MIRANDA v. STATE, S-14118 (Alaska 8-17-2011)
Supreme Court No. S-14118Supreme Court of Alaska.
August 17, 2011.
NOTICE
Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).
Appeal from the Superior Court of the State of Alaska, First Judicial District, Sitka, David V. George, Judge, Superior Court No. 1SI-07-00008 CP.
Appearances: Caitlin Shortell, Shortell Gardner, LLC, Anchorage, for Appellant. Megan R. Webb, Assistant Attorney General, Anchorage, and John J. Burns, Attorney General, Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
MEMORANDUM OPINION AND JUDGMENT[fn*]I. INTRODUCTION
Miranda R. appeals the termination of her parental rights to her son, Truman.[fn1] Truman is an Indian child as defined in the Indian Child Welfare Act (ICWA).Page 2
Miranda appeals the termination order on four grounds, arguing that it was clear error for the superior court to find that (1) Truman was a child in need of aid; (2) Miranda had not remedied the conduct or conditions that placed Truman at substantial risk of harm; (3) Truman was likely to suffer serious physical or emotional damage if he was returned to Miranda’s care; and (4) terminating Miranda’s parental rights was in Truman’s best interests. We affirm the superior court’s termination order.
II. FACTS AND PROCEEDINGS A. Facts And Proceedings Prior To Truman’s Removal By OCS
Nineteen-year-old Miranda R. gave birth to her son Truman on December 3, 2006. Miranda had moved to Sitka at the time of Truman’s birth to be near her family and to escape her violent relationship with Truman’s father, who had assaulted Miranda and reportedly tried to kill her while she was pregnant with Truman.[fn2] Truman is enrolled with the Sitka tribe and is therefore an Indian child under the Indian Child Welfare Act (ICWA).[fn3]
After leaving the hospital, Miranda and Truman moved into the Sitkans Against Family Violence shelter and lived there from December 11, 2006 until mid-April 2007. The staff at the shelter referred Miranda to Sitka Tribes of Alaska for case management services. A plan was implemented to obtain services for Miranda and Truman through a number of providers, including Sitka Tribes, Sitkans Against Family Violence, the Office of Children’s Services (OCS), the Center for Community, the Early Learning Program, and the SouthEast Alaska Regional Health Consortium (SEARHC). These service providers were initially concerned about Miranda’s “lack of basic life skills, parenting abilities, housing, finances, and educational support.”Page 3
On February 1, 2007, SEARHC referred Miranda and Truman to Gail Trujillo, a specialist from the Early Learning Program. Trujillo had an initial meeting with Miranda the next day and conducted a basic developmental screening with Truman on March 16, 2007. Miranda expressed that she had difficulty soothing Truman and that she was unsure of what to feed him. Staff members at the shelter told Trujillo they were concerned that Miranda did not bathe Truman enough and that she left him with a propped-up bottle to feed himself.
On April 13, 2007, OCS received reports from staff at the shelter and Sitka Tribes of Alaska that Miranda “was not meeting [Truman’s] needs.” Specifically, the staff reported that Miranda “was leaving [Truman] in soiled diapers for extended periods of time resulting in leakage that saturated him up to his armpits”; that “[Truman] was found to be infrequently bathed and covered in dried excrement”; and that although Miranda “was repeatedly advised about infant nutrition and age appropriate diet,” she did not “feed [Truman] age appropriate food, which caused [Truman] to gag and choke.”
On April 20, Miranda was evaluated by Lori Hart, a mental health clinician at SEARHC. Miranda told Hart that Truman’s father had been abusive throughout their relationship and that he had attempted to choke her while she was pregnant with Truman. She also reported “a history of sexual and physical abuse that began in childhood and continued through her adolescence,” difficulty sleeping, frequent nightmares, considerable anxiety, and feelings of detachment.[fn4]
Hart concluded that Miranda “meets the diagnostic criteria for chronic [post-traumatic stress disorder]” and suggested that Miranda could benefit from medication for her anxiety and nightmares, but Miranda was not willing to consider the use of medication. Hart also observed that “intellectually,Page 4
[Miranda] appears to function at a below-average level” and that her “insight and judgment are extremely limited.”
On April 24, 2007, OCS “opened [Miranda’s] case for in-home based services.” Miranda met with OCS on April 26 and 27 to develop an in-home case plan. The case plan identified three concerns: that Miranda “has little to no knowledge of [Truman’s] parenting needs, child development issues and safety needs”; that Miranda and Truman “are homeless and have little to no social family supports in the local area”; and that Miranda has “multiple mental health diagnos[e]s.” The case plan provided that Miranda would only leave Truman with OCS-approved caregivers; that OCS would conduct home visits and provide daycare; that OCS and Miranda would work together to secure housing for Miranda and Truman; that Truman would participate in the Early Learning Program; and that Miranda would participate in mental health treatment.
