Not Reported in P.3d,
2010 WL 4909461 (Alaska)
NOTICE: THIS CASE WAS ENTERED IN THE WESTLAW DATA BASE BEFORE THE TIME FOR REHEARING HAD EXPIRED. IT IS POSSIBLE THAT REHEARING HAS BEEN SOUGHT, GRANTED OR DENIED.
LINDSEY H., Appellant,
STATE OF ALASKA, DEPARTMENT OF HEALTH AND FN* SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
FN*. Entered pursuant to Alaska Appellate Rule 214.
Supreme Court No. S-13711
Supreme Court of Alaska.
December 2, 2010
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge.
Appearances: Robert Breckberg, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, and Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Appellant. Megan R. Webb, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellee. Lisa Wilson, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for Guardian Ad Litem.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen. [Stowers, Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT FN*
Following trial, the superior court terminated a mother's parental rights to her tenth child, an infant covered by the Indian Child Welfare Act. The mother appeals on three grounds. First, she argues that the trial court abused its discretion in denying her motion for a continuance in light of the State's failure to timely file a predisposition report. Second, she argues that the trial court clearly erred in finding that she lacked the ability to perceive and meet her child's needs. Third, she argues that the trial court's finding that the child would be seriously damaged if returned to her custody was not supported by sufficient evidence. Because the trial court did not err in these respects, we affirm the trial court's decision.
II. FACTS AND PROCEEDINGS
Lindsey H. is the biological mother of Dylan, born January 8, 2009.FN1 Dylan is an Indian child as defined in the Indian Child Welfare Act (ICWA).FN2 The superior court terminated the parental rights of Josh L., Dylan's biological father, in 2009, and Josh does not appeal that decision.
Lindsey has a long history of involvement with the Office of Children's Services (OCS). As noted above, she is the biological mother of ten children. Her parental rights to her first six children-Faith, Michelle, Jamie, Natalie, Jason, and Jacob-were terminated in December 2005.FN3 Her parental rights to her seventh child, Rhys, were terminated in 2007. Her parental rights to her eighth and ninth children, Addison and Jude, were terminated in June 2009.FN4 Lindsey's rights to her tenth child, Dylan, were terminated on October 26, 2009, and that decision is the subject of this appeal. To understand fully the circumstances surrounding the termination of Lindsey's rights to Dylan, it is also necessary to understand the circumstances leading to the termination of Lindsey's rights to her first nine children. Thus, we discuss the history of this case into two sections: events before Dylan's birth and events after Dylan's birth.
A. Facts And Proceedings Before Dylan's Birth
In 1989 Lindsey gave birth to twin girls, Faith and Michelle. The girls' father was Riley P. Lindsey and Riley had two more children, Jamie in 1990 and Natalie in 1992. In 2001 Lindsey and her children began living with Josh. Lindsey gave birth to Jason in 2001 and Jacob in 2002; Josh is the father of both children. In early 2002, between the births of Jason and Jacob, Lindsey and Josh filed domestic violence petitions against each other. In early 2003, there was a “knock down drag out” fight in the home. When the police arrived, they witnessed Lindsey assaulting Josh; Lindsey was arrested and later convicted of assault. As a condition of probation, Lindsey was ordered to have no contact with Josh for one year. In July 2003, Josh filed another domestic violence petition against Lindsey.
In August 2003 a police officer found Faith and Michelle, Lindsey's first two children, on the street in the early morning hours. They told the officer that they were running away because they were unsafe at home. Faith, who was 14 years old at the time, told the officer that Josh had sexually abused her, and both girls reported harsh physical discipline and domestic violence at home. Faith told the police that she told her mother about the sexual abuse, but her mother did not believe her. Michelle testified that Lindsey and Josh hit each other and that Josh punched one of the younger children in the stomach.
OCS intervened but agreed not to remove the children from the home in exchange for Lindsey's promise to keep the children away from Josh.FN5 Lindsey did not keep the children away from Josh, and OCS removed the children.FN6 When the children later ran away from their foster placement, Lindsey hid the children in her home, kept them out of school, and lied to a social worker about their whereabouts. OCS developed a case plan for Lindsey including parenting and anger-management classes, but Lindsey did not complete the plan.
