Opinion
Supreme Court No. S-13738.
October 20, 2010.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Peter Ashman, Judge pro tem. Superior Court No. 3AN-07-00264 CN.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellee.
Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Guardian Ad Litem.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A father challenges the trial court's decision terminating his parental rights to his daughter. The father argues it was error for the trial court to find: (1) his daughter was a child in need of aid under AS 47.10.011(8); (2) he failed to remedy the conduct that placed his daughter at substantial risk of mental injury; (3) terminating his parental rights served his daughter's best interests; and (4) court-ordered post-termination visitation with his daughter was not in his daughter's best interests. Because the evidence supports the trial court's findings, we affirm the trial court's decisions terminating the father's parental rights and denying post-termination visitation.
II. BACKGROUND
Miles's daughter, Ava, was born in August 2007. Hours before Ava was born Miles assaulted Ava's mother. Miles was arrested and subsequently convicted of fourth degree assault; he was incarcerated for the first 11 months of Ava's life. That assault, however, was not an isolated incident — Miles's criminal record demonstrates a pattern of violent behavior, especially toward women, spanning at least three decades. For example, Miles was convicted of resisting arrest (three times), assault, disorderly conduct, domestic violence assault, coercion, attempted assault (originally charged as attempted murder and rape), and violating a domestic violence protective order. At the time of the termination proceedings, Miles was 51 years old and since 1989 he had been incarcerated roughly half of the time.
Pseudonyms are used for all family members.
Because Ava tested positive for cocaine at birth, the State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS) immediately became involved with her family. Given the nature of this appeal we do not need to detail the history of OCS's involvement with the family, but two days after Ava's birth OCS took her into emergency custody and in March 2009 petitioned for termination of Miles's parental rights. As a result of OCS's involvement, Ava has been placed with her maternal grandmother for the majority of her life.
Ava's mother voluntarily relinquished her parental rights and retained visitation privileges. See AS 47.10.089(d) (allowing parent who voluntarily relinquishes parental rights to retain some privileges, including visitation).
The termination proceedings began in September 2009 and after two days of testimony were continued until October to accommodate the parties' schedules. In October the court continued the proceedings until December 2009 to allow Miles additional time to complete his case plan. After the final hearing, the trial court concluded that OCS had met its burden of proof and in late December 2009 the trial court terminated Miles's parental rights, without reserving a right to post-termination visitation.
Under Alaska Child in Need of Aid (CINA) Rule 18, parental rights may be terminated at trial only if OCS shows:
(1) by clear and convincing evidence that:
(a) the child has been subjected to conduct or conditions enumerated in AS 47.10.011 (CINA Rule 18(c)(1)(A));
(b) the parent has not remedied the conduct or conditions that place the child at substantial risk of harm or has failed within a reasonable time to remedy the conduct or conditions so that the child would be at substantial risk of physical or mental injury if returned to the parent (CINA Rule 18(c)(1)(A)(i) — (ii)); and
(c) reasonable efforts have been made to provide family support services designed to prevent the breakup of the family (CINA Rule 18(c)(2)(A)); and
(2) by a preponderance of the evidence that the child's best interests would be served by termination of parental rights (CINA Rule 18(c)(3)).
Miles appeals four of the trial court's findings underlying the termination of his parental rights. Specifically, he appeals the findings that: (1) Ava was a child in need of aid under AS 47.10.011(8); (2) he failed to remedy the conduct that placed Ava at substantial risk of mental injury; (3) terminating his parental rights served Ava's best interests; and (4) post-termination visitation was not in Ava's best interests.
III. STANDARD OF REVIEW
In a case involving the termination of parental rights we review a trial court's factual findings for clear error. Findings are clearly erroneous only if, after reviewing the 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." When reviewing factual findings "we ordinarily will not overturn a trial court's finding based on conflicting evidence," and "we will not reweigh evidence when the record provides clear support for the [trial] court's ruling." We note as to oral testimony that it "is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." We review de novo whether a trial court's factual findings comport with Alaska's Child in Need of Aid statutes and rules.
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 53 (Alaska 2003) (citing V.S.B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 45 P.3d 1198, 1203 (Alaska 2002)).
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (citing Martin N., 79 P.3d at 53 and quoting A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)) (internal quotation marks omitted).
Martin N., 79 P.3d at 53 (citing In re Friedman, 23 P.3d 620, 625 (Alaska 2001)).
