Opinion
Supreme Court No. S-12066.
September 19, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dan A. Hensley, Judge, Superior Court Nos. 3AN-02-576CP, 3AN-04-203CN.
Appearances: J. Adam Bartlett, Anchorage, for Appellant. Megan R. Webb, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh, Bryner, and Carpeneti, Justices. [Matthews, Justice, not participating.]
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 appeals the termination of his parental rights to his two sons. He contends that the court erred by applying the abandonment provision of the child in need of aid statute to an incarcerated parent and in finding that the facts supported the termination of his parental rights. Because the superior court correctly applied the relevant law and its decision was supported by substantial evidence, we affirm the superior court's decision in its entirety.
II. FACTS AND PROCEEDINGS
A. Facts
Anna gave birth to Tommy in March 2001. Zander, who was later determined to be Tommy's biological father, was incarcerated at the time. Upon birth, Tommy tested positive for cocaine.
We use pseudonyms to protect the privacy of the parties. Anna is not a party to this appeal.
Approximately one year later, Zander was released from prison and in November 2002 Anna gave birth to a second son, Michael. Zander again was incarcerated at the time Michael was born. Anna did not disclose the name of the baby's father, but it was later determined to be Zander. After Michael tested positive for cocaine upon birth, the Office of Children's Services (OCS) assumed emergency custody. Tommy, who was living with his maternal grandmother, was not taken into custody at the time.
Anna began working toward reunification and in the Fall of 2003 OCS returned the boys to live with her. In January 2004 Anna informed OCS that Zander was Michael's father. OCS social worker Lori Kennell contacted Zander, who had by then been released from prison, and arranged for paternity testing. In February 2004 Zander was notified that he was Michael's father. In May 2004 Lori Kennell met with Zander to discuss his OCS case plan.
In June 2004 Anna suffered a cocaine relapse. OCS filed an emergency petition and obtained custody of both boys. That same month Zander was re-incarcerated.
B. Proceedings
In December 2004 OCS petitioned to terminate Zander's parental rights. Trial was held in July 2005 before Superior Court Judge Dan A. Hensley. At the time of the hearing, Zander was in prison. The state proceeded against Zander on a theory of abandonment under AS 47.10.011(1), citing his lack of meaningful contact with his children and his failure to work on his OCS case plan. The court agreed and found that Tommy and Michael were children in need of aid. Judge Hensley entered an initial order in August 2005 and written findings in November 2005 terminating Zander's parental rights.
The state simultaneously moved to terminate Anna's parental rights.
Zander appealed, and we remanded to the superior court "for the limited purpose of determining, by clear and convincing evidence, whether the State of Alaska made reasonable efforts to reunify the family." On remand, Superior Court Judge Stephanie E. Joannides affirmed the termination of Zander's parental rights.
Z.P. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., Order, Case No. 3AN-04-203 CN (November 17, 2006). Legislative changes occurring during the course of this case increased the standard of proof for a reasonable efforts finding from a preponderance of the evidence to clear and convincing evidence. See AS 47.10.088, as amended by ch. 20, §§ 1-3, 11, SLA 2006.
Zander appeals and argues that the court erred in (1) applying AS 47.10.011(1) to an incarcerated parent; (2) finding that he did not spend time with his children; and (3) finding that the state had made reasonable efforts to reunify the family.
III. STANDARD OF REVIEW
We apply our independent judgment to questions of law, including the interpretation of a child in need of aid (CINA) statute and the determination of whether a trial court's factual findings satisfy the applicable CINA provisions. In applying our independent judgment, we "adopt[ ] the rule of law that is most persuasive in light of precedent, reason, and policy."
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004).
M.J.S. v. State, Dep't of Health Soc. Servs., 39 P.3d 1123, 1125 n. 5 (Alaska 2002) (citing T.F. v. State, Dep't of Health Soc. Servs., 26 P.3d 1089, 1092 (Alaska 2001)).
Brynna B., 88 P.3d at 529.
We will reverse the factual findings of the superior court in a termination of parental rights case only when those findings are clearly erroneous, a standard which is met "only if we are left with a definite and firm conviction that a mistake has been made after review of the entire record."
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)).
