|
(Cite
as: 19 P.3d 597)
Supreme
Court of Alaska.
N.A.,
Appellant,
v.
STATE
of Alaska, DFYS, Appellee.
No.
S-9578.
March 23, 2001.
Whether
the state has complied with the "active efforts" requirement
of the Indian Child Welfare Act (ICWA) presents on appeal a mixed question
of law and fact. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901 et seq.
Whether
a parent's due process rights have been violated in a termination of parental
rights proceeding is a question of law for purposes of appeal. U.S.C.A.
Const.Amend. 14.
Supreme
Court defers to the trial court's factual findings unless clearly erroneous
and reviews de novo any questions of law.
Hearing
at which child welfare agency filed report with respect to children removed
from parental custody, including proposed permanent plan of terminating
parental rights and supporting facts, which hearing was held within 12
months of children's entry into foster care, fulfilled statutory requirements
for permanency plan hearing. AS 47.10.080(l).
Court
must hold a permanency plan hearing within twelve months after the date
a child enters foster care and hold review hearings at least annually,
which hearings
require a state-generated report and specific judicial findings. AS 47.10.080(l).
One-year
time period within which permanency hearing was required to be
held in child protection proceeding began to run 60 days
after subject children were removed from parental home to permit
mother to enter residential substance abuse treatment program, where no
judicial finding of neglect or abuse was made in connection
with children's removal. AS 47.10.080(l).
Court
was not required to conduct annual review of permanency plan
in child protection proceeding, where petition for termination of mother's
parental rights was originally scheduled to come to trial less
than one year after permanency hearing, but mother's counsel requested
continuance until after anniversary date to enable him to recover
from major surgery. AS 47.10.080(l)(5).
One
requirement of terminating parental rights under the Indian Child Welfare
Act (ICWA) is proof by a preponderance of the evidence
that the state has made active, but unsuccessful, efforts to
provide remedial services and rehabilitative programs designed to prevent the
breakup of the family. Indian Child Welfare Act of 1978,
§ 102(d),
25 U.S.C.A. § 1912(d).
Determination
of whether the state has made active efforts to provide
remedial services and rehabilitative programs, as required by the Indian
Child Welfare Act (ICWA), is done on a case-by-case basis.
Indian Child Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
State
made active efforts to provide remedial services and rehabilitative programs
to mother, as condition precedent to termination of mother's parental
rights under Indian Child Welfare Act (ICWA); state Department of
Family and Youth Services (DFYS) and Department of Corrections (DOC)
worked together with Indian agency to place mother in various
substance abuse treatment programs, obtained psychiatric and neurological evaluation and
therapy for her, allowed weekly visitation with children, provided transportation
for visitation, took temporary custody of children to enable mother
to receive medical care, and provided parenting and anger management
classes. Indian Child Welfare Act of
1978,
§ 102(d),
25 U.S.C.A. § 1912(d).
State's
alleged failure to provide mother with sufficient dual-treatment program to
deal with both her addiction and mental health problems did
not require finding that state had not made active efforts
required under Indian Child
Welfare Act (ICWA) as condition precedent to termination of mother's
parental rights, where state placed mother in one dual-treatment program
with sufficient resources to accommodate her, which program she left
prior to completion, and where, at time such programs were
being considered, mother had expressed reluctance to leave her home
city for treatment and other programs were located in another
city. Indian Child Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
State's
failure to reconsider providing mother with sufficient dual-treatment program to
deal with both her addiction and mental health problems after
mother voluntarily relinquished parental rights to her two sons did
not require finding that state had not made active efforts
required under Indian Child Welfare Act (ICWA) as condition precedent
to termination of mother's parental rights to two of her
daughters, where mother's failed attempts at rehabilitation and her relapses
occurred after relinquishing custody of her sons, and mother was
aware than another failed rehabilitation would likely lead to further
attempt to terminate her parental rights. Indian Child Welfare Act
of
1978, § 102(d),
25 U.S.C.A. § 1912(d).
*598
Robert S. Noreen, Law Office of Robert S. Noreen, Fairbanks,
for Appellant.
