FRANK E., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF FAMILY & YOUTH SERVICES, Appellee.
No. S-10707.
Supreme Court of Alaska.
Sept. 26, 2003.
77 P.3d 715
Erica Kracker, Kracker Law Office, Palmer, Guardian Ad Litem.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
CARPENETI, Justice.
I. INTRODUCTION
The superior court terminated a father‘s parental rights. The father argues that the court erred in (1) finding that the state had made reasonable efforts to reunify him with his children and (2) finding that termination served the best interests of his children. Because the superior court did not err in finding that the state made reasonable reunification efforts and in considering the best interests of the children, we affirm.
II. FACTS AND PROCEEDINGS
A. Facts
Frank E.1 is the father of the three children involved in this case: daughter Beth E., born in 1995; son Frank E. Jr., born in 1997; and daughter Brianna E., born in 1999. Frank and his wife Ann E.2 moved to Alaska in 1997.
In November 2000 Frank and Ann were arrested for operating a methamphetamine lab, and Frank pled no contest to misconduct involving a controlled substance in the fourth degree for possession of methamphetamine. He was sentenced to four years, with nineteen months to serve.
Following the arrest, the state took custody of the children at issue in this appeal, while Frank‘s son from a previous marriage, Zale, went to live with his biological mother. Shortly thereafter, Beth, Frank Jr., and Brianna began living with Diane P., who is Frank‘s mother. Diane has already adopted Cathy P., another of Frank‘s children, after Frank‘s parental rights to her were terminated. Diane will adopt Beth, Frank Jr., and Brianna if Frank‘s parental rights are terminated. Shortly after Frank‘s incarceration the state created a case plan for him which focused on substance abuse treatment, parenting classes, and family violence classes that could only be taken after his release from incarceration. The original case plan did not include any reference to programs available at the prison at which Frank was housed, but Frank took advantage of some of the anger management classes, parenting classes, and Alcoholics Anonymous/Narcotics Anonymous meetings available at the prison.
B. Proceedings
On February 27, 2001 the state filed a petition to terminate Frank‘s parental rights to Beth, Frank Jr., and Brianna. Frank stipulated that the children were children in need of aid but contested the termination of his parental rights. After proceeding with part of the termination trial, Superior Court Judge Eric Smith issued an order on June 6, 2001 continuing the trial until after Frank‘s scheduled release from prison so that Frank would have an opportunity to resolve his problems and get his children back by completing his case plan.
Frank was scheduled to be released from prison in November 2001, but was not released because he was indicted for sexual abuse of his daughters Cathy and Beth. This made it impossible for him to comply with the case plan within the given time. Following Frank‘s indictment, the state revised his case plan to include more treatment options during his time in prison. Frank was convicted of sexual abuse of Cathy and attempted sexual abuse of Beth and sentenced to fourteen years, with twelve years to serve. His sentence includes ten years of probation, one condition of which is that he have no contact with persons under the age of eighteen without the written permission of his probation officer. He will be eligible for
On July 17, 2002 the superior court terminated Frank‘s parental rights to Beth, Frank Jr., and Brianna. The superior court based its decision on two independent grounds for termination,
III. STANDARD OF REVIEW
“We apply the clearly erroneous standard when reviewing the factual findings supporting the termination of a parent‘s right to raise his or her children.”5 We determine that a finding is clearly erroneous “when a review of the entire record leaves us ‘with a definite and firm conviction that the superior court has made a mistake.‘”6 In determining whether a finding is clearly erroneous, “we view the evidence in the light most favorable to the party prevailing below.”7
We review whether the superior court‘s findings comport with the requirements of the CINA statutes and rules under the de novo standard of review.8 Under this standard, we “adopt the rule of law that is most persuasive in light of precedent, reason, and policy.”9
IV. DISCUSSION
The superior court terminated Frank‘s parental rights under both
Alaska Statute 47.10.088 sets out the procedural steps involved in a termination of parental rights. It provides in relevant part that:
(a) Except as provided in
AS 47.10.080(o) , the rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds(1) by clear and convincing evidence that
(A) the child has been subjected to conduct or conditions described in
AS 47.10.011 ; and(B) 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; and
(2) by preponderance of the evidence that the department has complied with the provisions of
AS 47.10.086 concerning reasonable efforts....
(c) In a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child.
Frank challenges two aspects of the termination of his parental rights under
A. The Superior Court Did Not Err in Holding that the State Met Its Duty To Make Reasonable Efforts To Reunite Frank and his Children Under AS 47.10.086 .