In April 2004 the superior court adjudicated Faith, Michelle, Jamie, Natalie, Jason, and Jacob as children in need of aid under AS 47.10.011(8) based on repeated exposure to domestic violence. The court also determined that Faith and Michelle were children in need of aid under AS 47.10.011(7) because Faith was a victim of sexual abuse and Michelle was at risk of sexual abuse. The court found that although Lindsey took some parenting classes as recommended by the social workers, she participated “only as a manipulative tool,” telling one social worker that she could “beat any program.” The court also found that Lindsey remained hostile to OCS. If the children were returned to her, the court found, there was a “significant risk that [Lindsey] would have contact with [Josh], would leave the state to avoid further state intervention, or would go underground to avoid state intervention, which could include removing the children from school [and] not taking the children to health appointments,” all for “fear of being discovered and for fear of incurring additional state intervention.”
After the adjudication trial, Lindsey disappeared and did not have contact with her children for about a year. Although her activities during that time are unclear-she refused to provide any information to OCS-Lindsey probably remained with Josh. In February 2005 police were called to Lindsey's house where they found Josh, who had overdosed on drugs and alcohol, and in March 2005 Lindsey gave birth to her seventh child, Rhys. Josh is Rhys's father. At two weeks old, Rhys was diagnosed with a staph infection that was potentially fatal without proper follow-up care. Lindsey withheld her contact information from hospital staff and missed a follow-up appointment, prompting the hospital to contact OCS, which assumed custody of Rhys. The superior court later found that Lindsey did not return to the hospital because she wanted to avoid OCS scrutiny.
Around this time Lindsey resumed work on her case plan, but she still refused to tell OCS where she lived. She participated in parenting classes, a domestic violence awareness program, and a psychiatric evaluation, but the superior court found that “because of her refusal to cooperate with OCS and her dishonesty in the programs, [her] participation in those programs [was] not meaningful.” For example, Lindsey refused the psychiatrist access to OCS records and she falsely denied any history of prior physical abuse or arrests. Further, she told the psychiatrist she had not seen Josh in over two years when in fact she had been living with him a few months earlier. In July 2005 the superior court adjudicated Rhys a child in need of aid based on neglect and medical neglect, and in October 2005 placed the child in the State's custody for a period of two years.
In December 2005 the superior court terminated Lindsey's parental rights to her first six children. In addition to the circumstances discussed above, the court noted that a psychologist had diagnosed Faith and Michelle with severe developmental deficits. The psychologist reported that the girls probably had fetal alcohol spectrum disorder. They were incapable of functioning independently and needed constant support just to meet their daily needs, and these delays put the girls at a high risk of sexual manipulation and abuse if left on their own. The court found that Lindsey “has refused to acknowledge these problems and has taken no steps to assist her girls in these areas.”
In September 2006, unknown to OCS, Lindsey gave birth to her eighth child, Addison. Josh is Addison's father.
In April 2007, Lindsey appeared at a shelter for abused women with alcohol on her breath around ten o'clock in the morning. In June 2007 Lindsey was stopped at the airport carrying 390 grams of marijuana packaged for sale and nine bottles of liquor. She later pled guilty to transporting alcohol to a dry area. Lindsey said she was transporting the items at Josh's request.
In August 2007 the superior court terminated Lindsey's parental rights to Rhys. The court found that Lindsey failed to visit Rhys for a period of at least six months while he was in foster care and failed to remedy the conduct placing Rhys at “substantial risk of harm.” The court also found that, based on Lindsey's statement that she was living at a shelter for abused women to get away from Josh, domestic violence between the couple had persisted.
A few weeks after the termination trial, Lindsey filed a domestic violence petition against Josh. She reported that Josh had taken Addison and requested police assistance in getting the child back. On September 10, 2007, OCS worker Emily Sisson,FN7 accompanied by police, located one-year-old Addison at Josh's residence. Addison was severely dehydrated and almost 50 pounds overweight. Developmentally, her gross motor skills were not on track for her age; she was “barely crawling” and “could not sit up by herself.” She had no verbal skills and was almost entirely non-communicative.
