a December hearing the superior court found that
the concerns in the non-emergency petition warranted emergency
custody and therefore granted OCS emergency custody of the
children. Swart then placed the children in an emergency foster
home and filed an emergency petition for adjudication of the
children as children in need of aid.
Later that month a temporary custody hearing took place
before Master Katherine R. Bachelder. Master Bachelder found
that there was probable cause to believe the children were in
need of aid because their mother and stepfathers conduct had
placed them at substantial risk of mental injury. This finding
was adopted by the superior court on January 26, 2006. The
superior court found that
the children have been subjected to a chronic
pervasive climate of fear in their mothers
home, and that they were routinely
threatened, yelled at, shamed, humiliated,
verbally assaulted, bullied and physically
abused. This conduct, described by the
mother and stepfather as discipline, has
created a situation in which the children are
at substantial risk for mental injury as a
result of the mother[] and stepfathers
conduct and the conditions they have created
in their home.
The superior court committed the B. children to OCSs temporary
custody and recommended that OCS provide the children with
psychological evaluations without delay.
OCS referred the children to Dr. Marti Cranor for
psychological evaluations. Ashley also began individual
counseling sessions with Edward Fitzpatrick, a licensed clinical
social worker.
A combined adjudication and disposition hearing was
held in May 2006. At the conclusion of the hearing Master
Bachelder found Ashley to be a child in need of aid under AS
47.10.011(8) because she had suffered mental injury. The
superior court adopted this finding and issued an order
adjudicating Ashley a child in need of aid. The order also set a
permanency hearing for November 17, 2006.
Josephine B. appeals the adjudication order.3
III. DISCUSSION
A. Standard of Review
Josephine B. argues that the superior court erred in
adjudicating Ashley a child in need of aid because it (1)
misapplied AS 47.10.011(8)(A)s legal standard for determining
whether a child has suffered mental injury, and (2) incorrectly
found that the evidence in this case was sufficient to establish
that Ashley had suffered such an injury.
Whether the superior courts findings are consistent
with the Child in Need of Aid (CINA) statutes is a question of
law.4 We review questions of law using our independent judgment
and will adopt the rule of law that is most persuasive in light
of precedent, reason, and policy.5
Whether the evidence supports the superior courts
finding that Ashley suffered mental injury is a question of fact.
We review the superior courts factual findings for clear error.6
Clear error exists when we are left with a definite and firm
conviction that the superior court has made a mistake.7
B. The Superior Court Did Not Err in Adjudicating Ashley a
Child in Need of Aid.
Alaska Statute 47.10.011(8)(A) provides that a court
may adjudicate a child in need of aid if it finds by a
preponderance of the evidence that conduct by or conditions
created by the parent have resulted in mental injury to the
child. For CINA adjudication purposes, mental injury means a
serious injury to the child as evidenced by an observable and
substantial impairment in the childs ability to function in a
developmentally appropriate manner and the existence of that
impairment is supported by the opinion of a qualified expert
witness.8 The superior court adjudicated Ashley a child in need
of aid under AS 47.10.011(8)(A) because it found that the conduct
of and conditions created in the home by [Josephine and Jacob B.]
have resulted in mental injury to [Ashley] as attested by Dr.
Cranor, a qualified expert in psychology.
1. The superior court did not misapply the legal
standard for determining whether Ashley suffered
mental injury.
The superior court held that Josephine and Jacobs
conduct and the conditions they created in their home caused
Ashley to suffer mental injury, as evidenced by what the court
termed an observable and substantial impairment in [Ashleys]
ability to function in a developmentally appropriate manner.
Josephine argues that the superior court applied an incorrect
legal standard for determining whether Ashley suffered mental
injury as that term is used in AS 47.10.011(8)(A).
Josephine points to examples of mental injuries found
in AS 47.10.011(8)(A)s legislative history9 and our decisions in
V.S.B. v. State,10 Martin N. v. State,11 and Rick P. v. State.12
These examples, she argues, involve gross parental misconduct
that has significantly contributed to extremely serious mental
conditions in their children. She seems to argue that evidence
of gross parental misconduct is not merely sufficient to support
a mental injury finding, it is necessary.
