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(Cite
as: 921 P.2d 604)
Supreme
Court of Alaska.
In
the Matter of J.W., DOB: 1/2/85, W.W., DOB: 12/21/88, Minors
under the Age
of
Eighteen (18) Years.
J.P.W.,
Appellant,
v.
STATE
of Alaska, Appellee.
No.
S-7116.
July
19, 1996.
Child protection proceeding was instituted, and the Superior Court, First
Judicial District, Juneau, Larry R. Weeks, J., determined that children
were in need of aid as result of their having
suffered substantial neglect because of conditions created by their parents
and terminated parental rights. Father appealed, and the Supreme Court,
Compton, C.J., held that: (1) findings that children were in
need of aid and protection as result of neglect and
that conduct leading to neglect was likely to continue were
supported by evidence, and (2) state had made active effort
to provide remedial services and rehabilitative programs to preserve family
as required under Indian Child Welfare Act (ICWA).
Affirmed.
Findings
of superior court in child welfare matter reviewed under clearly
erroneous standard, and reviewing court will overturn such findings only
if, after reviewing entire record, it is left with definite
and firm conviction that mistake has been made.
Where
question of statutory interpretation is raised, Supreme Court applies its
independent judgment and adopts rule of law that is most
persuasive in light of precedent, reason, and policy.
Finding
that children were in need of aid on basis of
neglect resulting from their father's conduct was supported by evidence
that father and children's mother had been with children, who
were both under age of six, in downtown portion of
city while parents were in very intoxicated condition and unable
to care for children, and that parents were found with
children underneath parking garage in area that was hazardous due
to large boulders and debris at entrance and was health
hazard due to unsanitary conditions and communicable disease of people
known to frequent area. AS 47.10.010(a)(2)(F).
Superior
court's determination that children were in need of aid as
result of parental conduct must be supported by clear and
convincing evidence.
Termination
of parental status is clearly erroneous if sufficient evidence does
not exist to support conclusion that parental conduct which resulted
in determination
that children were in need of aid was likely to
continue.
Finding
that parental misconduct which resulted in abuse and neglect of
children was likely to continue, warranting termination of father's parental
rights, was supported by evidence that main parental conduct leading
to neglect was severe and chronic substance abuse, that after
four and one-half years of state involvement, both mother and
father had been unable to maintain sobriety for any demonstrated
length of time, and that father when not institutionalized had
pattern of continuing to choose relationships which doomed his ability
to succeed.
Superior
court's determination that parental conduct resulting in neglect of child
is likely to continue, as will warrant termination of parental
rights, must be supported by clear and convincing evidence.
While
mental illness alone is not "conduct," and thus may not
form basis of order terminating parental rights, when record links
parent's continuing mental illness with his past instances of extreme
neglect, there may be basis for finding that improper parental
conduct is likely to continue.
Substance
abuse is "conduct" by parent which may warrant termination of
parental rights, even if alcoholism that may underlie it is
an illness.
Showing
by State that active efforts have been made to provide
remedial services and rehabilitative programs to preserve family that have
proven unsuccessful,
as must be made to allow termination of parental rights
under Indian Child Welfare Act (ICWA), is required to be
made by preponderance of the evidence. Indian Child Welfare Act
of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
In
determining sufficiency of state's remedial efforts, showing of which must
be made under Indian Child Welfare Act (ICWA) before parental
rights may be terminated, trial court may properly consider parent's
demonstrated lack of willingness to participate in treatment; however, lack
of willingness cannot be assumed until after state has already
made active efforts to provide remedial or rehabilitative services. Indian
Child Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
Finding
that state had made active effort to provide remedial services
and rehabilitative programs to preserve family as required under Indian
Child Welfare Act (ICWA), so that termination of father's parental
rights was permissible, was supported by evidence that state had
initially made active effort to provide treatment for father's substance
abuse and that later, less active efforts were justifiable in
light of father's continuing unwillingness to participate in treatment in
any meaningful or ongoing way. Indian Child Welfare Act of
1978, § 102(d),
25 U.S.C.A. § 1912(d).
*605
Philip M. Pallenberg, Assistant Public Defender, Juneau, and John B.
Salemi, Public Defender, Anchorage, for Appellant.
Jan A. Rutherdale, Assistant Attorney General, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.
OPINION
COMPTON, Chief Justice.
I. INTRODUCTION
The superior court determined that J.W. and W.W. were children
in need of aid as a result of their having
suffered substantial neglect because of conditions created by their parents.
It terminated the rights of both parents to the children.
