as: 102 P.3d 932)
Court of Alaska.
of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF
FAMILY & YOUTH SERVICES, Appellee.
Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant.
G. Hotchkin, Assistant Attorney General, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
father of an Indian child appeals the termination of his
parental rights. He
challenges three findings of the superior court: (1)
that he failed to remedy the conduct that had placed
his child at risk of harm; (2)
that returning the child to the father would likely result
in serious emotional harm; and
(3) that the termination was in the child's best interests.
the father argues that he was diagnosed with bipolar disorder
just months before the termination trial, and that he was
making significant progress and was leading a sober, stable lifestyle
by the time of the trial. He
also argues that the child's severe emotional problems made adoption
unlikely, and therefore that working toward reunification with the father
was in the child's best interests. Because
the record supports each of the superior court's *933
findings, we affirm the termination of parental rights.
an Indian child under the Indian Child Welfare Act (ICWA),FN1
was born to Carl and Karen on January 11, 1994.FN2
lived with Karen and his son for eight months before
he was incarcerated in September 1994. When
he was released in June 1995, he spent a month
with the child and the mother until a domestic violence
order was issued against him.
U.S.C. §§ 1901-23,
opinion uses pseudonyms for all family members.
August 1995 Karen voluntarily placed Caden in state custody because
she felt unable to care for him. Karen
originally expressed an interest in giving Caden up for adoption
but agreed to work toward reunification when Carl opposed the
nine months to a year Carl moved to Fairbanks and
not in touch”
with Caden. In
her August 1997 affidavit, a social worker with the Division
of Family and Youth Services (DFYS) stated that Karen had
successfully completed her case plan, but that Carl had not
complied with the case plan and only visited Caden sporadically.
September 1997 the superior court returned Caden to his mother's
1997 Carl was convicted of larceny and spent part of
1997 and 1998 in jail. In
1999 Karen, who had had a second child with another
man, was homeless and having difficulties caring for Caden and
his half-brother. Caden
went to live with his father, while his half-brother was
taken into the state's custody. Caden
lived with Carl from June 1999 until November 1999. On
November 4, 1999, DFYS removed Caden from Carl's care and
placed him in a foster home. DFYS
assumed custody of the child because Carl had left Caden
with Karen even though DFYS had warned him that it
was not safe to do so, and because DFYS was
concerned about Carl's criminal history and his prior failure to
complete a case plan. Both
parents stipulated that Caden was a child in need of
November 1999 DFYS prepared a case plan to return Caden
case plan specified adoption as a concurrent plan goal, stating:
may continue to work on goals to have their children
return home, but it must be understood that it is
a time limited process.”
case plan called for Carl to address any substance abuse
and mental health issues prior to reunification with his son.
has a history of depression and drug and alcohol dependence.
January 2000 Carl received a substance abuse assessment that recommended
outpatient treatment. He
completed a sixteen-hour chemical dependency program but did not complete
an outpatient treatment program. At
this time his caseworker expressed concern that Carl was not
visiting Caden regularly and that this inconsistency caused Caden to
become angry and fearful.
was arrested in May 2000. From
that time until August 2002 he never lived independently in
the community; he
was in jail, in a halfway house, under house arrest,
or in a residential treatment facility. He
entered a residential treatment program in November 2000 and completed
the program in February 2001. That
month, he was convicted of failing to stop at the
direction of an officer and again placed in jail. While
at a halfway house in the fall of 2001, Carl
entered an outpatient substance abuse program and completed the program
in April 2002. In
June 2002 he had a cocaine relapse. He
turned himself in and was returned to jail. He
was released on parole in August 2002.
August 2002 Carl was diagnosed for the first time with
bipolar disorder and began treatment. After
his release from jail he attended one treatment team meeting
for Caden but then stopped contacting the department; the
social worker was unable to locate him for months. In
September his parole officer placed him in a urinalysis program.
provided a dilute sample at his first appointment and failed
to appear for additional urinalysis appointments. After
his September meeting with his parole officer, *934
he absconded from parole and was arrested in January 2003.
was released eleven days later and placed in an intensive
surveillance parole program. He
was still in that program during the termination trial in
March 2003. At
the time of the trial he had successfully completed three
weeks of urinalysis monitoring.
the time of the termination trial, Caden was nine years
had been diagnosed with bipolar and post traumatic stress disorders.
