Amy M. v. State, Dept. of Health & Social Services, Office of Children's Services ( 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,
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THE SUPREME COURT OF THE STATE OF ALASKA
AMY M., )
) Supreme Court No. S-14948
Appellant, )
) Superior Court No. 3AN-12-00028 CN
v. )
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF )
CHILDREN’S SERVICES, ) No. 6820 - September 6, 2013
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Appellant. Megan R. Webb, Assistant Attorney General,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
I. INTRODUCTION
A young mother had four children who tested positive for cocaine at birth.
After her fourth child was born, the Office of Children’s Services (OCS) took custody
of the child and placed him with his maternal grandmother. Based on the mother’s
history of untreated substance abuse, OCS filed a petition for termination of the mother’s
parental rights three months after the child was born. After trial, the superior court
concluded that: (1) the mother’s substance abuse placed her child in need of aid; (2) the
mother failed to remedy the conditions that placed her child in need of aid within a
reasonable time; (3) OCS had made reasonable efforts to reunify the family; and (4)
termination was in the best interests of the child. The mother appeals, arguing that she
was not given a reasonable time to remedy her substance abuse issues, that OCS did not
exercise reasonable efforts over the short period prior to termination, and that termination
eight months after birth was not in her child’s best interests. We affirm the decision of
the superior court because it properly considered the mother’s history with OCS, her
conduct after the child’s birth, and the best interests of the child.
II. FACTS AND PROCEEDINGS
A. Facts
Kadin M.1 was born in February 2012 to Amy M. and Sherman B. This
appeal concerns the termination of Amy’s parental rights after a termination trial was
held when Kadin was eight months old.
1. Background
Amy has a long history of substance abuse. She began drinking and using
crack cocaine at age 16. Amy has four children; Sherman is the father of her three
youngest children. All four children tested positive for cocaine at birth.
Amy had her first child, Talia, at age 17. After Talia was born, Amy
participated in a substance abuse program through Dena A. Coy for six weeks. But she
left before completing the program and began using crack cocaine again. Amy’s mother
1
Pseudonyms have been used throughout this opinion to protect the identity
of the parties.
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Vallerie began to care for Talia when she was nine months old. Vallerie took Talia to
her father, and Talia now lives in South Carolina with him.
In September 2007, Amy gave birth to Georgina, her first child with
Sherman. When Georgina was about one year old, Sherman took her to a relative’s
home out of state.2 Georgina ended up living with another relative in New York who has
cared for her since she was fifteen months old.3
Darcy was born cocaine and marijuana positive in March 2009. OCS
assumed emergency custody of Darcy and placed her with Vallerie. While Amy was in
the hospital, an OCS caseworker offered to refer her to a substance abuse treatment
program. But after Amy was discharged she had no contact with OCS until September,
when OCS discussed a case plan with her. This initial case plan required her to: (1)
have an updated substance abuse assessment and follow recommendations for treatment;
(2) abstain from using alcohol or drugs; (3) complete a mental health evaluation and
follow the recommendations; and (4) complete an anger management class.4 In April
2010, Amy attended an orientation session at a substance abuse treatment program but
she did not complete the substance abuse assessment necessary to be admitted. OCS
again lost contact with Amy.
2
Sherman B. v. State, Dep’t of Health & Soc. Servs., 290 P.3d 421, 423 n.2
(Alaska 2012).
3
A New York court granted the relative sole legal and physical custody of
Georgina after Sherman attempted to forcibly remove her from the home when she was
three years old. See id. at 426.
4
Subsequent case plans added requirements to complete parenting classes,
establish a safe home and a means of support, and contact the caseworker monthly to
provide an address and progress updates.
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In December 2010, Amy was arrested. While incarcerated at Hiland
Mountain Correctional Center, Amy participated in a substance abuse assessment. Amy
admitted that she had been using “a $50 piece [of crack cocaine] daily” for the past six
months. The substance abuse assessment recommended long-term residential treatment,
and Amy began a residential treatment program while she was incarcerated. Amy did
well in residential treatment, but she was released before completing the program. Amy
again dropped out of contact with OCS and resumed using crack cocaine.
