|
(Cite
as: 45 P.3d 1198)
Supreme
Court of Alaska.
V.S.B.,
Appellant,
v.
STATE
of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF
FAMILY
AND
YOUTH SERVICES, Appellee.
No.
S-9817.
Feb.
15, 2002.
Division of Family and Youth Services (DFYS) petitioned to terminate
parental rights to Indian child. The Superior Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, J., terminated parental rights. Parent
appealed. The Supreme Court, Fabe, C.J., held that: (1) children
were properly determined to be children in need of aid;
(2) evidence supported finding that children would likely suffer serious
physical and emotional damage if placed in parent's custody; and
(3) finding that remedial programs were unsuccessful was supported by
the evidence.
Affirmed.
Supreme
Court will not reverse a trial court's factual findings in
a parental rights termination case unless those findings are clearly
erroneous; this standard is met if the Supreme Court is
left with the definite and firm conviction that a mistake
has been made.
Whether
the trial court's findings satisfy the requirements of the child
in need of aid statutes is a question of law
that is reviewed de novo. AS 47.10.011.
On
appeal of decision to terminate parental rights, arguments in parent's
brief were not so cursory as to be waived; even
though parent did not cite any cases in
support of her arguments, she did provide an evidentiary basis
for the arguments.
Evidence
supported determination that children were children in need of aid
because they suffered mental injury as a result of conduct
by or conditions created by the parent; multiple therapists and
social workers confirmed that each of the four children had
different psychological problems, and children's mental injuries were caused or
exacerbated by living with parent, who suffered from bipolar disorder.
AS 47.10.011(8)(A).
Evidence
supported determination that children were children in need of aid
because they experienced sexual abuse; parent expressed concern that her
children were being sexually abused and yet she did not
take steps to protect them, and children did not view
parent as someone who would protect them. AS 47.10.011(7).
Evidence
supported determination that children were children in need of aid
because they suffered substantial physical harm or were placed at
risk of substantial physical harm while in the home; parent
admitted to spanking the children, one child told a therapist
that parent punched him for no reason, and children were
exposed to fighting between the parents. AS 47.10.011(6).
Parent's
bipolar disorder, when coupled with her past actions, was a
proper basis for terminating her parental rights, in proceedings under
the ICWA; parent's mental illness was such that she could
not regain custody of her children without likely causing them
continued mental injury, where parent left one child with its
grandparents, who were too old to take care of a
small baby, and parent at times ceased taking medications, which
resulted in periods of decompensation that led to some domestic
violence incidents. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
A
parent's mental illness, absent related conduct, cannot be a basis
for termination of parental rights.
Continued
mental illness of a parent can serve as a basis
for termination of parental rights when it is linked with
past detrimental behavior.
In
proceedings under ICWA to terminate parental rights to Indian child,
evidence supported finding that child would likely suffer serious physical
and emotional damage if placed in parent's custody; child suffered
traumatic sexual and
physical abuse and he needed a family that understood how
to respond to his oversexualized behavior, and a child psychiatrist
concluded that child would regress to his previous behavior if
he was returned to parent. Indian Child Welfare Act of
1978, § 102(f),
25 U.S.C.A. § 1912(f).
Evidence
supported finding, in proceedings under ICWA to terminate parental rights
to Indian child, that child would likely suffer serious physical
and emotional damage if placed in parent's custody; social worker
testified that child would be "devastated" if she were moved
out of her stable and supportive foster home to live
with parent, child did not trust parent to take care
of her, and child had complicated emotional problems and needs
that would be difficult for parent to address. Indian Child
Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Evidence
supported finding, in proceedings under ICWA to terminate parental rights
to Indian child, that child would likely suffer serious physical
and emotional damage if placed in parent's custody; testimony indicated
that child needed special parenting skills to help control his
aggressive tendencies, child required nearly continuous monitoring due to his
self-destructive behavior, he was unable to form an emotional attachment
to parent, and he would be destabilized by being placed
with parent. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
In
proceedings under ICWA to terminate parental rights to Indian child,
evidence supported finding that child would likely suffer serious physical
and emotional damage if placed in parent's custody; testimony indicated
child required special treatment because of her fetal alcohol syndrome,
she had no emotional attachment to parent, and she needed
to be placed in a supportive environment if she was
to have continued healthy emotional development. Indian Child Welfare Act
of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Evidence
supported finding, in proceedings under ICWA to terminate parental rights
to Indian child, that reasonable and active efforts were made
to provide appropriate remedial services and that those efforts were
unsuccessful; therapist testified that parenting skills were only marginally improved
even though parent actively participated in treatment program laid out
for her by the Division of Family and Youth Services
(DFYS), and psychiatrist's testimony indicated that parent failed to acquire
adequate parenting skills despite fact that she was taking medication
to control bipolar disorder. Indian Child Welfare Act of 1978,
§ 102(d),
25 U.S.C.A. § 1912(d).
In
situations where the parent has not participated in the rehabilitation
programs offered, termination of parental rights is clearly justified.