IV. DISCUSSION
A. The Superior Court Did Not Err in Applying the Abandonment Standard of AS 47.10.011(1) to an Incarcerated Parent.
In order to terminate parental rights under AS 47.10.088 a trial court must find by clear and convincing evidence that (1) a child is in need of aid under one of the bases set forth in AS 47.10.011; (2) the parent has failed to remedy the conduct or conditions underlying the original harm or that returning the child to the parent would place the child at substantial risk of physical or mental injury; and (3) OCS made reasonable efforts to help the parent remedy the problematic behavior or conditions. The court must also find that termination is in the child's best interests. Zander challenges the first and third of these findings.
AS 47.10.088(a)(1)-(3).
Alaska Child in Need of Aid Rule 18(c)(2)(C); see also AS 47.10.088(c).
The court found that Tommy and Michael were children in need of aid pursuant to the general abandonment provision of AS 47.10.011(1). Zander argues that the court erred in applying subsection .011(1) because subsection .011(2), pertaining to incarceration specifically, provides the exclusive method of adjudicating the parental rights of incarcerated parents on the issue of abandonment.
Alaska Statute 47.10.011(1) provides that a child is in need of aid where a parent has abandoned a child as described in AS 47.10.013, "and the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter." Alaska Statute 47.10.013(a) provides that:
Because Anna's parental rights were terminated, the "other parent" requirement is established.
the court may find abandonment of a child if a parent or guardian has shown a conscious disregard of parental responsibilities toward the child by failing to provide reasonable support, maintain regular contact, or provide normal supervision, considering the child's age and need for care by an adult.
These provisions have been interpreted to establish that abandonment occurs when (1) there is parental conduct evidencing a "willful disregard" for parental obligations, leading to (2) the destruction of the parent-child relationship.
G.C. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 67 P.3d 648, 651-52 (Alaska 2003).
In contrast to subsection .011(1), subsection .011(2) directly mentions incarceration and provides that a child is in need of aid where:
a parent, guardian, or custodian is incarcerated, the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter, and the incarcerated parent has not made adequate arrangements for the child
Zander relies on two cases that led to the enactment of subsection .011(2) to support his argument. In both Nada A. v. State and A.M. v. State we recognized that courts could not rely on the fact of a party's incarceration alone to prove abandonment because it was "not the type of willful act upon which abandonment may be based." Shortly after A.M., the legislature enacted AS 47.10.080(o), which provides in relevant part: "[T]he court may determine that incarceration of the parent is sufficient grounds for determining that a child is a child in need of aid under AS 47.10.011. . . ."
660 P.2d 436 (Alaska 1983).
891 P.2d 815 (Alaska 1995).
Id. at 823 n. 8 (citing Nada A., 660 P.2d at 439).
See O.R. v. State, Dep't of Health Soc. Servs., 932 P.2d 1303, 1308 n. 4 (Alaska 1997) (citing ch. 89, SLA 1996).
Then in 1998, the legislature added AS 47.10.011(2), making clear that the change was intended to "override [ A.M. and Nada]."
Ch. 99 §§ 1(b)(2)(B), 18, SLA 1998.
But contrary to Zander's argument, neither the language nor history of .011(2) suggests that it serves as the exclusive means for finding abandonment in cases involving an incarcerated parent. While A.M. and Nada recognized that the fact of incarceration itself was not "willful" for the purposes of determining abandonment under .011(1), neither case spoke to a court's otherwise legitimate consideration of a parent's conduct while incarcerated. Indeed, we have recently considered an incarcerated parent's willful conduct as the basis for a termination proceeding.
A.M., 891 P.2d at 822-24; Nada, 660 P.2d at 439.
In Rick P. v. State, Office of Children's Services, we affirmed the termination of an incarcerated father's parental rights. We recognized that the incarceration termination provision of AS 47.10.080(o) was "an additional, independent authority OCS may rely on to terminate rights in cases where the parent's incarceration itself is likely to injure the child in the future" and "does not supplant" the general termination provision of AS 47.10.088 and the abandonment provision of AS 47.10.011(1). Zander argues that Rick P. "[did] not explicitly address the interplay" between AS 47.10.011(1) and (2). But the discussion in Rick P. undercuts any distinction Zander seeks to draw, because in that case we considered evidence of Rick P.'s "willful disregard" of his parental obligations in the period both "during and after his prison sentence."
109 P.3d 950 (Alaska 2005).
Id. at 957.
Id. (emphasis added).