Maisy W. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008) (citing D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 214 (Alaska 2000)).
In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) (quoting Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)) (internal quotation marks omitted).
Josephine B. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 174 P.3d 217, 219-20 (Alaska 2007) (citing Winston J. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 134 P.3d 343, 345 (Alaska 2006)); Carl N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 102 P.3d 932, 935 (Alaska 2004) (citing Sherry R. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 74 P.3d 896, 901 (Alaska 2003)).
IV. DISCUSSION
A. The Trial Court Did Not Clearly Err By Finding Ava Was A Child In Need Of Aid Under AS 47.10.011(8)(B)(i).
The trial court found clear and convincing evidence that due to Miles's conduct, Ava was a child in need of aid under AS 47.10.011(8)(B)(i). The court found Miles's "history of violence toward others" demonstrated "a pattern of rejecting, terrorizing, ignoring, isolating, or corrupting behavior." The court noted that Miles's history of "extremely violent conduct spann[ed] over twenty years and continu[ed] up until the night before [Ava] was born." The trial court also found "[i]f [Miles] continued this pattern of behavior toward others during a time when [Ava] was placed in his home there would be a clear risk to her of mental injury."
AS 47.10.011 provides in pertinent part:
[A] 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 . . . the following:
. . . .
(8) conduct by or conditions created by the parent, guardian, or custodian have
. . . .
(B) placed the child at substantial risk of mental injury as a result of
(i) a pattern of rejecting, terrorizing, ignoring, isolating, or corrupting behavior that would, if continued, result in mental injury. . . .
Miles argues that his history of violent behavior is "insufficient to support a finding under subsection (8)(B)(i)." He notes that OCS did not object to his five unsupervised visits with Ava while he was in prison and argues that if his past history were "insufficient to raise a concern about Ava's safety in his unsupervised care, it is insufficient to support a finding under subsection (8)(B)(i)." Miles also attempts to distinguish Winston J. v. State, Department of Health Social Services, Office of Children's Services, which held that a parent's history of violent behavior did not have to be directed at his children to satisfy the requirements of (8)(B)(i).
Id. at 348.
We reject Miles's distinction. The factual situation in the present case is analogous to the one in Winston J. In that case, we affirmed a trial court's finding that twins were in need of aid under AS 47.10.011(8)(B)(i) due to their father's history of violence toward the twins' mother and other women even though the father never directed his violence toward the twins. The father in Winston J. assaulted the twins' mother when she was eight months pregnant with the twins. He also had "a long history of domestic assaults" against other women. We emphasized that a parent's violent behavior does not have to be directed at a child to cause a substantial risk of mental injury to the child and that "witnessing domestic violence is mentally harmful to children." We concluded that the father's history of violent behavior coupled with his assault against the twins' pregnant mother "created a substantial risk of harm to [the twins] should they be placed with him," and we therefore affirmed the court's finding that the twins were in need of aid under AS 47.10.011(8)(B)(i).
Id.
Id. at 345.
Id.
Id. at 348 (quoting Martin N., 79 P.3d at 55); see also Barbara P. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1257 (Alaska 2010) (citing Martin N., 79 P.3d at 54-55) ("AS 47.10.011(8)(B)(i) does not require that the children be physically present when there is domestic violence. . . .").
See Winston J., 134 P.3d at 348; see also Martin N., 79 P.3d at 55 (affirming child was in need of aid under AS 47.10.011(8)(B)(i) due to father's history of violence toward others, even though father did not direct violent behavior toward child).
Miles, like the father in Winston J., has an extensive history of violent behavior often directed toward women. Miles's criminal history spans multiple decades and includes at least eight violence-related criminal convictions. Miles's record demonstrates, and at trial he admitted, that his assault and domestic violence convictions all resulted from crimes against women he knew. Most recently, and like the father in Winston J., Miles assaulted Ava's mother when she was pregnant. Miles's five unsupervised visits with Ava while he was in prison do not negate his history of violent behavior or the harm that witnessing such violence would cause Ava if he continued such behavior in Ava's presence. Moreover Miles has participated in only two day-long visits with Ava and has never had his daughter for an overnight visit. These facts provide ample support for the trial court's finding that Ava would be at substantial risk of mental injury if Miles's violent behavioral pattern continued. B. The Trial Court Did Not Clearly Err By Finding Miles Failed To Remedy The Conduct That Placed Ava At Substantial Risk Of Mental Injury.
