SHIRLEY M., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN’S SERVICES, Appellee.
Supreme Court No. S-15472; Superior Court No. 3AN-12-00379 CN
THE SUPREME COURT OF THE STATE OF ALASKA
January 9, 2015
Opinion No. 6979
STOWERS, Justice.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Erin B. Marston, Judge.
Appearances: Randall S. Cavanaugh, Kalamarides & Lambert, Anchorage, for Appellant. David T. Jones, Senior Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.
O P I N I O N
I. INTRODUCTION
Shirley M. appeals termination of her parental rights to her child, Abigail, on the grounds that the trial court erred in finding that: (1) Shirley failed to remedy the conduct that put Abigail at risk of harm; (2) the Office of Children’s Services (OCS)
II. FACTS AND PROCEEDINGS
A. The Family And Its History With OCS
Shirley1 is the mother of Abigail, born in April 2010. For many years violence, prostitution, reported substance abuse, and other crimes have consumed Shirley’s life. Abigail is Shirley’s fifth child: Haily was born in 2002, Daisy was born in 2003, Penny was born in 2005, and Andrew was born in 2008. Shirley’s involvement with OCS began in April 2003, long before Abigail’s birth. In March 2004 OCS received a high priority report that the father of Shirley’s older children was abusing Haily. OCS removed the children but later returned them with in-home services and custody supervision. OCS made a referral for in-home services, including parenting training for both parents. Although the family participated in the services, OCS continued to have concerns. In June 2005 OCS considered removing the children from the home again after receiving another report that the father was abusing Haily. Shortly after Penny was born OCS petitioned to place the three children under supervision. Not long after that, Penny died due to asphyxiation. It was suspected that Shirley rolled over onto Penny when the family was sleeping in a tent in the yard at Rae’s residence. According to the social worker who saw Haily and Daisy the day they were removed from Shirley’s care, the children had low muscle tone and few speech skills. The social worker also reported that the children were generally unruly, screaming and trying to break things, and hitting and pinching each other.
Shirley relinquished her parental rights to Haily and Daisy in 2007 and the children were adopted. Meanwhile, Shirley was running an escort service and had several women working for her.2 Andrew was born in early 2008, but OCS took custody of him at ten days of age because Shirley had not engaged in OCS services and, after an unannounced home visit, Shirley’s home was deemed unsafe for Andrew. Shirley’s
B. Shirley And Abigail
Abigail was born in the spring of 2010. In May 2011 an OCS investigator received a protective service report alleging that Shirley was physically abusing Abigail, prostituting from her home, and using drugs while breast-feeding. Although OCS was unable to substantiate this report, OCS received another report in October 2012 and confirmed that Shirley was still or again engaging in prostitution. Things came to a head in early November 2012; on November 1 and 2, OCS received several calls from Abigail’s paternal aunt, who was babysitting Abigail. Abigail had awoken with a fever, and her aunt gave her some cold medicine. Several hours later, the fever spiked and they went to Providence Alaska Medical Center. Abigail had a seizure on the way to the hospital. Shirley arrived at the hospital and caused a scene. Toxicology results indicated Abigail had been exposed to methamphetamine. Because of concerns that Abigail’s seizure was caused by a drug overdose, OCS scheduled a urinalysis (UA) for Shirley, but Shirley failed to comply. Abigail’s seizure was later believed to be caused by her high fever and a genetic condition.
An OCS representative met with Shirley to discuss her recent behavior. Shirley implied that she had stopped engaging in prostitution but had started again two months earlier because she needed money. Shirley blamed Abigail’s aunt for Abigail’s suspected exposure to drugs.
On November 3 OCS filed an emergency petition for adjudication of child in need of aid and for temporary custody of Abigail alleging that Abigail was a child in
C. Shirley’s Behavior And OCS’s Efforts
OCS transferred Shirley’s case to protective service specialist Michelle Virden, who had been involved with Shirley and her children since 2004. Virden met with Shirley and initiated a case plan; this case plan followed a long line of case plans OCS had initiated with Shirley over the years. This plan, effective in January 2013, identified the following safety threats to Abigail: (1) there was no adult in the home
Shirley did not show up for a single scheduled UA despite the case plan requirements that she submit to UAs. Eventually OCS requested that Shirley submit to a hair follicle test to establish whether she was using methamphetamine during the time Abigail was hospitalized. Because Shirley refused, OCS had to obtain a court order for a hair sample test and UA. In March 2013 Virden drove Shirley to the lab for a hair follicle test, which was positive for methamphetamine.