J.P.W., the children's natural father, appeals, contending that the superior
court erred in finding that (1) the children were children
in need of aid on the basis of their father's
conduct, (2) this parental conduct was likely to continue, and
(3) the State had made active remedial efforts. We affirm.
II. FACTS
AND PROCEEDINGS
J.P.W. is the father and V.F. the mother of two
minor sons, J.W. and W.W. Both parents and children are
Alaska Natives. After the family moved from Hoonah to Juneau
in 1989, both J.P.W. and V.F. began having serious problems
with alcohol. By September 1990, J.P.W. was living in the
streets, while V.F. and the children were living at a
shelter.
The State of Alaska, Department of Health and Social Services,
Division of Family and Youth Services (State or DFYS) took
the children into emergency custody in September 1990, after the
Juneau Police Department (JPD) notified DFYS that the children had
been abandoned at the shelter while both parents were "intoxicated
walking the streets." In January 1991 the children were adjudicated
children in need of aid under AS *606
47.10.010(a)(2)(A). [FN1]
They have been in continuous State custody since then.
FN1.
Sec. 47.10.010. Jurisdiction. (a) Proceedings relating to a minor under
18 years of age residing or found in the state
are governed by this chapter, except as otherwise provided in
this chapter, when the court finds the minor
. . . . .
(2)
to be a child in need of aid as a
result of
(A)
the child ... having no parent, guardian, custodian or relative
caring or willing to provide care, including physical abandonment by
(i)
both parents....
DFYS initially contemplated the eventual reunification of the family. After
efforts to rehabilitate the parents failed, however, the case plan
was changed from reunification to termination of parental rights. In
April 1995 the superior court again determined that the children
were children in need of aid, this time on the
basis of parental neglect under AS 47.10.010(a)(2)(F) [FN2]
, and ordered that the parental rights of J.P.W. and
V.F. be terminated as to both children. J.P.W. appeals.
FN2.
(F) the child having suffered substantial physical abuse or neglect
as a result of conditions created by the child's parent,
guardian, or custodian.
III. DISCUSSION
A. Standard
of Review.
On appeal J.P.W. argues that the superior court erred in three of its
findings. We review the findings of the superior court under
the "clearly erroneous" standard; we will overturn such
findings only if, after reviewing the entire record, we are left with
a definite and firm conviction that a mistake has been made. E.J.S.
v. State, 754 P.2d
749, 750 n. 2 (Alaska 1988). However, if a question of statutory
interpretation is raised, we will apply our independent judgment and adopt
the rule of law that is most persuasive in light of precedent, reason,
and policy. In
re J.L.F., 828 P.2d
166, 168 n. 5 (Alaska 1992), overruled
on other grounds by In re S.A.,
912 P.2d 1235, 1241 (Alaska 1996).
B. The
Trial Court Did Not Err in Finding that the Children
Were Children in Need of Aid on the Basis of
Neglect as a Result of Their Father's Conduct.
A child may be adjudicated in need of aid on
the basis of "the child having suffered substantial physical abuse
or neglect as a result of conditions created
by the child's parent, guardian, or custodian." AS 47.10.010(a)(2)(F). The
superior court determined that the children were in need of
aid "as a result of having suffered substantial neglect because
of conditions created by the parents, i.e., their failure to
provide the necessary food, care, clothing and shelter."
This determination is supported
by clear and convincing evidence in the record,
[FN3] as summarized in two of the findings of the court:
FN3.
The superior court's determination that the children were in need
of aid as a result of parental conduct must be
supported by clear and convincing evidence. R.C.
v. State,
760 P.2d 501, 504 (Alaska 1988).
2.1.
On September 9, 1990, the evening that DFYS first took
custody of [J.W. and W.W.],[ [FN4]]
[J.P.W. and V.F.] were with their children in downtown Juneau
in a very intoxicated state and were determined by the
police to be in no condition to care for those
children.
FN4.
The abandonment of the children at the shelter later that
night, which was the basis for DFYS's initial assumption of
custody over the children, was a separate incident. The officer
who had found the parents and
children in downtown Juneau earlier in the night had left
the children in their grandmother's custody and had told J.P.W.
and V.F. that they could pick the children up in
the morning when sober.
....
2.4.
On July 1, 1991, at 12:45 a.m., [J.P.W. and V.F.]
were found with their children under the parking garage in
downtown Juneau when the children were supposed to have been
returned to the care of the foster parents. It was
hazardous to reach this area because of the large boulders
and debris at the entrance. The area itself was a
health hazard due to the unsanitary conditions and communicable disease
of the people known to frequent the area. When the
children were found, they were awake and out of bed
while their parents were in bed, asleep and intoxicated. The
children were inadequately clothed and fed and were potentially at
*607
risk of harm from other individuals in the area.
