as: 959 P.2d 766)
Court of Alaska.
of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF
YOUTH SERVICES, Appellee.
May 29, 1998.
Court applies clearly erroneous standard when reviewing trial court's
factual findings concerning termination of parental rights.
Court will declare trial court's findings in termination of parental rights
action clearly erroneous if, after review of entire record, Court is left
with definite and firm conviction that mistake has been made.
of whether trial court's findings in termination of parental rights action
comport with requirements of child in need of assistance (CINA) statutes
and rules involves question of law, and will be reviewed de novo. AS 47.10.010,
of father's parental rights in Indian child was supported by
evidence that father failed to obtain substance abuse treatment or
follow other recommendations and requirements of court, social workers, and
psychologist, father committed violent criminal acts, father's living conditions were
unclean and unsafe, child was allowed to miss health care
appointments, and child was frequently left alone. Indian Child Welfare
Act of 1978, §§ 2
et seq., 101 et seq., 301, 25 U.S.C.A. §§ 1901
et seq., 1911 et seq., 1951; AS 47.10.010(a)(6), 47.10.080(c)(3); AS
47.10.010(a)(2)(F) (1995); Child in Need of Aid Rules 15(c, g),
*766 Elizabeth Page Kennedy, Anchorage, for Appellant.
J. Stefan Otterson, Assistant Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before MATTHEWS, C.J., and COMPTON, EASTAUGH, FABE and BRYNER, JJ.
E.M.'s parental rights to his young son B.M., an Indian
child, were terminated on May 28, 1996. Superior Court Judge
Larry D. Card found that B.M. was a child in
need of aid (CINA) pursuant to AS 47.10.010(a)(2)(F). [FN1]
Judge Card then made the necessary findings to terminate E.M.'s
parental rights pursuant to AS 47.10.080(c)(3) and applicable provisions of
the Indian Child Welfare Act. E.M. appeals. We conclude that
Judge Card's findings are supported adequately by the evidence and
affirm the termination of parental rights.
At the time of trial in this case, child in
need of aid status was defined in subsections (a)(2)(A)-(F) of
AS 47.10.010. Subsequently, the legislature repealed subsection (a)(1) of the
statute; the provisions of subsections (a)(2)(A)-(F) were retained verbatim but
were renumbered as AS 47.10.010(a)(1)-(6). AS 47.10.010(a)(6) is thus the
current counterpart of former AS 47.10.010(a)(2)(F). For simplicity's sake, we
will use the former statutory numbering, which governed here.
*767 II. FACTS
B.M. was born on March 18, 1993, to E.M. (father)
and L.P.M. (mother). E.M. and L.P.M. were apparently 17 and
16 years old at the time of B.M.'s birth. L.P.M.
is a Native Alaskan and a member of the Wales
tribe. Accordingly, B.M. is an Indian child and the requirements
of the Indian Child Welfare Act of 1978 (ICWA), 25
U.S.C. §§ 1901-03,
1911-23, 1951 (1994), apply to this adjudication.
B.M. was first brought to the attention of the Division
of Family and Youth Services (DFYS) when he was 13
days old, and intensive in-home parenting services were provided for
E.M. in July of 1993 (evidently L.P.M. was in California).
B.M. was removed from E.M.'s custody on August 31, 1993,
because E.M. left B.M. with an aunt and never returned
to pick him up. B.M. was placed in the legal
custody of DFYS, but E.M. was allowed to resume physical
custody. After B.M. was placed back in E.M.'s physical custody,
DFYS instituted a case plan that included home visits, the
AFFECT program, a public health nurse, and parenting classes, drug
screening, and urinalysis for both parents.
B.M. was again removed from E.M.'s custody on March 30,
1994, and has not been returned to either of his
parents' custody since that time. Corinne Bryant, the DFYS social
worker assigned to B.M.'s case at the time of his
that the culmination of a number of different factors, including
the child being left alone, reports of danger to the
child from people in E.M.'s home, and E.M.'s failure to
follow the DFYS treatment plan, led to the removal. In
June 1994, Superior Court Judge Peter A. Michalski found that
B.M. was a child in need of aid pursuant to
AS 47.10.010(a)(2)(A) and (F). [FN2]
At the time of this adjudication, AS 47.10.010(a)(2)(A) provided that
the court could find a minor to be a child
in need of aid as the result of the child
"having no parent, guardian, custodian, or relative caring or willing
to provide care, including physical abandonment by ... both parents."
Subsection (F) provided that "the child having suffered substantial physical
abuse or neglect as a result of the conditions created
by the child's parent" would justify a CINA finding.