Shirley actively avoided contact with OCS. She gave Virden an old address, which caused Shirley to miss a pre-arranged home visit. It was not until April 2013, after Shirley was arrested and charged with vehicle theft, assault, failure to stop at the direction of a police officer, and eluding a police officer, that Shirley showed any intention of getting Abigail back.7 While awaiting disposition of the criminal case, Shirley was incarcerated at Hiland Mountain Correctional Center. During that time Virden and Shirley met to discuss options for substance abuse treatment and mental health therapy, and to develop a new case plan. Shirley began therapy and began taking
In August 2013 Shirley was released from Hiland Mountain to live in Sterling with Rae as her third-party custodian. Based on Dr. Glass’s evaluation, Virden referred Shirley to Akeela House for a substance abuse assessment, but dialectical behavior therapy was not an option on the Kenai Peninsula. Although Virden did find a provider in Anchorage who would conduct the recommended therapy on a sliding fee scale, Shirley decided to go to Serenity House Treatment Center in Soldotna because of its proximity to Rae’s home. But Shirley could not comply with the Serenity House outpatient treatment requirements because Rae was unable to drive her to all of her appointments or Shirley had to leave half way through her 90-minute appointments because Rae had other things to do. So when a bed became available in late November 2013, Shirley moved into Serenity House’s residential treatment center. Shirley successfully completed residential treatment but was discharged from the program in January 2014 so she could attend the termination trial. She requested continuation of services to complete treatment after the termination trial. Shirley’s primary counselor at Serenity House testified at trial that Shirley had made progress but would need more time to change; she was on step four of a 12-step program and required further intensive outpatient treatment. Dr. Glass similarly testified that based on her review of Shirley’s
D. Abigail’s Care And Placement
Abigail has significant special needs, including severe tremors, low muscle tone, delayed fine motor skill development, and symptoms of post-traumatic stress disorder (PTSD). Abigail has trouble moving from one activity or place to another; when she is in transition or among strangers, she freezes and needs a few minutes to figure out what is going on and whether she is safe, or she throws an intense, ear-piercing, screaming tantrum. OCS arranged neurological and neuropsychological examinations and an evaluation and services from Programs for Infants & Children. OCS tried to involve Shirley in Abigail’s treatment but Shirley did not attend Abigail’s medical and dental appointments or her numerous evaluations, therapy sessions, and education planning meetings.
Abigail’s foster mother, Mandy Reed, testified at trial about her qualifications as a licensed foster parent, her relationship with Abigail, and the care Abigail requires. Mandy has a master’s degree in public health, and she works as a nurse for people with disabilities. She and her husband live with their two teenage sons and three foster children including Abigail. Mandy’s testimony provided additional insight into Abigail’s disabilities. Abigail has significant motor skill delays, speech delays, and dental problems. She cannot feed or dress herself because of her severe tremors and low muscle tone. She has trouble negotiating obstacles and frequently falls. Mandy testified that although Abigail is sweet and charming, she is hyper-vigilant about who is near her and what they are doing, and she is prone to running away. She is easily distracted and thus unaware of safety matters such as cars in the street.
Abigail attends weekly play therapy through the Alaska Community Mental Health Services’ child trauma project to address her PTSD and the resulting tantrums.
Before OCS filed the termination petition it considered placement possibilities for Abigail, taking into account her special needs and Shirley’s preferences. Shirley requested that Abigail be placed with Rae. OCS agreed to investigate Rae’s home as a placement option, but because OCS was advised that Rae was not considered Abigail’s “grandparent” for placement purposes, OCS had not treated Rae as a grandparent and had not been in contact with Rae about Abigail until April 2013.8 OCS denied Shirley’s request and eventually placed Abigail in foster care with the Reed family in September 2013. Shirley renewed her motion for review of OCS’s denial of her placement request in early September, just a few months before the termination trial.
