- Bookmark
- Share
- CaseIQ
DOUG Y. v. STATE DEPT. OF HEALTH SOCIAL SERV
JACK R. GOLDBERG, COMMISSIONER.
The respondents in this matter have appealed from a Finding and Award issued to the claimant. The respondents argue that the award is unsupported by medical evidence. We have determined that the respondents' medical examiner opined in a manner consistent with the award in this case. We also find the decision herein is consistent with our prior ruling regarding this claimant in Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002). ("Covaleski I") Therefore, we affirm the Finding and Award and dismiss this appeal.
The trial commissioner reached the following findings of fact. The issues before her were whether the services at Allied Rehabilitation Center ("Allied") received by the claimant were medical treatment and whether the need for such services was due to the compensable February 29, 1996 injury. The trial commissioner noted prior Findings determined the claimant had suffered a fracture of his left hip, and injuries to his left side, shoulder and neck, which had necessitated an open reduction with internal fixation of his hip fracture, an osteotomy, and a tendon lengthening. The claimant has been afflicted with cerebral palsy, epilepsy and mild mental retardation since birth. Prior to the accident the claimant had become independent in his job at Casual Corner, walked independently, rode a two-wheel bicycle regularly and performed a variety of household tasks. The claimant attempted to return to his Casual Corner job after the surgery but that effort lasted only two weeks.
Since his injury the claimant has been a regular client at Allied. Allied, a structured workshop, provides the claimant rehabilitation training, counseling, and the opportunity to socialize with his peers in a supervised environment. The claimant is at Allied five days a week and performs piecework for which he is a paid a nominal wage, socializes with other clients, and learns job skills. The claimant was found totally disabled by a trial commissioner on July 10, 2001 and in Covaleski I this board affirmed that the claimant was temporarily totally disabled. Since Covaleski I was decided, vocational assessments have determined the claimant is not capable of independently obtaining and maintaining a job in a competitive work environment at this time. The claimant's work injury has aggravated his cerebral palsy and affected his ability to walk. He now walks with a straight cane, a quad cane, and with a walker. He uses a wheelchair for long distances. The claimant had an adult tricycle and a four-wheel bike, but now can only use the four-wheeler.
The claimant's treating physician, David A. Feingold, M.D., has opined that the claimant's treatment at Allied is medically necessary. He stated that the services at Allied stimulate activity so that loss of strength is minimized and mobility is maximized. He also stated that the sheltered workshop program "is both medically necessary and rehabilitative and without it, I believe that Mr. Covaleski would have a rapid decline in function with medically reasonable concern that this decline in function could possibly be permanent." Claimant's Exhibit E.
The respondents' examiner, Jerrold Kaplan, M.D., said in his report that Allied provided both vocational and medical treatment and "I further agree with Dr. Feingold that the sheltered workshop services are medically necessary for Mr. Covaleski to prevent deterioration in his condition." Dr. Kaplan further said "[a]spects of the program that specifically deal with his gait, balance, strength and endurance would be considered causally related to his work injury." Respondent's Exhibit 3.
Karen Zanetti, the Human Services Supervisor at Allied, testified at a deposition that while there was no specific program at Allied dealing with strength or endurance the claimant had been referred to physical therapy, which he had been receiving. She testified the claimant would break down emotionally if he did not have the program at Allied. She also testified he would likely become withdrawn, quiet and not involved in anything. The trial commissioner also considered evidence regarding the Department of Developmental Services ("DDS") and their expenditures to Allied on the claimant's behalf. The relevant statute, § 17a-218 C.G.S., requires recipients of those services to pay for them, or to apply to become Medicaid beneficiaries which will then pay for the services. The claimant had not applied for Medicaid as of the date of the Formal Hearing.
Based on this evidence the trial commissioner concluded that the claimant's services at Allied were medically necessary pursuant to § 31-294d C.G.S. She found the opinion of Dr. Feingold to be credible and persuasive as to the necessity of these services and found Dr. Kaplan, while less persuasive than Dr. Feingold, generally agreed with Dr. Feingold's opinion on this issue. She ordered the respondents to pay the cost of future services from Allied, to reimburse the claimant for any out-of-pocket expense at Allied, and to reimburse DDS for expenses it has paid for services from Allied since the statute applicable to this issue was amended in 2005. That final point was removed from the Finding and Award following a Motion to Correct filed by the respondents. The trial commissioner granted the corrections sought by the respondents pertaining to the issue of DDS reimbursement, noting that DDS had not filed a lien nor made a demand for reimbursement. Therefore, were such issues to be addressed, the matter would need to be addressed at a future hearing. The commissioner did not grant other corrections that would have substantively changed the outcome of the decision. The respondents have pursued this appeal.