Susan LaGrande testified at the trial that the post traumatic
stress disorder appeared to relate to “the
instability or kind of chronic maltreatment, neglect, and instability in
his home life.”
was prone to tantrums and episodes of rage that placed
himself and others in danger. His
behavior led to several hospitalizations, including a lengthy stay that
ended just weeks before the trial.
the time of the trial, Caden had been in the
same foster home placement for nineteen months. Shortly
before the trial his foster mother told DFYS that she
was no longer considering adopting Caden because of his escalating
behavioral problems and hospitalizations. DFYS
considered sending Caden to a residential treatment program. When
Caden's doctor and Dr. LaGrande advised DFYS that Caden was
not a good candidate for residential treatment and recommended that
he be returned to his foster mother, DFYS reversed course.
to Dr. LaGrande's testimony, although the foster mother was not
willing to take on the responsibility of adopting Caden, she
was willing to take care of him until he turned
the limitations that if he's not able to maintain or
services aren't sufficient to help her maintain it then another
decision is going to have to be made.”
the time of the trial DFYS was considering two different
options for Caden: locating
a permanent adoptive family, and keeping him in his current
foster placement. Dr.
LaGrande testified that in her experience it was difficult to
find an adoptive family for a child with emotional difficulties
as severe as Caden's. DFYS
was open to the possibility that Carl could continue to
play a role in his son's life provided that he
demonstrated stability and that, if Caden were adopted, his adoptive
parents did not object.
Department of Health and Social Services filed a petition to
terminate Carl and Karen's parental rights on March 26, 2002.
termination trial was held in March 2003. Karen
voluntarily relinquished her parental rights during the trial.
LaGrande testified that because of Carl's recent history of substance
abuse and mental illness he was unable to act as
Caden's parent. She
testified that to work toward reunification, Carl would have to
demonstrate that he was clean and sober for a full
year, and would then have to treat his mental health
issues and establish a track record of stability. She
estimated that it would be at least two years before
reunification could seriously be considered.
LaGrande also testified that the uncertainty surrounding Caden's living situation
was psychologically draining for the child and was impeding his
to LaGrande, Caden needed to know that the home where
he lived would be his home “for
a long period of time in the future”
so that he could settle down and focus on his
behavior at home and his relationship with his foster parent.
LaGrande concluded that it was in Caden's best interests to
resolve the issue of his father's parental rights quickly. Social
worker Vivian Patton and Caden's therapist, Gregory Galanos, also testified
that it was important for the parental rights issue to
be resolved so that Caden could move on psychologically and
achieve permanence and stability in his home life.
also testified at the trial. Carl's
attorney argued that Carl had only recently been correctly diagnosed
and treated for his bipolar disorder and that he had
made significant progress in the months prior to trial. He
also argued that the state had failed to meet its
burden for the termination of parental rights under ICWA and
Child in Need of Aid (CINA) Rule 18.
superior court made oral findings of fact and conclusions of
law on April 15, 2003 and entered an order terminating
rights on August 18, 2003. The
court found by clear and convincing evidence that Caden was
a child in need of aid due to abandonment, neglect,
substance abuse, and mental illness, and that Carl had not
remedied the conditions that placed Caden at substantial risk of
court found that Carl was “not
past his bipolar disorder”
and that he was “at
in the initial stages of recovery”
from substance abuse. The
court expressed concern that as recently as the fall of
2002, Carl had failed to report to his parole officer
or comply with urinalysis testing. The
court also found beyond a reasonable doubt that returning Caden
to Carl's custody would result in serious emotional damage to
making this determination, the court relied in part on the
expert testimony of Dr. LaGrande. The
court stated that Caden has severe behavioral problems and expressed
concern that Carl “does
not have real insight into his child's problems and how
to deal with those problems.”