A new DFYS case plan, similar to the old one
but with a requirement of consistent visitation of B.M., was
prepared on July 26, 1994. On September 13, 1994, Judge
Michalski issued a disposition order placing B.M. in the State's
physical custody and directing E.M. to comply with the DFYS
case plan. The judge noted that DFYS had indicated that
it would move to terminate parental rights if there was
not substantial compliance with the DFYS case plan within
30 days. He also specifically ordered E.M. to
Follow through on the out-patient treatment that was recommended by
the Salvation Army Clitheroe Center [and] continue to do bi-weekly
urine analysis. b. Obtain a psychological evaluation if separately ordered
by the court, and follow all recommendations [ (evaluation was
ordered November 23, 1994) ]. c. Enroll in and complete
parenting classes. d. Enroll in and complete the Male Awareness
Program. e. Visit the child regularly.
These directives appear to be based on recommendations of DFYS
and the guardian ad litem, E. Genivee Bettine.
DFYS subsequently concluded that E.M. had refused to comply with
his case plan. In January 1995, the agency filed a
petition for termination of E.M.'s parental rights, alleging that the
circumstances justifying the original CINA determination still existed.
E.M.'s termination hearing originally was scheduled for April 1995 but
was continued at the last minute because E.M. scheduled a
psychological evaluation for himself, and DFYS wanted to wait for
the results. The hearing was reset for October 11, before
Judge Card. Judge Card heard evidence on October 11, 12,
and 17; he then recessed proceedings for several months and
concluded the hearing on March 12 and 13 of 1996.
At the hearing, DFYS produced evidence showing that E.M. had
made little effort to comply with his case plan, had
maintained minimal contact with B.M., and
had not progressed in his ability to provide B.M. a
safe and stable home. On May 28, 1996, Judge Card
issued an order finding that B.M. was a child in
need of aid under AS *768 47.10.010(a)(2)(F) by virtue of parental neglect and terminated both L.P.M.'s
and E.M.'s parental rights pursuant to AS 47.10.080(c)(3). [FN3]
L.P.M. did not contest the termination of her parental rights.
court applies the clearly erroneous standard when reviewing a trial court's
factual findings concerning the termination of parental rights. See
In re S.A., 912 P.2d
1235, 1237 (Alaska 1996). A trial court's findings will be
declared clearly erroneous if this court, after a review of the entire
record, is left with a definite and firm conviction that a mistake has
been made. See
a determination of whether the trial court's findings comport with the
requirements of the CINA statutes and rules involves a question of law
and accordingly will be reviewed de
novo. See R.J.M. v. State, 946 P.2d 855, 861 (Alaska 1997); R.R.
v. State, 919 P.2d
754, 755 n. 1 (Alaska 1996); Langdon
v. Champion, 745 P.2d
1371, 1372 n.
2 (Alaska 1987).
The statutes and rules governing termination of parental rights require
a number of determinations. Under AS 47.10.080(c)(3), termination is authorized
a showing in the adjudication by clear and convincing evidence
that there is a child in need of aid [CINA]
under AS 47.10.010(a) as a result of parental conduct and
upon a showing in the disposition by clear and convincing
evidence that the parental conduct is likely to continue to
exist if there is no termination of parental rights.
also CINA Rule 15(c).
Pursuant to this statute, the court first determines if there
is clear and convincing evidence for a CINA adjudication based
on one of the six grounds stated in AS 47.10.010(a)(2)(A)-(F).
Nada A. v. State, 660 P.2d 436, 439-40 (Alaska 1983). Then the court determines,
still using the clear and convincing evidence standard, whether the
child is in need of aid because of parental conduct
and whether the parental conduct is likely to continue if
parental rights are not terminated. See
id. at 440; A.M.
v. State, 891 P.2d 815, 819 (Alaska 1995), overruled
in part by In re S.A., 912 P.2d at 1241.
In cases involving removal of a child from the home,
CINA Rule 15(g) further
requires the court to find that "reasonable efforts were made
to prevent or eliminate the need for removal of the
child from the home and to make it possible for
the child to return to the home." See
also 42 U.S.C. § 671(a)(15)
(1994) (requiring State plan for foster care and adoption assistance
to include reasonable efforts to keep the child in his
home in order for the State to receive AFDC payments).
A more stringent requirement applies under ICWA in cases involving
Indian children. See 25 U.S.C. § 1912(d)
(incorporated in CINA Rule 17(c)(2)). Under ICWA, before removing an
Indian child from parental custody, the court must find by
a preponderance of the evidence that "active efforts have been
made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these
efforts have proved unsuccessful." Id.;
see also CINA Rule 17(c)(2).
In addition, ICWA requires that, before terminating parental rights in
a case involving an Indian child, the court must find
"beyond a reasonable doubt, including the testimony of qualified expert
witnesses, that custody of the child by the parent or
Indian custodian is likely to result in serious emotional or
physical damage to the child." 25 U.S.C. § 1912(f)
(incorporated in CINA Rule 18(c)(2)).