The statute, § 31-294d (a)(1) C.G.S., reads as follows:
(a)(1) The employer, as soon as the employer has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services and prescription drugs, as the physician or surgeon deems reasonable or necessary. The employer, any insurer acting on behalf of the employer, or any other entity acting on behalf of the employer or insurer shall be responsible for paying the cost of such prescription drugs directly to the provider.
The respondents advance a number of arguments on appeal. They argue that the evidence before the trial commissioner did not support a finding that Allied's services were "medically necessary" treatment for the compensable injury. They point out that Allied is not a medical provider as the term is generally applied. Finally, they argue that on equitable grounds that the claimant should access the Medicaid program to pay for this program, rather than have the cost borne by compensation insurance. We are not persuaded by any of these arguments.
In reviewing this instant decision, our standard of review is deferential to the finder of fact. "As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did." Daniels v. Alander, 268 Conn. 320, 330 (2004). In the present matter, the trial commissioner determined that the services provided by Allied were medically necessary within the scope of the statute. We must ascertain if there was evidence to support this conclusion and whether it was reasonable.
The trial commissioner cited the opinion of Dr. Feingold as being persuasive and credible and cited the opinion of the respondents' examiner, Dr. Kaplan, as generally supportive of Dr. Feingold's conclusions. Dr. Feingold stated that the program at Allied acted "to stimulate activity so that loss of strength is minimized. Mobility is maximized." Dr. Feingold also opined that the program at Allied "slowed deterioration of his gait." Claimant's Exhibit E. We note that these issues involve the physical condition of the claimant and relate to the compensable injury he suffered. We acknowledge that the respondents present a cogent argument that the claimant's program at Allied would be appropriate for an individual with cerebral palsy who had not been injured on the job. Nonetheless, when probative evidence supports the claimant we cannot second-guess a trial commissioner's decision that services aimed at preserving the claimant's mobility following a serious hip injury are related to that compensable injury.
Respondents argue this constitutes treatment for a "pre-existing condition." Respondent's Brief p. 12. However, we are not persuaded this circumstance is dissimilar from Epps v. Beiersdorf, Inc., 41 Conn. App. 430 (1996) where the claimant asserted a work-related injury which aggravated a pre-existing condition.
We also note that the trial commissioner found that Dr. Kaplan agreed with Dr. Feingold's general conclusions. Dr. Kaplan concluded that Allied's "sheltered workshop program provides both vocational and medical treatment. I further agree with Dr. Feingold that the sheltered workshop services are medically necessary for Mr. Covaleski to prevent deterioration in his condition." Respondent's Exhibit 3.
The respondents offer a number of arguments in response to the medical evidence. They argue that much of Dr. Kaplan's opinion focused on the nature of Allied's services that were not related to the compensable injury. Respondent's Brief p. 11. As we noted, the trial commissioner also relied on Dr. Feingold's opinion, which she found more persuasive. The trial commissioner may also decide to rely on part of an expert's opinion and choose not to rely on the expert on other issues. Lopez v. Lowe's Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). The respondents also argue that Allied does not offer "medical" treatment. Respondent's Brief p. 10. The claimant argues that pursuant to Jaworski v. A.B. Chance Co., 3006 CRB-3-95-2 (January 6, 1997) reasonable medical care as defined in our statutes is afforded a broader scope, including such necessary modalities as wheelchairs. We find the claimant's view of the law more congruent with the binding appellate precedent on § 31-294d C.G.S.
In Anderson v. R K Spero Company, 107 Conn. App. 608 (2008) the Appellate Court had occasion to consider the "reasonable medical care" provision of § 31-294d C.G.S. In Anderson the trial commissioner determined that no further chiropractic treatment for the claimant was necessary, and this board affirmed the decision. Anderson v. R K Spero Company, 4965 CRB-3-05-6 (February 21, 2007), aff'd, 107 Conn. App. 608 (2008). The Appellate Court affirmed our decision, citing Covert v. Patterson, 4094 CRB-3-99-8 (September 29, 2000) for the proposition that the determination as to whether medical care is reasonable or necessary, including the determination as to whether care is palliative or curative, is a factual issue for the trial commissioner to determine.Anderson, supra, at 614.
We followed this reasoning in Palumbo v. Bridgeport, 4991 CRB-4-05-9 (September 7, 2006). In Palumbo the respondent made a similar argument to the argument presented in this case that the pain management treatment received by the claimant was palliative and not curative. We however found Carroll v. Flattery's Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003) stood for the opposite conclusion "[w]e have in past cases addressed the subject of the `curative/palliative' distinction upon which the compensability of his medical treatment hinges, and have explained that it is a factual matter as to whether medical care satisfies the `reasonable and necessary' standard of § 31-294d C.G.S." (Emphasis added). Id. We believe the trial commissioner's decision on this point was reasonable given the facts presented. We also note the various cases on point do not, as the respondents suggest, limit the modality of treatments that a trial commissioner may find medically reasonable.