court found that if Carl and Caden were reunited, it
is likely that Carl would “abdicate
the responsibility of parenthood,”
emotional damage to the child.
the court found that termination of parental rights was in
the best interests of the child. Noting
that Caden's problems stemmed in part from instability in his
home life, the court found that leaving open the prospect
of reunification with his father “would
mean more years of instability and a real likelihood that
it would not come to fruition.”
court concluded that termination of parental rights “would
give [Caden] an opportunity to have a start; to
find a therapeutic foster home or adoptive home and at
least have the prospect of real stability in the remaining
years of his childhood.”
of parental rights to an Indian child under ICWA and
the CINA rules and statutes requires that the superior court
make five findings. The
trial court must find by clear and convincing evidence that
the child is
in need of aid as described in AS 47.10.011
and that the parent has not remedied, within a reasonable
time, the conduct or conditions in the home that place
the child at substantial risk of physical or mental injury.
court must find by a preponderance of the evidence that
the department has made active but unsuccessful efforts to provide
services and programs designed to prevent the breakup of the
and that termination of parental rights is in the child's
the court must find by evidence beyond a reasonable doubt,
including qualified expert testimony, that continued parental custody is likely
to cause serious emotional or physical damage to the child.FN7
U.S.C. § 1912(d)
U.S.C. § 1912(f)
this case, Carl challenges three of the superior court's findings:
that Carl has not remedied the conduct that placed Caden
at substantial risk of harm; (2)
that return of Caden to Carl's custody was likely to
result in serious emotional damage to Caden; and
(3) that the termination of parental rights was in Caden's
“In a child in need of aid case,
we will affirm the superior court's factual findings unless they are clearly
Whether the superior court's findings comport with the requirements
of ICWA or the CINA statutes and rules is a question of law that we review
B. v. State, Dep't of Health & Soc. Servs.,
88 P.3d 527, 529 (Alaska 2004).
R. v. State, Dep't of Health & Soc. Servs.,
74 P.3d 896, 901(Alaska 2003) (CINA rules and statutes); J.J.
v. State, Dep't of Health & Soc. Servs.,
38 P.3d 7, 8 (Alaska 2001) (ICWA).
Superior Court Did Not Err in Finding that Carl Failed
To Remedy the Conduct that Placed Caden at Risk Within
a Reasonable Time.
Carl argues that the superior
court erred in finding that he had failed to remedy his conduct within
a reasonable time. He contends that his life has turned around
since he was correctly diagnosed and treated for bipolar disorder, and
that in the eight months between the diagnosis and the trial he had stayed
sober and made substantial progress in creating an emotionally and financially
stable environment for the return of his son. He argues that
his past drug treatment failures are not predictive of his future conduct
and that the court should have focused on his behavior after the diagnosis
the record does not support Carl's assertion that his conduct
changed dramatically once he began treatment for bipolar disorder in
August 2002. It
is true that the social worker testified that her meetings
with Carl in the weeks before the trial were much
more positive than those in the past and that he
seemed to be making progress in identifying and working on
his problems. But
in the months after his diagnosis, he also submitted a
dilute urine sample, failed to appear for urinalysis tests, absconded
from parole, and failed to maintain contact with Caden's social
the termination trial, Carl's proven track record of sobriety amounted
to three weeks of successful urinalysis monitoring as part of
an intensive surveillance parole program.
determining whether a parent has failed to remedy his conduct
within a reasonable time, courts may consider any fact relating
to the best interests of the child, including “the
likelihood of returning the child to the parent within a
reasonable time based on the child's age or needs.”
LaGrande estimated that even if Carl continued to make progress
it would be at least two years before he could
be reunified with Caden. Given
the evidence in the record that Caden needs to achieve
stability and permanence, the superior court could reasonably find, as
it did, that Carl's recent efforts were “too
little, too late.”
v. State, Dep't of Health & Soc. Servs.,
30 P.3d 79, 86-87 (Alaska 2001) (holding that despite mother's
progress in attempting to conquer substance abuse, she had failed
to remedy her conduct within a reasonable time).
