Christopher C. v. State, Department of Health & Social Services, Office of Children's Services , 303 P.3d 465 ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
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
CHRISTOPHER C., )
) Supreme Court No. S-14892
Appellant, )
) Superior Court Nos. 4FA-07-00051 CN
v. ) and 4FA-10-00020/00032/00033 CN
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 6790 - June 28, 2013
CHILDREN’S SERVICES, )
)
Appellee. )
)
THERESE C., )
)
Appellant, ) Supreme Court No. S-14894
)
v. ) Superior Court Nos. 4FA-07-00051 CN
) and 4FA-10-00020/00032/00033 CN
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF )
CHILDREN’S SERVICES, )
)
Appellee. )
)
Appeals from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Appellant Christopher C. Elizabeth Leduc and Rachel Cella,
Assistant Public Defenders, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant Therese C. Megan R.
Webb, Assistant Attorney General, Anchorage, and Michael
C. Geraghty, Attorney General, Juneau, for Appellee, State
of Alaska.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
The superior court terminated the parental rights of Christopher and
Therese C. to four of their children.1 In doing so the court relied primarily on evidence
that neither Christopher nor Therese had acquired the basic skills necessary to safely
parent their children, despite more than a year of parenting training facilitated by the
Alaska Department of Health & Social Services, Office of Children’s Services (OCS).
The superior court also relied on the fact that Therese, who had a history of substance
abuse, had not maintained sobriety long enough to justify a finding that she was unlikely
to relapse, adding to the dangers faced by children in her care. Christopher and Therese
both appealed. Both challenge the superior court’s findings that (1) they failed to
remedy conduct that endangers their children; (2) OCS made active efforts to prevent the
breakup of their family; (3) their children will likely suffer serious physical or emotional
harm if returned to the parents’ custody; and (4) termination of their parental rights is in
their children’s best interests. Each of these findings is supported by the evidence in the
1
Pseudonyms are used for family members and foster parents to protect their
privacy.
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record. We therefore affirm the superior court’s order terminating the parental rights of
Christopher and Therese.
II. FACTS AND PROCEEDINGS
A. The Family
Christopher and Therese began dating as teenagers in 2001 or 2002. Over
the next ten years they had six children together. At issue in this appeal are their parental
rights to four of those children: Eric, Cal, Zander, and Chris,2 all Indian children for
purposes of the Indian Child Welfare Act (ICWA).3 The oldest boy, Eric, was born in
2004. At the time of trial he was living in a therapeutic foster home in Fairbanks — a
potentially permanent, adoptive placement — where he was participating in weekly
therapy sessions. Cal was born in 2006, Zander in 2008, and Chris in 2010. These boys
live in Nenana with their foster parents, Sofie Innis and Rita Olech. The home is a
potentially permanent placement for the three boys, as Innis and Olech wish to adopt
them.
B. OCS’s Involvement With The Family Before July 2010
Between 2004 and May 2007 OCS received several reports alleging that
Christopher and Therese were abusing substances and neglecting their children; these
reports were not investigated, “screened out” for various reasons, or investigated and not
substantiated. In May 2007 OCS received a report that Therese was passed out in her
basement surrounded by garbage and beer bottles while the children played next to her,
that Christopher was also high, that the basement smelled of methamphetamine, and that
the house was being “used as a crash pad for other drug users.” OCS investigated and
2
Christopher and Therese’s two other children, not involved in this
proceeding, are Cara, who was born in 2005 and lives with Therese’s mother, and
Mitchell, who was born in 2012 and is in OCS’s custody, in foster care.
3
25 U.S.C.A. §§ 1901 et seq.
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asked the parents to submit to urinalysis testing, which came back positive for marijuana
for both of them. When follow-up investigations revealed no further evidence of
substance abuse, OCS closed its case, but it did refer the parents to a local Head Start
program and to Denali Kid Care, and it provided information about other services as well.
The following month OCS received a report of domestic violence between
Therese and Christopher and took Cal into emergency custody.4 OCS placed the boy with
Christopher’s mother, who was already caring for Eric. OCS made referrals for
Christopher and Therese for housing and medical services; provided them with case
management services, food, and transportation; and contacted their relatives. The parents
stipulated to Cal’s adjudication as a child in need of aid and worked with OCS to develop
a case plan. The plan called for Therese to participate in a substance abuse assessment
and treatment, a parenting assessment, and domestic violence classes, and for Christopher
to participate in parenting classes and an anger management assessment.
In late 2007 Therese attempted suicide, and OCS referred her to Maniilaq
Counseling Center for a psychological assessment. She was accepted at the center for
treatment, which OCS anticipated would address her substance abuse, mental health, and
parenting issues, but Therese, who was pregnant with Zander, did not participate in the
program. Instead she moved to Shungnak. Christopher, who had admitted having issues
with anger control, participated in a behavioral assessment that recommended he complete
an anger management program, and OCS referred him to the Alternatives to Violence
program at LEAP. He had difficulty with attendance, but OCS intervened on his behalf
and he eventually completed the program.
In May 2008, while OCS’s permanency goal for Cal was the reunification
of his family, OCS acted on a report that Christopher’s mother was unable to care for Cal
4
It appears that Cal was the only child then living in the home.
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and Eric due to physical disabilities, and Cal was moved to foster care in the Innis and
Olech home in Nenana.5 Earlier in the year Therese had begun residential substance
abuse treatment at Dena A Coy in Anchorage, and she successfully completed the
program in July 2008. While in the program she gave birth to her fourth child, Zander.
OCS did not take custody of Zander, but Therese was unable to keep him with her in
treatment; she voluntarily placed him in the care of Innis and Olech, who were already
caring for Cal.
After completing the treatment program at Dena A Coy, Therese returned
to Shungnak, then moved back to Fairbanks. There, in November 2008, she was residing
at the Interior Alaska Center for Non-Violent Living when OCS placed Cal with her for
a trial home visit. But in January 2009 Therese was asked to leave the Center “after an
incident of intoxication and assaultive behavior towards staff,” and Cal was returned to
his foster home in Nenana. OCS then helped Therese transition to Our Grandmother’s
House, a Fairbanks domestic violence shelter serving Alaska Natives. In February 2009
Therese participated in a behavioral health evaluation, after which she entered a
residential treatment program at the Women and Children’s Center for Inner Healing in
Fairbanks. But she left that program after just three days, and the next day, March 1, she
was arrested for assaulting Christopher and his mother. Her blood-alcohol content on
arrest was .198. Upon her release OCS helped her enter the Fairbanks Rescue Mission,
but later in March she was arrested for violating probation conditions, including “drinking
of a whole bottle of alcohol.” She served 15 days in jail, returned to the Rescue Mission
in May 2009, and was asked to leave in June. In September 2009 OCS paid for her and
5
The record is not clear where Eric, who was not in OCS’s custody, went at
this time.