Around this time, Miranda was asked to leave the Sitkans Against Family Violence shelter. The staff at the shelter advised OCS that Miranda was “continuing to allow others to provide primary care” for Truman, that Miranda was not following the recommendations for Truman made by doctors or the Early Learning Program specialist “without constant prompting[],” and that Miranda was “not addressing [Truman’s] hygiene needs.”[fn5] OCS helped make arrangements for Miranda and Truman to stay at a hotel. They stayed at the hotel from April 27 to May 4, 2007, when Miranda was asked to leave because she dispersed pepper spray in her room, which resulted in Truman “being brought to the Emergency Room for exposure to the spray.”Page 5
Miranda and Truman then stayed with Gail Trujillo, the Early Learning Program specialist, from May 4 until May 21, 2007. According to Trujillo, she took Miranda in “to see if I could find other housing for her rather than leaving her on the street.” On May 21 Miranda and Truman moved in with a tribal elder “whose purpose was to provide respite and assistance to [Miranda] and [Truman].” Miranda was asked to leave that household on June 4, 2007, for not following household rules, including leaving Truman in the elder’s care for extended periods of time without providing contact information or her return time.
Sitka Counseling and Prevention Services then helped arrange housing for Miranda and Truman at “a specialized housing development for individuals with diagnosed mental health needs.” On June 6, 2007, Miranda reportedly left Truman in the care of two other children who were only two and four years old. In a separate incident, Miranda left the stove unattended, resulting in smoke and fire that caused the fire department to respond; the fire was extinguished and Truman was unharmed.
B. Facts And Proceedings After Truman’s Removal By OCS
On June 7, 2007, OCS filed a petition to adjudicate Truman as a child in need of aid and requested that the department be awarded temporary custody of Truman. The superior court held an adjudication hearing on June 15, 2007. Miranda did not contest the request for temporary custody by the State, and the superior court found that Truman was a child in need of aid. Around this time, Miranda began a relationship with Gus S., who attended the adjudication hearing.
Truman was placed in a licensed Native foster home and has remained there since his removal. According to Truman’s foster mother, when Truman first came into her care “he had very bad body odor. He was very dirty. He was very upset and very hungry and tired.” Supervised visitation with Miranda was arranged for one hour, three days per week, but her attendance at the visits was inconsistent.Page 6
In July 2007 Miranda began meeting with William Sallenbach, Ph.D., at SEARHC for a mental health evaluation; however, Dr. Sallenbach did not complete his evaluation of Miranda until December because she missed many appointments. In October 2007 Miranda’s boyfriend Gus tried to strangle her and was sent to jail for six months. After Gus went to jail, Miranda began living with Gus’s father, whom she called “dad.” Miranda testified that this relationship was not romantic. Gus’s father has a history of domestic violence and is a registered sex offender.
In December 2007 Dr. Sallenbach completed his evaluation of Miranda. Dr. Sallenbach wrote that Miranda reported symptoms of various disorders including post-traumatic stress disorder (PTSD), multiple identity disorder, and depression, but noted that Miranda’s descriptions of events in her past were often uncorroborated or in conflict with other reports and that her “description around [multiple identity disorder] does not concur with the DSM IV specifications.” He diagnosed Miranda with depressive disorder and a personality disorder, not otherwise specified, and suggested that Miranda would need further evaluation to rule out PTSD, dissociation disorder, and borderline cognitive functioning. He noted that Miranda’s current Global Assessment of Functioning (GAF) score was 39 and her highest in the past year had been 45.[fn6]Page 7
Dr. Sallenbach also expressed concern that whether Miranda “is capable of being a parent for [Truman] . . . at this point . . . is questionable — at optimal conditions.” He concluded by referring Miranda for a psychiatric evaluation.
Miranda underwent a psychiatric evaluation with Aryeh Levenson, M.D., on December 14, 2007. Dr. Levenson noted that “a full diagnostic evaluation is not possible” because it is “difficult for providers to get a good handle [on] to what degree [Miranda’s] historical reports are accurate, confabulated, and to what degree they have elements of truth.” But Dr. Levenson observed that “[w]hat is clear, however, is that [Miranda] has historically had a tenuous hold on reality testing, has a very significant paranoid stance — has virtually no insight into the consequences of her own behaviors, or [judgment] in how to appropriately interact.” Dr. Levenson also concluded:
The patient’s prognosis is fairly dismal. She has multiple longstanding limitations. There has been no history of significant functionality. I see that she will need to have either lifelong wrap around services, a semistructured living situation, or be at high risk for becoming homeless and being at prey in the community. She has not demonstrated evidence to suggest that she will ever be able to appropriately nurture her children. That being said, she is still fairly young and one would hope that ongoing, very methodical education and treatment over the years, along with further development may . . . help her develop skills. This is unlikely to happen in the short term.Page 8
She has never displayed behaviors that indicate she would be able to hold long term employment. She has never had a consistent situation in which she has adequately performed independently. She has never had long term stable relationships, or . . . demonstrated responsibility or [the ability] to learn from mistakes. This indicates that successful employment options will likely be nonexistent.
In late January and early February 2008 Miranda met with Charles Morgan, Ph.D., at Sitka Medical Center to undergo a psychological assessment at the request of the Department of Vocational Rehabilitation. Like previous providers, Dr. Morgan noted that Miranda “gave a very confusing history, with contradictory information,” “presented a conundrum to mental health providers,” has a history of “psychotic symptoms [that] wax and wane,” and “has a history of learning problems and borderline intellectual capacities.” Dr. Morgan administered a series of tests to Miranda and observed that Miranda’s “WAIS-III scores span the borderline to mildly mentally retarded ranges,” that “[h]er academic scores fell in the borderline range in reading, well below average range in writing and far below average in math,” and that “[o]n tests of executive functioning, [Miranda’s] scores fluctuated from low average to far below average.” Dr. Morgan diagnosed Miranda with chronic PTSD, mood disorder not otherwise specified, a learning disability in math, mild mental retardation, and personality disorder not otherwise specified. Dr. Morgan recommended that Miranda have further neurological testing because “the results of the assessment are consistent with an individual exposed to alcohol prenatally.” Dr. Morgan also noted that “[i]t is likely that [Miranda’s] disabilities are severe enough that she will not be able to be successful in the competitive job market so making a referral for social security disability seems warranted.”
