STOWERS, Justice.
Shirley M. appeals termination of her parental rights to her child, Abigail, on the grounds that the trial court erred in finding that: (1) Shirley failed to remedy the conduct that put Abigail at risk of harm; (2) the Office of Children's Services (OCS) made reasonable efforts to provide services to reunify the family; (3) termination was in Abigail's best interests; and (4) OCS did not abuse its discretion in placing Abigail with her foster parents and not her great-grandmother, Rae. We affirm the decision of the trial court.
Shirley
OCS arranged for Shirley to complete a psychological assessment, which took place in April 2006 with clinical psychologist Dr. Michael Rose. After conducting multiple screening tests and an interview with Shirley, Dr. Rose concluded that she had a personality disorder and was not competent to parent her children effectively. According to Dr. Rose, Shirley had significant psychological problems, including issues with impulse control, difficulty with anger management, aggression, feelings of insecurity, difficulty with relationships, and mistrust. She blamed others for her problems, exhibiting anti-social, schizoid, or borderline personality features and possibly psychotic thinking processes. In spite of her attempts to present herself favorably during the evaluation, she showed elevated signs of abuse, distress, and rigidity, indicating a high risk of dysfunctional parenting; a second screening test showed a high probability of substance dependence. Dr. Rose diagnosed Shirley with adjustment disorder with mixed disturbance of emotions, and borderline personality disorder as well as severe psychosocial stressors. Dr. Rose recommended long-term individual psychotherapy, such as dialectical behavior therapy, which is a form of cognitive behavior therapy designed for individuals with borderline personality disorder or mood disorders. According to Dr. Rose, this therapy usually takes at least one year for changes to be seen, and for someone with borderline personality disorder, treatment often takes several years.
Shirley relinquished her parental rights to Haily and Daisy in 2007 and the children were adopted. Meanwhile, Shirley was running an escort service and had several women working for her.
Abigail was born in the spring of 2010. In May 2011 an OCS investigator received a protective service report alleging that Shirley was physically abusing Abigail, prostituting from her home, and using drugs while breast-feeding. Although OCS was unable to substantiate this report, OCS received another report in October 2012 and confirmed that Shirley was still or again engaging in prostitution. Things came to a head in early November 2012; on November 1 and 2, OCS received several calls from Abigail's paternal aunt, who was babysitting Abigail. Abigail had awoken with a fever, and her aunt gave her some cold medicine. Several hours later, the fever spiked and they went to Providence Alaska Medical Center. Abigail had a seizure on the way to the hospital. Shirley arrived at the hospital and caused a scene. Toxicology results indicated Abigail had been exposed to methamphetamine. Because of concerns that Abigail's seizure was caused by a drug overdose, OCS scheduled a urinalysis (UA) for Shirley, but Shirley failed to comply. Abigail's seizure was later believed to be caused by her high fever and a genetic condition.
An OCS representative met with Shirley to discuss her recent behavior. Shirley implied that she had stopped engaging in prostitution but had started again two months earlier because she needed money. Shirley blamed Abigail's aunt for Abigail's suspected exposure to drugs.
On November 3 OCS filed an emergency petition for adjudication of child in need of aid and for temporary custody of Abigail alleging that Abigail was a child in need of aid under AS 47.10.011(6), (7), (8), (9), (10), and (11).
OCS transferred Shirley's case to protective service specialist Michelle Virden, who had been involved with Shirley and her children since 2004. Virden met with Shirley and initiated a case plan; this case plan followed a long line of case plans OCS had initiated with Shirley over the years. This plan, effective in January 2013, identified the following safety threats to Abigail: (1) there was no adult in the home performing parenting duties; (2) Shirley was unable to control her behavior and lacked parenting skills; (3) Shirley was engaging in prostitution and drug abuse and was associating with other prostitutes and drug users; and (4) Shirley or someone she trusted with Abigail exposed
Shirley did not show up for a single scheduled UA despite the case plan requirements that she submit to UAs. Eventually OCS requested that Shirley submit to a hair follicle test to establish whether she was using methamphetamine during the time Abigail was hospitalized. Because Shirley refused, OCS had to obtain a court order for a hair sample test and UA. In March 2013 Virden drove Shirley to the lab for a hair follicle test, which was positive for methamphetamine.
Shirley actively avoided contact with OCS. She gave Virden an old address, which caused Shirley to miss a pre-arranged home visit. It was not until April 2013, after Shirley was arrested and charged with vehicle theft, assault, failure to stop at the direction of a police officer, and eluding a police officer, that Shirley showed any intention of getting Abigail back.