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Zander to go to Anchorage so that she could once again enter residential treatment at
Dena A Coy.
In October 2009 OCS placed Cal with Christopher for a trial home visit.
Christopher was then living with and caring for his mother, who was confined to a
wheelchair, and had Eric in the household as well.
In December 2009 Therese left Dena A Coy without completing treatment
and entered another treatment program at Stepping Stones Treatment Center in
Anchorage; she left that program the following month. Homeless and unable to care for
Zander, she asked the foster parents, Innis and Olech, to take him in again, which they
did. In February 2010 Therese returned to Our Grandmother’s House for sober living
support, testing positive for marijuana and cocaine upon admission; later that month she
gave birth to her fifth child, Chris, and both she and the baby tested positive for
marijuana. OCS took Chris into its custody and placed him in foster care in Fairbanks.
OCS hoped that placing Chris locally rather than in Nenana, with Innis and Olech, would
help him bond with his parents and would help Christopher and Therese in their efforts
toward unification with the baby.
On March 1, 2010, Therese completed another substance abuse assessment,
which recommended that she participate in a “high intensive” residential treatment
program. Later that month she was asked to leave Our Grandmother’s House for
violating its rules, and the following month she was arrested for committing an assault
while intoxicated. She pleaded no contest to two counts of assault in the fourth degree
and was placed on probation for 18 months; a condition of her probation was that she not
use alcohol. She then entered a residential treatment program at the Women and
Children’s Center, which she successfully completed in October 2010.
Sometime before March 2010 Zander left the care of Innis and Olech and
joined his brothers Eric and Cal in Christopher’s home. In early March 2010 Christopher
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told an OCS representative that he was willing to work with a family support worker to
improve his ability to care for his children and to develop plans to address his children’s
health and educational needs.
Several days later OCS filed a non-emergency petition for temporary
custody of Eric and Zander. The petition was based on concerns about domestic violence,
neglect, Therese’s mental condition and substance abuse issues, and Christopher’s failure
to protect the children from Therese’s endangering behaviors. The children remained in
Christopher’s care subject to monthly visits by OCS. A Court-Appointed Special
Advocate also visited the home regularly, as did staff from the Resource Center for
Parents and Children (Resource Center), which had been referred by OCS to provide
services as part of an intensive parenting program for Christopher, Therese, and their
children. OCS also provided Christopher with daycare assistance, transportation, food,
a referral for drug testing, and help with applying for public assistance, enrolling the
children in school, and establishing his paternity of Zander and Chris. In addition, OCS
helped Christopher obtain new birth certificates for the children that listed him as their
father. With these in hand Christopher could obtain cards for the children from the
Bureau of Indian Affairs (BIA), which would entitle them to medical care at Chief
Andrew Isaac Health Center.6
C. OCS’s Involvement With The Family From July 2010 Until The
Termination Of Parental Rights In 2012
In early July 2010 OCS social worker Justin Heminger visited Christopher’s
home, saw that the children were sick, and asked Christopher whether he had taken them
to the doctor. Christopher responded that he had and had been given prescriptions to treat
ear infections. Heminger concluded that Christopher had not filled the prescriptions,
6
Without BIA cards Christopher was limited to a single doctor’s visit at the
Center for each child, but there was no restriction on his access to the emergency room.
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however, because he had lost one and the boys tore up the other, and he had not tried to
get new ones.7
On July 16, 2010, OCS investigated a report that the children were again ill
and uncared for and that Christopher’s home was unsanitary. A social worker found that
Christopher and his mother had gone berry picking and had left the children in the care
of two teenagers, ages 14 and 15. The home was filthy, with garbage on the floor, dirty
dishes in the sink, spoiled food in the refrigerator, and kitchen knives within the
children’s reach. The boys were sharing a mattress on the floor, with no bedding, despite
the fact that Zander had an “extremely contagious” staph infection. The social worker
took Zander to the emergency room, where he was treated for the staph infection, a severe
ear infection, and flu. Zander’s diaper had not been changed in so long that the feces in
it were decomposing. His skin was so encrusted with feces and mucus that he bled when
hospital staff cleaned him. His clothing was too filthy to be returned to him, so he left the
hospital in a gown. OCS placed him with Innis and Olech.
OCS removed Eric and Cal from Christopher’s home shortly thereafter.
Eric’s mouth was infected and he needed dental work, including removal of some teeth,
and Cal, like Zander, had a staph infection. OCS placed both boys with Innis and Olech,
who reported that the boys hoarded food and hid it in their beds. Heminger, an expert in
assessing risk and safety threats in this context, testified that such behavior is typical of
children who have been deprived of food.
Following the July 2010 removals, Christopher proposed a safety plan under
which the boys would be returned to his home and cared for, in his absence, by his
7
At about this same time the Resource Center family worker who visited the
home weekly reported to her supervisor over the course of several weeks that she was
concerned about hygiene in the home and the boys’ physical health and well-being, and
she reported having urged Christopher to obtain medical treatment for the boys.
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pregnant 17-year-old sister. OCS had serious reservations about this plan, as did the
superior court. The court found that Christopher’s plan — expecting a teenager to care
for herself as well as six-year-old, four-year-old, and two-year-old children, all while
recovering from childbirth and caring for her own first-born child — was unrealistic.
OCS was troubled by the pattern into which Christopher and Therese
appeared to have fallen: OCS removed their children, the parents worked on a case plan,
and OCS returned the children only to have to remove them again. OCS arranged for
Christopher and Therese to participate in psychological testing. Kevin Lankford, a
psychological associate, examined them in August 2010, prepared reports for OCS, and
testified at the termination trial as an expert in administering psychological evaluations
and making treatment recommendations. According to Lankford, Christopher had
borderline verbal comprehension, weakness in his working memory, and poor insight and
judgment. Lankford recommended that Christopher complete another parenting class and
noted that Christopher would benefit from having material repeatedly modeled for him.
He also recommended that Christopher receive counseling to improve his social skills.
Lankford reported that Therese had borderline intellectual ability,
demonstrated poor insight and judgment, and had difficulty controlling her anger. He
identified important strategies for counselors working with Therese: repetition of tasks
and breaking tasks into simple, concrete steps.8
As a result of the evaluations, OCS determined that both parents required
parenting training with a more “hands-on” approach; its revised approach emphasized the
8
Another reason OCS asked Lankford to evaluate Therese was that she was
having difficulties in her substance abuse treatment program at the Women and
Children’s Center. Following Lankford’s report OCS worked with the Center to extend
Therese’s stay there and to design a treatment program specifically tailored to her needs.