E. The Termination Trial, The Placement Hearing, And The Trial Court’s Decision
A termination trial was held on January 21-23 and February 3, 2014, before Superior Court Judge Erin B. Marston. At that time, Shirley still had four felony charges pending, including vehicle theft, and she faced two to three years in prison if convicted. The court heard testimony from OCS representatives, doctors who had evaluated Shirley, Mandy, Shirley, and Rae. At the end of trial the court issued an oral decision terminating Shirley’s parental rights to Abigail, followed by its written order memorializing its decision. The trial court found clear and convincing evidence that Abigail was a child
The trial court also conducted a placement review hearing at the conclusion of the termination trial and made findings regarding placement. In support of OCS’s decision not to place Abigail with Rae, Virden explained that OCS had denied the request due to ongoing safety concerns, Shirley’s long history of living in and out of Rae’s home, and Abigail’s special needs. Virden did not believe Rae could adequately meet Abigail’s special needs, and she felt that Rae either did not understand or was in denial about Shirley’s behavior and her children’s needs. OCS previously had investigated requests and denied Rae placement of Shirley’s other children for the same reasons.
Rae testified about her qualifications as a potential placement for Abigail and gave her opinion as to Shirley’s parenting abilities. At the time of trial, Rae was 67 years old and believed she was in good health. She had worked for 23 years as a certified caregiver in Sterling taking care of a family friend with Down’s syndrome. Her job required cooking, cleaning, helping with exercise, driving to and from medical appointments, paperwork, and general care.
Although Shirley had lived with Rae off and on for many years, Rae claimed that she was not aware of Shirley’s drug problem. Nor did Rae accept as accurate Penny’s autopsy report. Instead, she firmly believed that Penny died from carbon monoxide because the family truck emitted noxious fumes. Rae considered Shirley to be a very loving and good mother. Rae’s testimony also revealed that she did not know the extent of Abigail’s special needs or what would be required of her if she
The trial court found clear and convincing evidence that continuing Abigail’s placement in licensed foster care with the Reed family was appropriate and in Abigail’s best interests, and that OCS did not abuse its discretion by denying placement with Rae. The trial court elected not to make a finding whether a great-grandmother falls under the statutory relative preference but instead found that OCS had good cause to deny placement with Rae, primarily because of Abigail’s special needs and Rae’s inability to meet those needs. Shirley appeals both the termination of parental rights and the trial court’s upholding of OCS’s placement decision.
III. STANDARD OF REVIEW
In a child in need of aid (CINA) case, “we review the trial court’s factual findings for clear error and its legal determinations de novo.”9 “Factual findings are clearly erroneous if, after a review of the entire record in the light most favorable to the prevailing party, we are left with a definite and firm conviction” that a mistake has been made.10 “Conflicting evidence is generally not sufficient to overturn a trial court’s factual findings, and we will not reweigh evidence when the record provides clear
We review the superior court’s finding of good cause to deviate from . . . placement preferences for an abuse of discretion.”13 “It would be an abuse of discretion for a superior court to consider improper factors or improperly weigh certain factors in making its determination.”14
IV. DISCUSSION
A. The Trial Court Did Not Clearly Err In Finding That Shirley Failed To Remedy Her Conduct Within A Reasonable Time.
Before terminating parental rights, a trial court must find by clear and convincing evidence that the parent has not remedied within a reasonable time the conduct or conditions in the home that placed the child at substantial risk of harm.15 Whether the parent has remedied the conduct is a factual determination best made by a trial court after hearing witnesses and reviewing evidence.16 A reasonable time is statutorily defined as “a period of time that serves the best interests of the child, taking
The trial court found clear and convincing evidence that Shirley failed, within a reasonable time, to remedy the conduct or conditions that placed Abigail at risk.
Shirley argues that the trial court erred in finding that she had not remedied the issues set forth in the petition in a timely fashion because she made substantial progress on her case plan but was not allowed sufficient time to engage meaningfully in treatment. Shirley maintains that at the time of trial, she was no longer escorting or using drugs, and she was engaging in mental health counseling, substance abuse treatment, and parenting classes.
The record supports the trial court’s finding of failure to timely remedy. Although it is true that OCS filed the termination petition only six months after taking custody of Abigail, the petition was based on OCS’s many years of experience with Shirley involving her other children, followed by six months of Shirley’s failure to participate in her case plan involving Abigail.21 Before Shirley was incarcerated, she
