MARTY v. STATE, S-11909 (Alaska 5-31-2006)

MARTY A., Appellant v. STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIALSERVICES, OFFICE OF CHILDREN’S SERVICES, Appellee.

Supreme Court No. S-11909.Supreme Court of Alaska.
May 31, 2006.

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Leonard R. Devaney, Judge, Superior Court No. 4BE-02-18 CP.

Kathleen Murphy, Assistant Public Defender, and Quinlan Steiner, 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[fn*]I. INTRODUCTION

A father with a long history of alcohol abuse argues that the superior court that terminated his parental rights erred in finding that he had not remedied the conduct that placed his daughter at risk. He contends that various circumstances, including a long period of sobriety before 1995 and seven months of sobriety immediately before the termination hearing, demonstrated that he had remedied his problematic conduct. Because the father’s record of relapses after treatment for alcoholism was sufficient to support the superior court’s ruling that he had not remedied his alcohol abuse, we affirm.

II. FACTS AND PROCEEDINGS

Marty A. appeals the superior court’s termination of his parental rights to his twelve-year-old daughter, Alicia.[fn1]
The court also terminated the parental rights of Alicia’s mother, but she is not a party to this appeal. Alicia is an Alaska Native child, but that fact is not relevant to this appeal.[fn2]

Marty and his wife have been in and out of alcohol abuse treatment programs since 1998. Marty completed the Old Minto program in 1998 and the Ralph Purdue program in 2003; on both occasions he relapsed after a few months. Marty’s drinking led to repeated incidents of domestic violence and assault.

The Alaska Office of Children’s Services first took custody of Alicia’s brother (who has since turned eighteen) and Alicia in May 2002. Alicia was reunited with her parents after Marty completed the Ralph Purdue program. But following another incident of parental inebriation Alicia was again removed from their custody in August 2003. Marty and his wife continued to drink heavily after Alicia’s removal. In May 2004, while he was drunk, Marty struck his wife and threatened her with a rifle. Marty discharged the rifle as his wife ran away, but it is not clear if he was actually shooting at her. Marty was charged with felony assault. The court ordered him to participate in a substance abuse assessment, and he was incarcerated awaiting trial. He eventually completed a substance abuse program at Phillips Ayagnirvik Treatment Center, and participated in anger management and aftercare. He remained in custody during the superior court CINA proceedings.

In July 2004 the state filed a petition to terminate the parental rights of both parents. Following trial the superior court found that Marty’s “ability to parent is substantially impaired and the addictive or habitual use of alcohol has resulted in a substantial risk of harm to [Alicia].” The court also determined that “[t]he State has proven by clear and convincing evidence . . . [the parents’] failure to remedy their behavior.”

Marty appeals, arguing “[t]he trial court erred when it concluded that [he] had not remedied his conduct within a reasonable time.”

III. DISCUSSION
A. Standard of Review

In an appeal from a CINA proceeding terminating parental rights, determining “[w]hether the superior court’s factual findings satisfy applicable CINA rules is a question of law subject to de novo review.”[fn3] When we review a determination that parents have not remedied conduct or a condition placing their child at risk we decide whether sufficient evidence supports that determination.[fn4] Because it presents an issue of law, we consider de novo a contention that the factual findings are not sufficient to support the superior court’s conclusion that a parent has not remedied his or her conduct within a reasonable time.[fn5]

B. Evidence that Marty Completed a Treatment Program and Remained Sober for Seven Months While He Was in Jail Did Not Compel a Finding that He Remedied the Conduct that Placed His Daughter at Risk.