The claimant in this matter is not in the competitive work force. It is mutually agreed by both expert witnesses in this matter that were the claimant to not receive treatment at Allied, he would be incapable of performing labor even in the noncompetitive work force. Given the record herein, we cannot conclude that as a matter of law the trial commissioner erred in determining the claimant's treatment was curative and not palliative.
The claimant also argued that based on the "law of the case" doctrine the trial commissioner's decision must be affirmed. They cite Lopez v. Bradlees, Inc., 4968 CRB-7-05-7 (July 21, 2006) for the proposition that the prior relief granted in Covaleski I must be maintained. While we agree based on the facts in this case the claimant has established a continued right to services at Allied, we wish to clarify the scope of the "law of the case" doctrine.
In Lopez v. Bradlees, supra, we cited Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006) and noted, "[t]he `law of the case' doctrine does not deprive a commissioner of the ability to determine conditions have changed since the issuance of a prior ruling." Id. We conclude the trial commissioner determined that the claimant's circumstances had not changed since the decision in Coveleski I so as to render the care at Allied no longer appropriate. The respondents have the right to present evidence that conditions have changed and in the event the trial commissioner finds their arguments persuasive, the "law of the case" doctrine does not preclude the trial commissioner from revisiting the issue of treatment.
This panel followed similar reasoning concerning Osterlund cases inRomanchuk v. Griffin Health Services, 5515 CRB 4-09-12 (October 20, 2010). See fn. 2 in Romanchuk. Id.
We also find unpersuasive the equitable argument raised by the respondents that the claimant, acting through his sister and limited guardian, should be obligated to access Medicaid and utilize a general social service program to pay for his treatment at Allied. In the absence of any citation by the respondents of a statute or appellate decision mandating that the claimant proceed in this fashion, we cannot override the trial commissioner's decision that the program at Allied should continue to be funded by workers' compensation.
We are satisfied that the trial commissioner's decision was grounded in factual evidence on the record. We do not find legal error. We affirm the Finding and Award and dismiss this appeal.
We uphold the trial commissioner's denial of those corrections in the respondents' Motion to Correct that she decided to deny. Those corrections sought to interpose the respondents' conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D'Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003).
Commissioners Ernie R. Walker and Peter C. Mlynarczyk concur in this opinion.
Joan functioned as a visitation supervisor during a November 2008 basketball game that Doug wanted to attend. Before attending the game Doug was instructed not to discipline Damien in any way. But during the game Doug felt Damien was being disrespectful to his coach, and he verbally reprimanded Damien. The incident upset Damien because he was concerned his father may hurt him. Damien burst into tears and would not go out to play at the start of the second half. After the incident, Joan refused to supervise any future visits.
E. Doug's Visitation With Damien Ends
In early March 2009 Damien called Dave Pieper, his OCS social worker, to report an incident that occurred during a restroom break at a recent OCS supervised visit. Pieper later testified that Damien called while on vacation with his grandmother, re-ported that "he was really scared . . . [and] . . . would feel better if he could just tell somebody" that during a recent OCS visit he went to the restroom with his father who told him, "if he keeps talking and telling people what — what had happened that dad would hunt him down." Pieper testified that Damien reported feeling better after sharing this information. Pieper immediately relayed the information to his supervisor and Howard.
The incident and Damien's feelings about the incident led Pieper, his supervisor at OCS, and Howard to agree to stop Doug's visitation. Howard noticed that after the inci-dent Damien was decompensating quickly and was at risk for hospitalization. The goal of stopping visitation was to stabilize Damien and reduce the stressors in his life.
On April 20, 2009, Howard indicated that Damien would continue to need therapy to address his PTSD. She also concluded that his therapy would only be successful if he attained psychological safety, which would not be possible with uncertainty about his permanent placement. In her view, permanent placement and stability were necessary for Damien to begin to fully heal from the trauma he had suffered. Howard believed that Damien had a good prognosis as long as he was not exposed to "any further traumatic events and he has a stable caregiving system that understands his psychological needs and can respond to him in a safe manner."
In May 2009 Damien was hospitalized at North Star Behavioral Health for 40 days to stabilize his medication. Damien returned to Joan after his discharge from North Star Behavioral Health, and was able to use coping skills to remain calm.
F. Termination Of Doug's Parental Rights
OCS's August 11, 2008 report for permanency hearing stated that if Doug was "unsuccessful in [his] quest to regain custody of [Damien] and [Damien] is unable to demonstrate an ability to be reunified, [OCS] would seek to accomplish an adoption." The report noted that Doug had "not made substantial progress in his case plan," stating that "he has not engaged with [his] therapist." Doug did not dispute that he failed to engage in the therapy required by his case plan, but asserted that he "has made the changes necessary internally on his own." OCS reported that AS 47.10.088(d) required OCS to file a petition for termination of parental rights because Doug had "made little or no effort to remedy his . . . conduct by the time of the permanency hearing."