Termination
of parental rights is justified for a parent's failure to
take medication to control aberrant behaviors.
Compliance
with treatment plans does not guarantee that parental rights will
not be terminated because it cannot guarantee that adequate parenting
skills will be acquired from the treatment regimen.
*1199
Alex Koponen, Fairbanks, for Appellant.
D. Rebecca Snow, Assistant Attorney General, Fairbanks, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
*1200
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
FABE, Chief Justice.
I.
INTRODUCTION
Vivian [FN1]
appeals the termination of parental rights over her four children.
She has been diagnosed with Bipolar Disorder, which had previously
made effective parenting difficult. The State asserts, and Superior Court
Judge Mary E. Greene agreed, that despite the fact that
Vivian is now stabilized on medication for her mental illness,
she is still unfit to serve as an adequate parent
for her four children, all of whom exhibit psychological and/or
developmental difficulties that require special attention. Because all four children
at issue are Indian children, the standards of proof required
by the Indian Child Welfare Act (ICWA) apply. While Vivian
made significant efforts at rehabilitation, the superior court adequately examined
the record and applied the correct standards of proof in
determining that it was in the best interests of the
children to terminate Vivian's parental rights. Consequently, the decision of
the superior court is affirmed.
FN1.
Pseudonyms have been used throughout this opinion for all family
members.
II.
FACTS AND PROCEEDINGS
A.
Parties at Issue
Vivian, the appellant, is the mother of the four children
(Scott, Amy, Michael, and Veronica) in dispute. Keith, who had
been involved in the Division of Family and Youth Services
(DFYS) action and in the action in the superior court,
is the father of Scott, Amy, and Michael; the father
of Veronica is deceased. Both Vivian and Keith had their
parental rights terminated in superior court by Judge Mary E.
Greene on August 29, 2000. Vivian has appealed this decision;
Keith has not.
1.
Vivian
Vivian has suffered from a long history of mental illness.
The condition from which she suffers is Bipolar Disorder, for
which she is currently taking medication to control her symptoms.
Her first acute attack was precipitated by taking LSD in
1988 when she was fifteen and resulted in her being
hospitalized, first in the Fairbanks Memorial Hospital and then in
the Alaska Psychiatric Institute. Subsequent hospitalizations for mental illness have
coincided with the births of each of her four children.
The first such hospitalization occurred at the Alaska Psychiatric Institute
in October 1991, shortly after the birth of her son
Scott. Vivian had ceased taking her medication for her mental
illness in November 1990. Fearing that Vivian might not be
able to care for her baby because of her psychological
condition, the obstetrician both requested a psychiatric consultation and contacted
DFYS. Vivian was sent to the Alaska Psychiatric Institute and
later given lessons in child
care.
In 1992 Vivian was hospitalized in the psychiatric ward of
Fairbanks Memorial Hospital while making accusations that Scott was being
sexually molested. Approximately six months after the birth of Amy
in June 1993, Vivian was again sent to the Alaska
Psychiatric Institute and the psychiatric ward of Fairbanks Memorial Hospital.
Upon the insistence of Keith, Vivian discontinued use of her
prescribed psychotropic medications during her pregnancy, thus precipitating the recurrence
of acute episodes related to her Bipolar Disorder. Vivian had
another acute episode in 1994. As of September 1995, Vivian
was again pregnant (with Michael) and off her medication at
the insistence of Keith.
Vivian left Keith in April 1996, took her three children
to a local women's shelter, and filed a domestic violence
restraining order against Keith. After becoming pregnant with Veronica by
a now-deceased third party, Vivian reconciled with Keith. Vivian soon
thereafter filed a second protective order against him when he
ordered her and her sister out of his house. This
second petition was filed in response to a domestic violence
incident in which Keith allegedly grabbed Vivian and threatened to
kill her after she kicked him in the nose during
an argument. Despite leaving Keith, Vivian did not take *1201
her mental illness medications during her pregnancy. Soon after the
birth of Veronica on October 6, 1997, Vivian asked her
mother to take care of her children while she had
a tubal ligation.