Susan Paterson, Assistant Attorney General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
CARPENETI, Justice.
I. INTRODUCTION
The superior court terminated N.A.'s parental rights to her two
daughters because of N.A.'s alcohol dependency, her mental impairment causing
an inability to control her rage, and her continuing choice
to live with a convicted sex offender. N.A. appeals, arguing
that the superior court's failure to hold a permanency hearing
violated due process and that the court erred in concluding
that the state made active efforts to provide remedial services
and rehabilitative programs designed to prevent the termination of her
parental rights. We affirm.
II. FACTS
AND PROCEEDINGS
A. N.A.'s
General Background
N.A. is the biological mother of five children: three girls,
currently ages thirteen, seven, and five; and two boys, ages
eleven and ten.
At various times between 1988 and 1997, doctors have diagnosed
N.A. with alcohol dependency, borderline personality disorder, organic brain disorder,
and alcohol amnestic disorder. Paul Craig, Ph.D., a neuropsychologist who
diagnosed N.A. with alcohol amnestic disorder, stated that N.A. "may
not be capable of learning the skills necessary to function
adequately as a parent." At least *599
once, N.A. admitted to physically and verbally assaulting her sons.
In the past ten years, N.A. has entered substance abuse
treatment programs three times. She completed the first program successfully,
staying sober during her 1993 pregnancy. The last two attempts
were unsuccessful: one program discharged her for disruptive behavior, and
N.A. left the other. While N.A. had some periods of
sobriety, she had at least three relapses between May 1998
and the termination hearing in November 1999.
N.A. lived with Reginald Smith, a convicted sex offender. Their
relationship began in 1988. At that time, Smith was on
probation after serving a year in jail on the felony
charge of second degree sexual abuse of a minor. One
condition of Smith's probation prohibited him from being alone with
children. Smith
is the father of N.A.'s last four children. At one
time, N.A. alleged that Smith sexually abused her youngest daughter,
but N.A. has since recanted that statement.
N.A. and Smith's relationship has been marked by violent episodes.
N.A. alleged that Smith struck her with his fist and
broke her jaw in 1990. In 1992 N.A. stabbed Smith
in the chest; Smith was hospitalized for several weeks but
recovered. In a later argument with Smith, N.A. broke the
windshield of Smith's car and tried to slash his tires.
B. State
Involvement with N.A. and Her Children
The Division of Family and Youth Services has been involved
with N.A. since the birth of her first child, a
daughter, in 1987. After several reports of parental neglect, this
child was placed with her biological father.
In 1989 N.A. and Smith had their first child, a
boy. In 1990 N.A. gave birth to their second son.
In 1991 N.A. left her home intoxicated, leaving her two
infant sons alone with Smith, a violation of Smith's parole
conditions. The state took temporary custody of the boys. While
in state custody, doctors examined the boys and diagnosed them
as being at high risk for developmental problems. The court
found the boys to be children in need of aid
and committed the boys to state custody.
In August 1992 N.A. was convicted of felony assault. She
thereafter violated
her probation and was court-ordered into a residential alcohol treatment
program. From late 1992 through mid-1993, she successfully completed the
Dena A Coy residential alcohol program for pregnant women in
the Northstar Center in Anchorage. In May 1993 she gave
birth to a girl. N.A. completed an alcohol treatment aftercare
program in Fairbanks with the Regional Center for Alcohol and
Other Addictions.
In 1994 the superior court terminated N.A.'s parental rights to
the boys because her alcohol dependency and mental impairment caused
her sons to be severely developmentally delayed and to require
special care that she was incapable of giving. While the
appeal of the termination decision was pending, N.A. gave birth
to a second baby girl in June 1995.
In early 1996 this court reversed the termination of N.A.'s
parental rights to the boys. We interpreted former AS 47.10.010(a)(2)(A)
to require the state to show that a child had
no parent able and willing to provide care.
[FN1] Because N.A., though unable to provide care, was willing
to do so, we reversed the termination of her parental
rights.