In August 2013 Shirley was released from Hiland Mountain to live in Sterling with Rae as her third-party custodian. Based on Dr. Glass's evaluation, Virden referred Shirley to Akeela House for a substance abuse assessment, but dialectical behavior therapy was not an option on the Kenai Peninsula. Although Virden did find a provider in Anchorage who would conduct the recommended therapy on a sliding fee scale, Shirley decided to go to Serenity House Treatment Center in Soldotna because of its proximity to Rae's home. But Shirley could not comply with the Serenity House outpatient treatment requirements because Rae was unable to drive her to all of her appointments or Shirley had to leave half way through her 90-minute appointments because Rae had other things to do. So when a bed became available in late November 2013, Shirley moved into Serenity House's residential treatment center. Shirley successfully completed residential treatment but was discharged from the program in January 2014 so she could attend the termination trial. She requested continuation of services to complete treatment after the termination trial. Shirley's primary counselor at Serenity House testified at trial that Shirley had made progress but would need more time to change; she was on step four of a 12-step program and required further intensive out-patient treatment. Dr. Glass similarly testified that based on her review of Shirley's treatment records from Serenity House, Shirley still needed at least one year of dialectical behavior therapy and substance abuse treatment.
Abigail has significant special needs, including severe tremors, low muscle tone, delayed fine motor skill development, and symptoms of post-traumatic stress disorder (PTSD). Abigail has trouble moving from
Abigail's foster mother, Mandy Reed, testified at trial about her qualifications as a licensed foster parent, her relationship with Abigail, and the care Abigail requires. Mandy has a master's degree in public health, and she works as a nurse for people with disabilities. She and her husband live with their two teenage sons and three foster children including Abigail. Mandy's testimony provided additional insight into Abigail's disabilities. Abigail has significant motor skill delays, speech delays, and dental problems. She cannot feed or dress herself because of her severe tremors and low muscle tone. She has trouble negotiating obstacles and frequently falls. Mandy testified that although Abigail is sweet and charming, she is hyper-vigilant about who is near her and what they are doing, and she is prone to running away. She is easily distracted and thus unaware of safety matters such as cars in the street.
Abigail attends weekly play therapy through the Alaska Community Mental Health Services' child trauma project to address her PTSD and the resulting tantrums. She also attends a special education preschool five mornings a week, as well as weekly speech therapy and occupational therapy. At home Mandy and Abigail work together on speech and occupational therapy. Abigail refers to Mandy as "mom" and enjoys being with the other family members and pets.
Before OCS filed the termination petition it considered placement possibilities for Abigail, taking into account her special needs and Shirley's preferences. Shirley requested that Abigail be placed with Rae. OCS agreed to investigate Rae's home as a placement option, but because OCS was advised that Rae was not considered Abigail's "grandparent" for placement purposes, OCS had not treated Rae as a grandparent and had not been in contact with Rae about Abigail until April 2013.
A termination trial was held on January 21-23 and February 3, 2014, before Superior Court Judge Erin B. Marston. At that time, Shirley still had four felony charges pending, including vehicle theft, and she faced two to three years in prison if convicted. The court heard testimony from OCS representatives, doctors who had evaluated Shirley, Mandy, Shirley, and Rae. At the end of trial the court issued an oral decision terminating Shirley's parental rights to Abigail, followed by its written order memorializing its decision. The trial court found clear and convincing evidence that Abigail was a child in need of aid pursuant to AS 47.10.011(1), (4), (6), (9), (10), and (11); that Shirley failed to remedy the conduct or conditions that placed Abigail at substantial risk of injury; and that OCS made timely reasonable efforts to provide family support services towards reunification. The trial court also found by a preponderance of the evidence that termination of Shirley's parental rights to Abigail was in Abigail's best interests.
The trial court also conducted a placement review hearing at the conclusion of the termination trial and made findings regarding placement. In support of OCS's decision not
Rae testified about her qualifications as a potential placement for Abigail and gave her opinion as to Shirley's parenting abilities. At the time of trial, Rae was 67 years old and believed she was in good health. She had worked for 23 years as a certified caregiver in Sterling taking care of a family friend with Down's syndrome. Her job required cooking, cleaning, helping with exercise, driving to and from medical appointments, paperwork, and general care.