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demonstration of parenting skills with follow-up practice by the parents, as opposed to
written instruction and workbooks. OCS coordinated with staff at the Resource Center
to implement this more hands-on program. Heminger described the new approach as
“super-repetitive, super-concrete . . . hands on, every step of the way.” He described
Lankford’s evaluations as the “keystone” of OCS’s renewed efforts.
In September 2010 the superior court held a placement review hearing. The
parents requested that Chris be placed with Therese at the Women and Children’s Center,
where she was participating in residential treatment, and that Cal, Eric, and Zander be
returned to Christopher. The superior court directed that Chris be placed with Therese
but denied the request as to the older boys. The court noted that Christopher now had
unfettered access to health care, but it found that it was his failure to follow through with
health care, not a lack of access, that had caused the children’s removal. The superior
court found that Christopher had “made no showing at all that he understands and is
capable of recognizing [the children’s] need for care, nor has he presented any evidence
indicating an ability to follow through on recognized needs if medical issues arise in the
future.” The superior court acknowledged that Christopher’s home was now clean, but
it found that returning the children would place them “in imminent danger of harm.” The
court found that Christopher had not demonstrated an ability to care for the children;
specifically, the court noted that Christopher had not fed them properly in the past, even
though OCS had provided food, that he had declined OCS’s offer of daycare assistance,
and that parenting classes had been ineffective. The court found that Christopher had not
shown “how he would ensure that the children will be fed and bathed and kept clean with
fresh diapers and clothes. He has not provided any evidence that indicates he has a plan
for prioritizing his tasks.”
Chris’s placement with Therese did not last. Therese successfully completed
treatment in October 2010 and moved with Chris into a shelter, but the baby fell off of a
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bed and hurt his head. Therese felt overburdened and asked that Chris be returned to
foster care. Chris went back to his foster home in Fairbanks, and Therese moved back in
with Christopher.
Over the months that followed, Resource Center staff members worked with
Christopher and Therese intensively. A family services worker met with them every
week. Sessions consisted of an hour of parenting instruction, during which the worker
explained and modeled outcomes and behaviors the parents would have to demonstrate
before reuniting with their children, followed by supervised visits of one or two hours
with the children, during which the parents were expected to practice what had just been
modeled for them. Instruction focused mainly on improving parental supervision and
disciplinary methods and addressing the parents’ inappropriate reliance on food to control
the children’s behavior. Sessions were conducted primarily at the Resource Center’s
visitation room but sometimes moved off-site for visits to restaurants, a park, a fair, and
a fiddlers’ festival, and for activities such as bowling and miniature golf.
OCS was hoping to place Chris with Therese once again for a trial home
visit if she continued to respond well to services. OCS was hoping to return the other
boys to the home as well, in time. To further assist the parents in meeting these goals,
OCS referred them both for drug testing and counseling through Tanana Chiefs
Conference (TCC). OCS referred Therese to Ralph Perdue Center for substance abuse
after-care services, which she began in November 2010. OCS encouraged the parents’
continuing participation in the Resource Center’s parenting services, and it began trial
weekend-long visits for Chris at the family home. It also attempted, unsuccessfully, to
arrange for the parents to visit the older children at their foster home in Nenana.9
9
OCS arranged several times to drive the parents to Nenana for visits that
were to last several hours. But none of these visits took place because each time the
(continued...)
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The parents began counseling at TCC, but after several sessions the
counselor’s scheduling problems interfered and the sessions ended. Therese participated
in the after-care program at Ralph Perdue until January 11, 2011, when she relapsed and
was discharged. She later admitted to having relapsed a number of times during the
program. When OCS learned of her latest relapse it decided not to attempt any further
placements with Christopher and Therese for the foreseeable future.
In early February 2011 Eric — then seven years old — was removed from
Innis and Olech’s home and placed in therapeutic foster care in Fairbanks, following a
report that he had choked the foster parents’ five-year-old daughter. His therapeutic home
is a potential adoptive placement for him.
In March 2011 OCS changed Chris’s foster placement, moving him from
his foster home in Fairbanks and placing him with Innis and Olech in Nenana. The move
was intended to unite permanently three of the siblings, Cal, Zander, and Chris; by this
time OCS anticipated that the boys would not be reunited with their parents but would
instead be adopted by Innis and Olech. Later that month, the superior court approved a
change in the permanency goals of these three boys, along with Eric, still in a separate
placement in Fairbanks, from reunification to adoption.
In April 2011 Therese relapsed yet again. She and Christopher were
smoking and drinking together when they got into an argument that turned physical. As
a result Therese was charged with assault; she pleaded guilty to a reduced charge of
harassment and was ordered to serve 15 days for having violated probation conditions
related to her 2010 assault convictions. Christopher did not seek help for Therese or
otherwise help her reconnect with treatment.
9
(...continued)
parents overslept and their social worker was unable to contact them. Other visits
arranged for Fairbanks were more successful.
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OCS again referred Therese for a substance abuse assessment and treatment,
this time for wrap-around services at Ralph Perdue. An assessment was scheduled for
mid-July, but Therese missed the appointment; instead she went to Shungnak to attend
a funeral, not notifying OCS of her plans. While in Shungnak, Therese, who had recently
become pregnant again, consumed gallons of homebrew during several bouts of drinking
and became involved in a family altercation during which she was repeatedly kicked in
her stomach. She did not seek medical care but instead remained in the village,
continuing to drink for several days before being medivaced to Kotzebue, where she was
hospitalized for a week.
In late August 2011 Therese completed her assessment at Ralph Perdue,
which recommended that she “enter and complete a Long Term Clinically Managed
Medium Intensity Residential Treatment Facility.” Therese denied to the assessor that she
had problems with alcohol or marijuana; however, she tested positive for cannabis and
opiates.10 She explained that it was the loss of her children that had caused her most
recent relapse. She told the assessor that she did not want to participate in treatment but
that OCS was requiring her to do so. According to the assessor, Therese did not
recognize that her use of alcohol and drugs caused problems in her life, and she did not
understand why OCS was involved with her family.
That same month OCS referred Christopher, too, to Ralph Perdue for an
assessment. Christopher told the assessor that his problem was OCS’s custody of his
children. He said that he was not troubled by his use of mood-altering substances and that
he did not identify his marijuana use as a problem, despite his daily use of it and possible
exposure to his children. He reported that two years earlier he had abstained for 18
10
According to a stipulation of facts filed with the superior court, the opiates
result was likely due to morphine Therese was given in the hospital.
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months but he had begun using again because of OCS’s involvement in his life, and he
had been unable to quit since then despite three attempts. The assessor recommended that
Christopher participate in outpatient treatment.