In January 1998 Vivian was arrested for assaulting her niece,
who at the time was babysitting the children.
[FN2] At the time, all four children were living with
Vivian, but only the three older children were present during
the assault, Veronica having spent the night with her maternal
grandmother. Upon her release from jail, Vivian went again to
the Alaska Psychiatric Institute and then in April 1998 entered
the Paul Williams House, an assisted living facility in Fairbanks
for patients with mental illness. The Paul Williams House does
not allow its patients to have children live with them.
Vivian left the Paul Williams House in September 1999 and
a month later moved in with Craig, whom she married
the following month.
FN2.
Vivian alleges in her brief that the niece had sexually
abused the children and that Vivian was just defending them.
Vivian previously testified, however, that she does not remember why
she got into a fight with her niece.
2.
The children
Scott, the oldest child, was almost nine at the time
of the superior court trial. He suffers from both Attention
Deficit/Hyperactivity Disorder and Post Traumatic Stress Disorder. Scott displays aggressiveness
toward other children
and poor communications skills. In addition, he has serious psychological
issues surrounding sex: He has been both a victim and
a perpetrator of sexual abuse. Vivian reports that Scott told
her that he had been sexually assaulted by his father.
Scott has been sexually active on frequent occasions, including sexual
intercourse with a ten-year-old girl when he was four years
old and sexual intercourse with a fifteen-year-old female cousin when
he was six. Scott is considered a threat to other
children and has already sexually assaulted both another boy and
his younger sister Amy. Scott was frequently beaten as a
child. In therapy sessions, Scott described incidents of fighting between
Vivian and Keith, including Keith raping Vivian and sending her
to a friend to be raped.
Scott is currently in foster care. He was initially placed
with his maternal grandparents, but later removed after the grandparents
violated rules about contact between Scott and Vivian. All four
children, including Scott, were placed for one night in an
Indian preference foster home but were removed because the prospective
foster parents did not feel they could handle children with
such severe disciplinary problems. Social workers feared Scott would be
a difficult foster placement because of his behavioral problems. However,
Scott was quickly placed with his current foster family, to
whom he appears to have developed some attachment and who
have expressed a desire to adopt him. The family is
non-Native. Social workers who worked with Scott testified that he
needs to be placed in a caring and supportive environment,
with only limited visitation with his parents, if he is
to develop into an emotionally well-functioning adult. Scott has expressed
some desire to visit with his mother and siblings.
Amy, seven years old at the time of trial, also
exhibits behavioral problems as a result of being a victim
of sexual abuse. She has a history of masturbating excessively
in front of family members. She has been sexually molested
by Scott. A child psychiatrist has also testified that Amy
is physically aggressive with other children and has difficulty establishing
appropriate physical boundaries. Amy is emotionally immature and has developmental
difficulties with regard to her social interactions. Furthermore, she has
Fetal Alcohol Effect and probably suffers from Attention Deficit Disorder.
Social workers have testified that Amy will need significant parental
attention, in addition to continued therapy, if she is to
overcome her developmental difficulties. Amy is currently in foster care
with a non-Native family that has expressed a desire to
adopt her.
[FN3] This is her third foster family, the first *1202
foster family having had Amy for only one night and
the second declining to adopt Amy after having her for
eleven months. Amy appears to have formed an emotional attachment
to her current foster family. In therapy sessions following visits
by Vivian, Amy has also expressed
a desire to stay with Vivian.
FN3.
Vivian did not challenge the placement of Scott and Amy
with non-Native families. The trial court found that good cause
existed in both instances for deviating from ICWA placement preferences.
See
25 U.S.C. § 1915(a).
Michael, who was four years old at the time of
the trial, exhibits hyperactivity and self-destructive behavior. He has shown
developmental delays in his speech and behavior. Michael also throws
violent temper tantrums and is aggressive toward other children. His
therapist believes Michael suffers from Post-Traumatic Stress Disorder and Reactive
Attachment Disorder, but has ruled out Attention Deficit/Hyperactivity Disorder. Michael
has trouble sleeping at night, including uncontrolled bouts of screaming,
and is on medication for his sleeping difficulties. Michael needs
near-constant attention to ensure he is not a danger either
to others or to himself. Michael is currently placed with
a Native American foster family to whom he has gained
some limited form of attachment; he shows overall improvements in
his behavior. He has lived in multiple foster placements. Michael's
current foster family has expressed a desire to adopt him.