[FN2] We also held that the evidence did not support
the finding that the boys would face "an imminent risk
of substantial physical harm." [FN3]
In June the boys were placed back in N.A.'s care.
FN1.
See
In re S.A.,
912 P.2d 1235, 1242 (Alaska 1996).
FN2.
Id.
The legislature would later expressly override our decision by the
1998 revision of the CINA statutes, which allowed termination of
parental rights when a parent was willing but unable to
care for a child and eliminated the requirement that the
risk of harm to the child be imminent. See
ch. 99, § 1,
SLA 1998.
FN3.
S.A.,
912 P.2d at 1238.
In April 1997 a division social worker found N.A. intoxicated
while attempting to care for a child. The police arrested
N.A. for *600
probation violation, and the division petitioned for temporary custody of
all four children. N.A. agreed to enter residential alcohol treatment;
pending an opening in such a program, N.A. was released
from jail. The girls were returned to N.A. shortly thereafter,
but the state retained temporary custody of the boys.
In October of the same year, N.A. agreed to state
custody for her boys for two years or until she
would be permitted to take physical custody of them again
in a residential alcohol treatment program. In November, when N.A.
entered the Women's and Children's Residential Program (WCRP), N.A.'s daughters
were placed in state custody while N.A. began the alcohol
treatment program.
Within two months, N.A.'s placement at WCRP ended. Program counselors
transported her to the Fairbanks Memorial Hospital mental health ward
after she confronted another patient, threatened to hit a patient
with a coffee pot, and used profane language toward another
patient and staff in front of children. Three days later,
WCRP discharged N.A. and recommended a dual treatment center--a center
that could provide treatment for both alcoholism and mental health
problems--in Anchorage. N.A. preferred to stay in Fairbanks. Her case
worker agreed and had N.A. placed at the Tanana Chiefs
Conference (TCC) Paul Williams House. N.A.'s children remained in state
custody.
In late January 1998 N.A. entered the Fairbanks Rescue Mission
Fresh Start Program, which had experience working with dual-diagnosis patients.
She left the program without completion in mid-April 1998. The
Fairbanks Rescue Mission concluded that N.A. did not benefit from
group living situations and recommended individual assisted living and an
adult conservator. N.A. was placed back at the TCC Paul
Williams House. N.A.'s children remained in state custody.
On May 8 N.A. began a weekend drinking binge. On
May 10 N.A. arrived at the Paul Williams House intoxicated.
After assaulting another client, N.A. was told to leave, and
to return when sober. N .A.'s parole officer and police
located her the following day, found her intoxicated, and arrested
her for violating probation. N.A. was placed in the Fairbanks
Correctional Center.
N.A. was released from jail on August 3.
On October 5, 1998, Judge Ralph R. Beistline held an
"Annual Review" hearing. The division filed an "Annual Review of
Children in Need of Aid Report," which included its permanency
plan to terminate N.A.'s parental rights and free the children
for adoption. On November 18 the superior court issued its
decision to continue state custody.
In the following six months, the division started to implement
its permanency plan. The division filed a petition to terminate
N.A.'s parental rights to her sons. The division prepared a
case plan for N.A. This plan generally continued the previous
plan activities but added a new task of encouraging N.A.
to consider relinquishing parental rights to all four of her
children by Smith. N.A. later relinquished her parental rights to
the boys.
The division also filed a termination petition for N.A.'s daughters.
The termination trial was scheduled to start on September 13,
1999. In August, N.A.'s counsel moved to continue the trial
because he was recovering from major surgery. The superior court
granted the motion and rescheduled trial to November 22.
During the months before trial, N.A. admitted to her social
worker that she had been beaten and raped during a
drinking incident. As recently as three weeks before the termination
trial, N.A. admitted to another drinking episode.
A week before trial was scheduled to begin, N.A. filed
a motion asking for a permanency
hearing and a continuance of the termination trial. The superior
court denied the motion. Trial began on November 17. On
January 21, 2000, the trial court issued its ruling to
terminate N.A.'s parental rights to her daughters.