In September 2011 OCS filed a petition to terminate Christopher’s and
Therese’s parental rights to Eric, Cal, Zander, and Chris. Therese began residential
treatment that month at the Women and Children’s Center. In November 2011
Christopher began an outpatient treatment program through Ralph Perdue. In December
2011, while both parents were in treatment, they were married.
The parents’ attendance at parenting sessions at the Resource Center lagged
toward the end of 2011, and late in the year they stopped participating altogether. As a
result, weekly visits with the children were moved from the Resource Center to OCS’s
office. Both parents completed their substance abuse treatment programs in January
2012. The next month their sixth child, Mitchell, was born. OCS assumed emergency
custody of the baby and placed him in foster care with Eric. The parents had daily visits
with Mitchell, held jointly with their weekly visits with the older boys on the days those
visits were held.
In late March 2012 the superior court began a trial on OCS’s petition to
terminate Christopher’s and Therese’s parental rights to Eric, Cal, Zander, and Chris.
After three days of testimony, Christopher’s mother became ill and had to be hospitalized
in Anchorage, and the court continued the proceedings in order to accommodate the
family’s schedule.
In April 2012, during the continuance, airport police stopped the couple on
their way to Kobuk, a dry village. Police found a 750-milliliter bottle of whiskey in
Therese’s bag and three 750-milliliter bottles of whiskey taped to Christopher’s body.
Therese told the officer that they were taking the alcohol to her mother in Kobuk. When
the termination trial resumed in May, Katharina Johnson of Fairbanks Native Association,
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who had earlier performed assessments on both Therese and Christopher, testified as an
expert in drug and alcohol assessment and the treatment of substance abuse. She testified
that the smuggling incident demonstrated a significant reversal in Therese’s path toward
sobriety, and that Therese now required “more intense treatment, something that was
longer term by — a lot longer than six months.” Also during the continuance Christopher
tested positive for cannabis.
The termination trial concluded on June 1, 2012. In September 2012 the
superior court issued a highly detailed and thorough written order terminating
Christopher’s and Therese’s parental rights to the four boys. Both parents appeal.
Christopher and Therese each challenge the superior court’s findings that (1) they did not
remedy conduct or conditions under their control that placed the children in danger; (2)
OCS made active efforts to prevent the breakup of the Indian family; (3) their continued
custody of the children would likely result in the children suffering serious emotional or
physical harm; and (4) termination of their parental rights is in the children’s best
interests.
III. STANDARD OF REVIEW
In Child In Need of Aid (CINA) cases, we review the superior court’s
factual findings for clear error and its legal determinations de novo.11 Factual findings are
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’s
decision was mistaken.12 Conflicting evidence is generally not sufficient to overturn the
11
Sherman B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 290 P.3d 421, 427-28 (Alaska 2012) (citing Christina J. v. State, Dep’t of Health
& Soc. Servs., Office of Children’s Servs., 254 P.3d 1095, 1103-04 (Alaska 2011)).
12
Id. (quoting Barbara P. v. State, Dep’t of Health & Soc. Servs., Office of
(continued...)
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superior court’s factual findings, and we will not reweigh evidence when the record
provides clear support for the superior court’s ruling.13 Whether a parent has remedied
conduct or conditions that endanger a child, whether the child will likely suffer harm if
returned to the parent’s custody, and whether termination of the parent’s parental rights
is in the child’s best interests are factual determinations.14 Whether OCS made active
efforts to prevent the breakup of the family as required by ICWA is a mixed question of
fact and law.15 Whether the superior court’s findings satisfy the requirements of ICWA,
state CINA statutes, and Alaska court rules is a legal question.16
IV. DISCUSSION
A. The Superior Court Did Not Err In Finding That Christopher And
Therese Failed To Timely Remedy Conduct Or Conditions That
Endangered Their Children.
Alaska Statute 47.10.088(a)(2) requires a court to find, by clear and
convincing evidence, that a parent has failed to timely remedy conduct or conditions that
endanger the parent’s children before the court may terminate parental rights. The
12
(...continued)
Children’s Servs., 234 P.3d 1245, 1253 (Alaska 2010)).
13
Id. at 428 (quoting Maisy W. v. State, Dep’t of Health & Soc. Servs., Office
of Children’s Servs., 175 P.3d 1263, 1267 (Alaska 2008)).
14
Pravat P. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 249 P.3d 264, 270 (Alaska 2011) (citing Barbara P., 234 P.3d at 1253 (remedy
of conduct and conditions; likelihood of harm if returned to parent); Dashiell R. v. State,
Dep’t of Health & Soc. Servs., Office of Children’s Servs., 222 P.3d 841, 850 (Alaska
2009) (child’s best interests)).
15
Id. (quoting Dale H. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 235 P.3d 203, 210 (Alaska 2010)).
16
Dale H., 235 P.3d at 210 (citing Carl N. v. State, Dep’t of Health & Soc.
Servs., Div. of Family & Youth Servs., 102 P.3d 932, 935 (Alaska 2004)).
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superior court found that this requirement was met here. It began its analysis by
considering the length of time the children had been in state custody — five years for Cal
(age six at the time of trial), over two years for Eric and Zander (ages eight and four), and
since birth for Chris (age two). The court then discussed Therese’s substance abuse
before considering issues that affected the parents jointly and those relating to Christopher
in particular. The court was most concerned that in the nearly two-year period following
the children’s removal, neither parent had developed basic parenting skills.
The superior court relied on the testimony of Resource Center workers
Amber Thompson and Meghan Maroney, who testified that Christopher and Therese had
made no appreciable progress despite over a year of parenting sessions in which proper
techniques for supervision and discipline were repeatedly modeled and demonstrated; the
instructors could never move beyond very basic parenting skills.17 Thompson, Maroney,
and Heminger described visits during which neither parent acted protectively when the
boys darted across a street, the parents watched movies and ignored the boys’ needs, or
the parents focused on the baby, Mitchell, to the extent that the other boys gave up trying
to interact with them. Maroney testified that the parents used food as a substitute for
verbal communication, and that she was very concerned about the parents’ lack of
structure and their failure to provide consistent discipline and guidance. She testified that
the boys reacted to transitions to and from visits with their parents with anxiety, which
they dealt with by throwing age-inappropriate tantrums, and that while she would have
expected these behaviors to dissipate over time, they did not. She, Thompson, and
Heminger all testified that while the parents had demonstrated some positive behaviors,
17
Thompson testified as a lay witness; Maroney was qualified as an expert
in parenting education to mitigate safety threats to children.
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their overall progress had been inconsistent and their parenting abilities in 2012 were no
better than they had been in 2010, when the children were removed.
