Supreme Court No. S-11888.
February 22, 2006.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge. Superior Court Nos. 3AN-02-466/467/468 CP.
Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Natalie D. appeals from the final order terminating her parental rights to her three children, Bethany, Adrienne, and Camille. She challenges the superior court's finding that she had failed to remedy, within a reasonable time, the conduct or conditions that placed her children at a substantial risk of physical or mental injury. The superior court did recognize that Natalie had made a good faith effort to address her substance abuse problem. But this turnaround occurred only a few months before trial, and Natalie walked out of her most recent treatment program only four months before trial. Because the superior court's finding that Natalie had failed to remedy the conduct or conditions that placed her children at risk is supported by substantial evidence, we affirm the termination of Natalie's parental rights.
Pseudonyms have been used for all family members.
II. FACTS AND PROCEEDINGS
Natalie D. was twenty-six years old at the time of termination of parental rights. Each of her three daughters — Bethany, Adrienne, and Camille — has a different father and none are Indian children as defined in 25 U.S.C. § 1903(4). The children were removed from the parental home on September 18, 2002 and have since been living in foster homes. Each child has significant emotional and developmental issues. All three foster families wish to adopt the children. All three children have become attached to their foster families.
Natalie had herself experienced physical and emotional abuse and suffered domestic violence during childhood. She was placed in state custody in 1990. Natalie moved among homes frequently due to her difficult behavior and was treated at several facilities for mental health issues including suicidal ideation and aggressive behavior toward others. While in state custody, at the age of thirteen, Natalie was diagnosed with polysubstance abuse. Natalie had her first child at the age of fifteen while still in state custody.
Beginning in 2000 and continuing until the children were removed from the home on September 18, 2002, several reports of harm were filed with the Office of Children's Services (OCS) alleging that on more than one occasion several adults were present in Natalie's home smoking marijuana, the home was in "marginal" condition, and there was no food in the house. Methamphetamine use was also a concern. Social workers also reported that Adrienne was left in wet diapers. Bethany was not regular in her school attendance and had visible bruising. Bethany mentioned that her mother's current boyfriend was "pushing Natalie around," and Natalie admitted that there had been domestic violence with another boyfriend. Natalie signed two care and safety plans during this time.
In May 2002 OCS conducted an unannounced home visit. The house was described as "in a state of disarray." Natalie appeared to be unaware that Adrienne was covered with feces and had lesions on her legs and bottom. In July Natalie gave birth to twins, Camille and Genevieve, who tested positive for THC at birth. The nursery staff at the hospital was concerned that neither Natalie nor the father, S.D., was spending much time with the twins. Another home visit conducted after the birth found Adrienne with several adults in the home, which smelled of marijuana. A urinalysis test was ordered for Natalie, S.D. (the father of the twins), J.B. (the putative father of Adrienne), and C.B. (a friend); all four tests came back positive. A new care and safety plan was developed at this time, in which the parents agreed to ensure that the children were always in the care of a sober caretaker and properly cared for.
On September 17, 2002, paramedics and police were dispatched to Natalie's home. Natalie had come home to find Genevieve dead in her crib. Camille was hospitalized with a skull fracture. Bethany and Adrienne were also present in the home. Natalie told OCS staff that Adrienne, who was two years old, had killed Genevieve and injured Camille. OCS removed the children and sought temporary legal custody on September 18, 2002. A police investigation cleared Natalie of any involvement and charged the twins' father, S.D., with the murder of Genevieve and assault of Camille. Camille had healing leg fractures that indicated previous child abuse.
After the children were removed from the home, Natalie was allowed supervised visitation with the children at OCS. A case plan was developed for Natalie under which she was required to participate in a substance abuse assessment and follow any resulting recommendations; participate in a mental health evaluation and follow any resulting recommendations; take parenting classes; and take frequent urinalysis tests.
Natalie never completed a parenting course, although she attended two out of eight classes. She did participate in random urinalysis tests. In 2002 and 2003 her tests were mostly positive. Her last positive test in 2004 was on September 20, 2004, but she did not show up for tests scheduled on September 29, October 5, or October 13, 2004.
Natalie's substance abuse assessment resulted in a dual diagnosis, indicating that she needed both substance abuse and mental health treatment. Although Natalie first denied that her marijuana use was interfering with her ability to parent, when she was told in 2003 that she would never be reunified with her children until she was treated for substance abuse and had clean urinalysis tests, she did begin to attempt to participate in substance abuse programs.