III. STANDARD
OF REVIEW
Whether
the state has complied with the "active efforts" requirement
of the *601
Indian Child Welfare Act (ICWA) [FN4]
presents a mixed question of law and fact.
[FN5] Whether N.A.'s due process rights have been violated is a
question of law.
[FN6] We defer to the trial court's factual findings unless clearly
erroneous and review de
novo any questions
of law.
[FN7]
FN4.
See
25 U.S.C. §§ 1901-23
(2000).
FN5.
See
A.A. v. State, Dep't of Family & Youth Servs.,
982 P.2d 256, 259 (Alaska 1999) (citing A.M.
v. State
(A.M.II),
945 P.2d 296, 304 n. 10 (Alaska 1997)).
FN6.
See
D.M. v. State, Div. of Family of Youth Servs.,
995 P.2d 205, 207 (Alaska 2000).
FN7.
See
id.; see also A.H. v. State, Dep't of Health &
Social Servs.,
10 P.3d 1156, 1160 (Alaska 2000).
IV. DISCUSSION
N.A. argues two points in this appeal. She contends that
the superior court (1) violated her due process rights by
failing to hold a permanency hearing; and (2) erred in
concluding that the state made active efforts to provide programs
and services to reunite N.A. with her children.
A. The
Superior Court Did Not Violate Due Process.
N.A.
argues that the superior court's failure "to conduct a permanency
plan hearing as required by AS 47.10.080(l)"
violated her right to due process. The state argues that the
annual review report, the October 5, 1998 hearing, and the superior court's
findings fulfilled the statutory requirements for a permanency plan hearing.
Alaska
Statute 47.10.080(l)
[FN8]
provides that the court shall hold a permanency plan hearing within twelve
months after the date a child enters foster care and hold review hearings
at least annually.
[FN9] Under the Alaska Child in Need of Aid Rules, permanency hearings
require a state-generated report and specific judicial findings.
[FN10]
FN8.
AS 47.10.080(l)
sets out the requirements for permanency and annual
review hearings:
Within
12 months after the date a child enters foster care
as calculated under AS 47.10.088(f), the court shall hold a
permanency hearing. The hearing and permanent plan developed in the
hearing are governed by the following provisions:
....
(5)
the court shall hold a hearing to review the permanent
plan at least annually until successful implementation of the plan;
if the plan approved by the court changes after the
hearing, the department shall promptly apply to the court for
another permanency hearing, and the court shall conduct the hearing
within 30 days after application by the department.
FN9.
See
AS 47.10.080(l).
FN10.
CINA Rule 17.2 requires the division to file a report
and the court to make findings:
(c)
Report. The Department shall file and serve a permanency report
no later than ten days prior to the permanency hearing.
In the report, the Department shall specify its proposed permanent
plan for the child with a detailed statement of the
facts and circumstances supporting the proposed permanent plan. ....
(e)
Findings. The court shall make written findings, including findings related
to
(1)
whether the child continues to be a child in need
of aid;
(2)
whether the child should be returned to the parent or
guardian, and when;
(3)
whether the child should be placed for adoption or legal
guardianship and whether the Department is in compliance with AS
47.10.088(d) relating to the filing of a petition for termination
of parental rights;
(4)
whether the child should be placed in another planned, permanent
living arrangement and what steps are necessary to achieve the
new arrangement; and
(5)
in the case of a child who has attained age
16, the services needed to assist the child to make
the transition from foster care to independent living or adult
protective services.
If
the court is unable to make a finding required under
this paragraph, the court shall schedule and hold another permanency
hearing within a reasonable period of time as defined in
AS 47.10.990(23).
(f)
Additional Findings. In addition to the findings required under paragraph
(e), the court shall also make written findings related to
(1)
whether the Department has made reasonable efforts required under AS
47.10.086
or, in the case of an Indian child, whether the
Department has made active efforts to provide remedial services and
rehabilitative programs as required by 25 U.S.C. Sec.1912(d);
(2)
whether the parent or guardian has made substantial progress to
remedy the parent's or guardian's conduct or conditions in the
home that made the child a child in need of
aid; and
(3)
if the permanent plan is for the child to remain
in out-of-home care, whether the child's out-of-home placement continues to
be appropriate and in the best interests of the child.