Around late February 2008, Miranda left Sitka and moved to Klawock because she knew that her former boyfriend Gus would be released from jail soon.Page 9
Miranda did not notify OCS that she was moving. After she moved, Miranda stopped all contact with Truman and did not resume visitation until 13 months later, in March 2009.
On April 28, 2008, OCS filed a permanency plan report recommending that Truman’s permanent plan be changed to adoption. The report observed that Truman had “overcome initial developmental delays” but that “[m]issed appointments and infrequent visitation appear to be affecting [Truman’s] association with [his] birth mother.” It noted that Truman no longer responded to pictures of his mother. The guardian ad litem (GAL) also filed a disposition report supporting a permanent plan of adoption.
During the time that Miranda lived in Klawock, she had infrequent contact with OCS because she failed to update her contact information. Miranda’s housing continued to be unstable, and she lived for various periods with her mother, her cousins, her aunt, and her new boyfriend and his family.[fn7] But Miranda continued to participate in some services. Miranda began counseling in July 2008 at the Alicia Roberts Medical Clinic in Klawock and averaged about one session per month through December 2009, when her counselor retired. She also completed a parenting class and a CPR class. For several months, she worked at a grocery store and was able to accumulate at least $3,000 in a bank account — however, she did not use any of this money to visit Truman or to contribute to the child support that she owed for Truman’s care.
Miranda resumed contact with Truman in March 2009, participating in supervised visits about once a month that were paid for by OCS. Miranda’s visits continued until April 2010. On at least two occasions, Miranda missed her scheduled transportation to the visits and alternate arrangements had to be made at the last minute.Page 10
According to an OCS caseworker who provided supervision, Miranda was a very good playmate for Truman during her visits.
Also in March 2009, Truman’s father agreed to relinquish his parental rights, and his rights were officially terminated that May. In late June 2009, Miranda agreed to relinquish her parental rights as well, but she revoked the relinquishment before it became final.
In January 2010 Miranda underwent a psychological evaluation with Cindy Westergaard, Ph.D., at the request of OCS. Dr. Westergaard administered a variety of tests and determined that the most valid results came from the MMPI-2 test, which Dr. Westergaard called a “sensitive measure of emotional and personality dysfunction.” The MMPI-2 indicated that Miranda “has a long-standing pattern of poor impulse control and a lack of acceptance of societal standards” as well as a “long-standing personality problem” that is “likely to continue even after current stresses subside and [Miranda] feels more comfortable.” Dr. Westergaard diagnosed Miranda with major depressive disorder, personality disorder not otherwise specified, chronic PTSD (by report), and mild mental retardation (by report). She observed that Miranda “presents with chronic and severe psychiatric disturbance, with ongoing psychiatric concerns that raise into question her cognitive ability to appreciate her current situation, solve problems adequately, and adequately address judgment and safety concerns regarding her own self-care.” Dr. Westergaard concluded that “[w]hile we appreciate the client’s genuine love for her son and interest in reunification, we do not find her to possess the cognitive or emotional/personality skills necessary for safe, independent functioning — for herself or for raising a child.”
Around February 2010, Miranda began taking medication to address her PTSD, anxiety, and sleep problems. According to the physician’s assistant who treatedPage 11
Miranda, the medication helped Miranda to feel less anxious, be more compliant with her appointments, and to have clearer speech.
In April 2010 Truman was evaluated by Laura Jones, Ph.D. Miranda and Truman’s foster parents also participated in the evaluation. Dr. Jones described Truman as a “friendly, engaging little boy” who was “very verbal.” Dr. Jones observed that Truman and Miranda played well together during their visitation: “Throughout this time, [Truman] talked eagerly to [Miranda] and she was appropriately responsive to him. They both appeared to enjoy this interaction.” However, Dr. Jones determined that Truman “is clearly strongly bonded to his foster parents and relates to them as his psychological parents.” She also noted that Truman’s foster parents and teachers had reported some symptoms — including hyperactivity, impulsivity, and aggression — that could indicate a developing attention deficit hyperactivity disorder or oppositional defiant disorder, although Truman was not diagnosed with those disorders. Dr. Jones concluded:
[Truman] would be at risk for emotional harm if he were returned to his birth mother’s care. [Miranda] does not have the skills needed to care for a young child. The information reviewed during this evaluation indicated that [Miranda] has not been able to make any real progress in developing the necessary parenting skills during the past three years and there is no information available that indicates that she is likely to develop these skills in the near future. . . . In addition, [Truman] has developed a very strong bond with his foster parents, who have been his primary caretakers and psychological parents for most of his life. Removing [Truman] from their home would result in the loss of these vital attachment relationships, which would place [Truman] at increased risk for attachment disorders in the future. Finally, [Truman] has begun to demonstrate some behavioral and developmental issues that may require additional interventions and more specialized parenting skills.Page 12
C. Termination Of Miranda’s Parental Rights
The termination trial began on May 24, 2010. Miranda testified that she was seeing a new counselor and still taking medication, which she described as helping her with anxiety, sleeping, eating, and nightmares. She said that she and her current boyfriend had recently bought a two-bedroom trailer that they planned to move into a Klawock trailer court. She spoke about what she had learned in the parenting class she completed, including that it was better to give young children options rather than argue with them. She also testified that while she did not currently have a job, she planned to get her driver’s license and look for a job in a bakery, and that she was babysitting frequently for a friend. When asked why she had changed her mind about relinquishing her parental rights, Miranda said that she loved Truman very much and that
I was afraid that like if I did sign over my rights then, you know, when he got older he would probably ask me, like, why didn’t I fight, why didn’t I push to get him back, you know, why didn’t I do more when I’ve been trying. And I didn’t — you know, I just felt too guilty to let something like that go, just to let him go.
