PAUL G. v. STATE, S-12928 (Alaska 8-6-2008)
Supreme Court No. S-12928.Supreme Court of Alaska.
August 6, 2008.
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.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge, Superior Court Nos. 4FA-04-147/148 CN.
Sharon Barr, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for Appellant. Megan R. Webb, Assistant Attorney General, Talis J. Colberg, Attorney General, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.
MEMORANDUM OPINION AND JUDGMENT[fn*]I. INTRODUCTION A father challenges the termination of his parental rights.Page 2
II. FACTS AND PROCEEDINGS
The superior court in its decision terminating the parental rights of Paul G.[fn1] set out the relevant background:
The father, Paul G., was born in . . . 1960. . . . In 1990 Paul met Helen P. in Michigan. The two were never married. Paul and Helen’s first child, Cassie G. was born [in 1990]. Andrew G. was born [in 1995]. Wyatt G. was born [in 1998]. When asked if the children were planned, Paul said, “Hell no. They’re all accidents.” He described his relationship with Helen by saying “She was not a good mother . . . She didn’t cook. She didn’t clean. I was verbally abusive, controlling, and she got back at me by having sex with other people.”
The family . . . moved frequently. . . . The parents rarely enrolled the children in school, claiming to be home schooling them.
Paul claims that he started having anxiety attacks in 1997 that were so debilitating that he applied for and received SSI [Supplemental Security Income] disability payments. Paul continues to receive the disability payments. . . . For the next several years Paul severely abused . . . prescription drugs and alcohol. Paul acknowledges that he was probably “a miserable SOB to live with.”
. . . .
. . . . [The family lived in Wisconsin and Michigan. When in Michigan, Paul and Helen] told child protective service workers they were moving to Fairbanks in November 2002. . . . The circumstances strongly suggest that the family fled Michigan and came to Alaska to escape the jurisdiction of Michigan child protective services.
Once in Alaska, it did not take long for the family to come to the attention of Alaska child protective services.Page 3
Fairbanks'[s] OCS [Office of Children’s Services] began receiving reports regarding the family in November 2003 when it was reported that Andrew was missing an excessive amount of school, that he appeared to lack prior schooling, and that he displayed behavior problems in the classroom. . . . In December 2003 OCS received a report alleging that there was domestic violence and drug use in the home, [and] that the children had head lice and often roamed the neighborhood begging for food. . . .
The family moved into a camper next to the residence of Bill F. The drug abuse and violence continued to the point where the family spiraled completely out of control. Helen moved in with Bill. Helen and Bill developed a romantic relationship [which] . . . incited Paul to further violence. In July 2004 he went to Bill’s residence [and] . . . assaulted Bill with Wyatt present. Paul was arrested and incarcerated and, following a no contest plea, was convicted of attempted burglary and misdemeanor assault. Helen obtained a restraining order against Paul.
In August 2004 an OCS social worker made an unannounced visit to Helen’s home and found five year old Wyatt alone and unsupervised. In August 2004 Paul reports that he was hospitalized at Fairbanks’s Memorial Hospital for suicid[al] ideations related to his breakup with Helen. . . . In November 2004 OCS received a report alleging that the children were placed in the custody of a neighbor who allegedly abused alcohol and was not a safe caregiver. The children were taken into custody and placed in foster care on November 23, 2004.
A. Paul
Around the time the children were placed in foster care, OCS developed a case plan for Paul. The case plan stated the concern that Paul’s “current behaviors have put his children at risk for physical and mental injury” and set the objective that Paul should be able to “[m]anage [his] mental health and/or use of substances, regulate [his]Page 4
own behavior and . . . manage [his] emotions.” The plan called for Paul to receive a mental health assessment and a substance abuse evaluation, to attend weekly parenting classes, and to complete a family functioning assessment. It also called for Paul to complete an anger management assessment “and follow all recommended treatments.”[fn2] Paul was tentatively diagnosed with depressive disorder in November 2004 and his substance abuse evaluation in December 2004 indicated that he was in “sustained full remission” for alcohol and cannabis abuse. An OCS report dated February 2005 indicated that Paul was “actively working on his case plan [and] . . . attending [anger management] counseling once per week but has to be reminded to turn in his homework.” It also stated that he was attending substance abuse counseling and was going to parenting classes.