Before terminating parental rights the trial court must find: (1) by clear and convincing evidence that the child is in need of aid as defined in AS 47.10.011; (2) by clear and convincing evidence that the parent (a) has not remedied the conduct that places the child at risk, or (b) has failed within a reasonable time to remedy conduct, so that returning the child to the parent would place the child at substantial risk of injury; (3) that the department has tried to prevent the breakup of the family; and (4) that termination of parental rights is in the child’s best interests.[fn6]

The superior court found by clear and convincing evidence that Alicia was a child in need of aid and that “the [parents] have failed to remedy the harmful conduct within a reasonable time.”[fn7] The court also found it likely “beyond a reasonable doubt that placement of [Alicia] with her parents would result in serious emotional damage.”[fn8] The superior court applied a higher standard of proof than the “clear and convincing” standard required by AS47.10.088(a)(1)(B)(ii).[fn9] The court also found that the state had tried to prevent breakup of the family and that termination of parental rights was in Alicia’s best interest.

On appeal Marty only challenges the finding that he failed to remedy his conduct within a reasonable time. He argues that the facts require a finding that he had remedied the conduct that had placed his daughter at risk of harm.

In support of its finding that Marty had failed to remedy his conduct within a reasonable time, the superior court explained that Marty and his wife had previously attempted to end their alcohol abuse but had been “inconsistent in their participation in aftercare and sober support groups” and that they had “numerous relapses.” The court also found that there was “credible evidence” Marty’s wife was drinking a week before the termination trial.[fn10] The court found that there was a “pattern of one spouse’s relapse leading to the other’s.” The court noted that there was “almost nothing . . . except their testimony” on which to base a conclusion that Marty and his wife would remain sober. The court noted that the efforts of the parents, even after Alicia had been removed, “do not match the importance of their goal.” The most serious domestic violence incident, in which Marty threatened to shoot his wife, occurred in May 2004, after Alicia had been removed from the home. The court concluded from these facts that Marty had failed to remedy his conduct within a reasonable time. In arguing that the superior court erred, Marty relies on four circumstances. First, he had completed an alcohol abuse treatment program, and had remained sober while in jail. Second, he had been sober between 1983 and 1995, demonstrating his ability to remain sober for long periods of time. Third, he intends to relocate to Bethel where there is better support for recovering alcoholics. Fourth, there was expert testimony that Marty stood a “fairly good” chance of permanent recovery.

The superior court discounted the circumstances Marty cites as evidence that he had remedied his conduct. The court noted that Marty’s forced sobriety for about seven months while he was in jail provides “very limited evidence” to contradict his long pattern of dangerous behavior when left to his own devices. Similarly, it found that Marty’s completion of alcohol treatment programs in the past had been followed by relapses. With respect to Marty’s expressed plan to move to Bethel to find better support the court noted that Marty “seemed ambivalent” about actually leaving Sleetmute. Finally, the court suggested the expert testimony that Marty stood a “fairly good” chance of staying sober was far too uncertain to overcome the danger of drunkenness and violence. The superior court did not discuss Marty’s previous sobriety in the 1980s and early 1990s, but it presumably regarded that history as too old to be relevant now. That evidence was certainly not so current or compelling that it could establish that the superior court erred in finding that Marty had not remedied the conduct that now poses a risk to Alicia.

In short, the superior court concluded that the pattern of relapse and ensuing violent behavior outweighed the positive but inconclusive steps Marty may have taken toward recovery.

It is undisputed that Marty and his wife have had numerous relapses after attempts to stop drinking, and that repeated instances of domestic violence have resulted from their drinking. Based on this fact and the other evidence in the record and that cited by the superior court, we conclude that the court did not err in finding that Marty had not remedied his behavior within a reasonable time. In a CINA case the burden of proof is on the state to show by clear and convincing evidence that a parent has not remedied his conduct.[fn11] Even so, Marty’s pattern of failed attempts to overcome his alcohol abuse is evidence that he was at high risk for relapse.

The superior court’s reliance on Marty’s behavior in the months before his incarceration was reasonable. His behavior was clear and convincing evidence that he had an ongoing alcohol abuse problem that would place his daughter at risk if she were in his custody.