Last, in all children's proceedings involving disposition orders entered under
AS 47.10.080(c), including proceedings for the termination of parental rights,
AS 47.10.082(1) explicitly requires the court to consider the best
interests of the child. See
Nada A., 660 P.2d at 439-40.
Superior Court Applied the Proper Legal Standards and Its Findings
Are Supported by the Evidence.
In his oral findings and written order terminating E.M.'s parental
rights to B.M., *769 Judge Card stated that B.M. "was shown to be a
child in need of aid pursuant to AS 47.10.010(a)(2)(F) by
clear and convincing evidence on this date as a result
of ... parental conduct." Judge Card also determined that "[t]here
is clear and convincing evidence that the parental conduct which
caused [B.M.] to be a child in need of aid
is likely to continue if the parental rights of [E.M.]
are not terminated."
The judge went on to say:
find that there is evidence beyond a reasonable doubt, based
on the expert testimonies submitted, that the custody of [B.M.]
by either parent is likely ... to result in serious
emotional or physical damage. I would note that the physical
damage issue is more or less direct than the issue
of emotional [damage].
Judge Card further found "by a preponderance of the evidence
[that] there have been active efforts to provide remedial services
to both these parents, and they have proved unsuccessful as
of today's date." In connection with this finding, the judge
emphasized that DFYS had made "huge[,] almost embarrassing
efforts" to provide assistance to E.M. and L.P.M.
E.M. challenges the sufficiency
of the evidence to support these findings. However, our review
of the evidence convinces us that the findings are amply supported and
are not clearly erroneous.
The testimony of Corinne Bryant, the social worker who had
B.M.'s case at the time of his permanent removal, Bettine,
B.M.'s guardian ad litem, and Renee Pagel, E.M.'s friend and
the grandmother of another one of E.M.'s children, supports Judge
Card's finding that B.M. continued to be a child in
need of aid under AS 47.10.010(a)(2)(F) by virtue of parental
Recently, in R.J.M.
v. State, 946 P.2d 855, 862-68 (Alaska 1997), we held that CINA
jurisdiction pursuant to AS 47.10.010(a)(2)(F) cannot be based solely on
emotional neglect. We construed "neglect," as used in subsection (F),
to mean physical neglect. See
id. at 867. Judge Card's finding of neglect under subsection (F)
does not differentiate between physical and emotional neglect. However, E.M.
does not claim that his CINA adjudication was improperly based
on emotional neglect. And Judge Card's findings as a whole
make it clear that his primary focus was on the
potential physical risk to B.M. Two especially noteworthy points in
this regard are Judge Card's finding beyond a reasonable doubt,
in compliance with 25 U.S.C. § 1912(f),
that B.M. would face imminent harm if
returned to E.M. and Judge Card's observation "that the physical
damage issue is more or less direct than the issue
of emotional [harm]."
Corrine Bryant explained the events and conduct leading up to
B.M.'s permanent removal in a pre-disposition report issued on August
25, 1994, and in her testimony at trial. Bryant asserted
that the house was a mess and unsafe for a
child when she visited it; there were dangerous people in
and out of the house and some of them had
threatened and attacked E.M. while B.M. was present; E.M. wanted
to buy a gun and leave the state for protection;
E.M. would not follow through with substance abuse treatment or
day care suggestions and was belligerent about those topics; in
March 1994, just before the removal, E.M. was missing appointments
with the public health nurse and B.M. appeared to be
losing weight; and E.M. would not listen to suggestions concerning
the care of B.M. [FN5]
Bryant also noted in her "Report for Child in Need
of Aid" that in mid-November of 1993, E.M. served 10
days in jail for putting an unloaded gun to a
Bettine's Guardian ad Litem report confirmed Corinne Bryant's observations. In
addition, Bettine testified that on one of her visits to
E.M.'s residence, she
found that B.M., then an infant, had been left at
Renee Pagel testified that when B.M. was in E.M.'s custody
prior to his removal to State custody by DFYS, he
was left alone on a number of occasions; on other
occasions, he was left in the care of anyone who
happened to be present in E.M.'s apartment. Pagel also described
one occasion of domestic violence between E.M. and L.P.M. that
involved E.M.'s use of a knife.
Moreover, the court heard abundant evidence indicating that, since his
son's removal, E.M. had made little or no progress in
attempting to meet the requirements of his court-ordered case plan.
Dr. James Harper *770 performed a psychological evaluation of E.M. in April 1995, shortly
before E.M.'s originally scheduled termination hearing. Dr. Harper's testimony and
initial report supports the State's assertion that E.M.'s unstable conduct
is likely to continue and that B.M. will likely be
harmed if he is returned to E.M.