OCS responds by noting that the definition of child
abuse and neglect under the federal Child Abuse and Prevention
Treatment Act of 1996 (CAPTA) includes serious emotional harm.13
It also notes that AS 47.10.011(8) was intended to bring Alaskas
CINA statutes into compliance with CAPTA by including mental
injury as one of the grounds for CINA jurisdiction.14
Furthermore, OCS notes that although CAPTA itself does not define
emotional harm, the U.S. Department of Health and Human Services
has defined emotional abuse as a pattern of behavior that impairs
a childs emotional development or sense of self-worth. This may
include constant criticism, threats, or rejection, as well as
withholding love, support, or guidance.15 OCS argues that [t]his
category of abuse does not include only the most severe and
egregious incidents, as Josephine appears to suggest, but rather
a much wider spectrum of parental conduct and harm to a child.
We apply our independent judgment to questions of law,
and will adopt the rule of law that is most persuasive in light
of precedent, reason, and policy.16 If the statute is ambiguous,
we apply a sliding scale of interpretation, where the plainer the
language, the more convincing contrary legislative history must
be.17 We interpret Alaska law according to reason, practicality,
and common sense, taking into account the plain meaning and
purpose of the law as well as the intent of the drafters.18
Alaska Statute 47.10.011(8)(A) provides that a court
may adjudicate a child in need of aid if it finds by a
preponderance of the evidence that conduct by or conditions
created by the parent have resulted in mental injury to the
child. Alaska Statute 47.17.290(9) states that a mental injury
finding must be supported by a qualified expert witnesss opinion
that the child has suffered a serious injury, as evidenced by an
observable and substantial impairment in the childs ability to
function in a developmentally appropriate manner. Because it
applied the standard from AS 47.17.290(9) almost verbatim to the
facts in this case, the superior court did not use an incorrect
standard.
Josephines apparent argument that the superior court
must find gross parental misconduct in order to conclude that a
child has suffered mental injury is not supported by either AS
47.10.011(8)(A)s legislative history or our caselaw.
The legislative history that Josephine cites is not
inconsistent with the plain words of AS 47.17.290(9), which the
superior court applied correctly. Our decisions in V.S.B,19
Martin N.,20 and Rick P.,21 also cited by Josephine, are similarly
consistent with the text of AS 47.17.290(9). In V.S.B., the
superior court found that the appellants four children had
suffered mental injuries under AS 47.10.011(8)(A).22 We upheld
that finding because the appellants four children, described by
the superior court judge as among the most damaged children she
had seen in twenty-five years [of] practicing in the area of
childrens law, had severe mental injuries that were confirmed by
multiple therapists and social workers.23 In Martin N., the
superior court found that the appellants pattern of domestic
violence qualified as behavior that would, if continued, result
in mental injury to the appellants child.24 We upheld the
superior courts finding that the appellants child was in need of
aid under AS 47.10.011(8).25 In Rick P., the superior court found
that the appellant, by assaulting his domestic partners and
shifting households frequently, among other things, had caused
his child to suffer mental injury under AS 47.10.011(8)(A).26 We
held that because it was supported by the testimony of two
clinical psychologists, the superior courts finding was not
clearly erroneous.27 In no case, however, have we departed from
AS 47.17.290(9)s definition of mental injury when applying AS
47.10.011(8)(A).
Josephines argument that CINA jurisdiction should only
be based on parental conduct that causes substantial mental
injuries is well-taken. But that requirement already appears in
the text of AS 47.17.290(9), which the superior court applied
almost verbatim when it adjudicated Ashley a child in need of
aid. Josephines apparent argument that the superior court erred
by not finding gross parental misconduct is without merit.
2. The superior court did not clearly err in finding
that Ashley has suffered mental injury as that
term is defined by AS 47.17.290(9).
Josephine also argues that the evidence does not
support the superior courts finding that Ashley suffered a
serious mental injury. She argues that the evidence merely shows
[s]trict adherence to house rules [and] physical discipline,
which is insufficient to demonstrate that Ashley had suffered
[an] observable and substantial impairment that prevented her
from functioning in a developmentally appropriate manner due to
mental injury.
Josephine argues that the evidence shows that Ashley
was attending school and doing well socially. She points out
that although Ashley claimed to have experienced dramatic weight
changes, the evidence only demonstrated a very modest weight gain
over several months. Josephine contends that while the evidence
might show that Ashley was anxious and very unhappy, it does not
support the superior courts finding that Ashley had suffered
mental injury.