After the September 2007 removal, Doug only attended four sessions with his mental health therapist Linda King — one in 2007, two in March 2008, and one in April 2009. The case plan also required Doug to complete anger management therapy, but he only attended some of the initial anger management classes. Doug participated in a substance abuse program at the Salvation Army's Clitheroe Center, but was discharged for testing positive for marijuana and reporting alcohol use. A substance abuse assessment after his discharge from the Clitheroe Center recommended continued treatment and monitoring of Doug's marijuana use. Doug was referred for urinalysis testing twice a week. He tested positive for marijuana on several occasions and missed many scheduled tests.
Doug made some progress toward establishing greater financial security by enrolling in an apprentice program and other training. But he had limited success in obtaining regular employment, and he left employment that paid $10 an hour because he thought it did not pay enough.
OCS filed a petition for termination of parental rights in February 2009. The termination of parental rights trial was held on July 15-17, July 27, August 18, and August 21, 2009. At the end of the trial, the superior court terminated Doug's parental rights to Damien. It found by clear and convincing evidence that Damien was a child in need of aid under AS 47.10.011(6) (physical harm), and (10) (substance abuse); that Doug failed to remedy the conduct that placed Damien at risk of harm; and that OCS made reasonable efforts in support of reunification. The superior court also found by a preponderance of the evidence that it was in Damien's best interest to terminate Doug's parental rights. The superior court subsequently made permanency findings that placement of Damien with his grandmother Joan was in Damien's best interests, and instructed counsel to relay that finding to Damien so that he would not worry about being returned to his father's care.
Doug appeals.
III. STANDARD OF REVIEW
In a child in need of aid (CINA) case, we review a superior court's findings of fact for clear error. Findings of fact are clearly erroneous if a review of the entire record in the light most favorable to the party prevailing below leaves this court "with a definite and firm conviction that a mistake has been made." We review de novo whether a trial court's findings satisfy the statutory requirements of the CINA statutes.
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (citing A.B. v. State, Dep't of Health Soc. Servs., 1 P.3d 946, 950 (Alaska 2000)).
Id. (quoting A.B., 7 P.3d at 950).
Carl N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 102 P.3d 932, 935 (Alaska 2004).
IV. DISCUSSION
Before the superior court may terminate parental rights, OCS must prove three elements by clear and convincing evidence. OCS must prove: (1) that "the child has been subjected to conduct or conditions described in AS 47.10.086" making the child a "child in need of aid"; (2) that the parent "has not remedied the conduct or conditions in the home that place the child at substantial risk of harm"; or "has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child at substantial risk of physical or mental injury" n and (3) that OCS has made reasonable efforts under AS 47.10.086 to provide family support services to the child and to the parents of the child designed to enable the safe return of the child to the family home. OCS must also prove by a preponderance of the evidence that termination of parental rights is in the best interests of the child. Doug challenges each element of the superior court's findings relating to the termination of his parental rights.
AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
AS 47.10.088(a)(2)(A); 18(c)(1)(A)(i).
AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(ii).
AS 47.10.088(a)(3); CINA Rule 18(c)(2)(A).
AS 47.10.088(b), (c); CINA Rule 18(c)(3).
A. A Finding That Damien Is A Child In Need Of Aid Under Any Part Of AS 47.10.011 Is Sufficient To Support Termination.
The superior court found that Damien was a child in need of aid under AS 47.10.011(6) (physical harm) and (10) (substance abuse) based on Doug's conduct. Doug concedes that Damien is a child in need of aid under AS 47.10.011(6) (physical harm) and (8) (mental injury) as a result of his excessive discipline. But Doug disputes the superior court's finding under AS 47.10.011(10) (substance abuse).
A finding that a child is a child in need of aid under any part of AS 47.10.011 is sufficient to support termination. Doug's concession that Damien is a child in need of aid under AS 47.10.011(6) (physical harm) is sufficient to support the termination order, making review of the finding under AS 47.10.011(10) (substance abuse) unnecessary.
See Alyssa B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 165 P.3d 605, 618 (Alaska 2007) ("Because either [CINA] finding alone would support the termination order and because [appellant] does not challenge the court's finding of abandonment, her challenge to the mental illness finding has no impact on the outcome of the case."); Sherry R. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 74 P.3d 896, 902 n. 7 (Alaska 2003) ("Sherry also makes an argument concerning her personality disorder, however, because we affirm the trial court's decision on other grounds, we do not address this argument.")
