|
(Cite
as: 929 P.2d 650)
Supreme
Court of Alaska.
D.H.,
Appellant,
v.
STATE
of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Appellee.
No.
S-7590.
Dec. 20, 1996.
Fabe, J., dissented and filed
opinion.
Determination
that child was in need of aid as a result of mother's neglect was supported
by evidence that mother failed to make any sustained effort to establish
a parent-child relationship by remaining available to provide for daughter's
daily care. AS 47.10.010(a)(2)(F) (1995).
Once
threshold jurisdictional determination is made that child is in need
of aid, court is required to make findings of fact
under appropriate child in need of aid (CINA) rules. AS
47.10.010.
Finding
that reasonable efforts were made to prevent or eliminate need
for removing child from home was supported by evidence pertaining
to state's efforts to help mother enroll in and complete
drug rehabilitation programs. AS 47.10.010; Child in Need of Aid
Rule 15(g).
State's
attempts to help mother enroll in and complete drug rehabilitation
programs were "active efforts" to provide "remedial services and rehabilitation
programs," within meaning of Indian Child Welfare Act (ICWA) and
Child in Need of Aid (CINA) rule. Indian Child Welfare
Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d);
Child in Need of Aid Rule 17(c)(2).
State
has burden of proving by preponderance of evidence that child
is a child in need of aid (CINA). Child in
Need of Aid Rule 15.
Indian
child may not be removed from parent's custody, under Indian
Child Welfare Act and corresponding Child in Need of Aid
(CINA) rule, unless there is clear and convincing evidence, including
testimony of qualified expert witnesses, that custody of Indian child
by parent or Indian custodian is likely to result in
serious emotional or physical damage to child. Indian Child Welfare
Act of 1978, § 102(e),
25 U.S.C.A. § 1912(e);
Child in Need of Aid Rule 17(c)(2).
Trial
court was required, under Indian Child Welfare Act (ICWA) and
corresponding Child in Need of Aid (CINA) rule, to make
specific findings focusing explicitly on likelihood that child would suffer
physical or emotional damage if left in mother's custody before
court could adjudicate Indian child to be a child in
need of assistance. Indian Child Welfare Act of 1978, § 102(e),
25 U.S.C.A. § 1912(e);
Child in Need of Aid Rule 17(c)(2).
*651
James M. Hackett, Fairbanks, for Appellant.
D. Rebecca Snow, Assistant Attorney General, Fairbanks, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.
OPINION
RABINOWITZ, Justice.
I. INTRODUCTION
This is an appeal of an order adjudicating T.H. a
child in need of aid pursuant to AS 47.10.010(a)(2)(F). The
superior court determined that the child's mother D.H. was addicted
to drugs at the time of her pregnancy, that she
continues to be addicted, and that T.H. has been neglected
by both D.H. and her father F.H. since birth. Based
on the evidence before it, the court adjudicated T.H. a
child in need and placed her in State custody for
a period of up to two years. D.H. contends that
T.H. was improperly removed from her custody and appeals the
superior court's adjudication, asserting that there is insufficient evidence under
AS 47.10.010(a)(2)(F) and Child in Need of Aid (CINA) Rules
to support the superior court's determination.
*652
II. FACTS
AND PROCEEDINGS
T.H. was born on July 5, 1995, to D.H. and
F.H.
[FN1] The newborn tested positive for cocaine when a urine
toxicology screen was performed. The State took
emergency custody of T.H. shortly after birth, based on this
positive toxicology as well as concerns for T.H.'s safety should
she remain in the care of an allegedly drug addicted
mother.
[FN2]
FN1.
T.H. is an Indian child within the meaning of the
federal Indian Child Welfare Act (ICWA). 25 U.S.C. § 1911
et
seq.
FN2.
After receiving a referral from the hospital informing the State
of T.H.'s positive toxicology, an investigation revealed that D.H. had
been treated in the hospital emergency room in March 1995,
at which time she admitted using both cocaine and marijuana.