In addition, the superior court found that Therese’s ability to parent her
children had been substantially impaired by her substance abuse, which, along with the
physical violence that sometimes resulted, placed her children at substantial risk of both
physical and mental harm. The court found that Therese had not remedied her addictive
behavior. It based these findings on Therese’s long history of substance abuse and related
violence, her numerous failed attempts at treatment, her relapses following completion
of treatment programs, her short current period of sobriety, and expert witness Johnson’s
testimony that Therese currently needed to complete another, longer, course of treatment.
The superior court found that Therese’s proclivity toward violence when intoxicated and
her potential to relapse would endanger the children if they were returned to her care.
In finding that the children would be at risk from the combined parenting of
Therese and Christopher, the superior court questioned Christopher’s ability to support
Therese in her sobriety. The court found that Christopher “has consistently demonstrated
that he will help to hide [Therese’s] relapses rather than seek help for her, thus placing the
boys at risk if they are in their parents’ care during a relapse.” This finding addresses
Christopher’s testimony that he would ask Therese to leave if she were to relapse and
endanger the children. He testified that he had never asked her to leave in the past: “I
didn’t really. I’d said I would, but I never did.” His explanation as to why he had never
done so provides little support for a claim that he would behave differently in the future:
“It’s just a big emotional thing that I have for her and I love her and [we have] been
through a lot in the past, so.” The superior court ultimately concluded that Christopher
“is not a sober support for [Therese].”
The superior court was also concerned because Christopher, even after
completing treatment, tested positive for cannabis during the continuance in the
-18- 6790
termination trial, saw no reason to stop using the drug, and failed to appreciate that his use
might affect his children, especially if it were to coincide with a relapse by Therese.
Christopher disputes the superior court’s finding about his own failure to
remedy conduct that endangered the boys, arguing that his home life was more stable in
2012 than it had been in 2010 and justified the immediate return of his children. But this
argument does not address the basis for the superior court’s finding, which is that
Christopher has not provided evidence that he is capable of parenting the boys safely. In
addressing this aspect of the superior court’s decision, Christopher simply dismisses the
testimony of expert and lay witnesses about his parenting abilities as “nebular accusations
and petty criticisms.” This is insufficient to demonstrate error in the superior court’s
finding of fact.
Having reviewed the record, we conclude that the superior court’s finding
that Christopher failed to remedy dangerous conduct or conditions is supported by clear
and convincing evidence, and we therefore affirm the finding.18
Therese argues that the same finding is erroneous as to her because she no
longer has a problem with alcohol or drugs, because she was able to articulate at trial
appropriate parenting skills that she had learned through the Resource Center program,
and because the superior court’s finding that the children were in need of aid was not
based on her neglect of them.
18
The superior court did not clearly err by failing to accept Christopher’s
assertion that Heminger and the Resource Center staff members who were “judging” him
were unfamiliar with Native cultural ways. Heminger was qualified, without objection,
as an expert in providing social services to clients of Alaska Native descent, and
Maroney testified that roughly half of the Resource Center’s clients are Alaska Native
and that the Center regularly incorporates parents’ cultural values into its family contact
programs.
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As to her first point, Therese asserts that the superior court did not
adequately consider positive factors in her life, citing her more than eight months of
sobriety (including her four months in residential treatment), her testimony that she no
longer desires alcohol or drugs, her understanding that her anger issues are related to her
substance abuse issues, the availability of other family members and friends to provide
her with sobriety support, the fact that she and Christopher were married and living in
appropriate housing, and the fact that she had not engaged in domestic violence or been
arrested for more than a year.
The superior court did consider Therese’s period of sobriety, finding it
“encouraging” and entitled to some weight; but it also found that “in light of her long
history of alcohol addiction and repeated failed treatment attempts over the past five
years, four and one-half months of sobriety outside of residential treatment is insufficient
to establish a timely remediation of [Therese’s] addiction.” The superior court’s
conclusion based on this evidence is in line with our prior decisions. For example, in
Sherry R.19 we rejected a mother’s argument that her sobriety for a year before her
termination trial demonstrated that she had remedied the conduct that endangered her
children. We noted that the mother’s sobriety was “a relatively new phenomenon in her
life. She has struggled with substance abuse and relapsed after treatment a number of
times. Additionally, although she recognizes that she has had problems with alcohol, it
19
Sherry R. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 74 P.3d 896 (Alaska 2003).
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is unclear the degree to which she accepts her problem.”20 The facts of the present case
do not differ significantly from those in Sherry R.21
The evidence Therese cites is indeed positive, but it is not enough to show
that the superior court clearly erred in finding that she had not remedied her substance
abuse issues by the time of trial, particularly given expert witness Johnson’s unrebutted
testimony that Therese is still in need of additional and lengthy substance abuse treatment,
a need that she does not acknowledge.
As to her second point, Therese’s ability to describe appropriate parenting
skills at trial does not refute the testimony of Heminger and Resource Center workers that
in the preceding year she had proven unable to consistently provide her children with safe
parenting, even in the controlled environment of supervised visitations.
Finally, Therese argues that the superior court erred because it found that she
failed to remedy inadequacies in her parenting skills but had not found that those same
20
Id. at 902.
21
See also Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 244 P.3d 1099, 1112-13 (Alaska 2010) (affirming finding that nine-month period
of sobriety following years of alcohol abuse was insufficient to demonstrate timely
remedying of conduct); Barbara P. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 234 P.3d 1245, 1261 (Alaska 2010) (nearly six-month period of
sobriety); Natalie D. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
Mem. Op. & J. No. 1239, 2006 WL 438651 at *6 (Alaska, Feb. 22, 2006) (four-month
period of sobriety); Kira I. v. State, Dep’t of Health & Soc. Servs., Div. of Family &
Youth Servs., Mem. Op. & J. No. 1195, 2004 WL 2830860 at *4 (Alaska, Dec. 10, 2004)
(six-month period of sobriety); Ruth S. v. State, Dep’t of Health & Soc. Servs., Div. of
Family & Youth Servs., Mem. Op. & J. No. 1180, 2004 WL 1950244 at *4, *6 (Alaska,
Sept. 1, 2004) (five-month period of sobriety); Jerry C. v. State, Dept. of Health & Soc.
Servs., Div. of Family & Youth Servs., Mem. Op. & J. No. 1137, 2003 WL 21564518 at
*4 (Alaska, July 9, 2003) (six-month period of sobriety); Craig F. v. State, Dep’t of
Health & Soc. Servs., Div. of Family & Youth Servs., Mem. Op. & J. No. 1132, 2003 WL
21117676 at *6 (Alaska, May 14, 2003) (seven-month period of sobriety).
