KIRA I. v. STATE, S-11266 (Alaska 12-10-2004)

MEMORANDUM OPINION AND JUDGMENT

Entered pursuant to Appellate Rule 214.

Kira I. grew up in abusive circumstances in Little Diomede. She began drinking and smoking marijuana at age thirteen. In 1991, at age seventeen, she had her first child, a daughter, Nora. In 1996 and 1998 she had two more daughters, Laura and Leah.

Pseudonyms have been used throughout this opinion to protect the identity of the family members involved.

On three occasions during the 1990s, Kira left her children in state custody while she sought treatment for her alcoholism. In January 2000 she entered a treatment program at the Norton Sound Behavioral Health Clinic and separated from her daughters again, this time leaving them with her father. The girls were passed around to various family members and ended up in the care of two known sex offenders. The Division of Family and Youth Services learned of the situation, took emergency custody of the children on March 15, 2000, and petitioned to have them declared to be children in need of aid. The petition alleged that the children were not safe "due to the caretakers' histories" and that Kira was unable to care for them while she was in treatment. It also listed Kira's past difficulties caring for her children caused by her longstanding history of alcohol abuse.

Although Kira was in treatment at the Norton Sound Clinic when DFYS filed the CINA petition, she was discharged a short time later for failing to comply with her program. DFYS had developed a case plan for Kira designed to promote the reunification of the family that addressed Kira's alcoholism. But the clinic had also diagnosed her as suffering from post-traumatic stress disorder (PTSD) and borderline personality disorder.

After Kira's discharge from Norton Sound, DFYS helped her get into a treatment program at the Women's and Children's Center for Inner Healing in Fairbanks. She began there in July 2000; Nora, Laura and Leah joined her at the Center in October. At about the same time, the superior court held an adjudication hearing on the state's CINA petition and found the children to be children in need of aid. In January 2001, the court formally ordered the children to remain in state custody for a period of not more than two years. Two months later — March 2001 — Kira was nearly discharged from the Women's and Children's Center for refusing to obey the rules and participate actively in treatment. As a result of this incident, the children could no longer remain with Kira at the Center, and had to be placed in a new foster home.

After the children left, Kira remained at the Center until November 2001. She then quit the program against its advice and spent a few days in the mental health unit at Fairbanks Memorial Hospital. Upon being released, she began drinking again almost immediately. Toward the end of December, Kira was admitted to the Alaska Psychiatric Institute in Anchorage; she remained in treatment there for several weeks.

Early in 2002, Kira enrolled in a treatment program at the Kar House in Ketchikan. She successfully completed this thirty-day program but relapsed again soon after leaving.

At this point, May 2002, DFYS filed a petition to terminate Kira's parental rights. The petition asserted that Kira had failed to maintain sobriety outside a residential treatment program for any significant period and had been hospitalized three times within six months because she was suicidal. Based on this conduct the petition alleged that Kira had been unsuccessful in remaining sober outside of treatment programs, that her daughters continued to be children in need of aid, and that they would suffer serious harm if returned to her custody.

The children's paternal ties have been severed for separate reasons and are not at issue here.

Kira returned to Nome after leaving the Kar House. She entered Norton Sound Clinic's intensive outpatient program for the second time. But a few weeks later she was discharged for noncompliance because she was drinking again. In late 2002 DFYS helped Kira enroll in a ninety-day dual diagnosis program at the Clitheroe Center in Anchorage. The program was designed to simultaneously address Kira's alcohol problem and her PTSD. She successfully completed that program in March 2003 and returned to Nome a month later.

Upon Kira's return to Nome, her treatment plan called for her to pursue treatment at the Norton Sound Clinic and attend regular AA meetings. But from late April to mid-June, Kira attended only one AA meeting and she failed to find a sponsor. She moved into sober housing, where she expected to remain for perhaps eight months. In late June, Kira began attending AA meetings more frequently.

Meanwhile, Kira's termination hearing remained pending and eventually was scheduled for July 2003. At the hearing, the state presented a number of expert witnesses who testified that Kira had not resolved her problems and that the children would likely be harmed if returned to her custody. For her part, Kira testified that she had stayed sober since entering the Clitheroe program in late December 2002. While acknowledging that she could not immediately provide a home for her children and did not expect to be able to keep them without assistance for at least another two years, she testified that she was committed to recovery and believed that the children would be safe with her.