Clear and convincing evidence in the record supports the superior
court's determination that J.P.W. created conditions on these two occasions
that resulted in the substantial neglect of the children. J.W.
and W.W. were "two small children" at the time of
the first incident, one five years old and the other
less than two; J.P.W. exposed these children to the dangers
of a downtown area at a time when he was
"very intoxicated" and unable to care for them.
J.P.W.'s inability to provide adequate parental care and supervision for
the children at the time can be inferred from the
fact that the responding police officer determined that it was
necessary to leave the children in their grandmother's custody for
the night. In the second incident, J.P.W. exposed the children
to the hazards of an unlit area littered with broken
bottles and feces and inhabited by people with tuberculosis and
scabies. When a JPD officer found the family, both children
were inadequately dressed and complained of being extremely hungry; they
were taken to the police station to be dressed, fed,
and warmed.
The superior court's finding that the children were in need
of aid on the basis of substantial neglect is supported
by clear and convincing evidence; it is not clearly erroneous.
C. The
Trial Court Did Not Err in Finding by Clear and
Convincing Evidence that the Parental Conduct Was Likely to Continue.
A
termination of parental status is clearly erroneous if "[s]ufficient
evidence does not exist to support the conclusion that the parental conduct
which resulted in the determination that the children were in need of
aid was likely to continue." In
re R.K., 851 P.2d 62,
66 (Alaska 1993).
The superior court determined
that the conduct of J.P.W. that led to the neglect of the children was
likely to continue, and supported this determination with the following
finding:
4.
The main parental conduct that causes the conditions leading up
to the neglect of the children is severe and chronic
substance abuse of [V.F. and J.P.W.]. This conduct is likely
to continue because after four and a half years of
state involvement, the parents have been unable to maintain sobriety
for any demonstrated length of time. The facts leading up
to this conclusion include:
....
4.2.
[J.P.W.] has a history of doing well when institutionalized and
then returning to his previous behavior when released. After [J.P.W.'s]
alcohol relapse within days of his return from [a halfway
house] in January 1992, it was one and a half
years before he entered an in-patient treatment program. Even then,
he was unable to complete the program or maintain an
alcohol or drug-free lifestyle. A psychological report prepared at [J.P.W.'s]
request states that [J.P.W.] continues to choose relationships that doom
his ability to succeed, and that his present fiance [sic]
suffers from alcohol abuse problems and has difficulty maintaining sobriety.
The evaluation recommends that [J.P.W.] attend a long term residential
chemical abuse treatment program such as Akeela House in order
to change his faulty reasoning patterns. The report concludes that
"the progress for such a change is guarded to poor
based on history and his present psychological stance."
Evidence in the record supports this finding and provides clear
and convincing
support [FN5]
for the superior court's determination that the conduct of J.P.W.
that caused the substantial neglect of the children will likely
continue.
FN5.
Like the determination that the children were in need of
aid as a result of parental conduct, the superior court's
determination that the parental conduct is likely to continue must
be supported by clear and convincing evidence. R.C.
v. State,
760 P.2d 501, 504 (Alaska 1988).
"[M]ental
illness alone is not conduct and may not form the basis of a termination
order." K.N.
v. State, 856 P.2d
468, 475 (Alaska 1993); see
Nada A. v. State, 660
P.2d 436, 440 (Alaska 1983) ("impulsive personality disorder"
not conduct). J.P.W. argues *608
that alcoholism is an illness, that K.N.
and Nada A.
require that a "termination of parental rights must be based on conduct,
not on a diagnosis,"
and that "alcohol abuse in and of itself does not ... constitute
parental conduct
by [J.P.W.]."
The State responds by correctly observing that, while mental illness
alone
cannot form the basis of a termination order, when "the
record links the [parent's] continuing mental illness with his past
instances of extreme neglect" there may be a basis for
finding that "improper parental conduct [is] likely to continue." K.N.,
856 P.2d at 475. The State argues there is such
a link in this case.
The State's reliance on K.N.
is not necessary, however, because the superior court did not base its
termination decision on "continuing mental illness." The
superior court did not base its decision on J.P.W.'s alcoholism itself,
but on his "severe and chronic substance abuse." Substance
abuse is conduct, even if the alcoholism that may underlie it is an illness.
Because the superior court based its termination order on
willful parental conduct, we need not consider the issue of "continuing
mental illness."