In March 2005 Paul and Helen stipulated that their children were children in need of aid, agreeing that the “best interest of the children would be promoted by commitment to the custody of the Department of Health and Social Services.” A report the same month by the guardian ad litem (GAL) appointed for Paul’s children stated that Paul “generally does pretty well” during supervised visits with his children but that he “seems unable to control his talk around his children or doesn’t understand how what he says to them can be harmful.” It concluded that Paul was “not ready to handle the responsibility of his children” and had not yet demonstrated an ability to “understand their needs.” A social worker’s status report indicated that Paul would complete his parenting classes at the end of May 2005. The same report, however, advised that Paul needed to continue taking parenting classes because he had not “progressed pas[t] supervised visits with his children.”Page 5
An October 2005 OCS report concluded that although Paul had completed part of his case plan (the initial parenting class) he had “consistently” shown that he could not “demonstrate appropriate parenting skills nor manage his anger during visits” with his children. The report stated that he had “not made substantial progress in remedying the conduct and conditions” that placed his children in need of aid. Paul, the report said, “does not take responsibility for his actions.” A psychological evaluation excerpted in the report stated that “Paul appears to be a man with highly engrained antisocial, histrionic, and narcissistic personality traits.” The evaluation continued, “[o]f most concern in relation to his parenting capacity are his disdain for social norms, his pervasive irresponsibility and projection of blame, and his use of anger and violence to control others.” The report also noted that Paul had completed his substance abuse treatment, but on October 8 Paul was found to have a blood alcohol level of .207%, in violation of the terms of his probation.[fn3]
OCS decided not to petition for the termination of Paul and Helen’s parental rights because Helen had “been making substantial progress in her case plan” and was “moving to unsupervised visits.” The OCS report said that if the visits went well, “OCS will consider a six-month home trial” with Helen.
During a December 2005 supervised visit with his children, Paul “tried to engage the children in a discussion about the[ir] mother.” Paul became angry when one of his children said that they were having unsupervised visits with Helen. When Paul tried to take a break and the staff told him that this would end the visit, he “sulked and did not interact well with his children.” Subsequently, Paul was terminated from the program that sponsored his supervised visits.Page 6
An OCS report from February 2006 noted that Paul had still not completed his anger management class, largely because he had failed to turn in his homework assignments. It further reported that Paul was still unable to demonstrate that he could “communicate his disagreements without resorting to verbal abuse towards service providers.” The report again cited Paul’s “need to take responsibility for his actions and not blame the agencies for his lack of follow through.”
In September 2006 OCS changed its goal with regard to Paul and his children, Andrew and Wyatt, from reunification to adoption. The OCS report concluded that adoption would be the “chosen goal . . . because the parents have not remedied the conditions and conduct that brought the children into care, they have been in custody and in out of home care for two years, and it’s unlikely they will return home anytime soon.” In response to learning that OCS was going to court to recommend adoption, Paul’s behavior, or at least his attitude, seemed to change. According to social worker Donna Williams, it was as if a “lightbulb” came on: “[I]t was like, oh, my gosh, oh, my gosh, it’s, you know, been two years, and I need to do all my stuff. So he immediately went down . . . and turned in all his homework [for anger management class] and was really trying to have a better attitude and work with OCS.” In November 2006 OCS arranged for Paul to have an unsupervised visit with Andrew.[fn4]
The unsupervised visit never took place. Prior to the planned visit, the guardian ad litem for Andrew filed a motion for an injunction and asked the trial court to review OCS’s decision to allow an unsupervised visit. The motion to review the OCS decision was joined with the contested permanency plan and heard before a master. ThePage 7
master’s report stated that Paul did not behave appropriately during the hearing, speaking out and calling people “evil or liars as they testified.”
The master’s recommendations were against Paul on both permanency and visitation. Regarding the unsupervised visit, the master said that unsupervised visitation should not take place “until family therapy takes place and Andrew’s therapist believes that the visit will not be contrary to Andrew’s mental health.” Regarding the contested permanency decision, the master concluded that Paul had “not made substantial progress to remedy his lack of parenting skills” and that he was “unable or unwilling to improve his parenting skills even after parenting classes and two years of instruction during supervised visitation.” The master recommended that the permanency plan for Andrew and Wyatt should be adoption. It is not clear when the superior court accepted the master’s recommendations, but both parties brief the issue as if the recommendations were accepted.
In February 2007 OCS again asked for a one-year extension of custody of Paul’s children.[fn5] OCS reported that Paul had completed his anger management class and that he had been mostly “consistent with his visitations with the children.”[fn6] But it also said that his “inappropriate and emotionally damaging behaviors” continued.