Frank first asserts that the superior court‘s termination of his parental rights under
The superior court found that the requirements of
Frank challenges Judge Smith‘s finding that the state met its obligation to make reasonable efforts to reunite the family. The court found that “[e]ven if reasonable efforts were required, the department made those efforts, at least prior to [Frank‘s] sexual abuse conviction.” It based this conclusion on its finding that the state “prepared a case plan requiring treatment of the substance abuse and anger management issues. [Frank] was afforded access to a number of programs while he was incarcerated. In short, the department did what it could, given the constraints placed by the fact that [Frank] was incarcerated.” Frank alleges that the state failed to identify services in accordance with
The state‘s efforts to provide the services mandated by
Frank contends that Dr. Lindeman, a social worker with the Department of Health and Social Services, Division of Family and Youth Services (DFYS), who was responsible for fulfilling the state‘s duty to identify reunification services in accordance with
The state fails to respond effectively to Frank‘s argument that its original case plan was inadequate. It appears to recognize that it did not identify or actively offer any programs to Frank during his incarceration for methamphetamine possession in the form of an organized case plan aimed at reunifying Frank and his children. Indeed, the original case plan for the time in which Frank was incarcerated focused exclusively on services that were available only after his release from prison in November 2001, whereas the state attempted to terminate Frank‘s parental rights before his anticipated November 2001 release by filing its petition to terminate parental rights on February 27, 2001 and arguing for immediate termination at the June 2001 termination trial. (In fairness to the state, its original case plan was formulated at a time when it was assumed that Frank would be released from prison in less than two years. His subsequent indictment for sexual abuse dramatically altered that expectation.) The state argues that it fulfilled its obligation to identify and actively offer services to Frank because the prison staff publicized the programs available to Frank while he was incarcerated.
But the test of whether the state made reasonable efforts to reunify Frank and his children is not limited to this particular segment of time. Instead, we examine whether the state‘s reunification efforts, when looked at in their entirety, satisfy the requirements of
Though the state‘s failure to identify and offer programs to Frank before the planned termination would generally violate the state‘s duty under
The superior court ensured that Frank would have meaningful access to these properly identified reunification services that were offered to Frank by continuing the termination trial until January 22, 2002 in order to give Frank the opportunity to complete the post-release services specified in his case plan. As the superior court stated, the continuance “will give the court concrete information regarding [Frank‘s] ability and desire to remedy the conditions that placed his children so badly at risk, and will give him the necessary reasonable time in which to do so.” By providing a reasonable opportunity for Frank to remedy the behavior that caused his children to be in need of aid, the continuance cured the state‘s attempt to terminate Frank‘s parental rights without providing him with the reasonable efforts to reunify him and his children mandated by
Finally, we examine the state‘s efforts to identify and offer programs to Frank after his original case plan was rendered moot when his incarceration was extended past the originally scheduled November 2001 release
Just as we held that the original case plan as extended by the court offered reunification services in a manner that allowed Frank to avail himself of them, we hold that the revised case plan satisfied the requirements of
B. The Superior Court Did Not Err in Finding that Termination of Frank‘s Parental Rights Was in the Children‘s Best Interests.
Alaska Statute 47.10.088(c) mandates that “[i]n a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child.” Frank contends that the superior court‘s finding that immediate termination of his parental rights was in the children‘s best interests was clearly erroneous because delaying termination until the resolution of his appeal from his conviction for sexual abuse and attempted sexual abuse is in the best interests of his children. Frank claims that his children would not suffer significant harm from the delay in permanency caused by waiting for the resolution of his criminal appeal because their placement with Diane would be unaffected. He also argues that immediate termination is not in the children‘s best interests because they might be harmed by the possible overturning of their adoption under Alaska Civil Rule 60(b)(5).17 But these possibilities are insufficient to overturn the superior court‘s factual finding, as we will overturn factual findings only when they are clearly erroneous.18
The state points to the testimony of Dr. Lindeman, who testified that the state decided to move for termination because the “necessity to get [the children] stability and to
The superior court then applied this finding in its July 17, 2002 order terminating Frank‘s parental rights. The court found that termination of Frank‘s parental rights was proper because:
The children are living with their grandmother, who wishes to adopt them. Their father will be in jail for most of their childhood. They need the permanency promised by adoption, not the uncertainty imposed by a possible reunion with a father with significant untreated problems whom they will not see for years. It is absolutely not in their interest to have to wait those years for this matter to be resolved. They need to be able to get on with their lives; termination of [Frank‘s] rights and adoption by their grandmother will enable them to do so.