After Addison was taken into OCS custody, Lindsey told Sisson that she was terrified of Josh and fearful for Addison. Sisson set up a case plan for Lindsey that included both parenting classes and programs designed to help her get out of her relationship with Josh and protect her children from him. OCS arranged weekly supervised visits between Lindsey and Addison. OCS worker Nancy Hersha, who supervised several of these visits, testified that Lindsey's behavior was often inappropriate. Hersha observed that Lindsey would not play with Addison or allow Addison to play with toys; rather, she would keep Addison on the couch with her, holding Addison even when she fought to get down. Records also show that at most visits Addison refused to make eye contact with her mother, screamed upon seeing her, and struggled to avoid being held by her.
In September 2007 Lindsey completed a mental health assessment. Lindsey told the assessor that she did not call police when Josh took Addison because she feared involvement from OCS, an agency she viewed as unfair and vindictive. Lindsey admitted to the assessor that she experienced domestic violence with Josh and that Josh had a history of “child sexual abuse.” Lindsey also reported that she had “had a problem with [a]lcohol in 2003 but had her last drink [in] 2004.” Lindsey falsely reported that she had never been arrested for a crime. The assessor recommended individual therapy and offered the opinion that even with treatment, Lindsey's prognosis was “guarded” due to Lindsey's avoidance of certain discussion topics. Lindsey participated in seven therapy appointments over the next seven months.
Josh tested positive for cocaine at least six times in 2007. In November 2007 he was arrested for selling cocaine to an undercover officer; he spent the next year in state custody.
In early February 2008 Lindsey gave birth to her ninth child, Jude. Josh is Jude's father. OCS assumed custody of Jude immediately and shortly thereafter the superior court adjudicated him a child in need of aid. The court found that there was ongoing domestic violence in the home and in the relationship, and that Lindsey continued to have substantial contact with Josh and was unable to keep Jude away from him. The court noted that Lindsey visited Josh in jail every few days and spoke to him every day for guidance and support. Jude was placed with the same foster parents as Addison, and Lindsey attended weekly supervised visits with both children.
Shortly after Jude was born Lindsey completed a substance abuse assessment. Lindsey told the assessor that she had only consumed alcohol twice in her life, the most recent being in 2003. This contradicted Lindsey's previous statement that she had her last drink in 2004 and also contradicted the report of shelter employees who smelled alcohol on Lindsey's breath in 2007. The assessor said he had the impression Lindsey was minimizing or under-reporting her history of alcohol use. Lindsey also told the assessor that she had no problems with violent behavior, and no domestic violence in her relationships. She refused to allow the assessor access to her OCS records. Based on the limited information available, the assessor was unable to make a diagnosis.
In May 2008 Lindsey completed a neuropsychological assessment with Dr. Richard Fuller. Lindsey expressed confusion as to why OCS had taken her children and why OCS considered Josh's home to be unsafe. Dr. Fuller completed a psychological profile of Lindsey but reported that it was only “marginally valid,” as if Lindsey were trying to “minimize faults and downplay psychological problems.” Dr. Fuller stated: “This defensive response to the questionnaire suggests she is attempting to maintain the appearance of adequacy and self-control. Another possibility is that she is not introspective and has poor insight into her own behavior.” Dr. Fuller noted that Lindsey was “likely to be rigid and inflexible in her approach to problems, making it difficult for her to cooperate fully with treatment or other interventions.” Dr. Fuller concluded that Lindsey “has difficulty learning from experience or using feedback” and thus was “likely to approach tasks in a rigid, repetitive manner, failing to shift her approach when it is ineffective.” He further concluded that Lindsey was “unlikely to accept responsibility for any inappropriate behavior or even mistakes ..., tending to externalize blame or fail to understand how some of the things she does are actually problematic.”
B. Facts And Proceedings After Dylan's Birth
On January 8, 2009, Lindsey gave birth to her tenth child, Dylan. Josh is Dylan's father. OCS took emergency custody of Dylan as soon as he was released from the hospital; Dylan was four days old.FN8 Lindsey's parental rights to Dylan are the subject of this appeal.
On January 24, 2009, Lindsey underwent a psychological evaluation with Dr. Alfred Collins to assess her parenting abilities. The evaluation focused on the three children to whom Lindsey still retained parental rights: Addison, Jude, and Dylan. Dr. Collins interviewed Lindsey, administered a variety of psychological tests, and reviewed extensive background material provided by OCS and Lindsey's former treatment providers as well as records of supervised visits between Lindsey and her children.