Needle track marks on both arms indicated chronic drug use,
and D.H. appeared to be under the influence of a
controlled substance. A toxicology screen confirmed the presence of both
marijuana and cocaine.
On July 17, 1995, D.H. signed a stipulation granting the
Department of Health and Social Services (Department) custody of T.H.
through October 8, 1995. With the agreement of D.H. and
F.H., the State placed T.H. with Eva and John, the
paternal grandparents.
[FN3] For a few weeks D.H. resided with Eva and
John and T.H. Thereafter, the parties came to an understanding
regarding visitation which allowed D.H. and F.H. to take T.H.
from her grandparents' home between
10:00 a.m. and 2:00 p.m. daily. D.H.'s visits were sporadic,
though it "never reached a point where [visitation] wasn't happening
at all." [FN4]
FN3.
At the time of the CINA adjudication, T.H.'s placement with
Eva and John had been continuous. What apparently motivated the
State to file its CINA petition was the fear that
D.H. would increasingly assert her legal rights as parent, to
the detriment of T.H., were these rights not curtailed. The
State indicated as much in the proceedings below:
[I]f
the court dismisses this petition and does not end up
ordering the child into somebody's custody, the child goes back
to the parents ['] custody. And even though the child
would stay with [Eva and John] until the parents showed
up on the doorstep and asked for the child ...,
they couldn't keep the child from the parents. ... Entirely
how much influence, how much persuasion can the grandparents bring
to bear on the parents to leave the child where
she would best be cared for. We would submit that
the evidence is pretty strong with regard to Samantha [D.H.'s
other daughter] that the parents have not been willing to
leave her where she would be better cared for, that
is with the grandmother. They have dropped her off there
when it was convenient for them and then they've come
and picked her back up again and they've dropped her
off there again and then
they've picked her up there--from there again. And it's entirely
based on their whims and convenience and it is our
position ... that kind of treatment of this age child
is going to cause her emotional damage.
FN4.
Regarding this period of time, the superior court stated in
its factual findings that D.H. made "no real bonding efforts"
and that "no significant nurturing" took place. The superior court
also determined:
Immediately
after her birth, [T.H.] was placed by the State in
the custody of her paternal grandparents.... [They] have cared well
for [T.H.] and have bonded with her. Their successes, however,
are not due at all to either [F.H.] or [D.H.].
[The parents] cannot assume credit for the efforts of John
and Eva [ ], nor can their neglect be justified
or excused by the good works of [T.H.]'s grandparents. The
"home" in which [T.H.] now resides is the home of
John and Eva [ ]. It is not the home
of [D.H.] or [F.H.]. To suggest that [D.H.] and [F.H.]
have provided a home for [T.H.] is factually unfounded, ignores
the role of the State, and gives [D.H.] and [F.H.]
far more credit than they are entitled to.
During this period the State attempted to assist D.H. in
her expressed desire to participate in a substance abuse treatment
program. This effort included various evaluations and programs, all of
which D.H. left prior to completion. D.H.'s
mother testified that D.H. stated "she wanted to go, but
her--for some reason or another she'd say, but I'm not
going to go if I can't have the baby. I'm
not going to go if I have to go to
group because I don't like talking." [FN5]
FN5.
The discharge summaries from D.H.'s treatment efforts indicate that she
was concerned with access to her child while participating in
in-patient treatment. Other factors possibly contributing to D.H.'s premature departures
from the programs are alluded to throughout the summaries.
On September 25, 1995, the Department filed a Petition for
Adjudication of Child in Need of Aid. Temporary State custody
of T.H. was extended through completion of the hearing. On
February 23, 1996, the superior court entered a judgment placing
T.H. in the custody of the State for a period
not to *653
exceed two years, pursuant to AS 47.10.080(c)(1).
[FN6] In so doing the court found that D.H. suffers
from a serious drug addiction that she is "not currently
motivated to seriously address or resolve." The superior court additionally
determined that
FN6.