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inadequacies had caused her to neglect the children in the past. We find no merit to this
argument. The superior court found that the children had suffered serious neglect at
Christopher’s hands because of his inadequate parenting skills while Therese was not in
the home. The court found that Therese exhibited the same inadequacies. The court
found that because neither parent had improved their parenting skills following the
children’s removal, the children would be at risk of suffering the same level of neglect if
they were returned to the care of either or both parents. Given these findings and the
evidence supporting them, it was not error for the superior court to conclude that
Therese’s failure to develop and demonstrate safe parenting skills constituted a failure to
remedy conduct or conditions that would endanger the children if they were to be placed
in her care.22
Having reviewed the record, we conclude that the superior court’s finding
on this issue as to Therese, like its finding as to Christopher, was supported by clear and
convincing evidence, and we therefore affirm it.
B. The Superior Court Did Not Err In Determining That OCS Made
Active Efforts To Provide Services And Programs To Prevent The
Breakup Of The Indian Family.
25 U.S.C. §1912(d) and Alaska Child in Need of Aid Rule 18(c)(2) require
a court to find by clear and convincing evidence that the state made active but
unsuccessful efforts to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family before the court may terminate a parent’s
parental rights to an Indian child. Courts review OCS’s reunification efforts on a case-by­
case basis because “no pat formula exists for distinguishing between active and passive
22
Cf. Jeff A.C., Jr. v. State, 117 P.3d 697, 703 (Alaska 2005) (conduct or
conditions relied upon by a court in terminating a parent’s rights need not be the same
as the conduct or conditions that formed the basis for the child’s CINA adjudication).
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efforts.”23 Generally, active efforts require a social worker to take the parent through the
steps of the reunification case plan, rather than simply devising a plan and requiring the
parent to develop his or her own resources to meet it.24 In determining whether active
efforts have been made, a court may consider all services provided during the family’s
involvement with OCS; it need not focus on a distinct period of time.25 In addition, “a
parent’s demonstrated lack of willingness to participate in treatment may be considered
in determining whether the state has taken active efforts.”26
The superior court devoted nearly ten pages of its decision to the efforts
OCS made to reunify this family. The court stated that before March 2010 OCS focused
its efforts “primarily” on Therese’s substance abuse issues, but that it also offered
Christopher domestic violence services through LEAP, a substance abuse evaluation, and
urinalysis testing. The superior court found that OCS did not make “active efforts” to
assist the parents in developing parenting skills before 2010, but starting in 2010 OCS
made “extensive” efforts in this area.27 Christopher characterizes the court’s statements
23
A.A. v. State, Dep’t of Family & Youth Servs., 982 P.2d 256, 261 (Alaska
1999) (quoting A.M. v. State, 945 P.2d 296, 306 n.12 (Alaska 1997)) (internal quotation
marks omitted).
24
Lucy J., 244 P.3d at 1114 (quoting Wilson W. v. State, Office of Children’s
Servs., 185 P.3d 94, 101 (Alaska 2008)).
25
Maisy W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 175 P.3d 1263, 1268-69 (Alaska 2008) (quoting E.A. v. State, Div. of Family &
Youth Servs., 46 P.3d 986, 990 (Alaska 2002)).
26
N.A. v. State, DFYS, 19 P.3d 597, 603 (Alaska 2001) (citing A.M., 945 P.2d
at 306).
27
The superior court found that by July 2010 OCS had made the following
efforts intended to avoid having to remove the children from the home:
(continued...)
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as a finding that before March 2010, OCS made “no effort whatsoever” to assist him. He
argues that this “glaring finding,” combined with OCS’s purported lack of initiative or
assistance prior to the July 2010 removal, casts doubt on OCS’s efforts to support him
throughout the duration of the case. We reject these assertions as unsupported by the
record.
Christopher also argues that OCS’s efforts after the children’s removal in
July 2010 were inadequate because (1) OCS took too long in helping Christopher obtain
the children’s BIA cards to allow them to receive medical care at Chief Andrew Isaac
Health Center; (2) OCS did not follow through on Lankford’s recommendation that
Christopher receive hands-on parenting training; (3) services offered by the Resource
Center were not sensitive to Christopher’s cultural background; (4) Christopher had very
little contact with his Resource Center worker; (5) Heminger did not regularly update
Christopher’s case plan or clarify his concerns to Christopher; (6) Heminger did not visit
Christopher’s home after January 2011; and (7) Heminger did not make enough effort to
27
(...continued)
OCS supported [Therese’s] entry into the Women’s and
Children’s treatment program so [Therese] could eventually
rejoin the family as a sober care provider. It offered childcare
to [Christopher]. It offered [urinalysis testing] to
[Christopher] and [Therese]. It provided intensive parenting
education classes through [the Resource Center]. It provided
parenting classes in 2007 through the STAR program. It has
provided counseling through Fairbanks Community Health
and TCC. It provided LEAP classes for [Christopher]. It
offered transportation services. It assisted with application
for public assistance. It assisted with enrolling the school-age
children in school. And it assisted the family with the
provision of food boxes.
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“enforce” telephonic visits or in-person visits with the children when they were in foster
care in Nenana.
We address these arguments in order and find no merit in any of them. First,
the superior court found that OCS “bore some fault for taking too long in obtaining the
BIA cards,” but the court concluded that OCS’s lack of action was of little import both
because Christopher could have obtained medical care for the children at the facility’s
emergency room, and because “the children’s removal in July 2010 was caused, not by
lack of access to BIA-provided health care, but by [Christopher’s] failure to follow
through on the medical care for his children.”28
Second, the superior court found that OCS and the Resource Center
modified their techniques of parenting training to implement Lankford’s
recommendations as to what would most benefit Therese and Christopher. The court
specifically found that “the parents’ complaint that OCS did not implement the hands-on
training is not supported by the evidence.” Testimony by Heminger and Resource Center
workers supports this finding.
Third, the superior court found that the parenting training did not fail due
to a lack of cultural sensitivity. Instead, the court found that the Resource Center
was willing to incorporate important cultural values into the
program and the supervised visits, but the parents failed to
identify their cultural needs other than bringing important
cultural foods to a few visits to share with the boys. Parental
input was essential for [the Resource Center] to incorporate
cultural needs into its program for [the parents], but the
parents were not forthcoming with what they felt they
needed.
28
Social worker Heminger testified that at the time he was helping
Christopher obtain the BIA cards he was unaware of their significance in the children’s
ability to access free health care at Chief Andrew Isaac.
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This finding was supported by the testimony of Resource Center workers, who testified
that they incorporated Native cultural practices into their parenting sessions to the extent
Christopher and Therese were willing to identify the practices that were important to
them. Christopher asserts in his brief that a Native caseworker was more helpful than a
later non-Native caseworker who, he asserts, was “not at all familiar with Native culture.”