Also around February 2007 Paul “abruptly left” the state without contacting OCS. He had some phone visitation with his children in February and March. After that, he quit calling, ostensibly because he had several family members who were gravely ill. About two weeks before the termination hearing, Paul returned to Fairbanks. Paul ranPage 8
into Andrew at a parade, hugged him and told him that his social worker was a “liar” and that OCS did not want what was good for them. OCS filed a petition to terminate Paul’s parental rights over Andrew and Wyatt[fn7]
in March 2007. The petition cited Paul’s failure to take responsibility for his actions and his belief that his actions did not have any consequences. Paul’s parental rights were terminated by order of the superior court on August 30, 2007.[fn8]
B. Andrew
Andrew was given a mental status screening soon after OCS took temporary custody of him in November 2004. The report cited behavior problems Andrew was having in school and said that, overall, he was doing “very poorly.” The screening diagnosed him with attention deficit disorder, mild mental retardation, and educational problems. From December 2004 to January 2005 Andrew was in a short-term psychiatric hospital; his therapist there commented that “Andrew did not have a normal childhood and that was a significant factor in his behavior. He had little to no structure . . . [and] no appropriate role models.” In school, Andrew was placed in a classroom designed to accommodate special needs children. An I.Q. test revealed that Andrew was in the “low to borderline range.”
But in the spring of 2005 Andrew showed some improvement. His social worker wrote in May 2005 that he was doing well in school and had “improved immensely in the last couple of months. It is very rare that he has to go to the quiet roomPage 9
during the day.” According to his therapist, “having a regular schedule and having his needs me[t]” were key in helping him improve.
Things changed for the worse when Andrew returned to his mother’s home in March 2006. After a few months there, Andrew was once again admitted to a psychiatric hospital due to “concerns that the patient expressed serious homicidal threats against his mother and his stepfather [Bill].”[fn9] Upon release in July 2006 Andrew was placed in a therapeutic foster home. He was placed in a different home in January 2007.
Andrew regressed once more when Paul left the state in early 2007. An evaluation from his school stated that he appeared to be “in a fragile state of mind, displaying signs of high anxiety and a low frustration level” and displayed “sudden little bursts of anger directed” towards students and staff. The evaluation said he needed better “coping mechanisms” for minor annoyances. A July 2007 report by Andrew’s guardian ad litem, however, indicated that Andrew was definitely making progress, although he “still has a long way to go.” The GAL reported that Andrew was “calmer, less aggressive, and more in control of himself” since being released from the psychiatric hospital and that “[h]e is starting to think about his future and what he wants to be when he grows up.”
C. Wyatt
Wyatt seems initially to have done better than Andrew. He was diagnosed with adjustment disorder and has been seeing a therapist. He also has issues with anger management. An assessment done in early 2005 stated that Wyatt “has spent time around violence in the household and had been shuffled between biological mom and biological dad’s house as well as being left for months in the home of a virtual stranger.”Page 10
He was reported to be “extremely susceptible to the way those around him act.” The report concluded that “[i]f Wyatt can remain in a home where his needs are looked after and he is supervised and given positive role models, or if Wyatt’s biological parents learn some parenting skills and techniques, the prognosis will improve.”
A March 2005 report by Wyatt’s GAL said that while Wyatt did not have as many behavioral problems as Andrew, “he still curses, lies, talks about adult things and is quick to want to fight or hurt people.” He seemed to be doing well in his foster placement, but his bad behaviors persisted throughout the spring: according to his social worker, he still hurt other children, talked violently, “appear[ed] proud of himself when he hurt someone and [did not] show obvious remorse,” and used inappropriate sexual language he claimed to have learned from his father.
After Wyatt moved in with Helen, OCS received three reports: one that he was being neglected and two that he was abused by Helen and her new husband, Bill. With regard to one incident of abuse by Bill, Wyatt had marks on his neck that were consistent with having been choked. Wyatt was eventually removed from Helen’s home in September 2006 after a report that he had been assaulted by Helen and Bill. He was first placed in a relative’s home. He was later placed into a therapeutic foster home.
While Andrew made some progress in 2007, Wyatt did not. A report from his elementary school noted Wyatt’s “fragile emotionality” and “significant social interaction difficulties with his peers.” His GAL stated that he was having a hard time keeping friends and had a “problem sharing attention.” He made violent threats against those who competed with him for attention. The GAL’s report concluded that Wyatt had “a long way to go before” he could function in a classroom setting or make long-term friendships.Page 11
D. The Termination Hearing
The termination hearing for Paul was relatively brief, held over the course of two days in July and August 2007. Superior Court Judge Michael A. MacDonald presided. Many of the issues relevant to the termination of parental rights were believed to have already been extensively treated in the earlier consolidated hearing regarding the permanency contest and the GAL’s objection to Paul’s unsupervised visit with Andrew.