Veronica was only two and a half years old at
the time of trial. She suffers from
a pronounced case of Fetal Alcohol Syndrome, including both physical
and mental manifestations. She exhibits various developmental delays and will
need continued therapy for the foreseeable future. Veronica was initially
placed with relatives, but permanent adoption was not possible because
the specialized resources she needed were not available in the
area. Veronica is currently with an Alaska Native foster family
who has expressed an interest in adopting her. Veronica was
initially a rather aggressive child and displayed self-destructive behavior but
following her foster placement is able to get along better
with other children. Her development has almost caught up to
that of a normal two year old.
B.
Procedural History
DFYS took emergency custody of Scott, Amy, and Michael on
December 19, 1997, with a petition for temporary custody filed
two days later and granted on January 13, 1998 (retroactive
to December 21, 1997). A petition for adjudication of a
child in need of aid was filed for these three
children on February 24, 1998. DFYS took emergency custody of
Veronica on May 11, 1998 from her maternal grandmother, with
whom all four children had been placed by DFYS, and
filed a petition for adjudication the following day.
Vivian signed a stipulation for adjudication and disposition covering all
four children on June 1, 1998. This stipulation laid out
a three-phase plan whereby she could work toward regaining custody
of her children. The first phase
of the stipulation required that Vivian remain in the Paul
Williams House, meet regularly with her case manager and therapist,
and remain on her recommended medications. The second phase stated
that after Vivian "has been sufficiently stabilized in her mental
health treatment program" and received a substance abuse evaluation and
appropriate treatment, DFYS would begin to arrange visitation with the
children in consultation with each child's counselor. If Vivian maintained
stable mental health and completed the recommended substance abuse treatment,
DFYS would, in phase three, refer her to parenting education
programs with the goal of teaching Vivian the necessary parenting
skills to be a capable mother. As the children began
spending more time with Vivian, the parenting education would be
arranged in-home and tailored to the specific needs of each
child. Keith signed this stipulation on June 2, 1998, with
similar requirements on his part if he were to be
reunited with his children.
Based upon the facts agreed to in the stipulation, the
court entered its findings and order of adjudication and disposition
based on stipulation on June 15, 1998, committing all four
children to the custody of DFYS for a period "not
to exceed one year" from June 2, 1998. DFYS filed
a petition for termination of parental rights on May 17,
1999. State custody over the children was extended through the
end of the trial, as the trial could not be
completed before the June 1 date.
*1203
A series of delays pushed back the date of the
trial. Trial had initially been scheduled for November 1999. In
a contested permanency hearing on December 3, 1999 the trial
court found the continued foster placements of the children to
be in their best interests. A conflict of interest with
her first attorney forced the court to appoint a new
attorney for Vivian, postponing the trial until February 2000. Just
before trial was to begin, the Native Village of Buckland
granted membership in their tribe to Vivian and all of
her children and intervened in the case, forcing the trial
to be postponed for another month.
[FN4] The trial finally took place over sixteen days between
March 22 and June 22, 2000. On July 28, 2000,
Judge Greene presented her decision orally, followed by written findings
and order on August 29, 2000. Vivian appealed on September
19, 2000.
FN4.
The Native Village of Buckland did not request a transfer
of jurisdiction over the foster placement or termination proceedings. See
25 U.S.C. § 1911(c)
("In any State court proceeding for the foster care placement
of, or termination of parental rights to, an Indian child,
the Indian custodian of the child and the Indian child's
tribe shall have a right to intervene at any point
in the proceeding.").
III.
STANDARD OF REVIEW
The
Alaska Supreme Court will not reverse a trial court's factual findings
in a parental rights termination case unless those findings are "clearly
erroneous." [FN5]
This standard is met if this court is "left with the definite
and firm conviction that a mistake has been made." [FN6]
The issue of whether or not the trial court's findings satisfy the requirements
of the child in need of aid (CINA) statutes is a question of law that
is reviewed de novo.
[FN7]
FN5.
H.C.
v. State, Dep't of Health & Soc. Servs.,
956 P.2d 477, 481 (Alaska 1998).
FN6.
E.A.
v. State,
623 P.2d 1210, 1212 (Alaska 1981).
FN7.
A.B.
v. State, Dep't of Health & Soc. Servs.,
7 P.3d 946, 950 (Alaska 2000).
IV.
DISCUSSION
A.
The Arguments in Vivian's Brief Were Not So Cursory as
to be Waived.
The State asserts that Vivian's
brief treats the points of appeal in a cursory fashion and that those
points should therefore be waived. More specifically, the
State points to the fact that Vivian does not cite a single case
in the brief and cites to only two federal statutes, failing there to
mention the relevant related Alaska statutes. The State further
alleges that Vivian's brief, the discussion section of which covers only
four pages, contains only minimal exposition of its arguments. Finally,
the State claims that Vivian's brief "lack[s] serious discussion
of the evidentiary basis for her contentions."