Because the evidence supports the trial court's finding that Ava was a child in need of aid under AS 47.10.011(8)(B)(i), we decline to address whether Ava was a child in need of aid under other statutory sections. See Alyssa B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 165 P.3d 605, 618 (Alaska 2007) (holding that challenge to finding child in need of aid under one provision had "no impact on the outcome of the case" because the child was deemed in need of aid under unchallenged alternative provision).
Before a trial court may terminate parental rights to a child, it must find by clear and convincing evidence that the parent "has not remedied the conduct" or "has failed, within a reasonable time, to remedy the conduct . . . that place[d] the child in substantial risk." When determining whether the parent has remedied the harmful conduct, AS 47.10.088(b) provides that a court may consider "any fact relating to the best interests of the child."
AS 47.10.088(a)(2)(A), (B); CINA Rule 18(c)(1)(A)(i), (ii); see also AS 47.10.088(a)(1).
Inquiry into the best interests of the child may include:
(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 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.
AS 47.10.088(b)(1)-(5).
Here the trial court found that despite completing portions of his case plan, Miles had failed to remedy his conduct that created a substantial risk of mental injury to Ava. The trial court observed Miles had a "history of extremely violent conduct" and at trial Miles exhibited a "remarkable lack of insight regarding his own personal history of violence." The trial court commented that Miles viewed his violent past as necessitated by self-defense, even though Miles's actions demonstrated "disproportionate levels of violence which clearly exceed lawful self-defense." The trial court found Miles's attitude toward the court, female OCS workers, and OCS in general inhibited Miles's ability to effectively complete his case plan. Additionally the court noted that even after completing anger management and parenting programs, Miles blamed Ava's mother for OCS's involvement in his life and for certain requirements in his case plan. Considering all the evidence, the trial court found Miles was "disingenuous" in his participation in the anger management and parenting classes. The court also observed that Miles continually denied having substance abuse issues, demonstrating his "refusal to accept responsibility for the problems in his life." The court concluded that "the essential and relevant aspects of [Miles's] character and behavior remain unchanged."
Although Miles made an effort to follow his case plan, he has a long and serious history of violent behavior and failed to "address the causes of [his] behavior." Adhering to a case plan does not necessarily establish a parent has remedied his harmful conduct. Rather a parent must demonstrate he "remedied the problems that placed [his] children at risk and gained the necessary skills so that the children could be safely returned to [his] care." Evidence supports the trial court's finding that Ava could not safely be returned to Miles's care because he failed to remedy his violent behavior and associated problems. Even after completing the majority of his 36-week anger management program Miles testified, seemingly without remorse, that he would continue using violence "right, wrong, or indifferent" when someone "get[s] in [his] bubble." Miles also continually denied having substance abuse problems and by the end of the termination proceedings had yet to begin substance abuse treatment in accordance with his case plan. Miles's failure to acknowledge and sincerely address his problems demonstrates he did not remedy the conduct that placed Ava at substantial risk of mental injury. Moreover we afford deference to a trial court's credibility assessment; here, after observing Miles and his testimony, the trial court determined Miles failed "to display any meaningful insight into his own issues involving substance, relationships and violence."
Winston J., 134 P.3d at 348.
See Barbara P., 234 P.3d at 1260 ("[C]ompletion of a case plan does not guarantee a finding that [the parent] has remedied her conduct.").
Id.
Erica A. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 66 P.3d 1, 8 (Alaska 2003) (citing Wasserman v. Bartholomew, 38 P.3d 1162, 1167 (Alaska 2002)). "[T]he trial court, not this court, decides issues of credibility." Id. (citing In re Adoption of A.F.M., 15 P.3d at 262).
Based on the evidence in the record and the trial court's credibility assessment, we conclude that the trial court did not clearly err by finding Miles failed to remedy the conduct that placed Ava at substantial risk of mental injury.
C. The Trial Court Did Not Clearly Err By Finding That Terminating Miles's Parental Rights Served Ava's Best Interests.
Before terminating parental rights, a trial court must find by a preponderance of the evidence that terminating the parental rights is in the child's best interests. We have acknowledged that permanence and stability serve a child's best interests. We have likewise noted that both a child's bond with her temporary placement and the potential harm to the child if removed from that placement are important factors to consider when determining the child's best interests. When reviewing a trial court's best interests finding we must be cognizant that it is "the best interests of the child, not those of the parents, [that] are paramount."