OCS responds that the superior court did not err in
finding that Ashley suffered mental injury as a result of
Josephine and Jacobs conduct and the conditions they created in
their home, because that finding is supported by extensive
evidence. OCS points out that Dr. Cranor testified that Ashleys
lack of a substantial weight change does not alter her opinion of
the potential health implications of Ashleys eating patterns.
OCS notes that Dr. Cranors primary concern was not Ashleys weight
gain, but rather the level of [Ashleys overall] symptomology,
which includes unhealthy eating and sleeping habits, an inability
to concentrate, and unhealthy levels of anxiety. OCS also
observes that Edward Fitzpatrick testified that Ashleys ability
to get good grades does not affect his opinion that she suffered
mental injury. OCS concludes that the evidence shows that
neither Ashleys slight weight gain nor her academic performance
affected Dr. Cranors or Fitzgeralds overall opinion that Ashley
suffered mental injury as a result of conditions in the family
home.
We review factual findings for clear error.28 Factual
findings are clearly erroneous when, based on the entire record,
we are left with a definite and firm conviction that a mistake
has been made.29 We give particular deference to the trial courts
factual findings when, as here, they are based primarily on oral
testimony, because the trial court, not this court, judges the
credibility of witnesses and weighs conflicting evidence.30
For CINA purposes, in order to find that a child has
suffered mental injury the superior court must find that the
child has suffered an observable and substantial impairment in
the childs ability to function in a developmentally appropriate
manner.31 Evidence of this impairment must be supported by the
opinion of a qualified expert witness.32 In this case the
superior court found that Ashley has suffered an observable and
substantial impairment in [her] ability to function in a
developmentally appropriate manner, as supported by the opinion
of Dr. Cranor, a qualified expert in psychology. The trial courts
findings are not clearly erroneous.
At the December 2005 temporary custody hearing before
Master Bachelder, Ashley testified that if the children did not
do their chores they were yelled at or spanked. She testified
that in the past the children had been kicked and that Jacob had
threatened to severely beat them. Ashley also testified about
Josephine and Jacobs disciplinary methods, which included what
she called the leaning rest, in which the children were forced to
hold a push-up position while being swatted with a wooden paddle.
Ashley testified that she did not feel safe at home when
Josephine and Jacob were mad or upset. Master Bachelder found
Ashley to be a credible witness.
Master Bachelder ultimately found, after the conclusion
of the December 2005 temporary custody hearing and the May 2006
combined adjudication and disposition hearing, that the children
had been subjected to a chronic, pervasive climate of fear in the
mothers home, and that they were routinely threatened, yelled at,
shamed, humiliated, verbally assaulted, bullied and physically
abused. As a result, Master Bachelder found Ashley to be a child
in need of aid under AS 47.10.011(8)(A). The superior court
adopted this finding, stating that Ashley is a child in need of
aid because she suffered an observable and substantial impairment
in [her] ability to function in a developmentally appropriate
manner.
The superior courts finding is supported by Dr. Cranors
testimony. At the May 2006 combined adjudication and disposition
hearing Dr. Cranor testified:
Q: Were you able to obtain enough
information through your contact with
[Ashley] and your other information to
come to any conclusions about whether or
not [Ashley] has suffered . . . an
observable and substantial impairment in
her ability to function in a
developmentally appropriate manner?
A: What I observed about [Ashley] is that
she certainly was exhibiting a number of
symptoms of anxiety which were above []
what would be considered normal
reactions, anxiety reactions, she was
having some fairly marked difficulties
with her eating patterns. She was
having difficulties with her sleeping
patterns, she was having difficulty
concentrating, and all of those things
were affecting her ability to do fairly
normal things including complete her
home-schooling schoolwork, get along
with others, have fun, you know, relax,
pay attention, learn things.
. . . .
And I think . . . you have to understand
that everybody experiences the things we
call anxiety, the feeling we call
anxiety and when we look at it
clinically, we look at [it] in terms of
a continuum from what we consider normal
anxiety. You know, when a person goes
into a new situation that they dont know
what to expect, its normal to feel a
little anxious because you dont know
whats going to happen, and it progresses
then to the kind of anxiety that
interferes with a persons ability to
take care of their daily living, to do
the tasks they need to do, to think
clearly, and so, you know, it appeared
that while [Ashleys] anxiety was related
to what was going on in the family, it
had reached the point where it was
somewhat disabling to her, not only just
in terms of her ability to function, but
also the point where, you know, there
might be some health implications for
it.