In the cited testimony, however, Christopher’s only specific complaint was about the two
caseworkers’ different styles of teaching, contending that he did better with a hands-on
approach; but the trial court found that OCS understood the parents’ special educational
needs and made substantial efforts to accommodate them.
Fourth, Christopher had the opportunity to meet with his Resource Center
worker for an hour each week before visiting with his children. Resource Center workers
testified that Christopher was not as involved as he could have been in their sessions, and
that his attendance fell off over time. The superior court made findings consistent with
this testimony.
Fifth, while Heminger arguably did not update the case plan as often as he
should have, this was due in part to the fact that Christopher’s needs did not change over
the course of the case. And Heminger testified that he regularly discussed with the
parents his expectations and goals for them. The superior court found Heminger’s
testimony on this point credible, and it noted that failure to complete paperwork does not
equate to a failure to provide active efforts.
Sixth, Heminger did not inspect Christopher’s home after January 2011
because after that time the conditions in the home did not pose a threat to the children;
OCS was retaining custody due to the parents’ lack of parenting ability. The court noted
this in its termination order.
Finally, Heminger testified that telephone visits were not successful because
the parents often did not answer their phones, and the superior court found this to be the
-26- 6790
reason. Both Christopher and Heminger testified, and the superior court found, that the
attempted in-person visits to Nenana did not occur because the parents did not make
themselves available. After four failed attempts, the parents did not accept Heminger’s
offer to try again.
In addition to raising several of these same unavailing arguments, Therese
argues that OCS’s efforts were inadequate because they did not constitute “appropriately
tailored services [offered] in a timely fashion.” She bases this assertion on OCS’s focus
on her substance abuse issues during the first several years of the case, and on its failure
to determine before 2010 that she had significant cognitive deficits that would benefit
from a special approach to treatment and the provision of services.
The superior court listed the efforts that OCS had made in providing services
to Therese over the years, including arranging and paying for repeated substance abuse
assessments and residential treatment programs and providing transportation assistance
both before and after 2010. The court found that OCS’s focus on Therese’s substance
abuse problems from 2007 to 2010 was appropriate. From 2010 onward, the court noted
that OCS offered Therese a psychological evaluation, modeling-based hands-on parenting
education, hands-on substance abuse treatment, grief counseling (which Therese refused),
vocational rehabilitation services (which Therese also refused), housing assistance,
transitional housing, couple’s counseling, and trial home visits.
As we have noted, OCS’s duty to make active efforts for a family does not
require perfect efforts.29 In Pravat P. we observed that “[o]ur concern is not with whether
the State’s efforts were ideal, but with whether they crossed the threshold between passive
29
Pravat P. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 249 P.3d 264, 272 (Alaska 2011).
-27- 6790
and active efforts.”30 Here, as in Pravat P., “the multiple actions taken by OCS and
summarized by the superior court, viewed as a whole, decisively crossed the threshold
into active efforts. This is certainly not a case in which a plan was drawn up and the
parent was left to his own devices in carrying it out.”31
The record provides sufficient evidentiary support for the superior court’s
finding that OCS made active but unsuccessful efforts to reunify Christopher and Therese
with their children. The finding is affirmed as to both parents.
C. The Superior Court Did Not Err In Finding That The Children Would
Likely Suffer Serious Emotional Or Physical Harm If Returned To
Christopher’s Or Therese’s Custody.
25 U.S.C. § 1912(f) requires a court to find, beyond a reasonable doubt, that
a parent’s continued custody of an Indian child will likely result in serious emotional or
physical damage to the child before the court may terminate parental rights. Proof that
the parent’s custody is likely to cause the child serious harm requires a showing both of
harmful conduct and that the harmful conduct is not likely to change.32 This proof must
include qualified expert testimony based upon the particular facts and issues of the case.33
The superior court found beyond a reasonable doubt that returning the
children to the care of Christopher or Therese would cause the children serious emotional
30
Id. (citing Dale H. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 235 P.3d 203, 213 (Alaska 2010)).
31
Id. (citation omitted).
32
Ben M. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
204 P.3d 1013, 1020 (Alaska 2009) (citing L.G. v. State, Dep’t of Health & Soc. Servs.,
14 P.3d 946, 950 (Alaska 2000)).
33
E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 991 (Alaska
2002) (citing 25 U.S.C. § 1912(f) (2000); C.J. v. State, Dep’t of Health & Soc. Servs.,
18 P.3d 1214, 1218 (Alaska 2001)).
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or physical harm. The court discussed the severe level of neglect that Cal, Zander, and
Chris were exposed to before their removal from the family home in July 2010. Citing
the testimony of expert witnesses Heminger, Maroney, and Lankford and lay witness
Thompson, the court found that despite the Resource Center’s year-long work with both
parents, there was “no progress on the part of either parent in obtaining parenting skills,”
which “establishes beyond a reasonable doubt that if placed back in their home, the
children will suffer similar neglect.” (Emphasis in original.)
Relying on Maroney’s testimony, the court found that during visits the
children would throw age-inappropriate tantrums to gain their parents’ attention “because
that is the only skill that works to obtain parental attention. And then, when attention is
obtained, the children are calmed with food to the point of illness.” The superior court
found credible Heminger’s testimony that after Mitchell was born the parents focused
their attention on him so completely that Eric had “given up” trying to gain his parents’
attention during their supervised visits. The court found credible Heminger’s and
Maroney’s testimony that, as late as April 2012, both parents continued to place their own
needs before those of their children. The superior court cited expert witness Lankford’s
testimony that Christopher’s failure to develop parenting skills since his evaluation meant
that there was “an increased likelihood of neglect if the children are [placed] in his care.”
The court also cited Lankford’s testimony that Therese would be unable to safely parent
the children if she were not sober, and that she was prone to violence when intoxicated.
The court went on to find that her present period of sobriety was “too short to ensure
lasting sobriety has been achieved.” Considering this evidence in the aggregate, the
superior court found that neither Christopher nor Therese has “the skills necessary to be
safe parents,” that their conduct was likely to cause harm to the children, and that neither
parent was likely to change their harmful conduct in a reasonable time. The superior
court found beyond a reasonable doubt that the parents were unlikely to improve their
-29- 6790
parenting skills in a reasonable time and that the children would suffer serious emotional
and physical harm if they were returned to their parents’ custody.
Christopher and Therese raise separate challenges to this finding.
Christopher argues that the finding is erroneous because “[t]he weight of the evidence
shows that Christopher has remedied the problems which caused the children’s removal.”