The superior court also heard testimony from several lay witnesses, including Truman’s foster mother and Cari Jones, a program officer for the developmental disability program at the Community Connections office in Craig. Jones testified that she had helped Miranda apply for services through the developmental disability program. She had also supported Miranda in completing her parenting class and noted that Miranda had correctly related some of the principles taught in the class.
Truman’s foster mother testified that she and her partner were available as a permanent home for Truman. She explained that she was very involved in monitoring Truman’s changing needs, including talking to his daycare teachers every day about his progress. Specifically, she related that because Truman had recently been pushing andPage 13
touching other kids at daycare, she had taken him to a pediatric occupational therapist, who recommended that Truman be placed in a developmental learning program at a local preschool. Truman’s foster mother also explained that she was very involved with the Sitka tribe and that she had kept Truman involved in tribal activities such as drumming and dancing.
The superior court also heard from three expert witnesses: Dr. Laura Jones, an expert in clinical child psychology; Dr. Cindy Westergaard, an expert in clinical neuropsychology; and Natalie Powers, an expert in social work and domestic violence. There were no objections to the qualifications of these expert witnesses.
Dr. Jones’s testimony summarized the findings from her written report and focused on the importance of Truman’s bond to his foster parents. Dr. Jones explained that “it’s psychologically incredibly important that children in [Truman’s] age group . . . have [the] expectation that their primary caretakers are going to be there consistently, are going to love them, are going to care for them, are going to meet their needs.” She noted that “[v]ery young children need very frequent contact with a parent . . . to retain that bond” and that “[t]he disappearance of a parent for 13 months in that way really allowed the child to completely bond with another set of parents.” She noted that “it greatly reduces or completely eliminates the bond that the child may have already had with the birth parent” because a child Truman’s age who did not see his parent for 13 months is not “cognitively capable of actually retaining a — an image and a relationship with that person.” Dr. Jones predicted that Truman would be “likely to suffer very serious mental injury” if he were removed from his foster parents, particularly because he had already suffered “a significant change of care giver early on” and would therefore be at greater risk for “an additional attachment break.”
Dr. Westergaard also summarized her written report and discussed how Miranda’s mental health concerns affected her ability to care properly for herself orPage 14
others. She testified that Miranda had been diagnosed with “major depressive disorder, reocurrent [sic], moderate severity”; “post traumatic stress disorder, chronic”; “mild mental retardation”; and “personality disorder, not otherwise specified.” Dr. Westergaard clarified that these diagnoses were made both through her own evaluation of Miranda and a review of Miranda’s previous medical records. Dr. Westergaard also explained that Miranda’s symptoms were “chronic” because “there are many years, many consecutive years of significant, cognitive impairment that have not resolved themselves” and that her symptoms were “severe” in that they “are so significant that they compromise daily living skills and they compromise her ability to carry out normal cognitive function to make safe, healthy decisions for herself or others.”
Natalie Powers, a regional staff manager for OCS, testified that “OCS has observed a pattern where [Miranda] has certainly engaged with service providers and demonstrated periods of time where she has appeared to be making progress, but that hasn’t been able to be sustained.” Specifically, Powers discussed Miranda’s “inability to maintain housing and be able to secure safe housing” and that while her recent decision to take medication was “a great first step . . . it hasn’t been a sustained change.” Powers also testified that OCS was concerned about domestic violence because of “the violence described by [Miranda] in her previous relationships,” but admitted that OCS did not have enough information about Miranda’s current partner to determine if he posed a risk of domestic violence. Powers did believe that if Truman were to be placed in Miranda’s care he would be “at substantial risk for mental injury because of the pattern of abusive relationships that she has been in.” She further explained that “the risk of exposure to domestic violence is significant because [Miranda] has been demonstrated to be a vulnerable adult and has been involved in abusive relationships in the past” and that Miranda is especially vulnerable because “she doesn’t recognize or have insight into . . . her limitations.”Page 15
The superior court issued an oral ruling terminating Miranda’s parental rights on October 29, 2010, and issued written findings and a termination order on November 24, 2010. First, the superior court found that there was clear and convincing evidence that Truman was a child in need of aid based on abandonment, domestic violence, and risk of substantial harm from Miranda’s mental illness as specified in AS 47.10.011(1), (8), and (11). Second, the superior court found that there was clear and convincing evidence that Miranda failed to remedy the conduct or conditions that placed Truman at substantial risk of harm based on her missed visits and the 13-month period of time when she had no contact with Truman; her failure to spend any of the money she saved on child support or visiting Truman; her abusive relationship with Gus shortly after Truman was removed from her custody; and the lack of improvement in behaviors related to Miranda’s mental impairments, including her inability to maintain stable housing or function independently. Third, the superior court found that there was clear and convincing evidence that active efforts had been made to provide remedial and rehabilitative services to prevent the breakup of the Indian family, and that those efforts had proved unsuccessful.[fn8] Fourth, the superior court found that there was evidence beyond a reasonable doubt, including testimony from qualified experts, that returning Truman to Miranda’s care would likely result in serious physical or emotional damage to Truman. The court based this finding on Natalie Powers’s testimony that Miranda had engaged in a pattern of relationships marked by domestic violence; Dr. Westergaard’s testimony that Miranda “does not possess the cognitive or emotional personality skills necessary for safe and independent functioning for herself or for raising a child”; and Dr. Jones’s testimony that Truman was bonded to his foster parents and would sufferPage 16
serious emotional harm if he was removed from their care. Finally, the court concluded that Truman’s best interests would be promoted by terminating Miranda’s parental rights.