....
(i)
Subsequent Review. The court shall hold a hearing to review
the permanent plan at least annually until successful implementation of
the plan.
*602
1. The
superior court fulfilled the requirements of a permanency hearing.
A permanency hearing must be held: (1) within twelve months
after the date the child entered foster care as calculated
under AS 47.10.088(f); (2) within thirty days after the court
determines pursuant to CINA Rule 17.1 that reasonable efforts are
not required; or (3) upon application by a party, when
good cause is shown.
[FN11] According to AS 47.10.088(f), a child is
considered to have entered foster care on the earlier of
the date of a judicial finding of abuse or neglect
or sixty days after the date of removal from the
child's home.
[FN12]
FN11.
See
CINA Rule 17.2(a); AS 47.10.080(l).
Parts (2) and (3) do not apply here. On appeal,
N.A. relies only on Part (1) to support her position
that she was entitled to a permanency hearing.
FN12.
AS 47.10.088(f) indicates how to determine the date that a
child entered foster care:
A
child is considered to have entered foster care under this
chapter on the earlier of
(1)
the date of the first judicial finding of child abuse
or neglect; or
(2)
60 days after the date of removal of the child
from the child's home under this chapter.
N.A.'s
daughters entered state custody on November 3, 1997. On that
occasion, N.A.'s daughters were taken into state custody to allow N.A.
to enter a residential substance abuse treatment program. There
was no judicial finding of neglect or abuse. Thus, the date
on which the girls entered foster care is January 2, 1998, sixty days
after removal from N.A.'s home. Accordingly,
AS 47.10.080(l)
required that a permanency hearing be held before January 2, 1999.
What the court and the division have named the annual
review of 1998 fulfills the requirements of a permanency hearing.
The court held a hearing on October 5, 1998, within
twelve months of the girls' entry into foster care. As
required by CINA Rule 17.2(c) and (e), the division filed
a report including a proposed permanent plan of terminating parental
rights and supporting facts, and the court made appropriate findings.
Thus, the superior court fulfilled the requirements of a permanency
hearing.
2. The
superior court did not err by failing to hold a
review within one year of the permanency hearing.
Although her argument is unclear, N.A. may be basing her
due process claim on the superior court's failure to hold
an annual review before the termination hearing. Alaska Statute 47.10.080(l)(5)
requires that the superior court hold a review at least
annually after the permanency hearing. The equivalent of a permanency
hearing was held on October 5, 1998. There is no
record of an annual review on or before October 5,
1999.
A failure to timely hold an annual
review is normally error. In this case, however, the court
originally scheduled the termination hearing for September, before the
statute required an annual review. N.A.'s counsel requested
the continuance that resulted in delaying the termination hearing to a
date more than twelve months from the permanency hearing. Thus,
by delaying the termination trial, N.A. in effect artificially manufactured
the need for an annual review. Under these circumstances,
the superior court did not err in failing to hold an annual review before
the termination trial.
B. The
Superior Court Did Not Err in Concluding that the State
Made Active Efforts to Reunite N.A. with Her Children.
One
requirement of terminating parental rights under ICWA is proof by a preponderance
of the evidence that the state has made active, but unsuccessful, efforts
to provide remedial services and rehabilitative programs designed to prevent
the breakup of the family.
[FN13] Active efforts occur "where the state caseworker takes
the client through the steps of the plan rather than requiring that *603
the plan be performed on its own." [FN14]
The determination of active efforts is done on a case-by-case basis.
[FN15]
FN13.
See
25 U.S.C. § 1912(d)
("Any party seeking to effect a foster care placement of,
or termination of parental rights to, an Indian child under
State law shall satisfy the court 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.").
FN14.
A.A.,
982 P.2d at 261 (quoting Craig J. Dorsay, The
Indian Child Welfare Act and Laws Affecting Indian Juveniles Manual
157-58 (1984)).
FN15.
See
id.