AS 47.10.080(c) reads: If
the court finds that the minor is a child in
need of aid, it shall
(1)
order the minor committed to the department for placement in
an appropriate setting for a period of time not to
exceed two years ... except that the department may petition
for and the court may grant in a hearing (A)
two-year extensions of commitment that do not extend beyond the
minor's 19th birthday if the extension is in the best
interests of the minor and the public....
[d]rugs
and alcohol remain the single most important part of [D.H.]'s
life.... [D.H.] is not motivated to care for or nurture
[T.H.]. [D.H.]'s refusal to take part in these proceedings demonstrates
a lack of interest on her behalf.... [D.H.] has neglected
[T.H.] since [her] birth. There has been no real bonding
efforts on [D.H.]'s part and no significant nurturing has taken
place.... The evidence is clear and convincing that neither [D.H.]
nor [F.H.] have provided [T.H.] with a home since [her]
birth or displayed any sincere desire to do so. It
is in [T.H.]'s best interest to be placed in the
custody of the State of Alaska. [Eva and John] appear
to be the appropriate custodians for [T.H.] however this matter
has not been fully addressed or litigated in these proceedings.
The superior court's findings were later amended nunc
pro tunc
to reflect its determination that "[t]he State actively pursued efforts
to prevent removal
of [T.H.] from her parents and made reasonable efforts toward
reunification." D.H. appeals the superior court's judgment granting custody of
T.H. to the State.
[FN7]
FN7.
D.H. has another child, Samantha, born April 14, 1991. At
the time of the hearing Samantha was in the custody
of D.H. Her custody is not at issue in this
case. Nor is the parental fitness of F.H. at issue
on appeal.
III. DISCUSSION
A. Did
the State Present Sufficient Evidence for the Superior Court to
Adjudicate T.H. a Child in Need of Aid Under AS
47.10.010(a)(2)(F)?
[FN8]
FN8.
This court reviews adjudication decisions and the factual findings that
support them under the clearly erroneous standard, unless they raise
questions of statutory interpretation. E.g.,
In re J.L.F. & K.W.F.,
828 P.2d 166, 170 n. 12 (Alaska 1992).
D.H. argues that the State's evidence of abuse or neglect
is insufficient to meet the threshold requirements of AS 47.10.010(a)(2)(F).
[FN9] In interpreting
this statute, we have said that the legislature intended that
the State "assume custody of minors only to remedy severe
parenting deficiencies and prevent significant harm to children." In
re J.L.F. & K.W.F.,
912 P.2d 1255, 1261 (Alaska 1996). D.H. asserts that the
State failed to present sufficient evidence to make this showing.
[FN10]
FN9.
AS 47.10.010 reads in relevant part:
Jurisdiction.
(a) Proceedings relating to a minor under 18 years of
age residing or found in this state are governed by
this chapter, except as otherwise provided in this chapter, when
the court finds the minor
. . . . .
(2)
to be a child in need of aid as a
result of
. . . . .
(F)
the child having suffered substantial physical abuse or neglect as
a result of conditions created by the child's parent, guardian,
or custodian.
FN10.
The only argument that D.H. makes to support this claim
is that T.H. was born, and continues to be, a
physically healthy child. As the statute and this court's treatment
of it make abundantly clear, however, the
superior court is not meant to confine its inquiry to
the physical well-being of the child.
The State contends that the record
fully supports the superior court's determination that T.H. was a child
in need of aid as a result of her mother's neglect since birth. According
to the State, the evidence before the superior court demonstrated
the
mother's failure to make any sustained effort after her daughter
was born to establish a parent-child relationship with [T.H.] by
remaining available to provide for her daily care. The explanation
for *654
[D.H.'s] neglect lay at least partially in her polysubstance abuse
which had gone on for several years. Neither her pregnancy
nor the birth of her daughter changed her priorities.
The superior court determined that by failing to take responsibility
for T.H. or to make any appreciable effort to do
so, D.H. substantially neglected her daughter. We conclude that the
court had an ample evidentiary basis for adjudicating T.H. a
child in need of aid pursuant to AS 47.10.010(a)(2)(F). Thus,
the superior court's finding is not clearly erroneous.