Following the hearing, the superior court entered an order granting the state's petition and terminating Kira's parental rights. The court found that Kira suffered relapses after every treatment program for alcohol abuse. And although there was no evidence that Kira had used alcohol since December 2002, the court concluded that Kira's "histories of repeated relapses after treatment, her failure to obtain a sponsor, and her unwillingness to take prescribed medication, demonstrate that [she] will likely relapse." The court also found that Kira's alcoholism was complicated by her chronic and severe PTSD — a problem that caused her to suffer dissociative episodes during which she could not care for anyone. The court further pointed to the expert testimony that the children desperately needed permanent placement, yet would be at risk of emotional harm if they were returned to Kira's custody.

Relying on these findings, the court found by clear and convincing evidence that Kira's ability to parent had been substantially impaired by her habitual use of alcohol, that her alcoholism had resulted in harm and created a substantial risk of further harm to her children, and that she had failed to remedy her conduct within a reasonable period of time. The court further found by a preponderance of the evidence that DFYS had made active efforts to help reunite Kira with her family but that those efforts had been unsuccessful. In addition, the court found by evidence beyond a reasonable doubt, including expert testimony, that the children would suffer serious emotional damage if they were returned to Kira's care. Finally, based on the totality of the evidence, the court found that termination of Kira's parental rights would be in her children's best interests.

See AS 47.10.011(10), which reads in relevant part:

[T]he court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following: . . . (10) the parent, guardian, or custodian's ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child.

See AS 47.10.088, which reads in relevant part:

[T]he 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 . . .

(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.

See AS 47.10.088, which reads in relevant part:

[T]he rights and responsibilities of the parent . . . may be terminated . . . if the court finds . . .

(2) by preponderance of the evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts.

AS 47.10.086 provides, in relevant part, that

the department shall make timely, reasonable efforts to provide family support services to the child and to the parents . . . that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home, when appropriate.

See 25 U.S.C. § 1912(f) (1978), which provides that, where Indian children are concerned,

[n]o termination of parental rights may be ordered . . . 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.

Kira appeals, challenging two of the superior court's findings. She contends that the court erred in finding that she failed to remedy her conduct within a reasonable time and in finding beyond a reasonable doubt that her children would suffer serious emotional damage if placed in her custody.

In reviewing issues of fact, we decline to reweigh the evidence and must defer to the trial court on issues of credibility. We will only disturb the superior court's factual findings if they are clearly erroneous — that is, if, after reviewing the entire record, we are left "with a definite and firm conviction that the superior court has made a mistake." But whether the court's factual findings comply with the applicable legal standards is a question of law that we review de novo.

Erica A. v. State, 66 P.3d 1, 8 (Alaska 2003).

S.H. v. State, 42 P.3d 1119, 1122 (Alaska 2002).

A.B. v. State, 7 P.3d 946, 950 (Alaska 2000).

Kira argues that the conduct that placed the children at risk was her alcoholism and that "[a]t the time of termination [she] had successfully completed the Clitheroe dual diagnosis program, was in aftercare, living in sober housing, attending AA meeting[s] and seeking support from sober family members." Further, she points out that Dr. Frank L. Nelson, a clinical psychologist who examined her twice in August 2001, testified that she "could parent if she committed to her sobriety and to being stable, was in a safe place, associated with family and friends who supported her and did not associate with substance abusers or people who were angry or aggressive."

But Kira's argument is based on an interpretation of Dr. Nelson's testimony that is most favorable to her; the trial court did not accept that interpretation. Viewed as a whole, Dr. Nelson's testimony is not as favorable as Kira suggests. Moreover, there was ample other evidence to support the court's finding that she had failed to resolve her problems within a reasonable time. The evidence showed that Kira has ongoing problems besides her alcoholism that create a substantial risk of harm to the children, most notably severe post-traumatic stress disorder. Dr. Nelson testified that she will experience continuing dissociative episodes during which she will be unable to parent her children. He also acknowledged, on hearing an elaboration of her history of treatment and relapse, that he had not been fully aware of the extent of her alcoholism.