Miranda appeals the superior court’s findings that Truman was a child in need of aid; that Miranda failed to remedy the conduct or conditions that placed Truman at risk of harm; that returning Truman to Miranda would likely result in serious physical or emotional damage; and that terminating Miranda’s parental rights was in Truman’s best interests.
III. STANDARD OF REVIEW
We “review for clear error the superior court’s factual determinations as to whether the State met its evidentiary burden in showing that the [child is] in need of aid.”[fn9] Whether the parent has remedied the conduct or conditions that place the child at substantial risk, [fn10] whether returning the child to the parent would place the child at substantial risk of physical or mental injury, [fn11] and whether termination of parental rights is in the child’s best interests are also factual determinations reviewed for clear error.[fn12] “Findings of fact are clearly erroneous if a review of the entire record in the light most favorable to the prevailing party below leaves us with a definite and firm conviction thatPage 17
a mistake has been made.”[fn13] We “review de novo whether a superior court’s findings satisfy the requirements of the CINA and ICWA statutes and rules.”[fn14]
IV. DISCUSSION
Prior to terminating parental rights in cases involving an Indian child, the superior court must make five findings under ICWA and Alaska child in need of aid (CINA) statutes and rules.[fn15] The superior court must find by clear and convincing evidence that (1) the child has been subject to conduct or conditions outlined in AS 47.10.011 and is thus in need of aid;[fn16] (2) the parent has failed, within a reasonable time, to remedy the conduct or conditions that placed the child at substantial risk of harm;[fn17] and (3) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, but those efforts have proved unsuccessful.[fn18] The superior court must also find evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that (4) returning the child to the parent is likely to result in serious emotional or physical damage to the child.[fn19] Finally, the superior court must find by a preponderance of thePage 18
evidence that (5) termination of parental rights is in the best interests of the child.[fn20] Miranda argues that the superior court was clearly erroneous with respect to findings (1), (2), (4), and (5). She does not contest the finding regarding active efforts.
A. The Trial Court Did Not Err In Finding That Truman Was AChild In Need Of Aid.
The superior court found that Truman was a child in need of aid under AS 47.10.011 based on abandonment, risk of mental injury from exposure to domestic violence, and risk of harm due to Miranda’s mental illness.[fn21] Miranda challenges each of these findings. Only one finding is necessary to support a termination order.[fn22] Because we affirm the superior court’s findings with respect to abandonment and Miranda’s mental illness, we do not need to address the superior court’s finding regarding exposure to domestic violence.
Miranda first argues that there was insufficient evidence to show that she had abandoned Truman. Alaska Statute 47.10.013(a) states that “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.” The statute also lists specific instances of abandonment, including if the parent “has made only minimal efforts to support and communicate withPage 19
the child”[fn23] and if the parent “failed for a period of at least six months to maintain regular visitation with the child.”[fn24] We have interpreted AS 47.10.013 to impose a two-part test: “(1) there must be parental conduct evidencing a willful disregard for parental obligations, leading to (2) the destruction of the parent-child relationship.”[fn25]
The superior court found that Miranda had evidenced a willful disregard for parental obligations because she frequently missed visits during her initial visitation and she failed to maintain any contact with Truman for a period of 13 months from February 2008 until March 2009. Moreover, she failed to use the money she accumulated to support or visit Truman. Dr. Jones testified that Truman was bonded to his foster parents and that “[t]he disappearance of [Miranda] for 13 months . . . really allowed the child to completely bond with another set of parents” and “greatly reduces or completely eliminates” the bond that Truman might have had with Miranda.
Miranda argues that her mental illness prevented her from communicating with and supporting Truman. However, Miranda does not point to any actual evidence suggesting this, instead simply reprinting a passage from her trial counsel’s closing argument. Miranda does not dispute the superior court’s findings regarding her 13-month absence and failure to maintain communication with Truman, her inconsistent visitation, or her failure to support Truman. She also does not dispute Dr. Jones’s testimony. We thus conclude that it was not clearly erroneous for the superior court to find that Truman was a child in need of aid based on abandonment.Page 20
Miranda also challenges the superior court’s finding that Truman was a child in need of aid based on Miranda having a “mental illness, serious emotional disturbance, or mental deficiency of a nature and duration that places [Truman] at substantial risk of physical harm or mental injury.”[fn26] The superior court found that Miranda suffered from “a constellation of disorders” placing Truman at substantial risk of harm because Miranda is consistently unable to manage “fundamental skills of everyday living” — such as finding housing, a source of income, and a means of transportation — and is also unable to navigate the types of services that Truman may eventually need to cope with his symptoms of aggression. The superior court also found that Miranda’s failure to properly care for Truman prior to his removal by OCS showed that her mental illness placed Truman at risk of harm.