B. Is
the Superior Court's Finding that the State "Actively Pursued Efforts
to Prevent Removal of [T.H.] from Her Parents and Made
Reasonable Efforts Toward Reunification" Adequate under CINA Rules 15(g) and
17(c)(2) and Supported by
Sufficient Evidence?
[FN11]
FN11.
Whether the findings were adequate to satisfy the CINA rule
is a question of law. This court interprets statutory language
and rule language, such as the requirements of the CINA
rules at issue in this case, de
novo. Langdon v. Champion,
745 P.2d 1371, 1372 n. 2 (Alaska 1987). The question
of whether the findings were erroneous is reviewed for clear
error. A.H.
v. State,
779 P.2d 1229, 1231 (Alaska 1989).
Once the threshold jurisdictional
determination called for by AS 47.10.010 is made, the superior court is
required to make findings of fact under the appropriate CINA rules. D.H.
asserts that the superior court's requisite CINA findings are not adequately
supported by the evidentiary record. [FN12]
FN12.
D.H. argues in particular that the trial court's findings under
CINA Rule 10 are unsupported by the evidence. However, as
noted by the State,
[t]he
trial court did not claim to make any findings under
CINA Rule 10 nor was it asked to. CINA Rule
10 relates to temporary custody hearings. CINA Rule 15 controls
adjudication decisions like the one appealed
from this case and CINA Rule 17 controls disposition decisions.
In
any case, since "Rules 15 and 17 do include substantive
requirements similar to those in CINA Rule 10 that D.H.
argues were not proved," the State proceeds to address the
substantive arguments made by D.H. as if they reference the
appropriate CINA Rule. We treat D.H.'s claims in a similar
manner.
CINA Rule 15(g), governing the
adjudication hearing, requires that in cases where the trial court authorizes
removal of the child from the parent, the court make findings pursuant
to 42 U.S.C. § 671(a)(15) "as to whether, under the circumstances
of the case, reasonable
efforts were made to prevent or eliminate the need for removal of the
child from the home and to make it possible for the child to return to
the home." Rule
15(g) (emphasis added).
CINA
Rule 17(c)(2), regarding disposition of a child who has been adjudicated
a child in need, requires additional findings of fact in cases involving
an Indian child. Before removing the child from his or her
parents,
[t]he
court must find ... by a preponderance of the evidence
that the party requesting removal of the Indian child has
shown that active
efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family,
and that these efforts have proved unsuccessful.
Rule 17(c)(2) (emphasis added).
[FN13]
FN13.
This language is derived from the ICWA at 25 U.S.C.
§ 1912(d),
which reads:
Any
party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.
The State concedes that in its initial preparation of the
written findings and order, the superior court "overlooked" the provisions
of CINA Rules 15(g) and 17(c)(2) that require it to
make explicit determinations related to services provided to the family.
Upon a motion by the State the superior court entered
an amended order which included a finding related to the
State's efforts. The State claims that this amendment rectified the
superior court's initial oversight.
[FN14]
FN14.
The superior court simply amended its order to include one
additional finding of fact: "The State actively pursued efforts to
prevent removal
of [T.H.] from her parents and made reasonable efforts toward
reunification." See
R.R. v. State,
919 P.2d 754, 756 (Alaska 1996) (rejecting a claim that
a superior court's findings as to reasonableness were inadequate solely
because they were only "mentioned in passing" and holding that
"CINA Rule 15(g) does not require that each element of
the 'reasonable efforts' be discussed individually and in detail.").
D.H. asserts that the superior court's inclusion of these required
findings was "simply *655
pro forma,
and not supported by the evidence." She alleges that the
State wrongly assumed emergency legal custody of T.H. immediately following
birth, contending that the State's action was based solely on
"unsupported concern ... for what the mother might do in
the future (or might never do)." D.H. further claims that
subsequent to this emergency legal custody, "[t]he Division apparently made
no efforts whatsoever to leave the infant with her mother."
The State correctly asserts that "[t]he primary obstacle to the
mother having custody of the child was her substa |