Zander contends that subsection .011(1) requires a finding that he consciously disregarded his parental responsibilities. Zander also argues that his conduct while incarcerated was not "willful" for the purpose of determining whether he consciously disregarded his parental responsibilities. Finally, Zander argues that the court relied on conduct that was inseparable from his incarceration. But Zander's argument again conflates the limits on a court's use of the fact of incarceration generally with the court's legitimate use of evidence of an incarcerated party's volitional conduct. Our case law illustrates that an incarcerated parent may engage in a broad spectrum of willful conduct — i.e., behaving violently, choosing to attend counseling, making efforts at communication, etc. — that informs a court's analysis under the CINA statutes. In Martin N. v. State we considered an incarcerated father's "threatening and controlling behavior" toward his daughter's mother in concluding that Martin's daughter was a child in need of aid under the "substantial risk of physical harm" subsection of .011(6). We also noted evidence of Martin's disciplinary problems while in prison in concluding that he had failed to remedy his violent conduct. And in Jeff A.C., Jr. v. State we considered whether a father had sufficiently remedied his conduct by looking to his efforts "[d]uring and after" his incarceration.
79 P.3d 50 (Alaska 2003).
Id. at 54.
Id. at 55.
117 P.3d 697 (Alaska 2005).
Id. at 704-05 (emphasis added).
The court found that Zander never visited his sons or wrote them any letters and made no effort to contact them while in prison. This conduct was the result of Zander's volitional behavior and is properly considered willful conduct. B. The Court Did Not Err in Terminating Zander's Parental Rights.
See In re H.C., 956 P.2d 477, 483 n. 10 (Alaska 1998) (noting father's evidence of mental illness failed to show he lacked capacity for willful conduct). But see In re A.J.N., 525 P.2d 520, 523 (Alaska 1974) (noting where father actively and consistently pursued visitation with daughter but was denied opportunity, conduct did not establish abandonment).
In order to terminate Zander's parental rights, the state carries the burden of proving that Zander legally abandoned his children and that the state made reasonable efforts to reunite the family. Zander's appellate arguments focus primarily on the court's allegedly erroneous reliance on his conduct while incarcerated. We hold, however, that the trial court properly considered Zander's history with his children both pre-incarceration and during his incarceration in determining whether the state had met its burden.
1. The court did not err in finding abandonment.
Zander asserts that the court erred in finding that he did not spend time with his sons. The court found "that at least since May of 2004, [Zander] failed to have any communication with his children. He did not ask for visits, he sent no cards or letters, and he refused to participate or even discuss a case plan for reunification. This conduct occurred both prior to and subsequent to [Zander's] incarceration."
Abandonment occurs "if a parent . . . has shown a conscious disregard of parental responsibilities . . . by failing to provide reasonable support, maintain regular contact, or provide normal supervision. . . ." In considering whether a parent consciously disregarded parental obligations, a court applies "an objective test to see if actions demonstrate a willful disregard of parental responsibility. . . ." "A parent has an affirmative duty . . . [to show] continuing interest in the child and [to make] a genuine effort to maintain communication and association; token efforts to communicate with a child will not satisfy this duty."
AS 47.10.013(a).
Jeff A.C., Jr., 117 P.3d at 704 (internal quotations omitted).
In re H.C., 956 P.2d at 481(internal citations omitted).
Zander's sole argument on this point is that the court erred in finding that he did not attend to his parental responsibilities "when he was not incarcerated." This argument implies that the only basis the trial court could have had for finding abandonment was Zander's failure to communicate with his children while he was in jail. But the trial court did not rely solely upon Zander's lack of contact while incarcerated. Rather, it relied on his entire history of limited contact with his children, which includes among other things his refusal to discuss treatment with the social worker and his recent lack of contact with his sons. In addition to his failure to communicate with his children, Zander consistently acted in a manner demonstrating his lack of interest in his children and his unfitness as a parent. Before re-entering prison in June 2004, Zander terminated contact with the social worker and rejected a reunification plan because the plan "required drug treatment and domestic violence intervention." The trial court concluded that "it is clear from his testimony at trial that he will refuse to cooperate with social workers or anyone else if he disagrees with them." This behavior, illustrating Zander's actions while not incarcerated, evidences Zander's apathy towards his parental duties. If Zander had intended to accept his parental responsibilities and increase communication with his children, he could have done so by working with the social worker. By terminating all contact with the social worker, Zander effectively ended his opportunity to regain custody of his children. This total lack of effort to maintain and foster a relationship with his children is therefore consistent with abandonment under AS 47.10.013(a) and Alaska case law.