While the State may be correct in its assertion that
Vivian's brief is rather poorly constructed, the quality of the
brief does not merit a determination that its points on
appeal should be waived. Although Vivian's brief does not cite
any cases in support of its arguments, it does provide
an evidentiary basis for its argument. We thus conclude that
the treatment of the issues is not so cursory that
we should decline to consider the points on appeal.
B.
The Superior Court Correctly Found that the Four Children Are
Children in Need of Aid.
Before termination proceedings can be conducted, the superior court must
determine that the children are children in need of aid
under Alaska law. [FN8]
Vivian challenges the determination that the four children are children
in need of aid. However, in the stipulation agreement signed
by Vivian, she admitted that the children are children in
need of aid.
[FN9] Vivian claims that the conduct placing the children in
danger was committed by *1204
Keith and not by Vivian.
[FN10] However, the findings by the trial court
do not support this conclusion.
FN8.
AS 47.10.088(a)(1)(A); CINA Rule 18(c)(1)(A).
FN9.
The conditions admitted to were those under then-AS 47.10.010(a)(6) (since
amended in 1998), which covered physical abuse and neglect. It
is unclear if Vivian is asserting that the children were
never
abused or neglected. Rather, she may be asserting only that
the children presently would not be at risk of harm
if placed with her.
FN10.
Vivian further asserts that DFYS should have placed the children
in her care once it learned that she had remarried
into a stable home environment. This is relevant to the
issue of Vivian's rehabilitative efforts but not to the determination
of the child in need of aid status of the
children.
The trial court found five bases for determining that the
four children fell under the Alaska CINA statutes.
[FN11] Indeed, Judge Greene stated that "[t]hese children are among
the most damaged children" she had seen in twenty-five years
"practicing in the area of children's law." If the findings
and evidence are legally sufficient to satisfy any one of
these five alternative requirements,
the termination will be affirmed.
[FN12] The appropriate standard of proof is the "clear and
convincing evidence" standard.
[FN13] Although the trial court did not explicitly say so,
it implicitly found that this standard was satisfied by expressly
stating, after setting out its CINA findings, that "[t]he court
further finds that there is evidence beyond
a reasonable doubt
that each of these children would be likely to suffer
serious physical and especially emotional damage if placed in the
custody of either parent." (Emphasis added.) In context, this finding,
though made under ICWA, effectively subsumes the required state law
CINA findings. Whether the trial court's findings comport with CINA
requirements is a question of law and accordingly reviewed de
novo.
[FN14] We find that the record clearly supports the conclusion
that Vivian, through her actions and inaction, caused the children
to suffer harm in three ways (mental injury, sexual abuse,
and substantial risk of physical harm). Accordingly, we do not
reach the issue of whether the other two statutory findings
were clearly erroneous.
FN11.
These bases were AS 47.10.011(6) (substantial risk of physical harm);
AS 47.10.011(7) (sexual abuse); AS 47.10.011(8)(A) (mental injury to the
child); AS 47.10.011(9) (neglect); and AS 47.10.011(11) (mental illness of
the parent contributing to a risk of harm to the
child).
FN12.
See
A.H. v. State, Dep't of Health & Soc. Servs.,
10 P.3d 1156, 1161 (Alaska 2000); A.B.
v. State, Dep't of Health & Soc. Servs.,
7 P.3d 946, 951 (Alaska 2000).
FN13.
AS 47.10.011.
FN14.
E.M.
v. State, Dep't of Health & Soc. Servs.,
959 P.2d 766, 768 (Alaska 1998) (citing R.J.M.
v. State,
946 P.2d 855, 861 (Alaska 1997)).
First
and foremost, the children are children in need of aid under AS 47.10.011(8)(A)
because they have suffered "mental injury" as a result of "conduct
by or conditions created by the parent." The severe mental
injuries are detailed in the earlier discussion of the various psychological
problems each of the four children faces.
[FN15] These injuries have been confirmed by multiple therapists
and social workers. Each child has different psychological
problems, though tendencies toward aggressive behavior are common in all
four. It appears clear that the mental injuries suffered by each
of the children have been caused or at least exacerbated by living with
Vivian. In short, there is ample evidence of mental injury
to justify bringing each child into
state custody.
FN15.
See
supra
Part II.A.2.