B. Doug Did Not Remedy The Conduct That Placed Damien At Substantial Risk Of Harm.
The superior court found that Doug failed to remedy the conduct that placed Damien at risk of harm. Doug argues that it was clearly erroneous for the superior court to find that he had not remedied his conduct or could not remedy it within a reasonable period of time.
In making a determination that a parent failed to remedy the conduct or conditions that place the child at substantial risk of harm we may consider five factors under AS 47.10.088(b):
(1) the likelihood of returning the child to the parent within a reasonable time based on the child's age and needs;
(2) the amount of effort by the parent to remedy the conduct or the 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.
We note "the best interest factors listed in the statute are not exclusive and the superior court need not accord a particular weight to any given factor." The superior court must "consider the best interests of the child" and may "consider any fact relating to the best interest of the child," including the statutory factors, in terminating parental rights. Here all five factors support a determination that Doug did not remedy the conduct or conditions placing Damien at substantial risk of harm.
Barbara P. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1263 (Alaska 2010).
AS 47.10.088(c).
AS 47.10.088(b).
1. Damien has a low likelihood of returning to Doug within a reasonable time.
The superior court found that Doug "failed to acknowledge or accept that he is the cause of [Damien's] fear." Dr. Rose's evaluation placed a high priority on Doug acknowledging that his actions were wrong. According to Dr. Rose, Doug needed to appreciate "the nature and extent of [Damien's] psychological problems" and the role he played in contributing to them. Doug's own expert, Vivian Patton, explained, "[Doug is] not conscious or aware that a change needs to occur." In his own testimony, Doug described the incidents as "fall[ing] short as most people do," trivializing the severity of his con-duct and the serious impact his conduct had on Damien. The court concluded that Doug "has not taken responsibility in the sense of thinking that what he has done is wrong. Change has not occurred." The superior court commented that Doug "comes off kind of blaming everybody else," that Doug blamed his girlfriend and her children for distracting his focus on Damien, and that he blamed having "too much on [his] plate and not knowing how to properly address every-thing." Ultimately, the superior court saw the situation "as a failure [of Doug] to fulfill [his] obligations." Doug's unwillingness to take responsibility for his actions in the two years since he first came into contact with OCS illustrates that there is a low likelihood of reunification in the reasonable future.
2. Doug only put in a minimum amount of effort to remedy his conduct.
The superior court found that Doug "engaged only minimally in his case plan." On appeal Doug emphasizes that he had learned a skill that would allow him to obtain gainful employment to support himself and his son, had completed some of the classes required by his case plan, and had participated in whatever counseling and anger management he could afford.
The record shows that in the two years between the second incident and trial, Doug failed to seriously undertake the kind of counseling and therapy necessary to make him a safe parent for Damien. Dr. Rose and OCS repeatedly emphasized that the most important part of Doug's case plan was individual therapy, yet Doug only attended four sessions between 2007 and 2009. Doug did not follow through on his required anger management classes, and essentially ignored or rejected the recommendation that he ab-stain from marijuana and alcohol use.
Doug contended that he could not afford more therapy sessions, but his claims that he would restart and complete counseling and substance abuse treatment once he had a higher income are contradicted by the record. He admitted at trial that "the financial reasons weren't the biggest" reasons he did not continue therapy, and he testified that he did not complete the substance abuse program because he was being "put through something that [he] didn't feel [he] needed to go through." Based on this evidence, the superior court did not err in concluding that the real problem in this case was Doug's "feelings and his attitude and his responsibility to [the problems identified by OCS]," rather than his financial limitations. Doug's actions and attitude indicate a minimal amount of effort to remedy the conduct that made Damien a child in need of aid.
We have repeatedly recognized that a child's need for permanence and stability should not be put on hold indefinitely while the child's parents seek to rectify the circumstances that cause their children to be in need of aid. Because Doug failed to take therapy seriously, the superior court was forced to consider that Doug would have to start the therapeutic portion of his case plan from the beginning. Dr. Rose believed that Doug would "require a considerable treatment period to properly address [his issues]" and that even under the best of circumstances making the necessary changes would "take[] a year or more of sustained therapy." Giving Doug another chance to remedy the conduct that made Damien a child in need of aid would inevitably extend Damien's period of uncertainty and instability. The superior court was required to consider this factor when it ruled on the second element of the termination petition.
See, e.g., Kent V. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 233 P.3d 597, 603 (Alaska 2010); Carl N. v. State, Dep't of Health and Soc. Sen's., Div. of Family Youth Servs., 102 P.3d 932, 936-37 (Alaska 2004); J.H.v. State, Dep't of Health Sac. Servs., 30 P.3d 79, 87 (Alaska 2001).