2. The superior court did not err in finding the state had made
reasonable efforts.
Zander's final argument is that because the OCS case plan was formulated in May 2004, and because he was incarcerated the following month and the state never contacted the Department of Corrections to identify and recommend programs that were available to him in prison, the state failed to exercise reasonable efforts.
On remand, the superior court concluded that the state had shown by clear and convincing evidence that it had complied with the duty to make reasonable efforts. Judge Joannides relied heavily on Judge Hensley's original findings, which concluded that the case plan was appropriate as a "preliminary plan" based on the information OCS had at the time: that Zander was a drug dealer or drug user, that Anna had informed OCS that Zander had substance abuse issues, that Anna had made allegations of domestic violence against him, and that Zander had a history of incarceration for controlled substances and assault. Judge Hensley found that when presented with the plan, Zander refused to discuss it and had no further contact with OCS.
In order to terminate parental rights, the state must demonstrate by clear and convincing evidence that it made "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. . . ." While "the test of whether the state made reasonable efforts to reunify . . . is not limited to the [period of incarceration]," "[a] parent's incarceration significantly affects the scope of the active efforts that the State must make." We recognize that where a party has "never remotely committed to the job of parenting," the state is not required to force him into accepting it.
AS 47.10.088(a)(3); AS 47.10.086(a).
Frank E. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 77 P.3d 715,720 (Alaska 2003).
A.A. v. State, Dep't of Family Youth Servs., 982 P.2d 256, 261 (Alaska 1999).
Jeff A.C., Jr. v. State, 117 P.3d 697, 707 (Alaska 2005).
OCS social worker Lori Kennell met with Zander in May 2004 to discuss his case plan. The plan identified substance abuse assessment, parenting classes, and anger management classes as necessary services. Kennell testified that Zander "refused to work his case plan" and that when she offered Zander supervised visitation with his children, he refused. Zander's own statements support Kennell's recollection of events: he testified that after Kennell referred him for a substance abuse assessment he rejected it, stating "I've been through that twice with no treatment recommended. So I felt that this was unnecessary to go through all this again." The record also reveals that Zander broke off the meeting after only a few minutes and did not contact OCS after that time.
See K.N. v. State, 856 P.2d 468, 476-77 (Alaska 1993) (noting further state efforts unlikely to have been effective in light of parent's attitude).
Zander relies on Frank E. v. State, Dep't of Health Social Services, for the proposition that the state failed to make efforts to formulate a case plan based on services available to him while he was incarcerated. But Zander's reliance is misplaced, because the case plan at issue in Frank E. focused exclusively on services that were available only after the father's release from prison, but the state had attempted to terminate his parental rights before release. At issue here is not the social worker's failure to provide him a plan which he could complete while incarcerated, but rather Zander's prior refusal to comply with the state when it had previously tried to work with him on a case plan. Simply because Zander was incarcerated soon after the presentment of the May 2004 case plan does not place a burden on the social worker to reformulate a new case plan after Zander had already clearly evinced no intent to follow through with any sort of treatment plan. The state had already met its burden by providing an appropriate case plan for Zander, which he rejected. Zander subsequently terminated all contact with the social worker and made clear that he would not participate in either a domestic violence or a substance abuse treatment plan because he had previously completed those programs. Judge Hensley properly concluded that Zander's pre-incarceration interactions with the social worker sufficiently relieved the state from pursuing further treatment for Zander while he was in prison. Judge Joannides, on remand, found that "there was very little more the social worker could do to bring about the reunification of Mr. [P] with his children." Under different circumstances, the state's lack of efforts towards helping an inmate work his case plan may be critical in evaluating the reasonableness of the state's efforts. Here, however, Zander's past interactions with the state overwhelmingly show a complete disregard for completing any sort of case plan or treatment necessary to maintain his role as a parent. We therefore conclude that the court's decision on this issue was not error.
77 P.3d 715 (Alaska 2003).
Id. at 719-20.
V. CONCLUSION
Because the court did not err in applying AS 47.10.011(1) and because the court's findings were supported by the evidence, we AFFIRM the decision of the superior court.