Secondly,
the sexual abuse experienced by Scott and Amy makes them children in need
of aid under AS 47.10.011(7). The trial court made special
note of the fact that Vivian expressed concern that her children were
being sexually abused and yet did not take any steps to protect them,
nor did the children view her as someone who would protect them. No
efforts were made to protect Amy from Scott. The trial court
notes that parental neglect of the children contributed to the creation
of this situation. Vivian alleges that Scott told her that
he was sexually abused by Keith. Yet, she did little to prevent
a recurrence in the future.
[FN16] Due to the sexual abuse they have suffered and the absence
of steps by Vivian to prevent this abuse, Scott and Amy are children in
need of aid.
FN16.
Vivian did at one point take the children to a
women's shelter and has filed for protective orders against Keith
but she subsequently allowed the children to live with him.
Finally, Scott, Amy, and Michael
suffered "substantial physical harm" or
were *1205
placed at risk of "substantial physical harm" while in the home
and as such can be considered children in need of aid under AS 47.10.011(6).
Vivian admits to "spanking" the children and Scott related
to a therapist an incident in which Vivian "punched" him for
no reason.
[FN17] Scott also related having to protect his mother from his father.
Scott, Amy, and Michael were all exposed to fighting between
Keith and Vivian. Keith testified that he feared Vivian would
hurt the children, though he never did see her actually hit the children.
All of these establish by clear and convincing evidence that
the children had experienced or were at risk of experiencing "serious
physical harm" from Vivian prior to being taken into custody by the
State.
FN17.
Scott did not clearly distinguish here between his mother and
stepmother, stating only that his "mom" punched him. The superior
court appears to have interpreted this as a reference to
Vivian, which was also the impression of the social worker.
C.
The Superior Court Correctly Found that the Parental Rights of
Vivian Should Be Terminated.
Because Vivian and each of her children were members of
the Native Village of Buckland, the standards of proof established
by ICWA at 25 U.S.C. § 1912
apply
to proceedings for the termination of parental rights. The key
subsections for the present case are: § 1912(d),
[FN18] establishing a preponderance of evidence standard for demonstration that
remedial services and rehabilitative programs have been provided and proven
unsuccessful; [FN19]
and § 1912(f),
[FN20] establishing a beyond a reasonable doubt standard for termination
of parental rights.
FN18.
25 U.S.C. § 1912(d)
states:
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.
FN19.
K.N.
v. State,
856 P.2d 468, 476 (Alaska 1993).
FN20.
25 U.S.C. § 1912(f)
states:
No
termination of parental rights may be ordered in such proceeding
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including testimony of qualified expert witnesses, that
the continued custody of the child by the parent or
Indian custodian is likely to
result in serious emotional or physical damage to the child.
1.
§ 1912(f)
Vivian does not appear to challenge the validity of the
trial court's findings under § 1912(f)
and AS 47.10.088, despite the relatively high "beyond a reasonable
doubt" standard of proof imposed on the State.
[FN21] The trial court did not explicitly address the requirements
of either § 1912(f)
or AS 47.10.088, but did find that "there is evidence
beyond a reasonable doubt that each of these children would
be likely to suffer serious physical and especially emotional damage
if placed in the custody of either
parent." The trial court then proceeded to rely upon expert
testimony to support its decision terminating parental rights. Thus, the
trial court satisfied ICWA with regard to the termination of
parental rights. A review of the record leads us to
conclude that this finding is not clearly erroneous.
FN21.
Because the children are Indian children, the State must satisfy
the "reasonable doubt" standard established by ICWA, 25 U.S.C. § 1912(f).
The procedures for termination of parental rights are set forth
in AS 47.10.088(a)(1)(B) and require, in pertinent part, that
the
parent (i) has not remedied the conduct or conditions in
the home that place the child at substantial risk of
harm; or (ii) has failed, within a reasonable
time, to remedy the conduct or conditions in the home
that place the child in substantial risk so that returning
the child to the parent would place the child at
substantial risk of physical or mental injury.
In
finding beyond a reasonable doubt that each child "would be likely
to suffer serious physical and especially emotional damage if placed in
the custody of either parent," Judge Greene cited both the lack of
an emotional connection between the children and their mother and the
harm that would be done to the children by moving them out of their current
foster families. This finding is based not solely on Vivian's
history of mental illness but also on the "flat *1206
affect" with which she treats her children.
[FN22] Consequently, the superior court found that it was in the
best interests of the children to terminate Vivian's parental rights.
FN22.