OCS filed a petition to terminate Sherman's and Amy’s parental rights to
Darcy in October 2011.5 A termination trial was held in January 2012 before Superior
Court Judge William F. Morse. On the first day of trial, Amy’s attorney presented a
signed relinquishment of her parental rights.6 The trial court terminated Sherman’s
parental rights, and this court affirmed the termination judgment in Sherman B. v. State,
Department of Health & Social Services.7
2. Kadin
Kadin was born in February 2012, one month after the termination trial
regarding Darcy. After Kadin’s birth, the hospital notified OCS that he was born cocaine
positive. At the hospital, OCS spoke with Amy about her substance abuse issues and her
relationship with Sherman.8 Amy admitted to using cocaine during her pregnancy.9
5
Steven B., 290 P.3d 427.
6
Id.7
Id. at 434.
8
OCS had concerns about her relationship stemming from Amy’s previous
report that Sherman gave her cocaine during her previous pregnancies.
9
As a result of his exposure to cocaine in utero Kadin has displayed some
(continued...)
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OCS assumed emergency custody of Kadin and placed him with his grandmother,
Vallerie.
After OCS assumed custody, Amy’s OCS caseworker, Leslie Johnston,
scheduled a team decision-making meeting. Amy did not attend the meeting, but Amy
and Sherman began family visits with Kadin twice a week at OCS, and Amy reported
that she also visited Kadin at her mother’s house.
Sherman and Amy were evicted from their residence in mid-February, and
Johnston had difficulty contacting Amy. Johnston was able to schedule a case planning
meeting with Amy by attending a family visit at OCS. At the meeting, Johnston
discussed Amy’s drug use and her need for treatment. Based on the 2011 substance
abuse assessment from Hiland Mountain, Johnston recommended that Amy enter long-
term residential treatment. But Amy stated that she only needed outpatient treatment.
Amy told Johnston that she planned to go to New York to get Georgina and that she
could attend outpatient treatment there. Amy refused to sign a release of information to
enable Johnston to complete referrals for treatment.
Johnston developed a case plan which required Amy to: (1) complete an
updated substance abuse assessment and follow the recommendations; (2) refrain from
substance abuse and illegal activity; and (3) sign a release of information to allow
Johnston to complete referrals on her behalf. Johnston scheduled two meetings to
discuss the case plan, but Amy did not show up.10 In June, Amy stopped attending
family visits, and OCS lost contact with her.
9
(...continued)
developmental problems including delayed mobility skills and muscle stiffness.
10
According to Johnston, she again attempted to schedule these meetings by
attending family visits.
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In August 2012, Amy turned herself in for a probation violation and was
again incarcerated at Hiland Mountain. While incarcerated, Amy participated in GED
classes, a parenting class, and weekly Narcotics Anonymous (NA) meetings. When
Johnston found out Amy was incarcerated, she left messages for Amy’s probation officer
to schedule a substance abuse assessment, but the probation officer did not return her
calls.
Amy was released from Hiland Mountain in October. She moved in with
her sister and began to visit Kadin. Amy began working as a cleaner, attending GED
classes, and going to NA meetings. Amy also made an appointment to meet with
Johnston on October 23, 2012 — the day before the trial for termination of Amy’s
parental rights to Kadin.
B. Proceedings
In May 2012, OCS filed a petition for termination of Amy’s parental rights
to Kadin. A termination trial was held on October 24 and 25, again before Judge Morse.
At trial, Amy testified that she was committed to sobriety and that she was willing to do
whatever it took to gain custody of Kadin.