As part of these findings, the superior court relied on the testimony and report of Dr. Cindy Westergaard, who diagnosed Miranda with major depressive disorder, personality disorder not otherwise specified, chronic post-traumatic stress disorder, and mild mental retardation. Dr. Westergaard’s written report described Miranda as having a “chronic and severe psychiatric disturbance, with ongoing psychiatric concerns that raise into question her cognitive ability to appreciate her current situation, solve problems adequately, and adequately address judgment and safety concerns regarding her own self-care” and concluded that Miranda does not “possess the cognitive or emotional/personality skills necessary for safe, independent functioning — for herself or for raising a child.” The superior court also relied on the psychiatric evaluation conducted by Dr. Aryeh Levenson, who concluded that it “is clear” that Miranda “has virtually no insight into the consequences of her own behaviors, or [judgment] in how to appropriately interact.” Dr. Levenson predicted that Miranda willPage 21
need either “lifelong wrap around services” or “a semistructured living situation” or else “be at high risk for becoming homeless and being at prey in the community.”
Miranda does not dispute these diagnoses or evaluations but instead argues that they were insufficient to meet the requirements of AS 47.10.011(11) because “[n]either Dr. Westergard [sic] nor Dr. Levenson’s opinions established that [Miranda] had a mental illness or defect that couldn’t be treated.” Miranda further argues that none of the evaluations provided a specific diagnosis or treatment plan that would have enabled Miranda to “work on [her] treatable mental health issues,” and that “the failure of mental health professionals and the social work system was responsible for [Miranda’s] challenges.”[fn27]
The State responds that AS 47.10.011(11) contains no requirement that a parent’s mental illness be untreatable — only that it be “of a nature and duration that places the child at substantial risk of physical harm or mental injury.” Dr. Westergaard’s expert testimony that Miranda’s symptoms are chronic because “there are many years, many consecutive years of significant, cognitive impairment that have not resolved themselves” and are severe because they “are so significant that they compromise daily living skills and they compromise her ability to carry out normal cognitive function to make safe, healthy decisions for herself or others” is sufficient to meet this requirement.Page 22
Miranda’s argument that she was never provided with a proper treatment plan to address her mental illness may be more relevant to whether the State made active efforts to prevent the breakup of the family, a finding that Miranda did not appeal. However, the record also suggests that the difficulty in providing a concrete treatment plan or diagnosis was at least partially the result of Miranda’s actions. Numerous mental health providers reported that it was difficult to arrive at a concrete diagnosis because Miranda frequently missed appointments and provided contradictory information. Miranda moved to Klawock without notifying OCS shortly after the evaluations by Dr. Sallenbach, Dr. Levenson, and Dr. Morgan, and she had only infrequent contact with OCS after that time because she failed to provide OCS with accurate contact information.
But even with these limitations, every mental health provider who evaluated Miranda arrived at similar conclusions: Miranda has multiple mental health diagnoses, including chronic PTSD, depressive disorder, and personality disorder not otherwise specified; she has very limited insight and judgment; and her impairments are so severe that she is unlikely to be able to function independently, requiring lifelong wrap-around services in order to meet her own needs. We conclude that it was not clearly erroneous for the superior court to find that Truman was a child in need of aid based on Miranda’s mental illness.
B. The Trial Court Did Not Err In Finding That Miranda FailedTo Remedy The Conduct Or Conditions That PlacedTruman At Substantial Risk Of Harm.
Miranda’s second argument on appeal is that it was clearly erroneous for the superior court to find that she failed to remedy within a reasonable time the conduct or conditions that placed Truman at substantial risk of harm.[fn28] Under AS 47.10.088(b), in making this determination:Page 23
[T]he court may consider any fact relating to the best interests of the child, including (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.
Miranda argues that the superior court “did not explicitly analyze the factors.” But “[t]he best interest factors listed in the statute are not exclusive and the superior court need not accord a particular weight to any given factor.”[fn29]
Furthermore, the superior court’s findings easily fit within the enumerated best interests factors. The superior court found that Miranda had not made a sufficient effort to remedy her conduct because “[s]he has not consistently participated in any of the myriad[] of services that have been provided to her” and notably stopped working with OCS entirely for a period of 13 months. The superior court based this decision in part on Truman’s specific age and needs, noting that in the few months before the termination trial Miranda had started taking medication but finding that this occurred too late “to be considered an action taken within a reasonable time,” particularly given that Truman was about to turn four years old and had been in foster care for all but six months of his life. The superior court explained that “it’s [Truman’s] clock that we have to be concerned with here in determining whether or not she has acted conscientiously and addressed these problems in a reasonable period of time” and “[Truman] needs to have consistency; he needs permanency.”
The superior court also looked at the history of conduct and conditions created by Miranda. The superior court emphasized that Miranda “has not demonstratedPage 24
any behavioral changes” with respect to her mental health diagnoses; that Miranda’s ability to meet basic needs such as housing remained unstable; and that the counseling Miranda did participate in had to be continually focused on helping her meet those immediate needs rather than addressing her underlying mental and emotional disabilities.