Mental illness, absent related conduct, cannot be a basis for
termination of parental rights. In
re J.W.,
921 P.2d 604, 607 (Alaska 1996) (citing K.N.
v. State,
856 P.2d 468, 475 (Alaska 1993) and Nada
A. v. State,
660 P.2d 436, 440 (Alaska 1983)). However, when continued mental
illness is linked with past detrimental behavior, it can serve
as a basis for termination of parental rights. J.W.,
921 P.2d at 608 (citing K.N.,
856 P.2d at 475). Vivian's illness has resulted in repeated
hospitalizations that have restricted her ability to care for her
children. Vivian left Veronica with Vivian's parents, even though she
later acknowledged that they were too old to care for
a small baby. This placed Veronica at risk of physical
harm or mental injury. Furthermore, the acute episodes of Vivian's
Bipolar Disorder, due to ceasing to take her medications while
pregnant, resulted in periods of decompensation that led to some
of the domestic violence incidents with Keith, thus placing the
children in further danger. Because Vivian is now taking medication
for her mental illness, there is a possibility that she
will not in the future have any more psychotic episodes.
However, it was not improper for the trial court to
recognize this as a risk. Vivian's mental illness, when coupled
with her past actions, is such that she cannot regain
custody of her children without likely causing them continued mental
injury. Furthermore, removal from the stability of their foster families
would cause additional mental injury to the children.
The
abuse, both sexual and physical, suffered by Scott is so traumatic that
he would suffer emotional damage by being returned to Vivian. Scott
refuses to talk about Vivian or Keith in therapy. Past emotional
damage makes it highly unlikely that Scott will form a healthy emotional
attachment to Vivian. A child psychiatrist concluded that
Scott would regress to his previous
behavior if returned to either one of his parents. Furthermore,
Scott needs to be in a family where the parents understand how to respond
to his oversexualized behavior; it is doubtful that Vivian could
do this, whereas his current foster family has shown some progress in
this regard.
A
social worker testified that Amy would be "devastated" by being
moved out of her stable and supportive foster home to live with either
of her parents, neither of whom understand Amy's emotional needs or can
provide a loving environment. Amy no longer trusts Vivian
to take care of her. Amy could lose the behavioral strides
she has made if placed back in an environment where she does not trust
her parents. Amy also has complicated emotional problems and
needs that would be difficult for Vivian to address.
Michael
also needs special parenting skills to help control his aggressive tendencies.
This is best achieved by a stable home environment. His self-destructive
behavior requires that he be monitored almost continuously. Michael
has been unable to form an emotional attachment to his mother. Michael
would be destabilized by any move, but especially by being placed with
one of his parents.
Veronica, because of her Fetal
Alcohol Syndrome, requires special treatment that Vivian would not be
able to provide. Veronica has no emotional attachment to her
mother. She needs to be placed in a supportive environment
if she is to have continued healthy emotional development.
Vivian alleges that the trial judge erred in finding that
expert parenting skills were required to handle the children.
[FN23] This is not an entirely fair characterization of the
trial court opinion, which states that while Vivian is indeed
correct that testimony exists suggesting the need for a "far
better than average parent," this does not necessarily imply a
particular expertise. As the State admits, none of the foster
parents possess particular training or skills in addressing the special
needs of these children. The trial court found, rather, that
the combination of the developmental difficulties experienced by the children
with the negative feelings they have for their parents would
overwhelm the ability of either parent to meet the needs
of the children and cause the children to feel insecure
*1207
and unsafe. We find this conclusion is not clearly erroneous
and that return of any of the children to Vivian
would result in a serious risk of emotional damage to
that child.
FN23.
Vivian also contends that because "any
" placement of the children would result in emotional trauma
there is no reason why they should not be reunited
with their mother. In light of the ample evidence already
discussed of the progress that each child has made with
his or her foster parent, this assertion is clearly incorrect.
2.
§ 1912(d)
Vivian
explicitly challenges the trial court's findings under § 1912(d).
Vivian asserts that use of her medications had reduced the risk
of future episodes of her Bipolar Disorder sufficiently to allow her to
be an effective mother. Vivian sent a handwritten letter to
Judge Greene saying that she has been attempting to get her life in order,
both through participation in state-ordered treatment programs and by
her marriage to Craig, and pleading with Judge Greene to allow her to
retain custody of her children. However, while Vivian has
complied with the rehabilitative efforts required of her, these efforts
have failed to be successful in turning Vivian into a suitable parent.
Thus, it is in the best interests of the children that Vivian's
parental rights be terminated.