Johnston testified that OCS had decided to move quickly on the termination
of Amy’s parental rights based on Amy’s history and because the court had just held the
trial regarding Darcy. OCS presented testimony regarding Amy’s conduct since Kadin’s
birth and her history with OCS. OCS also submitted the findings and judgment
terminating Sherman’s parental rights to Darcy. OCS argued that termination was
warranted because of Amy’s history of substance abuse, her lack of case-plan
participation, and the length of time that it would take her to complete treatment.
Following the trial, the superior court terminated Amy’s parental rights.
Amy now appeals.
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III. STANDARD OF REVIEW
Whether a parent has remedied the conduct or conditions that placed the
child in need of aid and whether termination is in the best interests of the child are
findings of fact.11 We review these findings for clear error.12 “Findings of fact are
clearly erroneous if a review of the entire record in the light most favorable to the party
prevailing below leaves us with a definite and firm conviction that a mistake has been
made.”13
Whether OCS made reasonable efforts to reunify the family is a mixed
question of fact and law; we review the legal portion of this question de novo.14
IV. DISCUSSION
Amy appeals the superior court’s findings that: (1) she failed to remedy the
conditions that placed Kadin in need of aid within a reasonable period of time; (2) OCS
made reasonable efforts to reunify her family over a reasonable period of time; and (3)
termination was in Kadin’s best interests. She does not appeal the superior court’s
finding that her substance abuse placed Kadin in need of aid.
11
Pravatt P. v. State, Dep’t of Health & Soc. Servs., 249 P.3d 264, 273
(Alaska 2011) (citing Barbara P. v. State Dep’t of Health & Soc. Servs., 234 P.3d 1245,
1253 (Alaska 2010)) (remedied conduct); Dashiell R. v. State, Dep’t of Health & Soc.
Servs., 222 P.3d 841, 850 (Alaska 2009) (citing Frank E. v. State, Dep’t of Health & Soc.
Servs., 77 P.3d 715, 717 (Alaska 2003)) (best interests).
12
Maisy W. v. State ex rel. Dep’t of Health & Soc. Servs.,175 P.3d 1263, 1267
(Alaska 2008) (citing Brynna B. v. State, Dep’t of Health & Soc. Servs., 88 P.3d 527, 529
(Alaska 2004)).
13
Barbara P., 234 P.3d at 1253 (quoting Brynna B., 88 P.3d at 529) (internal
quotation marks omitted).
14
Sherman B. v. State, Dep’t of Health & Soc. Servs., 290 P.3d 421, 428
(Alaska 2012) (citing Christina J. v. State, Dep’t of Health & Soc. Servs., 254 P.3d 1095,
1104 (Alaska 2011)).
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A. The Superior Court Did Not Clearly Err In Finding That Amy Failed
To Remedy Her Conduct In A Reasonable Time.
In order to terminate parental rights the superior court must find by clear
and convincing evidence that the parent has “failed, within a reasonable time, to remedy
the conduct or conditions . . . that place the child in substantial risk so that returning the
child to the parent would place the child at substantial risk of physical or mental
injury.”15 A reasonable time is statutorily defined as “a period of time that serves the best
interests of the child, taking in[to] account the affected child’s age, emotional and
development needs, and ability to form and maintain lasting attachments.” 16 In
determining whether a parent has remedied his or her conduct in a reasonable time, the
superior court “may consider any fact relating to the best interests of the child.”17
The superior court found that Amy’s substance abuse had placed Kadin in
need of aid because he tested positive for cocaine at birth. To support its conclusion that
Amy had not remedied her substance abuse within a reasonable time, the superior court
15
AS 47.10.088(a)(2).
16
AS 47.10.990(28).
17
AS 47.10.088(b). This statute also enumerates the following factors for the
court’s consideration:
(1) the likelihood of returning the child to the parent within
a reasonable time based on the child’s age or needs;
(2) the amount of effort by the parent to remedy the conduct . . . ;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the parent.