Miranda does not challenge any of these findings in particular but maintains that they are insufficient because they “did not address the likelihood that the child could return home, any harm to the child, [or] whether such harm would continue.” Miranda argues that had her “mental health treatment been focused on solidifying and treating her for set diagnoses,” the “relatively minor issues” that led to Truman’s removal by OCS could have been resolved and Truman returned to her care within a reasonable time. This argument also pertains more to whether the State made active efforts, which Miranda does not contest, and Miranda does not dispute that her behavior and mental health symptoms remained substantially the same as when Truman was removed from her care.
The evidence in the record supports the superior court’s finding that Miranda’s behavior had not changed. Although she began taking medication a few months before the termination trial, the only evidence presented was that it had helped her to be less anxious, to speak more clearly, and to be more consistent in attending appointments. Miranda’s housing remained unstable — she testified that she and her boyfriend had purchased a two-bedroom trailer but that they had not yet been able to move it into a trailer court. Most importantly, according to the expert testimony of Dr. Westergaard, the concerns regarding Miranda’s ability to function independently remained the same as in her earlier mental health evaluations. Dr. Westergaard described Miranda’s symptoms as “chronic” because “there are many years, many consecutive years of significant, cognitive impairment that have not resolved themselves” and “severe” because they “are so significant that they compromise daily living skills andPage 25
compromise her ability to carry out normal cognitive function to make safe, healthy decisions for herself or others.” Given this record, we conclude that it was not clearly erroneous for the superior court to find that Miranda failed to remedy the conduct or conditions that placed Truman at substantial risk of harm.
C. The Trial Court Did Not Err In Concluding That Truman WasLikely To Suffer Serious Harm If Returned To Miranda’s Care.
Miranda’s third argument is that it was clearly erroneous for the superior court to find that returning Truman to Miranda’s care would likely result in serious emotional or physical damage to Truman. “Such a finding requires proof both that the parent’s conduct is likely to harm the child, and proof that it is unlikely the parent will change her conduct.”[fn30] These elements may be proven “through expert testimony alone or through aggregating expert testimony with other evidence such as testimony of lay witnesses.”[fn31]
The superior court found three reasons why returning Truman to Miranda’s custody would likely result in serious physical or emotional damage to Truman. First, the superior court found, based on the expert testimony of Natalie Powers, that there was a serious risk that Truman would suffer emotional damage from exposure to domestic violence because Miranda’s “inability to recognize her vulnerability dooms her to repeat the pattern” of violent relationships. Second, the superior court found, based on the expert testimony of Dr. Westergaard, that Truman would be at risk for physical and mental injury because Miranda “does not possess the cognitive or emotional personality skills necessary for safe and independent functioning” and “is incapable of navigatingPage 26
through systems” that she would need to care for Truman. Third, the superior court found, based on the expert testimony of Dr. Jones, that Truman would suffer serious emotional damage if he was removed from his foster parents and returned to Miranda’s care because “[Miranda’s] failure to maintain regular contact and support of her child” had disrupted the bond between her and Truman.
Miranda challenges the sufficiency of the testimony provided by Powers and Dr. Jones. As noted previously, because we affirm the superior court’s termination order only on the basis of abandonment and Miranda’s mental illness, we do not address the superior court’s finding regarding exposure to domestic violence or Powers’s testimony in support of that finding.
With respect to Dr. Jones, Miranda “asks this court to look with skepticism at Dr. Jones'[s] diagnosis of attachment disorder in Truman” because “[i]t does not make sense that a child who has been well cared for by a loving family and only lived with his biological mother for six months would, as Dr. Jones testified, display aggression and poor impulse control as a result of attachment disorder.” As an initial matter, this court “defer[s] to a superior court’s credibility determinations, particularly when they are based on oral testimony.”[fn32] But this argument also does not accurately represent Dr. Jones’s testimony. Dr. Jones did not claim, in either her testimony or her written report, that Truman had attachment disorder or that his symptoms of aggression and poor impulse control were a result of that disorder. The primary focus of Dr. Jones’s testimony was that Truman’s bond with Miranda had been disrupted by her long absence; that Truman was bonded to his foster parents; and that removing Truman fromPage 27
his foster parents would result in serious emotional damage to Truman. As Dr. Jones concluded in her written evaluation:
[Truman] would be at risk for emotional harm if he were returned to his birth mother’s care. . . . [Truman] has developed a very strong bond with his foster parents, who have been his primary caretakers and psychological parents for most of his life. Removing [Truman] from their home would result in the loss of these vital attachment relationships, which would place [Truman] at increased risk for attachment disorders in the future.
Dr. Jones also discussed that Truman was displaying some symptoms of aggression and poor impulse control that could indicate a developing attention deficit hyperactivity disorder or oppositional defiant disorder; however, she did not diagnose Truman with either of these disorders and did not claim that the symptoms were the result of an attachment disorder. Dr. Jones explained that children who display those symptoms need a parent who can provide a predictable and consistent environment and navigate different service providers and that without those routines Truman would be at greater risk for aggressive behaviors. The bulk of Dr. Jones’s testimony, however, was devoted to explaining why removing Truman from his foster parents would cause him serious emotional harm.