At the beginning of the hearing, Paul asked to “speak his piece.” Despite the court’s assurance that Paul would get “a chance” to have the floor, Paul proceeded to claim that “[t]his has been nothing but lies, and it’s an attack . . . because of my personality, that they don’t like me” and that “[m]y children will be old enough some day to read these transcripts . . . of the lies and the garbage that you created against me.” The court repeatedly tried to intervene, telling Paul at one point that “everybody will get their chance,” but Paul continued in the same vein, saying that his life was “put in danger by these people. They’ve falsified things. They’ve lied. They’ve covered up.” Paul left during the testimony of the first witness, and did not return that day or the next. He did not testify.
During the hearing, Andrew and W yatt’s therapist testified that the children had learned from their father that “when you’re angry, you hit or you yell or you want to hurt somebody, and that people in positions of authority, like police officers and teachers, don’t know what they’re doing, or OCS workers don’t know what they’re doing, and they don’t want to help you, that they’re bad.” She also testified to Andrew and Wyatt’s continuing behavioral problems. But her prognosis for Andrew was “very good.” Her prognosis for Wyatt was “much more guarded”; she was not “willing to say . . . how successful he’ll be, because it depends on so many other things.”
The therapist felt it would not be good for the boys to return to Paul’s home. In response to the question, “[i]f dad has not changed the behaviors that you’vePage 12
described the boys are reporting to you, what would be your opinion with regard to returning Wyatt to dad’s home,” the therapist replied, “[i]t would be the same with him [as with Andrew]. I would say no. Wyatt hasn’t even gotten out of that, where he . . . can even talk respectfully about police officers . . . and teachers and that kind of thing, or the foster parents for the most part.” Earlier she had stated that Paul’s attitude of distrust towards authority would not provide a “good environment” for the children. She concluded by saying that “the fashion in which [Paul] would raise the boys and the beliefs that he would give them” concerned her and that it was in the boys’ best interests to have Paul’s parental rights terminated.
A social worker who had been recently assigned to the case testified about a recent phone conversation where Paul said that “he didn’t believe that his children had any problems at all . . . and [that] all of us, including all the professionals, social workers, therapists, foster parents, were evil.” She observed that this attitude prevented Paul from making substantial progress in his parenting and anger management classes. She considered Paul calling the OCS workers “evil” in front of Andrew at a parade in early 2007 as “typical” of his behavior.
The social worker stated that although the plan for the two children was adoption, they were “nowhere near that because of the high needs of the kids” and that the children would probably be in therapeutic foster homes (which allowed for more structure) for another year before OCS sought to place them in a permanent home or, failing that, another foster home. She said she did not believe that it would be in the best interests of Andrew and Wyatt to have continued contact with their father, should his parental rights be terminated. It would take Paul a long period of time, she asserted, for him to accept responsibility for how he had harmed his children.
Another social worker, who had worked with Paul and his children mostly before 2007, testified last. She spoke to Paul’s sudden absence in early 2007 and itsPage 13
effects on his children, but also to the fact that Paul had completed his anger management classes in January 2007.
The order terminating Paul’s parental rights was issued August 30, 2007. The court found that Andrew and Wyatt continued to be children in need of aid, that Paul had not remedied the conditions that placed his children at risk of substantial harm, that OCS had made timely and reasonable efforts to provide family support services, and that termination was in the best interests of the children.[fn10] The court wrote in conclusion:
Both boys need extensive psychological and educational services. To the extent that Paul fails to acknowledge that the boys have any psychological or educational problems he cannot even begin to understand the intensive services the boys require. The record clearly demonstrates that Andrew and Wyatt are responding to the services being provided to them. It is equally clear on the record that both boys suffer setbacks when exposed to the father’s conduct. Returning the children to Paul would only perpetuate the harm that the children have been suffering since birth.
Paul appeals.
III. DISCUSSION
A “clearly erroneous” standard is used when reviewing factual findings in a decision to terminate parental rights. Clear error may be found only when a review of the entire record leaves the court with a definite and firm conviction that a mistake hasPage 14
been made.[fn11] Whether the trial court’s factual findings comport with the relevant child in need of aid statutes is a question of law that is reviewed de novo.[fn12]
A. The Superior Court Did Not Err in Finding that Paul Had FailedWithin a Reasonable Tim e To Remedy the Conduct or Conditions thatPlaced the Children at a Substantial Risk of Harm.