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relied on Amy’s lengthy history of substance abuse, her need for long-term residential
treatment, her failure to seek treatment, and her refusal to sign releases that would allow
OCS to contact treatment programs. The superior court found that Amy’s “claim that she
is now motivated to stay clean and has a sufficient support network of friends and family
to accomplish that goal [was] not credible.” The court commented that even if it
“delay[ed] termination for six or twelve months to see how [Amy] did with treatment,
the amount of time it would take her to receive treatment and show that she was not
likely to relapse is far too long to be reasonable.”
Amy argues that the superior court erred in considering its findings from
the previous termination trial concerning Sherman’s parental rights to Darcy. She argues
that the evidence against Sherman presented at the previous termination trial cannot be
used to terminate her parental rights. But a party waives an objection to the
consideration of evidence by failing to object at trial.18 Amy’s attorney did not object
when OCS submitted the previous termination order concerning Sherman’s parental
rights to Darcy as an exhibit. And, when the superior court asked the parties if they had
any objection to him reviewing his oral findings from the previous termination, Amy’s
attorney responded,“No.” Amy waived this argument by failing to object at trial.
Amy also argues that without considering the evidence presented at the
previous termination trial, there was insufficient evidence to support the superior court’s
conclusion that she failed to remedy her conduct within a reasonable time. We disagree.
Amy is correct that the superior court’s findings at the previous trial regarding her
parental conduct were somewhat limited. Amy’s conduct was not the focus of the
previous trial because she relinquished her parental rights to Darcy. But in this case, the
18
See Alaska R. Evid. 103(a)(1); In Re C.L.T., 597 P.2d 518, 522 (Alaska
1979) (“Failure to object to alleged error at the trial level may preclude raising the point
on appeal.”).
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superior court did not rely solely on its findings in the previous termination trial.
Instead, it considered Amy’s conduct as a whole, both before and after Kadin’s birth.
We have recognized that a parent’s history is relevant to whether a parent has remedied
her conduct in a reasonable time and whether OCS has made reasonable efforts to
reunify the family.19
Amy also asserts that she was not given a reasonable time to remedy her
conduct because OCS filed the petition for termination only three months after Kadin’s
birth. However, in Barbara P. v. State, Department of Health & Social Services,20 we
affirmed a termination judgment in a case where the petition was filed one month after
a child’s birth. We upheld the superior court’s finding that the parent had not remedied
her substance abuse issues in a reasonable time based on her history of substance abuse
and relapses, the questionable degree to which she accepted her substance abuse
problems, and the superior court’s credibility findings.21
Here, the superior court relied on similar facts to support the conclusion that
Amy would not remedy her conduct within a reasonable time. The court heard evidence
regarding Amy’s history of substance abuse, her failed attempts at treatment, and her
inability to parent her other children. Amy’s problems with substance abuse had spanned
almost 10 years. Amy had entered treatment twice, but failed to complete it. Amy’s case
19
See Sherry R. v. State, Dep’t of Health & Soc. Servs., 74 P.3d 896, 903
(Alaska 2003) (“The superior court is entitled to rely on a parent’s documented history
of conduct as a predictor of future behavior.”); Erica A. v. State, Dep’t of Health & Soc.
Servs., 66 P.3d 1, 8 (Alaska 2003) (explaining that “the court was entitled to consider the
division’s extensive history of efforts and [the parent’s] consistent lack of success at
addressing problems”).
20
234 P.3d at 1251-52.
21
Id. at 1260-61.
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plans showed little progress over the three years of her involvement with OCS. And over
those three years, there were significant periods when Amy failed to stay in contact with
OCS.
After Kadin was born, Amy indicated that she wanted treatment, but she
refused to enter long-term residential treatment, she did not complete a substance abuse
assessment, and she would not sign a release of information to enable OCS to set up
treatment. Despite her history, Amy testified that she did not need long-term treatment.