3. Damien suffered significant harm as a result of Doug's conduct.
Doug was involved with OCS for over two years. He first came into contact with OCS in September of 2005 after he beat Damien with a spoon and left significant bruises. His second contact came in September of 2007 when he beat Damien with a belt and left extensive welts and bruises on Damien's back, torso, legs, and bottom. Damien suffered tremendous trauma from the incidents and continued to suffer from them at the time of the trial: he had nightmares of his father beating and killing him; mental health professionals diagnosed Damien with PTSD resulting from Doug's abuse; and Damien repeatedly described significant fear of his father and the possibility that he might be returned to his father's care. We agree with the superior court's assessment of the evidence: Damien suffered significant harm as a result of Doug's conduct.
4. There is a high likelihood that Doug will continue to engage in harmful conduct.
Doug's failure to take full responsibility for his conduct is a strong indication that abuse may occur again. In fact, Doug was involved in several incidents during visitation that raised significant concerns, ultimately leading to discontinuation of the visits. OCS supervisors found some of Doug's conduct rigid and controlling. During a basketball game, Doug verbally disciplined Damien after he was instructed not to do so. That incident left Damien in tears and in fear that Doug may hurt him. During another visit, Doug threatened to "hunt down" Damien if he continued to tell people what Doug had done. Visitation was stopped because Damien was decompensating and was at risk for hospitalization. Rather than taking responsibility for his conduct, Doug complained that he did not get credit for the days when he was not abusing Damien. Given this record, the superior court correctly concluded that "change has not occurred."
Sherry R. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 74 P.3d 896, 903 (Alaska 2003) ("The superior court is entitled to rely on a parent's documented history of conduct as a predictor of future behavior." One predictor of future behavior is the parent's failure to "fully accept or understand [his] children's disabilities.").
5. Doug's history of conduct warrants termination.
Doug beat Damien on at least two occasions over a two-year span, thus requiring OCS intervention. He threatened and intimidated Damien, leaving him suffering with significant anxiety and PTSD. Doug also failed to engage in the case plan designed by OCS to rectify his conduct and demonstrate that he is capable of reunification. Doug's conduct and the harm done to Damien resulted in the superior court's well-supported conclusion that "it is contrary to the welfare of the child to return [him to Doug]."
C. OCS Made Reasonable Efforts To Provide Doug With Family Services.
A court considers reunification ef-forts in their entirety when reviewing whether OCS made reasonable efforts. The superior court found that OCS made reasonable efforts to provide family support services to Doug, including "repeated efforts to engage [Doug] in a case plan and in substance abuse treatment." Doug raises seven contentions in support of his argument that OCS failed to make reasonable efforts, claiming that OCS failed to assist him in: (1) obtaining counseling; (2) obtaining a parenting assessment; (3) obtaining an updated evaluation by Dr. Rose; (4) keeping Doug informed about Damien's schooling and medication; (5) participating in Damien's treatment team meetings; (6) ensuring Doug and Damien's therapists had necessary information; and (7) visiting Damien. Having considered these arguments, we agree with the superior court that reasonable efforts were made.
Barbara P. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1262 (Alaska 2010) (citing Frank E. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 77 P.3d 715, 720 (Alaska 2003)).
1. Assisting Doug in obtaining counseling
Doug argues that OCS's failure to help him pay for counseling or assist him in obtaining affordable counseling constitutes a failure to make reasonable efforts. OCS counters that it was not OCS's duty to request or provide funding to pay for Doug's ongoing therapy, particularly under the circumstances of this case.
Doug primarily relies on Section 6.2.2.7 of the OCS's Child Protective Services Manual to support his argument that OCS should have helped pay for his ongoing individual therapy. This provision covers special needs funds, and lists "counseling, therapy" among the services that can be provided to parents. The manual states "OCS may pay for counseling or therapy services only when it is necessary to . . . return a child to the child's own home." It also explains that "OCS is the payer of last resort. Consideration must be given to the parent's resources/income, insurance, and/or Medicaid. Providers who have sliding scale fees should be used if appropriate and available. Requests are re-viewed on a case-by-case basis."
As OCS points out, Doug never presented this policy at trial. And while Doug often stated at trial that his ability to participate in counseling was limited by his ability to pay, he also conceded that "financial reasons weren't the biggest thing" keeping him from participating in individual therapy. Doug also chose his individual therapist, although more affordable options were available. Doug's social worker spoke with his therapist about the possibility of payment on a sliding scale; when that option proved unavailing he asked Doug if he would be willing to see a different, more affordable therapist. Doug refused. Doug's expert also indicated that, "there are programs out there that do deferred fees or sliding scale fees and those programs should be sought out." Doug chose not to seek counseling services from other programs or more affordable providers.
