STOWERS, Justice.
In March 2007, after receiving 39 protective service reports involving allegations of abuse and neglect over the course of 15 years, the Office of Children's Services (OCS) removed five children from parents Ralph and Nell based on evidence of physical abuse, mental injury, and chronic neglect.
A review of the record reveals that the superior court did not clearly err in finding that Ralph had not timely remedied the conduct and conditions that placed Faith at substantial risk of harm, did not clearly err in finding that terminating Ralph's parental rights was in Faith's best interest, and properly concluded that Ralph failed to show that ordering continued visitation after termination of parental rights was in Faith's best interest. We therefore affirm.
Ralph and Nell are the parents of Ava, Bella, Daria, Emma, Rex, and Faith. The Office of Children's Services first became involved with the family due to reports of chronic neglect and physical abuse starting in 1992. From 1997 to 2006 the family had an open file with the Department of Health and Social Services, Division of Public Health (the Division).
Upon removing the children from the family home, OCS placed the children in foster homes throughout the state. An OCS social worker created a case plan for the family,
On September 18, 2007, Ralph and Nell participated in a parenting/psychological evaluation with Dr. Michael Rose. Dr. Rose concluded that Ralph met the diagnostic criteria for Child Abuse/Neglect, Partner Relational Problem, and Cannabis Abuse. Dr. Rose also diagnosed Ralph with a personality disorder with antisocial and passive-aggressive features. Dr. Rose recommended that Ralph participate in individual therapy for his personality disorder, particularly as it related to abusive parenting; abstain from the use of controlled substances and alcohol; comply with all OCS treatment recommendations; participate in marital therapy with Nell; and obtain employment to show that he could support his family. Dr. Rose further recommended that Ralph's visits with his children be supervised until he showed progress in his treatment goals.
On September 20, 2007, Ralph's and Nell's sixth living child,
On September 25 OCS created an updated case plan, which required Ralph to obtain and maintain employment; obtain appropriate housing; successfully complete parenting classes at Alaska Family Services; engage in individual therapy to develop non-abusive parenting skills; refrain from discussing the OCS case with his children; refrain from physical discipline and verbal aggression toward others; and complete an intake assessment and follow treatment recommendations provided by the Family Violence Intervention Program.
OCS also created a safety plan so that Faith could remain with Nell at a domestic violence shelter in Palmer. Nell and Faith entered the Alaska Family Services shelter on September 26, 2007. After Nell failed to pay her rent on time or at all, failed to attend required classes, and repeatedly missed her 5 p.m. curfew, Nell was informed that she needed to leave the shelter by March 27, 2008.
On March 21, 2008, OCS petitioned for Faith's removal from Ralph's and Nell's custody because the parents continued to expose Faith to secondhand smoke after OCS told them repeatedly that they could not smoke around Faith because of her respiratory syncytial virus bronchiolitis (RSV); Nell continually asked OCS to extend her 5 p.m. shelter curfew and then repeatedly missed the curfew; Nell was taking Faith to an unlicensed daycare provider after OCS told her that Faith needed to be in a licensed daycare facility; and Nell had been evicted from the shelter and thus would no longer have the supervised environment she required to be able to care for Faith. The petition for removal stated that to establish that placement or supervision was no longer necessary, Ralph and Nell would have to demonstrate: (1) "a significant period of stability," including stable housing, employment, and the ability to meet their own basic needs for shelter, food, and other daily needs, and the ability to maintain their home and themselves in a "sanitary, hygienic condition" for a sustained period of time; (2) the understanding that they must provide their children with "appropriate parental structure" by showing that they had the ability to respond to their children's needs and behaviors, that Ralph had learned to manage his anger without the use of physical violence, and that Nell understood the impact of physical abuse on her children and could intervene if her children were being exposed to violence; and (3) that they had taken "full responsibility for the neglect to which they [had] subjected their children" and adopted a "sustained commitment to change."