Dr. Collins reported that Lindsey was extremely defensive during the interview and that her responses were “guarded,” requiring continual digging to elicit adequate replies. Dr. Collins also reported that some of Lindsey's test results were invalid due her tendency to deny even insignificant problems; Dr. Collins reasoned that this was probably a “conscious attempt ... to present herself as having no problems,” though it was possible that Lindsey “simply denies all problems even to herself.” Dr. Collins concluded:
While [Lindsey] has complied with the State's requirements outwardly for the most part, she remains very significantly oppositional and even paranoid towards OCS workers. Her failure to accept help has resulted in losing several of her children in the past, and there is no evidence that she is any more willing or able to accept that help now. For [Lindsey], the State and its employees are part of a dangerous environment and she is unable to change her attitude and see them as allies.... [Lindsey] has demonstrated that she will go to dangerous extremes to hold onto the fantasy of a happy family even in the face of abuse (emotional, physical, substance, and sexual) by her partner [Josh].
Dr. Collins further concluded that using overfeeding to overcome a child's normal symptoms of anxiety was another way in which Lindsey denied problems and resorted to an unrealistic image of a perfect family in order to ward off her own fears. Dr. Collins diagnosed Lindsey with a “personality disorder not otherwise specified with paranoid and dissociative features”; these descriptors mean “suspicious” and “not in touch with many of her own experiences.”
Dr. Collins also observed the children with their foster parents,FN9 and later observed them with Lindsey during a 90-minute supervised visitation. Dr. Collins observed that Addison was happy and showed no signed of distress when with her foster parents, but that her demeanor changed during visits with Lindsey. Addison refused to make eye contact with Lindsey, resisted physical contact, and repeatedly tried to escape the room. Dr. Collins noted that Lindsey's behavior during the visit was mostly appropriate, but that Lindsey “seemed to have no understanding of why [Addison] was treating her so angrily.” Jude did not have the same problems as Addison and was friendly to Lindsey and other adults. Dr. Collins noted that overall, Lindsey “seemed to have a good understanding of how to manage children and was able to understand and empathize” with Jude. Similarly Dr. Collins observed that Lindsey behaved appropriately toward and related well to Dylan, who was a few weeks old at the time.
Dr. Collins testified that he believed the difference between Lindsey's relationship with Addison and Lindsey's relationship with Jude and Dylan stemmed from the fact that Lindsey had raised Addison for the first year of her life, whereas Jude and Dylan had been raised by foster parents since birth. Dr. Collins explained that (1) Addison had been disturbed by the traumatic separation from her mother, and weekly visits were insufficient to maintain a secure bond; (2) Lindsey's “smothering” behaviors during Addison's first year of life, such as excessive restraint, contributed to later disruptions in the bond; FN10 and (3) witnessing frequent domestic violence early in life impaired Addison's ability to develop normal attachments.
Dr. Collins concluded that although it was possible that psychotherapy could be successful in creating a healthy bond between Lindsey and Dylan, he could not predict that it would succeed. In his opinion, the prognosis was, at best, “guarded.”
The superior court held a hearing on the State's emergency petition for temporary custody of Dylan in March and April 2009.FN11 Dr. Collins testified that a successful reunification between Lindsey and her children, including Dylan, required not only that Lindsey participate in extensive remedial services, but that Lindsey actually be open to accepting the help and learning from it. In his opinion, this was “unlikely.”
Dr. Collins acknowledged that Jude was “not as disturbed at this point” as Addison, and he had not observed Lindsey behave inappropriately with Dylan. However, he testified that if Lindsey were to regain custody of the younger children, he would be “concerned about the same kinds of issues that we saw with [Addison] when she was younger; smothering [behaviors], ... violence and verbal and physical abuse, substance abuse going on in the home, ... isolation, then refusal to accept help that's needed.” He testified that these conditions would be “very damaging” to a child's development.