Superior Court Did Not Err in Finding that Returning Caden
to Carl Would Likely Result in Serious Emotional Damage.
argues that the superior court also erred in finding that
the state met its burden of proving beyond a reasonable
doubt that returning Caden to Carl's custody would likely result
in serious emotional damage to Caden. The
superior court's determination is supported by expert testimony in the
LaGrande testified that Caden is severely disturbed and that he
needs stable, consistent parenting in order to learn to manage
his behavior. She
testified that Carl did not have the requisite stability and
parenting skills, stating that if Caden were placed with his
father, he “isn't
going to continue to grow, he's going to ...
continue to have a decline in his behavior.”
Carl has at times failed to visit Caden regularly; Carl
dropped out of contact with DFYS for several months, less
than a year before the trial. The
record supports the superior court's finding that if Carl were
given custody he would likely “abdicate
the responsibility of parenthood”
and drop out of Caden's life, a scenario that Dr.
LaGrande testified would cause Caden serious psychological harm.
argues that State,
Department of Health & Social Services v. M.L.L.
supports his argument. In
we affirmed the trial court's finding that the state had
not met its burden under ICWA for termination of parental
that case, we stressed that much of the past conduct
that had put the children at risk had been sufficiently
remedied to create a reasonable doubt as to future harm.
mother in M.L.L.
had, for example, been sober for over *937
three years and had maintained a violence-free household with a
by contrast, has not remedied the conduct that originally put
Caden at risk of harm. The
superior court did not err in finding beyond a reasonable
doubt that returning Caden to Carl's custody would likely result
in serious emotional harm.
P.3d 438 (Alaska 2002).
Superior Court Did Not Err in Finding that Terminating Carl's
Parental Rights Was in the Best Interests of the Child.
also argues that the superior court erred in finding that
the termination was in Caden's best interests. He
points out that Caden's foster parent was not interested in
adoption, and that Dr. LaGrande testified that it could be
difficult to find adoptive parents for a child with such
severe emotional problems. He
argues that termination would not lead to a permanent placement
for Caden and that allowing Carl to work toward reunification
would give Caden his best chance at stability and permanence.
state argues that its plan-pursuing the possibility of adoption while
considering whether it would be better for Caden to remain
with his foster parent for the remainder of his childhood-was
the best approach. The
state points to evidence in the record that the foster
parent was committed to caring for Caden until he turned
eighteen provided that his behavior remained under control. The
state also emphasizes that regardless of his placement, Caden needed
to resolve the issue of his father's parental rights because
the continuing uncertainty about whether he would return to his
father was harming him and impeding his development.
record supports the superior court's finding that the termination would
be in Caden's best interests. Dr.
LaGrande, social worker Patton, and Caden's therapist all testified that
the resolution of the parental rights issue was important to
Caden's emotional well-being. When
asked whether the foster parent's decision not to adopt Caden
changed her opinion that Carl's parental rights should be terminated,
Dr. LaGrande responded:
I think the parental rights issue still needs to be
resolved so that he understands that piece....
[T]hat's a thing that's not going to happen, he's not
going home, he has to focus on his behavior here
and focus on that relationship with [the foster parent]. I-I
think that to have it hanging out there, that uncertainty,
in my experience is very draining on kids.
the time of the termination trial, Caden had been in
the state's custody for over three years. Dr.
LaGrande testified that it would be at least another two
years before Caden could be reunified with Carl. It was
not clearly erroneous for the superior court to find that
Caden needed stability and could not afford to wait any
longer for Carl to be ready to serve as his
30 P.3d at 87 (upholding finding that termination was in
child's best interests where mother had at times showed significant
progress in treating substance abuse problem but child needed stability
and could not afford to wait any longer for mother
to be ready to provide maternal relationship).
the record supports each of the superior court's challenged findings,
we AFFIRM the termination of Carl's parental rights.