The superior court properly considered Amy’s conduct in the eight months after Kadin
was born in conjunction with her long history of substance abuse. The court found that
Amy needed long-term treatment to address her substance abuse and that Amy’s
assertion that she would stay sober was not credible. These findings are supported by
the record, and we therefore defer to the superior court’s judgment.22
Amy also points to AS 47.10.088(d), which requires OCS to file a
termination petition if the child has been out of the parent’s custody for 15 of the last 22
months. She argues that this statute establishes that 22 months is a more reasonable
period to allow her to remedy her conduct. We previously rejected this argument in
Christina J. v. State, Department of Health & Social Services.23 There, we explained that
a reasonable time is not defined “as a specific number of months or by reference to
parents’ needs, but as ‘a period of time that serves the best interests of the child.’ ”24 The
22
See Hannah B. v. State, Dep’t of Health & Soc. Servs., 289 P.3d 924, 930
(Alaska 2012) (“We defer to a superior court’s credibility determinations, particularly
when they are based on oral testimony.”) (citing Pravat P. v. State, Dep’t of Health &
Soc. Servs., 249 P.3d 264, 274 (Alaska 2011)).
23
254 P.3d 1095, 1106-07 (Alaska 2011).
24
Id. at 1107 (quoting AS 47.10.990(28)).
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legislature has found that children undergo a critical attachment process before the age
of six, and “suffer tremendously when their bonding processes are interrupted.”25
In Christina J., the superior court relied on its finding that the parent had
done “virtually nothing” to start changing the behavior that placed her child in need of
aid and found that there was a low likelihood of returning the child to her care within a
reasonable time.26 Here, in eight months, Amy did not take any concrete steps toward
obtaining the long-term residential treatment required by her case plan. She did not even
sign the release forms to allow Johnston to make initial referrals. Amy’s stated intention
to complete treatment, her sobriety while incarcerated, and her attendance at NA
meetings were all positive developments, but they were very recent changes. Despite
these recent changes, the superior court could reasonably find that Amy had failed to
remedy her conduct within a reasonable time.
In sum, the superior court properly considered Amy’s history of substance
abuse, her present conduct, and the amount of time necessary to remedy her substance
abuse issues in determining that she had failed to remedy her conduct within a reasonable
time. We conclude that the superior court’s finding was not clearly erroneous.
B. The Superior Court Did Not Err In Concluding That OCS Made
Reasonable Efforts To Reunite The Family.
In order to terminate parental rights, the State must demonstrate by clear
and convincing evidence that it made “timely, reasonable efforts to provide family
25
Martin N. v. State, Dep’t of Health & Soc. Servs., 79 P.3d 50, 56 (Alaska
2003) (explaining that a child’s “need for permanency must reasonably limit the length
of time accorded to [the parent] to remedy his behavior”).
26
Christina J., 254 P.3d at 1107.
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support services to the child and to the parents” to reunite the family.27 The duty to
provide reasonable efforts includes the duty to:
(1) identify family support services that will assist the parent
. . . in remedying the conduct or conditions in the home that
made the child a child in need of aid; (2) actively offer the
parent or guardian, and refer the parent or guardian to, the
services identified . . . ; and (3) document the department’s
actions that are taken . . . .[28]
Reunification efforts need not be perfect, only reasonable in light of the circumstances.29
These circumstances can include a parent’s unwillingness to participate in treatment,30
or a parent’s incarceration.31
The superior court found that in the years before Kadin’s birth OCS tried
to get Amy to address her substance abuse with no success. And after Kadin’s birth,
OCS spoke to Amy “repeatedly to get her to obtain an updated [substance abuse]
assessment and to begin treatment,” but she refused. The superior court recognized that
27
AS 47.10.086(a); AS 47.10.088(a)(3); see also Barbara P., 234 P.3d at
1261 (citing AS 47.10.086(a); AS 47.10.088(a)(3); CINA Rule 18(c)(2)(A)).
28
AS 47.10.086(a).