The superior court’s decision was in accord with precedent. InSherry R. v. State we upheld a finding of failure to remedy substance abuse when the parent had been sober for a year:

Unfortunately, even though Sherry may have made strides towards remedying her conduct, the trial court could properly find that Sherry failed to address her substance abuse problem within a reasonable time. The superior court is entitled to rely on a parent’s documented history of conduct as a predictor of future behavior. It seems that Judge Lohff relied upon Sherry’s long history of substance abuse in making his determination. He commended her for her success, but noted that her sobriety is still very new.[fn12]

Marty’s conduct is arguably better than Sherry’s. Marty asserts that, unlike Sherry, who had not accepted that she had a problem, he truly recognized the risk alcohol poses and the need for sober support. Even so, Marty’s mere assertion of his desire to reform does not render Sherry R. inapplicable. As we held there, a court may rely upon a long history of substance abuse to determine that a parent has not remedied his or her conduct.[fn13] That was what the superior court did here.

IV. CONCLUSION Given Marty’s long history of alcohol abuse and his repeated relapses following treatment, there was ample evidence justifying the finding he had not remedied the conduct that put his daughter at risk. The decision of the superior court terminating Marty’s parental rights is AFFIRMED.

[fn*] Entered pursuant to Appellate Rule 214.

[fn1] We use pseudonyms for all individuals in this case.

[fn2] The Indian Child Welfare Act of 1978 (ICWA),25 U.S.C. § 1901 et seq., mandates certain procedures when a state terminates a parent’s rights to an “Indian child.” Marty does not contend that the single issue he raises on appeal implicates any of ICWA’s heightened requirements.

[fn3] Erica A. v. State, Dep’t of Health Soc. Servs., Div. ofFamily Youth Servs., 66 P.3d 1, 6 (Alaska 2003) (citing M.W.v. State, Dep’t of Health Social Servs., 20 P.3d 1141, 1143
(Alaska 2001)).

[fn4] Wendell C. II v. State, Office of Children’s Servs.,118 P.3d 1, 4 (Alaska 2005) (holding, after reviewing superior court’s fact findings, that “findings [were] sufficient to sustain the legal conclusion that the parents failed to remedy their conduct in a reasonable time”).

[fn5] See id. at 2.

[fn6] See CINA Rule 18(c)(1)(A); see also AS 47.10.088. AS47.10.088 provides in relevant part:

(a) Except as provided in AS 47.10.080(o), the rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds

(1) by clear and convincing evidence that

(A) the child has been subjected to conduct or conditions described in AS 47.10.011; and

(B) the parent

(i) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or

(ii) has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury

. . . .

The Indian Child Welfare Act imposes additional requirements.See 25 U.S.C. §§ 1911-1913. Marty does not argue that the termination did not satisfy ICWA.

[fn7] See AS 47.10.088(a)(1)(B)(ii).

[fn8] AS 47.10.088(a)(1)(B)(ii) requires finding “substantial risk of physical or mental injury,” but we have treated “emotional harm” as equivalent to “mental injury.” See, e.g.,Carl N. v. State, Dep’t of Health Soc. Servs., Div. of Family Youth Servs., 102 P.3d 932, 937 (Alaska 2004).

[fn9] See Elton H. v. Naomi R., 119 P.3d 969, 974 n. 13 (Alaska 2005) (noting the clear and convincing standard “is the customary articulation for the heightened standard of proof between preponderance of the evidence and proof beyond a reasonable doubt”).

[fn10] AS 47.10.088(a)(1)(B) permits termination of parental rights when “conditions in the home” placing the child at risk have not been remedied. Even if Marty had remedied his conduct, his wife’s continued alcohol abuse would likely mean that conditions in the home have not been remedied. But because we hold that Marty has not remedied his own conduct we need not address whether the wife’s conduct alone would preclude returning Alicia to Marty while he remains married.

[fn11] CINA Rule 18(c)(1)(A); AS 47.10.088(a)(1).

[fn12] Sherry R. v. State, Dep’t of Health Soc. Servs.,Div. of Family Youth Servs., 74 P.3d 896, 902-03 (Alaska 2003).

[fn13] Id.