Josephine argues that Dr. Cranors testimony does not
support the superior courts finding because Ashleys medical
records demonstrate that she experienced only a modest weight
gain. But as OCS points out, Dr. Cranor did not base her opinion
of Ashleys mental health on the notion that Ashley had suffered a
weight gain. Instead, she testified that Ashley had fairly
marked difficulties with her eating patterns that were
symptomatic of her abnormal levels of anxiety. According to Dr.
Cranor, this anxiety interfered with Ashleys ability to function
in a developmentally appropriate manner. In light of Dr. Cranors
testimony in finding that Ashley had suffered serious mental
injury, the trial courts findings are not clearly erroneous.
IV. CONCLUSION
Because the superior court applied the CINA statutes
almost verbatim to the facts of this case, it did not use an
incorrect legal standard when it adjudicated Ashley a child in
need of aid. Also, because the superior courts factual findings
are supported by Dr. Cranors testimony, as the CINA statutes
require, they are not clearly erroneous. We therefore AFFIRM the
superior courts determination that Ashley was a child in need of
aid.
_______________________________
1 We use pseudonyms for all family members.
2 Some of these facts are taken from the transcripts of
the December 2005 temporary custody hearing and the May 2006
adjudication and disposition hearing.
3 Only the adjudication order is challenged in this
appeal. The adjudication order did not end the proceeding or
terminate parental rights. An adjudication order is directly
appealable. CINA Rule 21(a).
4 Winston J. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., 134 P.3d 343, 345 (Alaska 2006)
(citation omitted).
5 Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006)
(quotation & citation omitted).
6 Winston J., 134 P.3d at 34546 (citation omitted).
7 Id. (internal quotation omitted).
8 AS 47.17.290(9). AS 47.10.990 provides that [i]n this
chapter, unless the context otherwise requires . . . (20) mental
injury has the meaning given in AS 47.17.290.
9 Minutes of the House Finance Committee hearing on HB
375, May 2, 1998, testimony of Assistant Attorney General Susan
Wibker (Tape 98143, Side A) (stating that the thrust of AS
47.10.011(8)(A)s mental injury protection was to get at the
serious emotional harm being done to children).
10 V.S.B. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 45 P.3d 1198 (Alaska 2002).
11 Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50 (Alaska 2003).
12 Rick P. v. State, Office of Childrens Servs., 109 P.3d
950 (Alaska 2005).
13 42 U.S.C. 5106g(2) (2007).
14 See 1998 Inf. Op. Atty Gen. No. 126 (June 3) (HB 375
would bring the state into compliance with CAPTA by including
mental injury and substantial risk of mental injury as grounds
for CINA jurisdiction.). See also Minutes of the House Judiciary
Committee hearing on HB 375, April 23, 1998, testimony of Lisa
Torkelson, Legislative Assistant to Representative Fred Dyson
(Tape 9866, Side B) ( [E]motional harm in the original version
was a new term, with a new definition. And we felt [that
emotional harm] was a little broad and could be construed,
possibly, or abused, and so we preferred [mental injury], as long
as [it] met with federal standards.).
15 U.S. Department of Health & Human Services, What Is
Child Abuse and Neglect? 3 (2006),
http://www.childwelfare.gov/pubs/factsheets/whatiscan.pdf.
16 Young v. Embley, 143 P.3d 936, 939 (Alaska 2006)
(quotation omitted).
17 Id. (internal quotation & citation omitted).
18 Id. (citation omitted).
19 V.S.B., 45 P.3d at 1204.
20 Martin N., 79 P.3d at 55.
21 Rick P., 109 P.3d at 955-56.
22 V.S.B., 45 P.3d at 120304.
23 Id. at 1204.
24 Martin N., 79 P.3d at 55.
25 Id.
26 Rick P., 109 P.3d at 952, 955.
27 Id. at 95556.
28 Winston J. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., 134 P.3d 343, 34546 (Alaska 2006)
(citation omitted).
29 Alden H. v. State, Office of Childrens Servs., 108 P.3d
224, 228 (Alaska 2005) (quotation omitted).
30 In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska
2001).
31 AS 47.17.290(9). AS 47.10.990(20) states that mental
injury has the same meaning in the CINA statutes as it does in AS
47.17.290.
32 AS 47.17.290(9).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