29
Audrey H. v. State, Office of Children’s Servs., 188 P.3d 668, 678 (Alaska
2008).
30
Id. (citing E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 991
(Alaska 2002)).
31
T.F. v. State, Dep’t of Health & Soc. Servs., 26 P.3d 1089, 1096 (Alaska
2001) (explaining that incarceration significantly affects the scope of active efforts
required under the Indian Child Welfare Act, and that Department of Corrections
programs can be considered in determining whether the state has made active efforts
under ICWA); see also Zander P. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 2007 WL 2745157 at *5 (Alaska, Sept. 19, 2007) (noting
incarceration significantly affects the scope of reasonable efforts required).
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if this had been Amy’s first encounter with OCS, then OCS’s efforts may not have been
reasonable, and the filing of the petition three months after the child’s birth may have
been too hasty. But, relying on the difficulty OCS had in contacting and engaging Amy
for three years, the court found clear and convincing evidence that the state made
reasonable efforts at reunification.
Amy argues that there was no evidence OCS offered or referred Amy to any
services as required. Amy alleges that: (1) Johnston only “spoke with Amy a total of
three times in the eight months after Kadin’s birth;” (2) Johnston could have met with
Amy at regularly scheduled visitation; (3) Johnston made no referrals; and (4) the case
plan regarding Kadin was not presented to Amy.
The record does not support Amy’s argument. The superior court correctly
considered the interactions between OCS and Amy over three years — both prior to and
after Kadin’s birth.32 The record shows that OCS repeatedly urged Amy to get substance
abuse treatment, but Amy was not willing to participate fully in treatment, and she would
drop out of contact with OCS for months at a time.
When Darcy was born in March 2009, OCS visited Amy in the hospital and
discussed Amy’s need to complete a substance abuse assessment and a treatment
program. After she was discharged from the hospital, OCS lost contact with her. In
September 2009, the caseworker discussed a case plan with Amy and referred her to
treatment. But Amy did not enter treatment because she refused to complete the required
substance abuse assessment. After a few months, Amy again dropped out of contact with
32
Erica A. v. State, Dep’t of Health & Soc. Servs., 66 P.3d. 1, 8 (Alaska 2003)
(“We have held that the state’s efforts to prevent breakup of the entire family may be
considered in assessing whether that effort was sufficient with respect to a particular
child.”) (quoting E.A. v. State, 46 P.3d 986, 991 (Alaska 2002)) (internal quotation marks
omitted).
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OCS. After Amy was incarcerated in December 2010, she completed a substance abuse
assessment and entered a treatment program. But when Amy was released, she did not
follow the recommendation that she complete residential treatment. Instead, she dropped
out of contact with OCS and began using drugs again.
There was very little contact between Amy and Johnston after Kadin’s
birth. At the hospital, after Kadin was born, Johnston again discussed with Amy her
need for treatment. But then Amy dropped out of contact with OCS. Because Amy had
not provided contact information to OCS, Johnston went to a family visit to schedule a
case planning meeting. At the meeting, Johnston outlined Amy’s primary case plan
requirement — her need for residential substance abuse treatment — but Amy declined.
Amy also refused to sign a release of information that was necessary for Johnston to
make referrals. Johnston attempted to schedule two other meetings — again by dropping
in on Amy’s visits with Kadin — but Amy did not show up. In June 2012, OCS lost
contact with Amy altogether when she stopped attending visits.
The superior court recognized that Johnston’s efforts were not perfect;
there was more that she could have done to stay in contact with Amy. But the superior
court’s finding that OCS made reasonable efforts was not clearly erroneous based on
Amy’s unwillingness to participate in residential treatment and Amy’s failure to maintain
regular contact with OCS.
C. The Superior Court’s Finding That Termination Was In Kadin’s Best
Interests Was Not Clearly Erroneous.
In order to terminate parental rights, the superior court must find by a
preponderance of the evidence that termination is in the child’s best interests.33 The
court is required to consider several statutory factors in determining whether termination
33
CINA Rule 18(c)(3).