The trial court found by a preponderance of evidence that
"[r]easonable and active efforts have been made to provide appropriate
remedial services" to Vivian and that these efforts had been
unsuccessful. Vivian actively participated in the three-phase treatment program laid
out for her by DFYS. She has attended regular psychiatric
appointments since her release from the Alaska Psychiatric Institute in
the spring of 1998. By continuing to take her medication,
which she has done, one doctor testified that Vivian can
reduce the risk of an episode of Bipolar Disorder down
to one mild episode in a ten-year span. She successfully
completed substance abuse assessments in December 1998 and
December 1999. She completed an alcohol education class in February
2000 and has only occasionally used alcohol, though even limited
use may have negative interaction effects with her psychotropic medication.
Vivian participated in one-on-one parenting training for seven months and
has had regular visitation with her children. It is clear,
therefore, that active efforts at remedial services have been provided
to Vivian, a point which she concedes. Vivian has done
all that has been asked of her and there is
nothing in the record to suggest that Vivian is being
insincere in her attempts at rehabilitation. Furthermore, she has married
someone who appears to provide a more stable home setting
than existed with Keith, though this is a point of
some dispute.
Despite these efforts, Vivian's parenting skills have only marginally improved
and are not sufficient to make her an adequate parent.
The therapist who provided her with parental skills training testified
that Vivian acted in a "child-like" manner around the children
and rarely showed any emotional connection to them. She especially
had problems dealing with Michael. A child services worker, acting
at the behest of DFYS, assessed Vivian as not being
capable of parenting any or all of her children and
recommended permanent placement of the children in homes other than
with their mother. This assessment was confirmed by a DFYS
case worker, who testified that despite her increased focus and
recent marriage Vivian was still incapable of parenting even
one of her children. A child psychiatrist testified that Vivian
may face difficulties responding to the negative feelings her children
may have toward her if returned. The psychiatrist treating Vivian
for her Bipolar Disorder testified that she should avoid "unduly
stressful" situations to avoid future incidents of decompensation and admitted
that the return of her children could be a source
of stress. The trial court further found that the marriage
to Craig was not sufficient to overcome the parenting difficulties
demonstrated by Vivian.
DFYS
informed Vivian that completion of the recommended treatment programs
did not guarantee the return of her children. This position
is supported by Alaska law. In situations where the parent
has not participated in the rehabilitation programs offered, termination
of parental rights is clearly justified.
[FN24] In the present case, *1208
though, Vivian has participated in the required programs and continues
to take her medication. Still, the State can show that a parent
has failed to remedy harmful conditions even when the parent has not been
given an opportunity to actually parent his or her children.
[FN25] Compliance with treatment plans does not guarantee that parental
rights will not be terminated because it cannot guarantee that adequate
parenting skills will be acquired from the treatment regimen.
[FN26] It is entirely possible that there will be some improvement
in overcoming mental illness without there being sufficient improvement
to demonstrate adequate parenting skills.
[FN27] This is the case with Vivian, who may have reasonably controlled
her Bipolar Disorder but has failed to acquire adequate parenting skills
despite state efforts to provide her with such.
FN24.
T.F.
v. State, Dep't of Health & Soc. Servs.,
26 P.3d 1089, 1093 (Alaska 2001) (affirming a termination of
parental rights "in light of [the mother's] forgone opportunities to
remedy her conduct in the preceding seven months"); A.B.
v. State, Dep't of Health & Soc. Servs.,
7 P.3d 946, 951-52 (Alaska 2000) (affirming a termination of
parental rights because mother "failed to participate" in several components
of her reunification plan). A similar termination of parental rights
is justified for a failure to take medication to control
one's aberrant behaviors. See
A.H. v. State, Dep't of Health & Soc. Servs.,
10 P.3d 1156, 1163 (Alaska 2000) (holding that failure to
take medication to control mental illness placed children at a
substantial risk of continued harm).
FN25.
A.H.
v. State,
10 P.3d at 1166.
FN26.
In
re T.W.R.,
887 P.2d 941, 945 (Alaska 1994), overruled
on other
grounds by In re S.A.,
912 P.2d 1235 (Alaska 1996).
FN27.
In
re T.W.R.,
887 P.2d at 946-47.
V.
CONCLUSION
Vivian provided a poorly crafted brief, but not one so
poor as to justify dismissing her appeal for cursory treatment.
Each of the four children was clearly a child in
need of aid. Judge Greene's finding that Vivian was incapable
of being a suitable parent for any of her children
is not clearly erroneous. Consequently, the decision of the superior
court is AFFIRMED.
45 P.3d 1198
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