Although Shirley had lived with Rae off and on for many years, Rae claimed that she was not aware of Shirley's drug problem. Nor did Rae accept as accurate Penny's autopsy report. Instead, she firmly believed that Penny died from carbon monoxide because the family truck emitted noxious fumes. Rae considered Shirley to be a very loving and good mother. Rae's testimony also revealed that she did not know the extent of Abigail's special needs or what would be required of her if she had custody of Abigail. Although Rae did not explain how she would handle her current job and custody of Abigail, she said she would relocate to Soldotna if necessary to be near facilities for Abigail and would abide by any restrictions regarding contact with Shirley.
The trial court found clear and convincing evidence that continuing Abigail's placement in licensed foster care with the Reed family was appropriate and in Abigail's best interests, and that OCS did not abuse its discretion by denying placement with Rae. The trial court elected not to make a finding whether a great-grandmother falls under the statutory relative preference but instead found that OCS had good cause to deny placement with Rae, primarily because of Abigail's special needs and Rae's inability to meet those needs. Shirley appeals both the termination of parental rights and the trial court's upholding of OCS's placement decision.
In a child in need of aid (CINA) case, "we review the trial court's factual findings for clear error and its legal determinations de novo."
We review the superior court's finding of good cause to deviate from ... placement preferences for an abuse of discretion.
Before terminating parental rights, a trial court must find by clear and convincing evidence that the parent has not remedied within a reasonable time the conduct or conditions in the home that placed the child at substantial risk of harm.
The trial court found clear and convincing evidence that Shirley failed, within a reasonable time, to remedy the conduct or conditions that placed Abigail at risk. The trial court was concerned that even though OCS took custody of Abigail in November 2012, Shirley did not start working her case plan seriously until she was arrested months later. Given Shirley's long history of OCS involvement and that she clearly knew or should have known what was expected of her to regain custody of Abigail, the trial court was disturbed that Shirley began a methamphetamine habit while she was on bail for felony charges. The trial court also pointed out that Shirley failed to comply with both Dr. Rose's 2006 recommendation of long-term individual therapy and cognitive behavior training, and Dr. Glass's 2013 recommendation of dialectical behavior therapy and long-term care. Based on Dr. Glass's evaluation and testimony, the trial court found that Shirley had not improved her life but in fact had made it worse, and she was in no condition to parent a child.
Shirley argues that the trial court erred in finding that she had not remedied the issues set forth in the petition in a timely fashion because she made substantial progress on her case plan but was not allowed sufficient time to engage meaningfully in treatment. Shirley maintains that at the time of trial, she was no longer escorting or using drugs, and she was engaging in mental health counseling, substance abuse treatment, and parenting classes.
Before terminating parental rights, the trial court must find by clear and convincing evidence that OCS made timely, reasonable efforts to provide family support services to the child and parents designed to prevent out-of-home placement or enable the safe return of the child to the family home.
Here, the trial court found clear and convincing evidence that OCS's efforts towards
Shirley argues that the trial court erred in finding that OCS made reasonable efforts because neither OCS nor the court took into account the limitations Shirley's cognitive impairments put on her ability to understand and comply with the case plan. Shirley argues that OCS should have tailored the plan to address her needs and intellectual abilities as documented by Dr. Rose and Dr. Glass, should have provided Shirley's treatment providers with the case plan, and should have provided Shirley with better ways to understand the plan, such as checklists. In support Shirley cites Lucy J. v. Department of Health & Social Services, Office of Children's Services, in which we addressed a mother's disabilities and stated that "[i]n order to take[] the client through the steps of reunification' in a way that will satisfy the active efforts requirement [under the Indian Child Welfare Act], OCS must reasonably tailor those steps to the client's individual capabilities."
The record supports the trial court's conclusion that OCS made reasonable efforts to reunite Shirley and Abigail and that OCS took Shirley's limitations into consideration in initiating and working through her case plans. Years before Abigail was born, OCS began providing Shirley in-home services, parenting training, a psychological evaluation, and case plan development, despite Shirley's apparent lack of interest. After taking custody of Abigail, OCS met with Shirley and developed updated case plans, arranged for drug testing, referred her to additional psychological evaluation and counseling, provided a bus pass, attempted a home visit, and visited her in jail on multiple occasions to continue services and generate case evaluations. OCS also provided Shirley with a referral to Akeela House for substance abuse assessments. Through the Department of Corrections, Shirley received additional parenting training, counseling and medication for her mental health treatment, a substance abuse assessment, and substance abuse therapy. Upon Shirley's release from incarceration, OCS provided referrals for the recommended long-term therapy and substance abuse treatment, paid for additional substance abuse assessments, and provided Serenity House copies of her most recent case plan and of Dr. Glass's report. OCS also arranged visits between Abigail and Shirley, provided Abigail with physical and psychological evaluations, arranged therapy and services, and provided for Abigail's medical needs. Shirley's case workers made sure that Shirley knew about the case plans and knew what needed to be done. As the trial court noted, Shirley had clear notice that she needed to change given the earlier termination of parental rights to her other children. We conclude that the trial court did not err in determining that OCS's efforts were timely and reasonable.