The evidence strongly suggested that Doug's inability to pay was a secondary reason why he did not attend therapy. Doug's trial counsel seemed to concede this point, stating that therapy "didn't seem profitable to [Doug]" because he perceived his therapist had not received all the information she needed to help him. Further, Doug chose not to keep the job he held at the beginning of the case plan.
2. Obtaining a parenting assessment
Doug argues that OCS failed to make reasonable efforts because it did not obtain a parenting assessment evaluating Doug's interactions with Damien. Doug emphasizes that on several occasions persons involved with the case recommended a parenting assessment evaluating Doug and Damien. But Dr. Rose did conduct a parenting assessment, just not one with Doug and Damien together. Dr. Rose explained at trial that for a parenting evaluation "there's not necessarily a need for observing parents and children together," and that in an abuse case the "concern would be primarily with the parent's behavior." Dr. Rose testified that a parenting assessment addressing only parenting capacity, and not parent-child bonding, was sufficient in this case. According to Dr. Rose, a bonding assessment might have been helpful after Doug made progress on his individual therapy, but the centerpiece of Doug's case plan and Dr. Rose's evaluation was individual mental health therapy to ad-dress Doug's psychological and anger management issues. Doug's case plan specifically emphasized that his progress in the area of parenting would only come after he made substantial progress with his mental health therapy. Because Doug failed to make progress with his own mental health therapy, he never got to the point where a parent-child bonding assessment was indicated. The failure to obtain a bonding assessment was not a failure to make reasonable efforts. formed of Damien's school transfer, the transfer from one school to another was based on the school's Individualized Education Program for Damien, not OCS's actions. None of these alleged shortcomings rises to the level of a failure to make reasonable efforts.
3. Obtaining an updated evaluation by Dr. Rose
Doug also argues that OCS failed to make reasonable efforts because it did not get an updated evaluation of Doug by Dr. Rose. We are not persuaded there was need for Dr. Rose to conduct an updated psychological evaluation because Doug made so little progress in his mental health therapy.
In his argument on appeal, Doug empha-sizes that psychological evaluations are usu-ally updated once a year, and that Dr. Rose specifically requested, but was denied, the opportunity to evaluate Doug a second time. While this may be the case, Dr. Rose testified at trial that if Doug "has not engaged in the services that I recommended since the time I made the recommendations then there's no evidence . . . that there have been any significant changes." We agree. Doug's failure to address his significant psychological and anger management issues negated any need for an updated evaluation. OCS was not required to pay for a new evaluation when there was no objective reason to conclude that Doug had made progress in his case plan.
4. Keeping Doug informed about Damien's schooling and medication
Doug argues that OCS failed to notify him of important decisions relating to Damien's education and medical treatment. But Damien's doctor, not OCS, was obligated to notify Doug of important medical decisions. Doug also argues OCS never informed him of Damien's placement at North Star Behavioral Health, but the record shows that OCS sent Doug notice by mail. As for Doug's argument that OCS failed to keep him in upformed of Damien's school transfer, the transfer from one school to another was based on the school's Individualized Education Program for Damien, not OCS's actions. None of these alleged shortcomings rises to the level of a failure to make reasonable efforts.
5. Allowing Doug to participate in Damien's treatment team meetings
Doug argues that OCS should have allowed him to participate in Damien's treatment team meetings. This argument over-looks that OCS initially sought to have Doug participate in Damien's therapy, and Doug chose not to participate. Howard testified that Doug initially expressed a desire not to participate in Damien's therapy. Further, when Doug did appear at a team meeting in January 2009, he appeared late, was hostile, and was antagonistic. Doug raised his voice when he arrived in the lobby and upset Damien who was escorted out of the lobby by a therapist. Doug was told that he would not be able to participate in that meeting, and that future participation would depend on Damien's best interests. After a discussion with Damien's guardian ad litem, Howard decided it was not in Damien's best interests to include Doug in Damien's therapy meetings because Damien's expectation was that his communications with Howard would be kept confidential. While parental participation in treatment team meetings should be encouraged, it must be fostered consistent with the child's best interests. Here, OCS reasonably concluded that Doug's participation was not in Damien's best interest and the superior court did not err by concluding that the decision to exclude Doug from future meetings did not defeat OCS's showing of reasonable efforts.
AS 47.10.005 (setting forth the goal that state involvement in a CINA case "promote the child's welfare and the parents' participation in the upbringing of the child to the fullest extent consis-tent with the child's best interests. . .") .
6. Ensuring Doug and Damien's therapists had necessary information
Doug also argues that "OCS also failed to ensure that Doug's therapist, and Damien's therapist all had relevant information." Doug's main criticism is that his therapist should have been provided with more information about Damien's needs. The therapist agreed that such information would have made her counseling more effective, but she stressed they could have moved forward immediately in other areas. The central focus of Doug's therapy was the psychological and anger management issues identified by Dr. Rose. Dr. Rose emphasized that only after substantial progress was made in this area would he move on to focus on Doug's parenting issues. Doug's therapist testified that once she had Dr. Rose's report in March 2008, she had clear direction and enough information to proceed with Doug's therapy.