While this finding that immediate termination of Frank‘s parental rights is at least partially based on an assumption that Frank will not win his criminal appeal, it also clearly recognizes that a delay of years in providing the children with finality in their parental situation is not in their best interests. The delay and resulting harm to the children occasioned by criminal appeals that will take years is real. This finding of harm is amply supported in Dr. Lindeman‘s testimony regarding the importance of providing the children with stability; it is not clearly erroneous. We hold that the superior court did not err by finding that termination of Frank‘s parental rights was in the children‘s best interests.
V. CONCLUSION
Because the superior court did not err in determining that the state provided reasonable efforts aimed at reunifying the father and his children or in finding that termination of the father‘s parental rights was in the best interests of his children, we AFFIRM the decision of the superior court.
MATTHEWS, Justice, concurring.
When a parent has been sentenced to a prison term that constitutes much of the minority of the parent‘s children, efforts to provide social services to the parent that have as their objective reunification of the parent with the children are necessarily futile. Because such efforts cannot succeed, it is difficult to describe them as timely and reasonable, the terms used in
Frank is scheduled to be incarcerated for twelve years, with an additional ten years of probation during which he is not allowed contact with minors. This obviously qualifies as a significant period of his children‘s minority and the trial court so found. Because this finding is sustainable, the state was not required to provide reunification services to Frank and there is no need to consider whether the services that the state afforded Frank were reasonable and timely. I would affirm the judgment of the superior court on this basis.
Frank argues that it is unfair to waive the reasonable efforts requirement based on
It is of course possible that Frank‘s criminal conviction might be reversed on appeal. Speaking statistically, the chances are slim. According to the clerk of court, about eighty-two percent of criminal appeals were totally affirmed by the Alaska Court of Appeals over the last fiscal year.3 A number of cases in the opposite eighteen percent column were vacated or reversed only in part and did not result in a reversal of the conviction on the most serious charges. Further, when convictions on major charges are reversed, the charges are ordinarily retried, and the offender is often reconvicted. For those rare cases in which an offender is ultimately acquitted of major charges, Civil Rule 60(b)(5) offers the possibility of relief from a termination judgment that has been entered based on the conviction.
As this case illustrates, the appellate process is time consuming. It is now statutory policy that young children be expeditiously placed into permanent homes.4 If the waiver of reunification provisions contained in
Because the superior court properly found that the reasonable efforts requirement did not apply because of Frank‘s significant incarceration, and because I agree with the opinion of the court that the superior court did not err when it found that the termination was in the best interests of the children, I agree that the termination judgment should be affirmed.
Notes
For purposes of terminating a parent‘s parental rights under the standards in (c)(3) of this section, the court may determine that incarceration of the parent is sufficient grounds for determining that a child is a child in need of aid under
(1) the period of incarceration that the parent is scheduled to serve during the child‘s minority is significant considering the child‘s age and the child‘s need for an adult‘s care and supervision;
(2) there is not another parent willing and able to care for the child; and
(3) the incarcerated parent has failed to make adequate provisions for care of the child during the period of incarceration that will be during the child‘s minority.
This statute was added in 1996 “to respond to the Alaska Supreme Court‘s invitation in A.M. v. State of Alaska, 891 P.2d 815 (Alaska 1995) and Nada A. v. State of Alaska, 660 P.2d 436 (Alaska 1983) to create a statutory basis for making incarceration a factor that can be considered in termination proceedings concerning children in need of aid.” Ch. 89, § 1, SLA 1996.
We are advised that Frank‘s criminal appeal has not yet been briefed.the department shall make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to ... enable the safe return of the child to the family home, when appropriate... The department‘s duty to make reasonable efforts under this subsection includes the duty to
(1) identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid;
(2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; the department shall refer the parent or guardian to community-based family support services whenever community-based services are available and desired by the parent or guardian; and
(3) document the department‘s actions that are taken under (1) and (2) of this subsection.
The court may determine that reasonable efforts of the type described in (a) of this section are not required if the court has found by a preponderance of the evidence that
(1) the parent or guardian has subjected the child to circumstances that pose a substantial risk to the child‘s health or safety; these circumstances include abandonment, sexual abuse, torture, chronic mental injury, or chronic physical harm[.]
The court may determine that reasonable efforts of the type described in (a) of this section are not required if the court has found by a preponderance of the evidence that
...
(10) the parent or guardian is incarcerated and is unavailable to care for the child during a significant period of the child‘s minority, considering the child‘s age and need for care by an adult.