The evidence he cites is scant, consisting of a statement by Maroney that she did not think
that the children would suffer substantial physical harm if placed with Christopher,34 a
statement by a witness qualified as an expert in midwifery and neonatal care who testified
at Mitchell’s temporary custody hearing that she was not concerned about Therese’s
ability to care for her new baby,35 and Lankford’s initial focus on Therese’s conduct when
asked about the likelihood of harm if the children were returned to their parents’ care.
This evidence does little to demonstrate that Christopher remedied the conditions that had
caused his children harm while in his care, and it conflicts with abundant testimony cited
by the superior court that Christopher had not demonstrated an ability to safely care for
his children.
Finally, Christopher asserts that the superior court improperly conflated his
conduct with Therese’s. He cites two statements in the superior court’s decision that he
asserts demonstrate the impropriety of the court’s analysis. The first statement begins
“[t]he evidence, taken in the aggregate, establishes . . . .” As the State correctly points
out, “aggregate” in this context refers to the superior court’s aggregating the testimony
of lay and expert witnesses about each parent’s conduct; it does not indicate that the
34
Christopher does not acknowledge Maroney’s testimony that she “would
be very concerned about emotional impacts on — on the children” if they were returned
to their parents’ care. (Emphasis added).
35
This testimony was incorporated by the superior court into the termination
trial record.
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superior court improperly conflated Christopher’s behavior with Therese’s behavior. The
second statement Christopher relies on is that “[t]he court reluctantly concludes that
[Christopher and Therese] do not presently have the skills necessary to be safe parents.”36
We find nothing improper about this statement and do not interpret it to indicate that the
superior court conflated the two parents’ conduct. In addition, as the State points out,
given that Christopher and Therese were recently married and want to raise their children
together, it cannot have been improper for the superior court to consider dangers
presented to the children by a household headed jointly by them both.
Therese argues that the superior court’s finding is erroneous because she has
recently made progress in ordering her life, having remained sober for over eight months
(four months of which were in a residential treatment program) and not having been
involved in domestic violence for a year. Therese’s argument is essentially the same as
her argument that the superior court erred in finding that she failed to remedy conduct and
conditions that endanger the children. The difference is that the present finding must be
supported by evidence beyond a reasonable doubt, including testimony of one or more
expert witnesses.37 Our review of the record indicates no error on the superior court’s part
in reaching the same conclusion under this more exacting standard.38 Besides, the court’s
determination that the children would suffer serious harm if returned to Therese’s care is
independently supported by the court’s finding that she had not acquired the basic skills
necessary to safely parent her children.
36
Emphasis Christopher’s.
37
See E.A. v. State, 46 P.3d at 991.
38
The superior court’s finding was supported by testimony of expert
witnesses Heminger, Maroney, Lankford, and Johnson.
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We thus find adequate support in the record for the superior court’s finding,
beyond a reasonable doubt, that the children will likely suffer serious emotional or
physical harm if returned to the custody of Christopher or Therese, and the finding is
affirmed.
D. The Superior Court Did Not Err In Finding That Termination Of
Christopher’s Parental Rights Was In The Best Interests of Eric, Cal,
Zander, And Chris.
Before a court may terminate parental rights, AS 47.10.088(c) requires it to
consider the best interests of the child, and CINA Rule 18(c)(3) requires it to find, by a
preponderance of the evidence, that termination of parental rights is in the child’s best
interests. The superior court found by a preponderance of the evidence that termination
of Christopher’s and Therese’s parental rights would serve the best interests of each of
the four boys. The superior court examined each child’s situation separately. It began
by noting Cal’s lengthy history in state custody, his repeated removals from his parents’
home, and the positive relationship he had developed with his foster parents. The court
noted that Cal has difficulty understanding where and to whom he belongs. The superior
court next discussed Zander’s special educational needs, his difficulty in transitioning
after visits with Christopher and Therese, and testimony that he was doing well in his
foster parents’ care. The court noted that Zander has lived half his life outside his
parents’ home. As for Chris, the court noted that he receives “his foster parents’ ‘total
attention’ from the time he wakes until he goes to bed.” The court noted that he has lived
his entire life outside his parents’ care. Eric, the superior court observed, was placed in
therapeutic foster care because of inappropriate conduct toward another child following
his removal from Christopher and Therese, and he has spent the last two years in state
custody. The court noted that all of the boys appear to have learning disabilities and
developmental delays, and it found that they all, “especially two year old [Chris], need
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permanency.” The superior court found that all of the boys “need parents who can attend
to [their] special needs,” and it found that because Christopher and Therese had not
“acquired the basic parenting skills necessary to care for their children’s physical and
medical needs, it is unlikely that the parents will be able to care for the presently-
identified special needs of the boys let alone recognize special issues that may arise in the
future.”
These findings are supported by the testimony of Maroney, who expressed
“grave concerns” about the parents’ apparent lack of motivation “to eliminate or mitigate
at least some of those safety risks that were present before.” Maroney testified that each
of the boys has needs that “are immense in terms of needing very routine structure and
consistency in their lives in order to feel safe.” She stressed that children who miss
attachment opportunities early in life require a great deal of work in order to rebuild
trusting, secure relationships and to form attachments, not only to their childhood
caregivers but also as they grow into adults and develop their own intimate relationships.
She concluded that these children “are going to need incredible amounts of consistency
and safety throughout the remainder of their childhood in order to regain healthy
attachments . . . that were lost early on in their childhood.” She was concerned that
Christopher and Therese did not have the ability to provide the necessary consistency and
to eliminate safety risks in their home.
Christopher argues that the superior court’s finding is erroneous because he
loves the boys, shares a bond with them, and wants to care for them. He argues that if
Cal, Zander, and Chris are adopted by Innis and Olech the boys will lose contact with
him, Therese, and Eric. He asserts, without elaboration, that the boys’ best interests
require that they maintain family and tribal contact, have a Native male role model, and
learn Native culture from Christopher.
-33- 6790
Therese argues that the finding is erroneous because insufficient evidence
was presented regarding the children’s specific needs and because the superior court
failed to consider the children’s cultural needs.
Christopher’s and Therese’s arguments do not adequately address the factors
relied upon by the superior court in making its finding and are thus not sufficient to rebut
that finding. Besides, the parents’ assertions about the children’s cultural needs are
relevant to placement, not termination. Challenges to placement decisions, including
challenges based on cultural concerns, are not properly raised in a termination
proceeding.39
The superior court’s finding, by a preponderance of the evidence, that
termination of Christopher’s and Therese’s parental rights is in the best interests of these
four children is adequately supported by the record and is therefore affirmed.
V. CONCLUSION
For the foregoing reasons we AFFIRM the superior court’s order
terminating the parental rights of Christopher and Therese to their children Eric, Cal,
Zander, and Chris.
39
See Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 244 P.3d 1099, 1120 (Alaska 2010).
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