On January 25, 2008, Ralph and Nell entered a stipulation agreeing that Faith was a
In March 2008 Faith's foster parents took partial emergency custody of Faith: Faith lived with her foster parents for three or four days each week and with her adult half-sister the remainder of the week. In February 2009 Faith began full-time placement with her foster parents.
On December 18, 2008, OCS filed a Petition for Termination of Parental Rights to Ava, Bella, Daria, Emma, Rex, and Faith, claiming that Ralph and Nell had not timely remedied their behaviors.
Trial on the petition to terminate parental rights to Faith took place on April 13, 14, 15, and June 8, 2010. The superior court heard testimony from social worker Anne Holder, psychologist Dr. Alfred Collins, OCS visitation supervisors Cynthia Bergamo and Kiplynn Roundtree, Ava's foster mother, Faith's foster mother, OCS service specialist Raymond Edwards, Alaska Family Services case manager Heather Miller, clinician Catherine Okeson, and Ralph. The court also incorporated most of the testimony heard during Rex's 2008 termination trial.
On September 8, 2010, the superior court issued its written Findings, Conclusions, and Order Terminating Parental Rights and Responsibilities to Faith, finding by clear and convincing evidence that: (1) Ralph and Nell had failed to timely remedy the conduct or conditions that placed Faith at substantial risk of harm so that returning Faith to them would place Faith at substantial risk of physical or mental injury; and (2) termination of Ralph's parental rights was in Faith's best interest.
Ralph subsequently filed a Motion to Prohibit Cessation of Visitation, asking the court to order post-termination visitation with Faith. Both OCS and Faith's guardian ad litem (GAL) opposed Ralph's motion. After holding a hearing and reviewing the GAL's written response and Ralph's reply, the court denied the motion without prejudice because Ralph had failed to prove that ordering continued visitation was in Faith's best interest.
Ralph appeals the superior court's finding that he failed to timely remedy the conduct or conditions that placed Faith at substantial risk of harm, the court's finding that terminating his parental rights was in Faith's best interest, and the court's denial of his motion for continued visitation. Nell has not appealed.
We review a superior court's factual findings regarding termination of parental rights for clear error.
Whether the superior court's factual findings comport with the requirements of the CINA statutes is a question of law reviewed de novo.
The superior court must make four separate findings before terminating parental rights. The court must find by clear and convincing evidence that: (1) the child is a child in need of aid, as defined in AS 47.10.011;
On appeal, Ralph contests the superior court's finding that he did not timely remedy the conduct or conditions that placed Faith at substantial risk of harm, and the court's finding that terminating his parental rights was in Faith's best interest. Ralph also argues that the superior court erred in denying his post-trial motion to prohibit cessation of visitation.
Before a court may terminate parental rights, it must find by clear and convincing evidence that the parent "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 trial court found that Ralph and Nell had made "some positive changes," but that "due to the overwhelmingly lengthy history and patterns of dysfunction, the changes . . . [did] not rise to the level of remedying the conduct and conditions within a reasonable time." The court based its conclusion on its findings that Ralph and Nell continued to place their needs ahead of Faith's needs, were "not functioning at a level necessary to parent" Faith, were not able to understand Faith's needs as a "small, needy, active child," were still in denial about the role they played in the harm their children had suffered, and still needed additional services.
Ralph argues that the court erred in its findings regarding all five factors outlined in AS 47.10.088(b)(1)-(5).
Ralph argues that the trial court erred in finding that Faith had a low likelihood of returning to Ralph and Nell in a reasonable period of time because the trial court acknowledged that Ralph and Nell had made progress, such as maintaining a cleaner apartment and showing positive changes in Ralph's second psychological evaluation. But the superior court ultimately found that Ralph and Nell "continue to place their own needs ahead of the needs of their child and [were] not functioning at a level necessary to parent [Faith]," and that even if "progress of internalization" continued at an "exponential rate, it would still be a year before reunification could be safely considered."