B. The Trial Court Did Not Err In Concluding That OCS Made Reasonable Efforts Towards Reunification.
Before terminating parental rights, the trial court must find by clear and convincing evidence that OCS made timely, reasonable efforts to provide family support services to the child and parents designed to prevent out-of-home placement or enable the safe return of the child to the family home.22 Whether OCS made reasonable efforts to promote reunification is a mixed question of law and fact.23 OCS’s statutorily mandated duties include the duty to: (1) identify family support services that will assist the parent in remedying her conduct; (2) actively offer and refer the parent to the services identified; and (3) document the department’s actions.24 OCS’s duty to offer reunification services “is fulfilled by setting out the types of services that a parent should
Here, the trial court found clear and convincing evidence that OCS’s efforts towards reunification were reasonable but unsuccessful. The court considered Shirley’s history and prior involvement with OCS regarding her four other children, noting the multiple case plans and referrals for evaluation, treatment, and parenting classes. The
Shirley argues that the trial court erred in finding that OCS made reasonable efforts because neither OCS nor the court took into account the limitations Shirley’s cognitive impairments put on her ability to understand and comply with the case plan. Shirley argues that OCS should have tailored the plan to address her needs and intellectual abilities as documented by Dr. Rose and Dr. Glass, should have provided Shirley’s treatment providers with the case plan, and should have provided Shirley with better ways to understand the plan, such as checklists. In support Shirley cites Lucy J. v. Department of Health & Social Services, Office of Children’s Services, in which we addressed a mother’s disabilities and stated that “[i]n order to ‘take[] the client through the steps of reunification’ in a way that will satisfy the active efforts requirement [under the Indian Child Welfare Act], OCS must reasonably tailor those steps to the client’s individual capabilities.”31 Although the efforts required of OCS are less stringent in this case because it does not involve an Indian child,32 OCS is nonetheless required to take into account the parent’s limitations or disabilities and make any reasonable accommodations.33
(1) the likelihood of returning the child to the parent within a reasonable time based on the child’s age or needs;
(2) the amount of effort by the parent to remedy the conduct or conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the parent.34
The factors listed in the statute are not exclusive, and the trial court need not accord a particular weight to any given factor.35
The trial court found by a preponderance of the evidence that termination of Shirley’s parental rights was in Abigail’s best interests because of Abigail’s undisputed special medical and mental health needs and her foster family’s demonstrated ability to provide the support, love, and care Abigail needed. The court found that it was impossible for Shirley to meet Abigail’s special needs and moreover that Shirley did not seem to recognize the existence or extent of Abigail’s special needs. Therefore, because
Shirley argues that the trial court erred in finding that termination of her parental rights was in Abigail’s best interests because her offending conduct was short in duration given a child’s overall life span. Shirley maintains that she never harmed Abigail, that Abigail’s aunt was to blame for Abigail’s hospitalization, and that Shirley had begun to cooperate with OCS and improve her life by receiving mental health counseling, going on medication, and moving into Rae’s home which she claims was a stable environment.
The trial court’s decision is supported by the testimony of OCS social worker Virden, who believed termination of Shirley’s parental rights was in Abigail’s best interests, and Dr. Glass, who believed Shirley’s mental health conditions had worsened and would require at least one year of intense therapy and substance abuse treatment before she could potentially parent effectively. There was also abundant evidence that Abigail’s foster family was skillfully managing Abigail’s therapy and providing excellent care to Abigail. We therefore conclude that the trial court did not clearly err in determining which factors to consider in its best interests analysis and how much weight to give those factors, and in ultimately finding that termination was in Abigail’s best interests.
D. The Trial Court Did Not Err In Upholding OCS’s Decision Not To Place Abigail With Her Great-Grandmother.
When a child is removed from a parent’s home, OCS is required to place the child with an adult family member, absent clear and convincing evidence of good
(e) When a child is removed from a parent’s home, the department shall place the child, in the absence of clear and convincing evidence of good cause to the contrary,
(1) in the least restrictive setting that most closely approximates a family and that meets the child’s special needs, if any;
(2) within reasonable proximity to the child’s home, taking into account any special needs of the child and the preferences of the child or parent;
(3) with, in the following order of preference,
(A) an adult family member;
(B) a family friend who meets the foster care licensing requirements established by the department;
(C) a licensed foster home that is not an adult family member or family friend;
(D) an institution for children that has a program suitable to meet the child’s needs.37
Shirley argues that the trial court violated
At trial OCS argued that there was clear and convincing evidence of good cause to deviate from the statutory priority list because Rae could not provide the level of care that would meet Abigail’s significant special needs, and Mandy could. OCS presented testimony that its decision to deny Shirley’s placement request was based on current concerns that Rae’s home was unsafe and that she was unable to provide the necessary care for Abigail’s special needs. The trial court found that OCS had not abused its discretion under
We will generally consider a challenge to a termination order and a
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior court’s judgment terminating Shirley’s parental rights to Abigail and upholding OCS’s placement decision.
STOWERS, Justice.