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is in the best interests of the child, including: (1) the likelihood of returning the child to
the parent within a reasonable time based on the child’s age or needs; (2) the amount of
effort by the parent to remedy his or her conduct; (3) the harm caused to the child; (4)
the likelihood that the harmful conduct will continue; and (5) the history of conduct by
or conditions created by the parent.34
The superior court properly considered the statutory factors and found that
it was in Kadin’s best interests to terminate Amy’s parental rights. The court found that
Amy “remains at a very high risk of continued abuse of cocaine.” Based on her history
of substance abuse and the most recent substance abuse assessment, the superior court
found that it would take at least a year of residential treatment to overcome Amy’s
substance abuse issues and prepare her to care for Kadin. This amount of time was “far
too long to be reasonable.”
The superior court also found that Amy had never demonstrated an ability
to care for a young child. Kadin was strongly bonded to his grandmother, Vallerie, and
his sister, Darcy; it was therefore in his best interests to remain with them. Vallerie had
been approved to adopt both Darcy and Kadin. The court noted that due to this family
placement, Kadin would be able to have a relationship with Amy if Amy overcame her
substance abuse.
Amy argues that she was two months sober at the time of termination and
determined to abstain from drugs. Amy reasons that, because Kadin was placed with
Amy's mother, he would not have been harmed by allowing Amy more time to address
her substance abuse issues. And, she argues that she should have received more time
because “it is in the best interest of a child . . . to be reunited with his or her biological
parent.”
34
AS 47.10.088(b).
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But Amy’s recent sobriety was not determinative. Amy had struggled with
substance abuse for almost ten years. She had failed to complete substance abuse
treatment twice and had recently refused to enter residential treatment. Despite her
history, Amy testified that she did not need residential treatment to remedy her addiction.
The superior court reasonably relied on Amy’s long history of substance abuse and
unsuccessful treatment when it determined that Amy’s claim that she was motivated to
stay clean was not credible.
As we have previously explained, “in a termination trial, the best interests
of the child, not those of the parent[], are paramount.”35 We have also recognized that
young children have unique needs for permanency and bonding.36 At the time of
termination, Kadin was only eight months old. He had spent his entire life in his
grandmother’s care and had developed a strong bond with his grandmother and his older
sister.37
In contrast, Amy had not maintained consistent contact with Kadin, even
for the short period these proceedings were pending. According to the OCS caseworker
and her most recent substance abuse assessment, Amy needed at least a year of
35
Kent V. v. State, Dep’t of Health & Soc. Servs., 233 P.3d 597, 601 (Alaska
2010) (quoting A.B. v. State, Dep’t of Health & Soc. Servs., 7 P.3d 946, 954 (Alaska
2000)).
36
See Christina J., 254 P.3d at 1107 (citing AS 47.05.065(5)) (noting the
legislature has recognized that children under six undergo a critical attachment process
and a failure to bond with adult caregivers during this time can result in lasting emotional
damage).
37
See Barbara P., 234 P.3d at 1264 (“[T]he fact that a child has bonded with
[the] foster parent can [also] be a factor in considering whether it is in the child’s best
interests to terminate a parent’s rights.”) (quoting Karrie B. ex rel. Reep v. Catherine J.,
181 P.3d 177, 185 (Alaska 2008)) (alteration in original).
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residential treatment to adequately address her substance abuse issues. Based on Kadin’s
age, his bond with his grandmother, and his need for permanency, the superior court
could reasonably conclude that Kadin could not be safely returned to his mother within
a reasonable time.
In summary, the superior court properly considered Kadin’s best interests
in light of the amount of time it would take for Amy to address her substance abuse
issues, and we cannot conclude that these findings were clearly erroneous.
V. CONCLUSION
We AFFIRM the superior court’s judgment terminating Amy’s parental
rights.
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