The superior court's substantiated finding that reunification could not be safely considered for at least a year was thus an implicit finding that there was a low likelihood of reunification occurring within a reasonable
Ralph also argues that the superior court erred by "focusing more on subjective perceptions of [Ralph's] psyche" than on his objective efforts to remedy his conduct or conditions. But the record contains numerous objective indicators that any efforts Ralph made to remedy the conduct and conditions that placed Faith at risk of harm were "too little, too late." Anne Holder testified that Ralph had not reentered the violence intervention program as of September 2009, notwithstanding OCS's request that he do so after displaying violence towards OCS workers: Testimony admitted from Rex's termination trial revealed that after he had completed the first set of violence intervention classes, Ralph threatened to kill social worker Charlene Naulty if Rex wasn't returned to him and was escorted out of the OCS building for yelling at Naulty and calling her names; continued to yell and scream at foster parents; failed to demonstrate impulse control; and raised his voice at the GAL during a home visit with Rex. Both Raymond Edwards and Ralph testified that Ralph had not yet paid the money he owed for his previous violence intervention program as of the time of trial.
Ralph correctly argues that the trial court found that Faith "really hasn't suffered in a measurable amount like her siblings
Alaska Statute 47.10.088(b)(5) specifically authorizes the court to consider "the history of conduct by or conditions created by the parent" when making its determination about whether a parent has remedied his conduct, and we have directed trial courts to consider the totality of the State's evidence in assessing the risk of future harm to children.
In addition, several witnesses testified that Ralph's apparent failure to internalize his treatment and accept responsibility for the harm he caused to his older children made it very likely that Ralph would continue his past pattern of abuse and neglect if Faith was returned to his custody.
Before terminating parental rights, a superior court must find by a preponderance of the evidence that termination is in the child's best interest;
The superior court found by clear and convincing evidence that terminating Ralph's parental rights was in Faith's best interest. In making its determination, the court balanced both "the harm to Faith in terminating versus not terminating the parental rights," as well as "the harm to Faith in terminating the bond with Ralph and Nell versus terminating the bond with [her foster parents]." The court concluded that "the balance on both accounts" weighed in favor of finding that terminating parental rights to Faith was in Faith's best interest. The court relied specifically upon its findings that: terminating parental rights to Faith would prevent Faith from suffering the harm that had been caused to her siblings; Faith's primary bond was with her foster parents; Faith's foster mother seemed "sincere in her desire to foster any relationships that would be healthy for Faith"; Faith had a "blood sibling" (sister Emma) in her foster home; Faith had been in foster care for more than 80% of her life; and there was no evidence that "further delay of the termination proceedings would result in [Ralph and Nell] following through with the case plan at a level that would result in reunification" such that a delay would be beneficial.
Ralph argues that the superior court erred in finding that the "balance on both accounts" favored terminating parental rights. Specifically, Ralph argues that "it was patently impossible for [Faith's] bond with her biological parents to be stronger than her bond with the foster parents" because of the "early removal" of Faith from Ralph's and
Ralph concedes that it is appropriate for a trial court to consider a child's bond with foster parents in making the best interest finding,
The trial court may also consider a child's need for permanency at the time of the termination trial when making its best interest determination.
Although Ralph correctly notes that both the amount of time that Faith has been with her foster parents and the bond Faith has formed with her foster parents resulted from OCS's removal of Faith from Ralph's custody shortly after her birth, Ralph fails to acknowledge that the reason for Faith's removal was Ralph's history of abusing and neglecting his older children. Ralph's argument that the trial court failed to consider his "determination and capability to change" is also unpersuasive; the superior court found specifically that "there is no evidence that further delay of the termination proceedings would result in Ralph following through with the case plan at a level that would result in reunification, so that a delay would not be beneficial to the child," and this finding was amply supported by the record.
Finally, Ralph appeals the superior court's denial of his post-trial motion to prohibit cessation of visitation, arguing that testimony from Faith's termination trial indicated that continuing visitation would be in Faith's best interest. Specifically, Ralph notes that Heather Miller testified about one visit when Ralph and Nell "handled the situation as best as any parent could" after Faith indicated that she did not want the visit to end, and that Dr. Collins testified that it would be detrimental for Faith's bond with her parents to be severed and in Faith's best interest to continue that relationship.