Dr. Harper reported that he did "not believe that [E.M.]
can parent his son effectively at the present time." Additionally
he observed "I do not believe that [E.M.] sees a
need or is willing to acknowledge his shortcomings, so I
am not optimistic [that] treatment would be helpful at this
time." At trial, after being informed of E.M.'s most recent
living situation, Dr. Harper testified that "I think [E.M.] is
much more impulsive, continues to choose peers who are less
than desirable, [and] is not benefitting from experience the way
other young adults do."
This assessment was also supported by Brunhilde Eska, a DFYS
social worker who had worked on E.M.'s case and testified
as an expert witness. Eska agreed with Dr. Harper's negative
assessment of E.M.'s potential, stating that she had found "no
progress whatsoever, not even more stability." Eska testified that, since
his psychological evaluation, E.M. had not followed Dr. Harper's recommendations;
Eska also established that Dr. Harper's recommendations were essentially the
same as the original DFYS case plan, which had been
in place for a year and two months prior to
Dr. Harper's evaluation.
Further, according to Eska, DFYS records indicated that E.M. had
visited B.M. only six times between August 1995 and March
1996. And although E.M. eventually met the case plan's requirement
of completing a parent training class, he had never met
the plan's requirement of completing a Male Awareness Program and
had consistently failed to submit to regular urinalysis testing. [FN6]
Eska summed up the efforts DFYS put into remedial services
and rehabilitative programs as follows:
offered every and any services they could think of. They
referred them to counseling, to the MAP program, to UA's,
they made money available, we requested bus passes, which were
never picked up, we arranged for
visits, anything we could think of to make it possible
for [B.M.] to be returned to the custody of his
Eska expressed the general opinion that E.M. was "still not
... putting [B.M.'s] welfare and interest ahead of [his] own,"
and that E.M. would not be able to provide a
safe home for B.M. Indeed, Eska's testimony raised concerns as
to whether E.M. was even capable of providing a stable
home for himself: she testified that throughout most of the
time she had the case, E.M. had failed to disclose
where he lived and had given her no address where
he could be contacted. Eska thought that if B.M. were
returned to E.M., the child would probably end up back
in DFYS custody.
Echoing these concerns, Renee Pagel testified that, since B.M.'s removal
to DFYS custody, E.M. had been living in an apartment
with many other people: "there was guys, [sic] girls, there
were some runaway [sic]"; the apartment was overcrowded and unclean,
and there were alcohol bottles about the place. E.M. was
eventually evicted. The eviction complaint alleged that he had numerous
people staying with him, including three small children, in very
unsanitary conditions. [FN7] According to Pagel, in July 1995, E.M. was involved
in an altercation in which he was "a little loaded
and he swung at [someone]." Gregory Baker, a detective for
the Municipality of Anchorage, also testified that E.M. was involved
in a shooting incident in July 1995. E.M. lost
his job after these incidents.
In his briefs on appeal, E.M. acknowledges that he had
no money and was homeless at periods of time after
B.M. was removed.
Given the foregoing evidence, Judge Card's factual findings are not
Superior Court Did Not Err as a Matter of Law
on the Basis Used to Terminate E.M.'s Parental Rights.
E.M. nevertheless challenges the superior court's legal conclusion that termination
of parental rights was justified in this case. E.M. alleges
that the court's finding of neglect was based merely on
Judge *771 Card's belief that E.M. was not getting his life together
fast enough and that B.M. simply could not afford to
wait any longer. E.M. criticizes Judge Card for basing his
termination decision on B.M.'s best interests, asserting that the child's
interests are not included among the statutory criteria governing termination
of parental rights. This assertion is incorrect. Alaska Statute 47.10.082(1)
explicitly requires the court to consider the best interests of
the child in all dispositions under AS 47.10.080(c), including the
termination of parental rights. See AS 47.10.082(1); Nada
A., 660 P.2d at 439-40.
E.M. further asserts that termination of his parental rights is
unjustified because he has never actually injured B.M. E.M. implicitly
asserts that without actual injury, there can be no neglect.
This assertion is incorrect as well. We see no reason
that a finding of neglect cannot be based on conduct
creating an imminent risk of serious injury. Here, the trial
court properly focused on the risk of future harm to
B.M., rather than on the infliction of past injury.
In deciding to terminate E.M.'s parental rights, Judge Card essentially
found that, despite assiduous remedial efforts by DFYS over a
two-year period, E.M.'s continuing failure to stabilize his own life
would almost certainly render him incapable of providing B.M. a
safe and stable home in the foreseeable future. Judge Card's
decision is both factually supported and legally sound. [FN8] Accordingly, we AFFIRM the order terminating E.M.'s parental rights.
E.M. has separately argued that the superior court erred in
allowing the State to amend its witness list after E.M.
moved for a directed verdict near the conclusion of the
State's case-in-chief. Trial courts have broad discretion in ruling on
such issues. See
Wright v. Vickaryous, 598 P.2d 490, 495 (Alaska 1979). Our review of the
record discloses neither an abuse of discretion nor resulting prejudice