But Natalie was unable to complete any of the programs that she attempted. She received at least five different substance abuse assessments from different programs in Anchorage. In four of these assessments, she stated that she had not used marijuana in several weeks, but her urinalysis tests suggested differently. A 2004 assessment at Clitheroe Center concluded that Natalie was "in imminent danger of relapse . . . and need[ed] 24-hour structure to help her apply recovery and coping skills." Clitheroe recommended a twenty-eight-day treatment program, but Natalie managed to complete only twelve days before she stated that she did not need treatment and wanted to leave. Natalie testified that she had been participating in Narcotics Anonymous meetings since October 2004.
As part of the case plan, Natalie was also required to participate in a mental health assessment. Natalie's previous psychological evaluations had suggested that although above average in intelligence, Natalie is manipulative and undependable, and tends to exploit others. Her personality features were identified as histrionic and narcissistic. According to Dr. Susan LaGrande, a psychologist, persons with these personality traits are "more prone to use the parent-child relationship for their own gratification and meeting of their emotional needs more than to focus on their child's needs." Further traits include a tendency to find rules and regulations tedious and compliance with treatment programs difficult. Dr. LaGrande's assessment concludes that Natalie tends to portray herself in an unrealistically favorable light and to use fantasy to avoid the harshness of her life.
During the mental health assessment, Natalie was observed interacting with her children. She was reported as being unable to grasp the reality of her children's needs, particularly their various developmental needs, and represented the children and their relationship with her in a light far more positive than that which was actually observed. Dr. LaGrande's report concludes that Natalie has both mental health and substance abuse issues that will be very difficult to solve and that impair her judgment and capacity to parent her children adequately, particularly because two of the three children have challenging physical and developmental problems and the third has not bonded with her.
In December 2004 Natalie applied for a job with Alaska Cab and had a urinalysis test done as part of the interview process; she tested negative for drugs. In January 2005 she took a job with Anchorage Daily News and had a urinalysis test; again, the result was negative. Her urinalysis test taken on January 31, 2005 was also negative. She rented an apartment in November 2004 and her landlord reported no problems with paying rent and no odor of marijuana. At the time the termination trial began in late January 2005, Natalie stated that she had been sober for four months and five days.
OCS filed a petition to terminate the parental rights of Natalie and N.M. (father of Bethany) and S.D. (father of Camille) on August 5, 2004. The termination trial on Natalie's and S.D.'s parental rights was held from January 31 to February 2, 2005.
The superior court terminated Natalie's parental rights, finding that the children were children in need of aid as defined under AS 47.10.011; that Natalie had not remedied the conduct that placed the children in need of aid or, alternatively, that she had failed to remedy the conduct within a reasonable time; that termination of parental rights was in the children's best interests; and that OCS had made reasonable efforts to reunify the family.
S.D.'s rights as to Camille were also terminated pursuant to AS 47.10.011 (where a parent is incarcerated and has failed to make adequate arrangements for the child). S.D. has not appealed the termination of his parental rights.
III. STANDARD OF REVIEW
In a child in need of aid case, we will sustain the superior court's factual findings unless they are clearly erroneous. Findings of fact are clearly erroneous if a review of the entire record in the light most favorable to the party prevailing below leaves us "with a definite and firm conviction that a mistake has been made." Thus, we will ordinarily not overturn a superior court's findings based on conflicting evidence.
A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000).
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 53 (Alaska 2003).
Martin N., 79 P.3d at 53.
The question whether the superior court's findings satisfy the relevant statutory requirements is a question of law that we review de novo. In interpreting child in need of aid statutes, we apply our independent judgment, adopting the rule of law that is most persuasive in light of precedent, reason, and policy.
S.S.M. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 3 P.3d 342, 344 (Alaska 2000).
OCS has the statutory burden of proving by clear and convincing evidence that the children are children in need of aid pursuant to AS 47.10.011 and that a return to Natalie's care would place the children at substantial risk of physical or mental injury. OCS must show by a preponderance of the evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts. Termination of parental rights must be in the best interests of the child.
"Clear and convincing evidence has been characterized as evidence that is greater than a preponderance, but less than proof beyond a reasonable doubt." Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994).
CINA Rule 18(c)(2)(C); AS 47.10.088(b).
Also by clear and convincing evidence, OCS must show that the parent has not, within a reasonable time, remedied the conduct or conditions that place the children at substantial risk of harm. "Reasonable time" is statutorily defined as "a period of time that serves the best interests of the child, taking [into] account the affected child's age, emotional and developmental needs, and ability to form and maintain lasting attachments."
Natalie does not challenge the superior court's findings that the children suffered physical abuse, emotional harm, and neglect as a result of her addiction. Natalie challenges only the finding that she has not remedied the conduct that placed the children at substantial risk of harm or, in the alternative, has failed to remedy that conduct within a reasonable time. In particular, she disagrees with the superior court's finding that she had both a substance abuse problem and a personality disorder. Natalie argues first that her mental problems were not as severe as the State suggests and, therefore, that the focus of her recovery was to be on her substance abuse problem only; and second that she has in fact been successful in addressing the substance abuse problem.