After holding a hearing on the motion, the superior court denied Ralph's motion without prejudice, finding that Ralph had failed to prove that ordering continued visitation after Ralph's parental rights had been terminated was in Faith's best interest. At the hearing, the superior court specifically noted that neither party had presented additional evidence regarding whether ordering continued visitation between Faith and Ralph was in Faith's best interest and concluded that, although it was not finding that it was not in Faith's best interest to have continued contact with her parents, Ralph had not met his burden of proving "by a preponderance of the evidence" that it was "more to [Faith's] benefit to . . . order [continued contact with Ralph] than not." We agree.
After a trial court terminates parental rights, the parent retains no residual parental rights to the child.
In Burke P., we concluded that the trial court did not err when it declined to find extraordinary circumstances supporting post-termination visitation.
Similarly, the record in this case reveals that Faith needs permanency in her life, that Faith has been placed with a foster family that intends to adopt her, and that Ralph has expressed feelings of animosity towards OCS workers and Faith's foster parents. As discussed above, Anne Holder, Raymond Edwards, and Dr. Collins testified to the need for permanency in Faith's life, especially given
In addition, the record contains conflicting testimony regarding the impact that continued visitation with Ralph would have on Faith. As the superior court noted at the motion hearing, Dr. Collins testified that "[i]t would be better not to have either [Faith's foster parents' or Ralph's and Nell's] relationships [with Faith] totally terminated" because "there is definitely a [warm] bond between [Ralph and Nell and Faith] . . .," and Heather Miller, the case manager who supervised visitations with Faith, testified that Faith had indicated that she did not want to leave at the end of some visits with Ralph and Nell. But OCS visitation supervisor Cynthia Bergamo and Faith's foster mother both testified that Faith had exhibited signs that visitation sessions with her parents had recently begun to cause her distress: Bergamo described one incident in which "[Faith] was crying [and] saying no, she didn't want to leave the foster parent, she didn't want to get in the vehicle" prior to a visit, and Faith's foster mother testified that Faith had recently begun to bite herself, pull her hair, rip her clothes off, and make "blood-curdling screams" on parent visitation days. Her foster mother also testified that Faith had begun to throw "20-minute tantrums," have nightmares that were "horrific, to the point of [making Faith] unconsolable" before visitation days, and that Faith would say "they don't like me" when asked why she didn't want to go see Ralph and Nell. Thus, although some evidence presented at trial supported a finding that continuing visitation might be beneficial to Faith, other evidence suggested that continuing visitation with Ralph could actually be harmful to Faith.
Because termination of parental rights results in automatic cessation of visitation and the record before the superior court did not clearly show that continuing visitation would be in Faith's best interest, we conclude that the superior court did not err in determining that Ralph failed to meet his burden of showing that continued visitation was in Faith's best interest.
For the foregoing reasons, we AFFIRM the superior court's findings that Ralph failed to timely remedy the conduct or conditions that placed Faith at serious risk of harm and that termination of parental rights was in Faith's best interest, the superior court's order terminating Ralph's parental rights to Faith, and the superior court's denial of Ralph's motion to prohibit cessation of visitation.
Similarly, therapist Okeson testified that notes from her sessions with Ralph stated that: in June and July 2009 Ralph was "not taking full responsibility" for what happened with his children and hadn't internalized what he and Okeson were "processing"; in October 2009 Ralph was angry, resentful, "continuing to play the victim," and "didn't understand about his relationship with his daughters"; in November 2009 Ralph wasn't able to understand why two of his children would not want to return to his care, stated that the children would be "dead to him" if they changed their names after being adopted, and was not taking responsibility for his actions; and in January 2010 Ralph was "derogatory and aggressive" towards his eldest daughter but "felt that he dealt with [her] just fine," and continued to "play the victim." Okeson identified Ralph's views about his children as "thinking errors," and stated that she believed Ralph would need to continue therapy for "a minimum of . . . another 6 months to a year."