From our review of the record it appears that Doug's therapist and OCS could have done a better job communicating with each other about this case. But given the small number of therapeutic visits Doug attended, it is clear that any communication shortcomings did not constitute a failure to make reasonable efforts nor meaningfully contribute to Doug's failure to make progress in his case plan.
7. Allowing Doug to visit Damien
Doug argues that OCS's refusal to allow visitation with Damien from September 2007 to January of 2008, and then again from March 2009 forward, demonstrates that OCS did not make reasonable efforts to provide family support services to Doug.
Damien was placed in state custody in September 2007 following his second incidence of child abuse in less than two years. Damien's original therapist advised against visitation because Damien "expressed fear of his father" and because of Doug's "disregard for appropriate parenting help and [failure to take] responsibility for removals." Damien's grandmother and social worker both reported that Damien was happy he had reported his father, whom he hoped would go to jail so he could no longer beat him. Damien's pri-mary therapist, Kristin Howard, reported that Damien had "numerous" nightmares involving Doug drowning, killing, hurting, and beating him, often occurring several times a week. Following the 2007 removal, Damien was diagnosed with PTSD, and his care providers observed that his anxiety and fear were triggered by certain facial expressions of his father or seeing his father's belt. All of these conditions justified the decision to stop Doug's visitation.
For example, Howard related an interaction with Damien in May 2009 where he "drew a picture of [himself] and his father, [and] described a dream in which he was assaulted by . . . a man wearing a mask and the man took off his mask and it was his father who then shot him."
After Doug resumed visitation with Damien in early 2008, Damien's therapist reported that Damien was experiencing increased agitation and anxiety following the visits. Damien told his therapist "that every time he closed his eyes he would see his father beating him." His therapist also explained that Damien "doesn't fully trust his father to be safe with him." His teacher reported increased anxiety and behavioral problems both before and after visits with his father. Visitation was terminated in March 2009 after Damien reported to his social worker that Doug threatened him during a supervised visit and his therapist concluded Damien was decompensating quickly and was at risk for psychiatric hospitalization.
D. The Superior Court Did Not Err In Terminating Parental Rights And Not Establishing A Guardianship.
Alaska Statute 47.10.110 permits but does not require the appointment of a guardian when "it appears to the court that the welfare of a minor will be promoted by the appointment of a guardian." The superior court is not required to consider guardianship in a parental termination proceeding, "except to the extent that the statute requires the court to order an arrangement that is in the child's best interest."
AS 47.10.110 provides: "When, in the course of a proceeding under this chapter, it appears to the court that the welfare of a minor child will be promoted by the appointment of a guardian or custodian of the minor's person, the court may make the appointment."
C.W. v. State, Dep't of Health Soc. Sen's., 23 P.3d 52, 57 (Alaska 2001).
Id.
The superior court implicitly rejected the guardianship proposal. It noted that Damien needs "stability, [and] the certainty that he will be protected from his angry, abusive father." The court expressed hope that Doug would change and that a healthy relationship could be established, but observed "that's not what the evidence has shown has occurred up to now." The potential that Doug may one day be able to change is not sufficient to suggest, much less prove, that guardianship is in Damien's best interest.
E. The Superior Court Did Not Err In Denying Doug's Request For More Time.
Doug argues that he should have been given more time to meet the case plan and remedy the conditions that harmed Damien. He specifically contends that he may be able to obtain a better paying job soon, which would make it easier to pay for counseling.
When a court finds that a parent has not remedied poor behavior in a reasonable time under AS 47.10.088(b)(2), it may also readily find that termination of parental rights is in the child's best interest under AS 47.10.088(c). We have observed that courts may consider factors such as a parent's de-termination and capability to change when assessing whether termination is in the best interest of the child. In this case, Doug has not demonstrated determination to change. Doug admits that "financial reasons weren't the biggest thing" keeping him from participating in individual therapy. He did not seek more affordable solutions that even his expert acknowledges existed. Doug put in little effort to meet the case plan but complained often that OCS was not doing enough to pay for his counseling, to pay for his transportation, or to excuse him from the requirement of completing his case plan. As the superior court observed, "there has to be change in his feelings and his attitude and his responsibility to these problems instead of saying that somebody else didn't give me bus fare."
Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 186 (Alaska 2008).
Id.
V. CONCLUSION
We AFFIRM the judgment of the superior court in all respects.
CARPENETI, Chief Justice, and STOWERS, Justice, not participating.
Alert