J.P.W. also argues that the two episodes of neglect that
led the court to determine that the children were in
need of aid were isolated episodes so limited in extent
and duration as to defeat any predictive finding regarding continuing
parental conduct. In R.K.,
where "the state's case [was] based on one episode of
neglect," we held that "the evidence of ... neglect [was]
too limited both as to its extent and duration to
sustain a prediction by clear and convincing evidence that [the
parent was] likely to continue to be unable to provide
appropriate parental care for the children." 851 P.2d at 66.
While the episodes of neglect that led to the child
in need of aid determination in this case were also
limited in extent and duration, R.K.
is distinguishable. The key difference is that the predictive finding
in R.K.
was based solely on the single episode of neglect itself;
the trial court did not support its predictive finding with
any further evidence, but merely relied on
its own assessment of the parent's level of "insight" into
his problems. Id.
at 65-66. In contrast, there is considerable evidence supporting the
superior court's predictive finding that J.P.W.'s conduct would likely continue.
The court did not base its predictive finding solely on
the two isolated incidents of neglect that formed the basis
for the determination that the children were in need of
aid.
Clear and convincing evidence supports the superior court's prediction that
J.P.W.'s substance abuse is likely to continue. In R.K.,
the father claimed that he no longer used the illegal
drugs and alcohol that led to the isolated incident of
neglect; this claim was not contradicted by the state, and
its truthfulness was left to possible future monitoring to determine.
Id.
at 66-67. In contrast, J.P.W. makes no such claim on
appeal; instead, it is his continued inability "to maintain sobriety
for any demonstrated length of time" that is uncontradicted on
the record. While the father in R.K.
had "never been given a chance to demonstrate his conduct
after the night in question," id.
at 66, J.P.W.'s ongoing conduct is well-documented in the record.
As the superior court observed, J.P.W. "has a history of
doing well when institutionalized and then returning to his previous
behavior when released." J.P.W. was incarcerated two days after DFYS
first took custody of the children; he was released from
a halfway house in April 1991 and was drinking again
by July, when he was found under the parking garage
with the children. After another period of incarceration, J.P.W. was
released from the halfway house in January 1992. Within days
he returned to drinking and was incarcerated in January and
March on twelve hour protective custody holds. After another stay
in the halfway house, J.P.W. went to Anchorage and entered
an inpatient alcohol treatment program in mid-1993, which he failed
to complete. After leaving this program, he continued to drink.
A January 1995 psychological evaluation of J.P.W. concluded that "[u]ntil
[J.P.W.] accepts that it is his responsibility to stay sober
and establish the foundation for a stable life, [he] will
stay stuck in a Catch-22 largely of his own making."
It found that the prognosis *609
for change was "guarded to poor based on history and
his present psychological stance."
This evidence provides clear and convincing support for the superior
court's predictive finding that J.P.W. is likely to continue engaging
in severe substance abuse, the conduct that resulted in the
neglect of the children. [FN6]
FN6.
In addition to providing the necessary clear and convincing support
for the finding that the parental conduct resulting in the
neglect is likely to continue, the record also supports the
inference that the actual neglect itself is likely to continue
as well. While trapped in the
"Catch 22" of his alcohol problems, J.P.W. has failed to
maintain visitation with the children or communicate with them on
a regular basis; he has disappeared from their lives without
explanation on a number of occasions, once for as long
as a year. Whether these failures constitute neglect in and
of themselves, they suggest that, if J.P.W. has been unable
to meet even these minimal responsibilities towards the children, he
would be even more likely to fail at the more
involved responsibilities of providing adequate food, care, clothing, and shelter
for the children.
D. The
Trial Court Did Not Err in Finding that the State
Had Made Active Remedial Efforts.
Because J.W. and W.W. are Alaska
Native children, the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901
et seq.,
prohibits the termination of J.P.W.'s parental rights to these children
unless the State can show that "active efforts have been made to
provide remedial services and rehabilitative programs" to preserve
the family that have proven unsuccessful.
[FN7] 25 U.S.C. § 1912(d) (1988). J.P.W. concedes
that the State made active efforts to help him secure aid and housing.
He argues, however, that "[a]bsolutely
nothing was done in
the realm of active efforts to deal with the root problem-- alcohol."
FN7.