A. The Superior Court Did Not Err in Finding that Natalie Had Mental Health Problems that Interfered with Her Ability To Parent.
In its order of March 6, 2005, the superior court found that in addition to her substance abuse problems, Natalie had a personality disorder that "remains untreated to this day." As a result, the superior court found that Natalie had cognitive problems and lacked the emotional capacity to be a mother. Natalie was also found to have "an unrealistic fantasy of parenting her three children as a single parent, especially given the children's special needs and the fact that not [one] of them [has] developed a bond to her." These findings are derived in large part from the psychological report and testimony of Dr. Susan LaGrande, a clinical psychologist.
Natalie responds that the mental health issues Dr. LaGrande identified were caused not by personality disorders but rather by Natalie's grief over her daughter Genevieve's murder. Natalie argues that her case therefore differs from Carl N. v. State, Department of Health Social Services, Division of Family Youth Services, in which we upheld a failure-to-remedy finding where the father had begun to address only one of the two issues that placed his child in need of aid. Natalie argues that she in fact has only one issue — substance abuse — that places her children at risk of harm.
102 P.3d 932, 936 (Alaska 2004).
Dr. LaGrande recommended that Natalie undertake a dual diagnosis treatment that would help her first remedy her substance abuse and then, after a year of sobriety, address her mental health issues. Dr. LaGrande further noted that only when both issues were addressed should OCS begin any discussion about reunification with the children. Although Natalie had shown four months of progress on her substance abuse problem by the time of trial, Dr. LaGrande concluded that it was not enough time to begin remedying the substance abuse problem.
Dr. LaGrande was also concerned about the impact of Natalie's personality disorders on her ability to parent. According to Dr. LaGrande, Natalie is prevented by her personality disorders from perceiving the needs of and risks to her children. Her disorders cause Natalie to focus on herself, rather than on her children. Evidence of Natalie's difficulties of perception in the record includes her telling the police that Adrienne, a two-year-old, had killed her sister. In Dr. LaGrande's opinion, Natalie's conversation with the media at the time of the termination trial also demonstrated Natalie's tendency to focus on her own needs rather than the well-being of her children. There is evidence in the record that Natalie's eldest child, Bethany, was disturbed by seeing a picture of herself on the evening news and feared reaction by her classmates the next day at school.
Natalie attempts to discredit Dr. LaGrande's dual diagnosis by stating that neither of her substance abuse assessments at Clitheroe Center included a recommendation for dual diagnosis treatment. But Dr. LaGrande's diagnosis of personality disorder is corroborated by other previous mental health assessments performed during Natalie's teen years. The Ernie Turner substance abuse center recommended a dual diagnosis program. And while the three other substance abuse programs from which Natalie received assessments did not recommend mental health treatment, each did recommend long-term programs in excess of six months, with two recommending a residential treatment component.
Furthermore, the most recent assessment of Natalie, undertaken by the Clitheroe Center in October 2004 when she was discharged early from the program against treatment advice, indicates that Natalie continues to exhibit histrionic behavior and to blame others for her behavior. While at Clitheroe, Natalie had to be placed on a behavioral agreement and exhibited signs of uncontrollable anger during the program.
The record contains ample evidence that Natalie has a mental health disorder. Dr. LaGrande was qualified as an expert in clinical psychology and the superior court found her to be a credible witness on the issue of Natalie's personality disorder. It is the role of the superior court to judge the credibility of a witness and to weigh conflicting evidence. Ordinarily, we will not overturn a superior court's findings based on conflicting evidence. A review of the record shows that the trial judge could find by clear and convincing evidence that Natalie had both substance abuse and mental health problems and that both had to be remedied before reunification was possible.
In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001).
Martin N., 79 P.3d at 53.
B. The Superior Court Did Not Err in Finding that Natalie Had Not Remedied Her Substance Abuse Problems Within a Reasonable Time.
Natalie also argues that she remedied her substance abuse problem within a reasonable time. Natalie maintains that although she was originally in denial concerning her substance abuse issues, she finally did admit that she had a problem and needed treatment. She argues that her urinalysis tests had been negative for three months prior to the termination trial, she had a stable job and an apartment, and she was attending Narcotics Anonymous meetings. She points out that she has changed her lifestyle by no longer associating with the friends she had while abusing marijuana. Finally, although her grief counseling program had stopped due to funding issues, her health benefits from her new job were just starting and she would be able to use them to pay for ongoing counseling.