AS 47.10.088(c); CINA Rule 18(c)(3).
See, e.g., J.H. v. State, Dep't of Health Soc. Servs., 30 P.3d 79, 87 (Alaska 2001) (concluding superior court did not clearly err in finding child's best interests were promoted by a home that provided permanence and stability).
See M.W. v. State, Dep't of Health Soc. Servs., 20 P.3d 1141, 1147 (Alaska 2001) (concluding trial court did not clearly err by terminating a father's parental rights to his daughter because she had bonded with her foster parents and would likely suffer irreparable harm if removed).
Id. (quoting A.B., 7 P.3d at 954) (internal quotation marks omitted).
Ava has lived with her maternal grandmother, who also cares for Ava's half-brother, for the majority of her life. Testimony indicated Ava has "a very close bond" with her grandmother, her half-brother, and her grandmother's husband. An OCS social worker testified to having no concerns about Ava's placement with her grandmother and thought it was in Ava's best interests to remain in that placement. The social worker testified that because the first two years of a child's life are "the most important . . . for a child to form attachments and bonds with their caregivers," OCS tries to maintain "stability in placement for very young children." The social worker expressed concern that granting Miles custody of Ava would disrupt Ava's stable placement and her attachment to her grandmother. The social worker thought granting Miles custody "would be detrimental to [Ava's] development" as it would likely result in severing Ava's contact with her grandmother. Based on this evidence the trial court found that Ava "deserve[d] a stable home and a continuing connection to the only mother she has known."
We therefore conclude that the trial court did not clearly err by finding that terminating Miles's parental rights served Ava's best interests. D. The Trial Court Did Not Err By Refusing To Reserve Post-Termination Visitation.
Miles also argues that the trial court erred by failing to consider alternatives to terminating his parental rights, such as guardianship. But Miles first raises this issue on appeal, and even in termination of parental rights cases we will not consider an issue raised for the first time on appeal. See, e.g., G.C. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 67 P.3d 648, 655 n. 25 (Alaska 2003) (holding issue in termination of parental rights appeal waived because argument was not raised at trial). We therefore decline to address Miles's argument concerning guardianship.
Miles argues that even if we affirm the termination of his parental rights, the trial court's "failure to order post-termination visitation and contact was error." Miles suggests the trial court should have ordered post-termination visitation because his case presented "extraordinary circumstances." Miles argues that he and Ava had "an established relationship," and that this did not interfere with or adversely affect Ava's relationship with her grandmother. Whether he had "resentment and disdain for OCS workers," he argues, should not have been a factor in the court's decision denying visitation because he "would not be in contact with OCS workers" if granted visitation. Finally he argues: "It is not in a child's best interests to potentially sever all ties between a child and her extended family when evidence demonstrates that the child is not harmed in any way by contact."
Once a court terminates parental rights, that parent retains no residual rights to the child. Accordingly "when adequate grounds for termination exist, there is no presumption that the parent should have visitation rights." We have not, however, "foreclose[d] the possibility that the superior court could authorize post-termination visitation in extraordinary circumstances." But even in extraordinary circumstances "post-termination visitation would only be permitted `to the extent that the authorized visitation is in the best interest of the child.'"
C.W. v. State, Dep't of Health Soc. Servs., 23 P.3d 52, 57 (Alaska 2001).
Id. (citing AS 47.10.084(c); D.H. v. State, 723 P.2d 1274, 1276 n. 6 (Alaska 1986)).
Burke P. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 162 P.3d 1239, 1248 (Alaska 2007).
Id. (quoting C.W., 23 P.3d at 58).
Here the trial court found reserving post-termination visitation was not in Ava's best interests. Miles's history of violent interactions with women was of "deep concern" to the trial court and served as the foundation for its finding. Based on the evidence, we conclude the trial court's concern was warranted. Miles's failure to set forth extraordinary circumstances supporting post-termination visitation further validates the trial court's decision. Accordingly, even if the trial court had the authority to reserve post-termination visitation, it did not err in refusing to do so here.
V. CONCLUSION
We AFFIRM the trial court's decisions terminating Miles's parental rights to his daughter Ava and not reserving post-termination visitation.