Miranda does not challenge this aspect of Dr. Jones’s testimony and presents no evidence to indicate that the superior court’s findings on this issue were clearly erroneous. Miranda also does not challenge the expert testimony of Dr. Westergaard that Miranda’s severe and chronic mental health issues prevent her from having the cognitive skills necessary for safe parenting. Based on the testimony of Dr. Jones and Dr. Westergaard, we affirm the superior court’s finding that returning Truman to Miranda’s care would likely result in serious emotional damage to Truman.Page 28
D. The Trial Court Did Not Err In Finding That It Was InTruman’s Best Interests To Terminate Miranda’s Parental Rights.
Miranda’s final argument is that it was clearly erroneous for the trial court to find that termination of Miranda’s parental rights was in Truman’s best interests. In making this determination, “the best interests of the child, not those of the parents, are paramount.”[fn33] The trial court may consider the child’s need for permanency and stability[fn34] as well as a child’s bond with his foster parents when making a best interests finding.[fn35]
Miranda argues that the superior court’s finding was clearly erroneous because “[t]he rationale used by the court was taken from Dr. Jones'[s] and Ms. Powers'[s] testimonies,” which Miranda objects to for the reasons outlined in the previous section. As discussed above, Dr. Jones’s testimony is sufficient to support the superior court’s finding. Dr. Jones testified that Miranda’s absence from Truman’s life for 13 months “greatly reduce[d] or completely eliminate[d] the bond that the child may have already had with the birth parent” and “really allowed the child to completely bond with another set of parents.” She also explained that “it’s psychologically incredibly important that children in [Truman’s] age group . . . have [the] expectation that their primary caretakers are going to be there consistently, are going to love them, are going to care for them, are going to meet their needs” and concluded that Truman would be “likely to suffer very serious mental injury” if he were removed from his foster parents.Page 29
Truman’s foster mother also testified that she was working with an occupational therapist to address Truman’s challenges with aggression, that she was keeping Truman involved with various tribal activities, and that she and her partner planned to be a permanent home for Truman. This evidence all supports the superior court’s conclusion that terminating Miranda’s parental rights was in Truman’s best interests. We affirm the superior court’s best interests finding.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the superior court and AFFIRM the termination of Miranda’s parental rights.
Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).
Id. A GAF score between 41 and 50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).Id.
[fn7] Miranda also spent a few months in Juneau during this time. [fn8] Miranda did not appeal this finding. [fn9] Pravat P. v. State, Dep’t of Health Soc. Servs., Office ofChildren’s Servs., 249 P.3d 264, 270 (Alaska 2011). [fn10] Barbara P. v. State, Dep’t of Health Soc. Servs.,234 P.3d 1245, 1253 (Alaska 2010). [fn11] Id. [fn12] Pravat P., 249 P.3d at 270. [fn13] Dale H. v. State, Dep’t of Health Soc. Servs., Office ofChildren’s Servs., 203, 209-10 (Alaska 2010) (internal quotation marks omitted). [fn14] Id. at 210. [fn15] Pravat P., 249 P.3d at 270. [fn16] AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A). [fn17] AS 47.10.088(a)(2)(B); CINA Rule 18(c)(1)(A)(ii). [fn18] 25 U.S.C. § 1912(d) (2006); CINA Rule 18(c)(2)(B). [fn19] 25 U.S.C. § 1912(f) (2006); CINA Rule 18(c)(4). [fn20] AS 47.10.088(c); CINA Rule 18(c)(3). [fn21] See AS 47.10.011(1) (abandonment); AS 47.10.011(8) (exposure to domestic violence); AS 47.10.011(11) (parent’s mental illness). [fn22] Alyssa B. v. State, Dep’t of Health Soc. Servs., Div. ofFamily Youth Servs., 165 P.3d 605, 618 (Alaska 2007). [fn23] AS 47.10.013(a)(2). [fn24] AS 47.10.013(a)(3). [fn25] Rick P. v. State, Office of Children’s Servs.,109 P.3d 950, 957 (Alaska 2005). [fn26] AS 47.10.011(11). [fn27] Miranda also argues that this finding was clearly erroneous because the testimony of Natalie Powers was too generalized. Miranda is correct that the portion of Powers’s testimony related to Miranda’s mental health merely discussed the types of symptoms that someone with Miranda’s diagnoses could exhibit and did not discuss specific evidence related to Miranda. But the superior court did not rely on Powers’s testimony when making this finding and instead relied on the reports and testimony of Dr. Jones, Dr. Levenson, and Dr. Westergaard. [fn28] See AS 47.10.088(a)(2). [fn29] Barbara P. v. State, Dep’t of Health Soc. Servs.,234 P.3d 1245, 1263 (Alaska 2010). [fn30] Marcia V. v. State, Office of Children’s Servs.,201 P.3d 496, 503 (Alaska 2009). [fn31] Ben M. v. State, Dep’t of Health Soc. Servs., Office ofChildren’s Servs., 204 P.3d 1013, 1020 (Alaska 2009). [fn32] Pravat P. v. State, Dep’t of Health Soc. Servs., Officeof Children’s Servs., 249 P.3d 264, 274 (Alaska 2011). [fn33] Kent V. v. State, Dep’t of Health Soc. Servs.,233 P.3d 597, 601 (Alaska 2010) (quoting A.B. v. State, Dep’t ofHealth Soc. Servs., 7 P.3d 946, 954 (Alaska 2000)). [fn34] Pravat P., 249 P.3d at 274. [fn35] See M.W. v. State, Dep’t of Health Soc. Servs.,20 P.3d 1141, 1147 (Alaska 2001).Page 1