In particular, Dr. Nelson expressed two concerns with regard to Kira's parenting ability. First, he was concerned that, during dissociative episodes, she would "become temporarily unable to function, that — that she wouldn't be able to actively parent her kids. In other words, she would just ignore them or go to the other room and — and have nothing to do with them when they need her attention." Second, he testified that Kira had "potential for aggressive acting out behavior . . . she could get angry and lash out and hit the children when they — they're not doing what she wants them to do, rather than to talk to them, set limits, and — behave without an aggressive angry response."

The evidence further showed that Kira had been sober for only six months at the time of the termination hearing and had yet to demonstrate that she could stay sober when she was not in the structured setting of a treatment program. After returning to Nome, she had been slow to attend AA meetings and still did not have a sponsor at the time of trial. She acknowledged that she could not care for the children while she remained in sober housing and expected to be there for another eight months. She also estimated that, optimistically, it might be two years before she could provide the children with a stable, economically secure home. In addition, as we explain more fully below, there was other expert evidence to support the trial court's conclusion that Kira had not remedied her problems in a reasonable time.

In Sherry R. v. State, we upheld the termination of the parental rights of a woman who abused drugs and alcohol and had a similar cyclical history of treatment and relapse. Kira attempts to distinguish her circumstances from those of the mother in Sherry R., noting that Sherry R. failed to acknowledge the extent of her alcoholism and continued to make poor parenting decisions, including associating with a man convicted of child sexual assault. But in drawing this distinction, Kira misses the point that our inquiry is whether there was sufficient evidence to support the trial court's findings, not whether her situation is identical to the situation in Sherry R. Here, there is substantial evidence in the record to support the court's finding that Kira had failed to remedy her conduct within a reasonable time. The finding is not clearly erroneous.

74 P.3d 896 (Alaska 2003).

Id. at 900.

Kira separately challenges the superior court's finding that the state proved beyond a reasonable doubt that her continued custody is likely to result in serious emotional damage to the children. But this argument relies on the same narrow view of the evidence that she offered in support of her first point of appeal. Kira emphasizes her months of sobriety and Dr. Nelson's assessment that she could, given particularly favorable circumstances, parent her children. She equates her situation with that in State v. M.L.L., arguing that she has sufficiently remedied her conduct to create a reasonable doubt as to whether the children would likely suffer serious emotional or physical damage from her continued custody.

61 P.3d 438 (Alaska 2002).

But M.L.L. had been sober for three years at the time of the termination hearing and was married to a stable, sober man. In contrast, testimony showed that Kira had been sober for only six months, lacked a stable environment for her children, and had not yet demonstrated any ability to stay sober outside the structured setting of a treatment program. Furthermore, as already discussed, Dr. Nelson's overall assessment of Kira was not nearly as favorable as she suggests, and he expressed particularly strong concern about the impact of Kira's PTSD on her parenting abilities.

Id. at 441.

Moreover the state presented other expert witnesses whose testimony independently supported the trial court's finding of continuing risk. Valerie Jensen, a clinical social worker with expertise in family therapy and child abuse, had worked with Kira and the children while Kira was pursuing an in-patient treatment program in Fairbanks. Jensen testified that she did not think that Kira could effectively parent one child, much less all of them. She also thought that the children would be at risk of emotional harm if they were returned to their mother.

Peggy Blais, supervisor of the dual-diagnosis program at Clitheroe, testified that Kira was still in the first stage of recovery and that it was important for her to attend AA meetings regularly, obtain a sponsor, and build a sober network if she was to avoid relapse. At the time of the termination hearing, as Kira herself admitted, she still had not found a sponsor. In addition, she had been attending AA meetings regularly for little more than a month and was only in the second week of an eight-week outpatient program at Norton Sound — a program that she had failed to complete on two prior occasions.

Most important, Kira testified that she is not currently in a position to provide a stable home for her children and is unlikely to be able to do so for at best two years. The evidence shows that the children have already been in foster care for more than three years and cannot afford to wait any longer. For example, Valerie Jensen testified that Laura is currently still emotionally able to bond with a new family but that the "window of opportunity" will soon close.

In short, the totality of the evidence, including the expert testimony, provides a substantial basis to support the trial court's finding beyond a reasonable doubt that the children would suffer serious emotional harm if they returned to Kira's custody.

Because the superior court applied the correct legal standards and its findings were not clearly erroneous, we AFFIRM its order terminating Kira's parental rights.