In
this case, the state's efforts were more than active; they were
exemplary. The division and the Department of Corrections
worked together with the Tanana Chiefs Conference to provide numerous
and varied types of assistance to N.A.
[FN16] A partial list of recent efforts includes: placing N.A. at the
TCC Paul Williams House; enrolling N.A. in three different substance
abuse treatment programs (Fairbanks Rescue Mission, Women's and Children's
Residential Program, Regional Center for Alcohol and Other Addictions);
completing a psychiatric evaluation; providing psychiatric
therapy (monthly visits scheduled with Dr. Gooding); encouraging
attendance at Alcoholics Anonymous meetings (weekly attendance scheduled);
enrolling N.A. in parenting classes; allowing weekly visitation
with her children; arranging transportation for the visits; and
taking temporary custody of the children so that N.A. could receive medical
care.
FN16.
In determining whether the state took active efforts, the Department
of Correction's efforts are added to the division's efforts. See
A.M. II,
945 P.2d at 305 ("It is of no particular consequence
that the Department of Corrections (DOC), rather than DFYS, made
these active remedial efforts.").
Efforts before 1997 have included: enrolling N.A. in substance abuse
treatment and aftercare (Nugen's Ranch, Dena A Coy, Regional Center
for Alcohol and Other Addictions); providing parenting classes (including TEACH
to instruct on caring for her boys); providing anger management
classes (Alternatives to Violence); facilitating visitation with her children; referring
N.A. to Developmental Disability, Vocational Rehabilitation; completing a neurological evaluation;
arranging daycare for her children; giving parent aid through Resource
Center for Parents and Children; and providing counseling for both
N.A. and Smith.
N.A.
now argues that the state has not provided a sufficient dual-treatment
program to deal with both her addiction and mental health problems, pointing
to treatment programs available in Anchorage that have not been attempted.
However, her argument conflicts with the facts in two ways.
First, N.A. was placed in the Fairbanks Rescue Mission program, which
had experience working with dual-diagnosed patients and had sufficient
resources to accommodate
N.A. at her own pace. That effort failed when N.A. decided
to leave the program before completion. Second, when the Anchorage
programs were first considered, N.A. had expressed reluctance to leave
the Fairbanks area for treatment. There was no failure by
the state in regard to dual-treatment programs.
N.A.
also notes that the division did not develop a case plan for her after
she relinquished parental rights to her sons on April 26, 1999. She
appears to argue that this change in circumstances required the state
to make additional efforts. However, the boys had been in
foster care since April 25, 1997; N.A.'s failed attempts at rehabilitation
and her eventual relapses occurred without the extra burden of caring
for them. N.A. knew that the state had previously attempted
to terminate her parental rights and would likely do so again if she failed
to complete a rehabilitation program. There is no objective
reason to think that trying another residential dual-treatment program
at that time would have had a successful outcome.
This court has held that a parent's demonstrated lack of
willingness to participate in treatment may be considered in determining
whether the state has taken active efforts.
[FN17] Other courts have expressly held that where efforts have
been made to address a substance abuse problem, the parent
has shown no desire to change, and parental rights were
terminated with respect to one child, ICWA allows the superior
court to consider all of the efforts made by
the state to avoid the *604
breakup of the family in assessing whether those efforts were
reasonable.
[FN18] We conclude that the state made active efforts to
provide remedial services and rehabilitative programs designed to prevent the
breakup of the family and thereby avoid the termination of
N.A.'s parental rights.
FN17.
See
A.M. II,
945 P.2d at 306; see
also A.A.,
982 P.2d at 262-63.
FN18.
See
Letitia V. v. Superior Court,
81 Cal.App.4th 1009, 97 Cal.Rptr.2d 303, 308-09 (2000); People
in Interest of A.R.P.,
519 N.W.2d 56, 60 (S.D.1994).
V. CONCLUSION
Because the superior court met the statutory requirement that a
permanency hearing be held within one year after the children
entered state custody and correctly determined that the state made
active efforts to provide remedial services and rehabilitative programs designed
to prevent the termination of N.A.'s parental rights, we AFFIRM.
19 P.3d 597
|