The State must make this showing by a preponderance of
the evidence. A.M.
v. State,
891 P.2d 815, 826 (Alaska 1995), overruled
on other grounds by In re S.A.,
912 P.2d 1235, 1241 (Alaska 1996).
"[F]or
purposes of determining the sufficiency of the State's remedial efforts,
the superior court may properly consider a parent's demonstrated lack
of willingness to participate in treatment." A.M.
v. State, 891 P.2d
815, 827 (Alaska 1995), overruled
on other grounds by In re S.A.,
912 P.2d 1235, 1241 (Alaska 1996). However, this lack of willingness
cannot be assumed until after the State has already made active efforts
to provide remedial or rehabilitative services:
We
have never suggested that the scope of the State's duty
to make active remedial efforts should be affected by a
parent's motivation or prognosis before remedial efforts have commenced. To
vary the scope of the State's ICWA duty based on
subjective, pre-intervention criteria such as a parent's motivation or treatment
prognosis might defeat the purpose of the active remedial effort
requirement, for it would allow the State to argue, in
all doubtful and difficult cases, that it had no duty
to make active remedial efforts.
A.M.,
891 P.2d at 827. The State made sufficiently active remedial
efforts initially, when J.P.W. was in Juneau. While its efforts
after J.P.W. came
to Anchorage were less active, these less active efforts were
justifiable in light of J.P.W.'s continuing unwillingness to participate in
treatment in any meaningful or ongoing way.
The State did make active remedial efforts to rehabilitate J.P.W.
initially. DFYS took active steps to supplement the treatment J.P.W.
received while incarcerated and facilitate treatment after he was released.
DFYS provided him with transportation assistance so he could attend
AA meetings. DFYS tried to steer him towards a Native
sobriety group when it concluded that this group would provide
a more effective support group for him. In preparation for
J.P.W.'s release from the halfway house, DFYS contacted and met
with a substance abuse officer for the City and Borough
of Juneau who was assigned to the apartments where J.P.W.
was to have lived. Finally, after J.P.W.'s post-release relapse, a
DFYS social worker tried on a number of occasions to
reinitiate contact with J.P.W. when J.P.W. was encountered in the
streets. These efforts were sufficiently active to meet the requirements
of the ICWA.
*610
The State did make some efforts after J.P.W. came to
Anchorage and entered the inpatient treatment program. DFYS actively sought
out J.P.W. after contact with him was lost, and, once
contact was regained, DFYS set up a telephone visitation plan
so J.P.W. could communicate with his children while undergoing treatment.
These efforts were less active than the efforts in Juneau
had been, however. DFYS sought out J.P.W. only after J.W.
asked what had
happened to his father; essentially, DFYS had let itself lose
contact with J.P.W. before then. While J.P.W. was in the
inpatient alcohol treatment program, DFYS did not send any DFYS
workers in Anchorage to monitor his treatment, and failed to
contact the treatment center itself. DFYS simply relied on the
court system to "assure that he would follow through," since
J.P.W.'s attendance in the program was court-ordered; it took no
active steps to ensure this follow-through itself. DFYS did not
contact either the district attorney's office or the city to
see to it that J.P.W. was complying with the order.
Finally, after J.P.W. left the program, DFYS neither obtained a
discharge summary nor coordinated any efforts with the city regarding
J.P.W.'s failure to complete his treatment. Arguably the efforts DFYS
made to facilitate J.P.W.'s rehabilitation after he came to Anchorage
were not sufficiently "active" efforts for ICWA purposes.
J.P.W.'s continued unwillingness to participate in treatment in any meaningful
way must be considered in determining the sufficiency of the
State's remedial efforts after he came to Anchorage, however. By
the time J.P.W. came to Anchorage, he had already demonstrated
to DFYS that he was unwilling to meaningfully participate in
treatment. He had been assigned to counseling, but had refused
to attend. A 1991 alcohol assessment had recommended that he
receive inpatient treatment, but he had been unwilling to enter
such a treatment program. After his relapse within days of
his January 1992 release from
the halfway house, J.P.W. had avoided contact with DFYS, despite
the efforts of DFYS to reinitiate contact. J.P.W. told a
social worker at DFYS that he did not want to
attend the Anchorage inpatient treatment program, and the social worker
told him he did not have a choice. By the
time J.P.W. came to Anchorage, he had demonstrated his unequivocal
unwillingness to participate in treatment on a number of occasions.
DFYS had made active rehabilitative efforts in the past. J.P.W.'s
ongoing unwillingness to participate in treatment justified the State's failure
to pursue aggressive remedial efforts once he came to Anchorage.
A preponderance of the evidence supports the finding that the
State made active remedial and rehabilitative efforts, thereby satisfying ICWA
requirements.
IV. CONCLUSION
The judgment of the superior court is AFFIRMED.
921 P.2d 604
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