But Dr. LaGrande expressed concern that three months of clean urinalysis tests is insufficient and that "significant intervention" of at least one year in duration is required before her dependency on substance abuse can be changed. Risk of a relapse is high, particularly given Natalie's past history of failing to stick to her case plan.
Evidence was also presented to show that Natalie continues to minimize her addiction and to manipulate treatment programs. Even during her last treatment in October 2004 at the Clitheroe Center, there were concerns that she was not focused on the program but was merely going through the motions. She left that program after completing only twelve days of the twenty-eight-day residential component, and none of the outpatient treatment. When she left, Natalie insisted that she did not need treatment because she had not used marijuana since May 2004; yet her own testimony states that the last time she used marijuana was September 29, 2004. The Clitheroe assessment performed in October 2004 still diagnosed her as cannabis dependent.
Between October 10, 2004 and January 31, 2005, Natalie arranged for a substance abuse assessment through Addiction Assessments. Based on information provided by Natalie, the assessor initially recommended that participation in Narcotics Anonymous would be sufficient for Natalie to maintain sobriety. After reviewing collateral information, however, the assessor changed the recommendation to a formal treatment program. The State argues that this change in assessment indicates that Natalie continues to minimize the severity of her drug addiction and its impact on her life.
At trial, Natalie conceded that she would need "probably at least six months to be able to prove myself to be an effective parent." She suggested that any mental health issues could be addressed in Step 6 of the Narcotics Anonymous program; she was working on Step 1 at the time of trial. In Sherry R. v. State, Department of Health Social Services, Division of Family Youth Services, we upheld a finding that the mother had failed to remedy the conduct that put her children at risk when she had maintained sobriety for an entire year but nevertheless had a history of relapse after treatment. We noted that the superior court had properly considered the mother's history as "a predictor of future behavior" and had properly determined that her sobriety was "a relatively new phenomenon in her life."
74 P.3d 896 (Alaska 2003).
Id. at 902-03.
Natalie attempts to distinguish Sherry R. by emphasizing that while the mother in that case had been sober longer than Natalie, she still refused to admit the magnitude of her substance abuse problem. Natalie argues that she is much further along in her recovery because she has admitted that she has a problem with substance abuse and that the problem affected her parenting abilities. Furthermore, the mother in Sherry R. persisted in making bad choices including being involved in an abusive relationship, while Natalie was not involved in a bad relationship, was living alone, and participating in Narcotics Anonymous meetings. Yet, like the mother in Sherry R., Natalie does have a lengthy history of substance abuse, repeated recommendations for formal substance abuse treatment, and two failed attempts at formal treatment. Furthermore, Natalie had only been sober for four months at the time of trial. Finally, although Natalie disputes the findings, there is evidence that she also does not recognize her children's needs and continued to make unhealthy life choices just months before the termination trial.
Id. at 900.
Id. at 903.
Our decision in S.H. v. State, Department of Health Social Services, Division of Family Youth Services, also provides support for the superior court's decision. In S.H., we upheld a failure-to-remedy finding when the mother admitted to using cocaine only four months before the termination trial; a recent assessment reported that she remained ambivalent about the need for treatment and that her risk of relapse was high; and she had only entered treatment the week before trial commenced. Here, the facts are similar: Natalie used marijuana as recently as September 29, 2004; her discharge notes on October 10, 2004 indicated that she remained cannabis dependent; and although she was participating in Narcotics Anonymous, her treatment assessment recommended either intensive outpatient or inpatient treatment.
42 P.3d 1119 (Alaska 2002).
Id. at 1127.
Finally, when discussing whether a parent has remedied the conduct that puts his or her children at risk within a reasonable time, the phrase "reasonable time" refers to that "period of time that serves the best interest of the child" and requires us to take into account the children's age, emotional and developmental needs. In this case, there was ample evidence that all three children have significant emotional and developmental needs and that the level of care required by the children is beyond Natalie's capabilities as a parent. Ample evidence was presented regarding the lack of parent-child bonds between Natalie and the children and the formation of such bonds between the children and their foster parents. This evidence was sufficient for the superior court to find that Natalie's good faith efforts at addressing her substance abuse occurred too late to serve the best interests of her children.
The superior court therefore did not err in finding by clear and convincing evidence that Natalie was a "drug-addicted person who is only in the beginning, fledgling steps of recovery" and therefore had not remedied her substance abuse problems within a reasonable period of time.
Because the superior court did not err in concluding that Natalie had failed to remedy the conduct or conditions that placed the children at substantial risk of harm within a reasonable time, we AFFIRM the superior court's decision to terminate Natalie's parental rights.