Paul argues that the superior court erred in finding that Paul had not remedied the conduct that placed his children at a “substantial risk of harm.”[fn13] Paul asserts that the major conditions that led Andrew and Wyatt to be classified as children in need of aid were his substance abuse and “resultant domestic violence” in the home. But Paul believes that he has remedied his conduct in these two areas. Accordingly, he concludes, by “downplay[ing] the enormity of these achievements in his termination findings” the superior court “committed clear error.” Paul also points to his completion of parenting skills and anger management classes as evidence that he has “remedied his parenting problems.”
Paul overstates the degree to which he has remedied the conduct which places Andrew and Wyatt at risk of harm. First, as the superior court acknowledged, Paul has made some progress, but that progress is recent, and has been halting. The record is clear that Paul took several years to complete his anger management and parenting classes, and even then, he did not progress beyond supervised visits.[fn14] AndPage 15
mere completion of the classes is not sufficient to show that Paul’s actual parenting and anger management skills have improved.
OCS’s first case plan set the objective that Paul be able to “[m]anage [his] mental health . . . regulate [his] own behavior and . . . manage emotions.” Paul’s behavior at the trial belies his progress on this key goal. As the superior court order noted, Paul had a “complete inability to remain seated and quiet during the hearings. . . . [A]fter a brief histrionic display[,] [Paul] walked out shortly into the first day of the termination trial never to return.”
Moreover, Paul’s repeated denunciations of social workers, the GAL, and therapists assigned to his case as “evil” show that he has not yet taken responsibility for his actions. Indeed, Paul seems to deny that his children have any problems and believes “that he has done nothing to contribute to his son[s’] current problems.”[fn15] The superior court was correct in calling such beliefs “unrealistic.” Such an attitude made it nearly impossible for Paul to be effective in working with OCS in helping his children improve. In short, the record amply supports the superior court’s conclusion that Paul has not remedied the significant behavioral and emotional problems that put his children at risk of further harm. Andrew and Wyatt have serious needs that Paul has not shown he is capable of meeting.Page 16
B. The Superior Court Did Not Err in Finding that Termination ofParental Rights Was in the Children’s Best Interests.
If a parent has not remedied the conditions that placed his child or children at risk it will usually follow as a matter of course under AS47.10.088 that the parent’s rights will be terminated.[fn16] But the structure of the statute allows for an exception if the trial judge thinks, despite the lack of progress by the parent, the child’s “best interests” would be served by denying the petition to terminate.[fn17] Here the superior court found no special circumstances warranting such an exception. Paul believes this determination was in error.
Paul adduces two main considerations: first, the tight bond between Andrew and Wyatt and their father, [fn18] and second, the lack of available adoptive homes for the boys. These considerations are not as decisive as Paul attempts to make them appear. The bond between Paul and his children has in many respects been harmful to the children as they “idolize” him and copy his behavior, behavior which includes responding to people in authority by yelling or hitting them. Paul has also shown that he is unreliable, for instance by disappearing at the beginning of 2007.
Paul is correct that the presence or absence of meaningful alternative placements can be considered by the court in deciding whether termination of parentalPage 17
rights is in the child’s best interests.[fn19] But it will not usually be a decisive factor, and there is a good reason that it is not decisive: a child should not remain in an unhealthy home simply because a permanent placement opportunity does not present itself.[fn20] Moreover, in this case, there was evidence at the termination hearing that the children would need more time in therapeutic foster homes before they were ready for adoption.[fn21] There was evidence presented at the hearing that the children would benefit from such an environment.
Based on the record as a whole, the superior court’s conclusion that the best interests of the children would be served by terminating Paul’s rights over them is not clearly erroneous.
IV. CONCLUSION
The termination of Paul’s parental rights is AFFIRMED.
(Alaska 2008) (trial court did not err in considering unavailability of permanent placement in determining best interests of the child). [fn20] Cf. Carl N. v. State, Dep’t of Health Soc. Servs., Div. ofFamily Youth Servs., 102 P.3d 932, 937 (Alaska 2004) (unavailability of permanent placement does not prevent termination of parental rights). [fn21] Also, a foster family had expressed a willingness to adopt Andrew. However, the preference of OCS was to keep the two children together.