Alaska Statute 47.10.088(c) requires a court to consider the best interests of the child in a proceeding involving termination of parental rights. Alaska Child in Need of Aid Rule 18(c)(3) specifies that a trial court may terminate parental rights only if it finds by a preponderance of the evidence that termination is in the child's best interests. In making a best interests determination, the trial court may consider any fact relating to the best interests of the child, including but not limited to:
The factors listed in the statute are not exclusive, and the trial court need not accord a particular weight to any given factor.
The trial court found by a preponderance of the evidence that termination of Shirley's parental rights was in Abigail's best interests because of Abigail's undisputed special medical and mental health needs and her foster family's demonstrated ability to provide the support, love, and care Abigail needed. The court found that it was impossible for Shirley to meet Abigail's special needs and moreover that Shirley did not seem to recognize the existence or extent of Abigail's special needs. Therefore, because of Abigail's struggles with transition and her need for routine, predictability, and a stable lifestyle, the trial court found that returning Abigail to Shirley would put Abigail in serious physical and mental jeopardy.
Shirley argues that the trial court erred in finding that termination of her parental rights was in Abigail's best interests because her offending conduct was short in duration given a child's overall life span. Shirley maintains that she never harmed Abigail, that Abigail's aunt was to blame for Abigail's hospitalization, and that Shirley had begun to cooperate with OCS and improve her life by receiving mental health counseling, going on medication, and moving into Rae's home which she claims was a stable environment.
The trial court's decision is supported by the testimony of OCS social worker Virden, who believed termination of Shirley's parental rights was in Abigail's best interests, and Dr. Glass, who believed Shirley's mental health conditions had worsened and would require at least one year of intense therapy and substance abuse treatment before she could potentially parent effectively. There was also abundant evidence that Abigail's foster family was skillfully managing Abigail's therapy and providing excellent care to Abigail. We therefore conclude that the trial court did not clearly err in determining which factors to consider in its best interests analysis and how much weight to give those factors, and in ultimately finding that termination was in Abigail's best interests.
When a child is removed from a parent's home, OCS is required to place the child with an adult family member, absent clear and convincing evidence of good cause to the contrary.
Alaska Statute 47.10.990(1) defines "adult family member" as "a person who is 18 years of age or older and who is (A) related to the child as the child's grandparent, aunt, uncle, or sibling; or (B) the child's sibling's legal guardian or parent."
Shirley argues that the trial court violated AS 47.14.100(e)(3) by placing Abigail with foster parents instead of Rae. She argues that common sense dictates that a great-grandparent be included as a "family member" under the statutory placement preferences.
At trial OCS argued that there was clear and convincing evidence of good cause to deviate from the statutory priority list because Rae could not provide the level of care that would meet Abigail's significant special needs, and Mandy could. OCS presented testimony that its decision to deny Shirley's placement request was based on current concerns that Rae's home was unsafe and that she was unable to provide the necessary care for Abigail's special needs. The trial court found that OCS had not abused its discretion under AS 47.14.100(e) by placing Abigail with the Reed family. The trial court also found that it did not need to make the determination whether a great-grandmother qualifies as an adult family member because clear and convincing evidence supported placement with the Reed family rather than Rae, due to Abigail's "extreme special needs," Mandy's "unbelievable commitment to ... addressing those special needs, which is fantastic, and... [Rae's] true lack of recognition of ... the special needs, and inability to meet those needs." The trial court further noted its concern that Rae was "very angry" with OCS and joined Shirley in her belief that the problem was not Shirley's parenting but OCS's interference with their family.
We will generally consider a challenge to a termination order and a challenge to a placement decision separately.
For the foregoing reasons, we AFFIRM the superior court's judgment terminating Shirley's parental rights to Abigail and upholding OCS's placement decision.