Emily Sisson, the caseworker for Lindsey's children since 2007, testified that Lindsey had completed several aspects of her case plan, including 12 parenting classes and various domestic violence programs and mental health assessments. However, Sisson said there was no indication the parenting classes had helped Lindsey understand her children's developmental needs. Sisson also said that Lindsey rejected offers of help or advice during visits, and generally did not seem interested in making any changes.FN12 Sisson testified that she believed Lindsey's previous case plans were not effective because “she's not honest with [service providers] ... she's not learning from them ... and she's not demonstrating learned behaviors.” Nancy Hersha, the OCS worker who had supervised several visits between Lindsey and her children from 2007 to 2009, testified that Lindsey's behavior had not changed during this period and her ability to respond to her children's physical and emotional needs had not improved.
Sisson indicated that she was concerned that Lindsey might hide her children from OCS if she regained custody. She pointed out that in the past Lindsey had removed Rhys from the hospital when he was sick with a staph infection and refused to bring him back to the hospital, and had not allowed Faith and Michelle to attend school. Sisson also testified that she knew Lindsey and Josh were still together as of the hearing date.
Two witnesses testified on behalf of Lindsey. They said that they had observed Lindsey with her first four children when the family lived in the Village of Stebbins and that they did not notice anything inappropriate about her parenting. One testified that she had not had any significant contact with Lindsey or the children in ten years, and the other testified that she had only minimal contact with Lindsey in recent years. The court also accepted an offer of proof that three additional witnesses were available to testify that they knew Lindsey when she lived in Stebbins, they had no concerns about her parenting, and they had not had significant contact with her or her children since Lindsey left Stebbins seven years earlier.
The superior court granted the State's emergency petition for temporary custody, holding that there was probable cause to believe Dylan was a child in need of aid under AS 47.10.011(9).FN13
The parties agreed on the record that, due to the substantial overlap in evidence, the next hearing would serve as both a termination trial on the State's petition to terminate Lindsey's parental rights to Addison and Jude and as an adjudication hearing on the State's petition to adjudicate Dylan as a child in need of aid. The parties also agreed on the record that if the State later filed a petition to terminate Lindsey's parental rights to Dylan, the joint termination/adjudication trial could be incorporated by reference into Dylan's termination trial in order to avoid further repetition of the evidence.
On June 1, 2009, the superior court held the joint termination/adjudication trial. The court admitted as exhibits the findings, orders, and log notes from the cases involving Lindsey's other children.FN14 Dr. Collins testified that his opinions and prognosis had not changed since the last hearing. Social worker Sisson repeated much of her testimony from the previous hearing and testified that in her opinion, Lindsey's attitude and parenting capabilities had not changed since her first involvement with OCS in 2003. Sisson also testified that Lindsey had previously represented “several times” that she had broken ties with Josh, but it was later determined that during at least one of those times Lindsey was actually in daily contact with Josh and was relying on him for support.
Lindsey testified. She denied that Josh had ever been physically violent toward her or her children, explaining that she had sought a restraining order in 2007 for the sole purpose of getting Addison back from Josh. She also denied that Josh ever sexually abused Faith, explaining that Faith later recanted her allegation. Lindsey denied overfeeding Addison at visits. She also testified that she had learned from the parenting classes and currently did not have any problems parenting.
The superior court terminated Lindsey's parental rights to Addison and Jude. The court also granted the State's petition for adjudication of Dylan as a child in need of aid under AS 47.10.011(8) and (9), based on domestic violence and neglect. The court found: that Lindsey was “locked into a long term abusive relationship” with Josh and was willing to continue that relationship “no matter what price her children pay”; that Addison had been “placed at substantial risk of mental injury as a result of exposure to domestic violence in the parental home” and Dylan would be similarly exposed to domestic violence if returned to Lindsey's care; and that Addison was neglected when she was in Lindsey's custody and Dylan would be similarly neglected if returned to Lindsey. The court also found that Lindsey “lacks the ability to raise children ... [and] cannot perceive the needs of children or meet those needs.” The court found that the reason Dylan was “fine” with Lindsey was because he, unlike Addison, had not lived with her but that “the same considerations apply.” In addition, the court found that Lindsey is “not willing to meaningfully participate in services. She only attends as a sham and is dishonest. Her attendance is non-productive.”
In July 2009 OCS filed a petition to terminate Lindsey's parental rights to Dylan. Dylan's guardian ad litem filed a predisposition report recommending that the court terminate Lindsey's parental rights and continue to place Dylan with his foster family.
On October 26, 2009, the superior court held a trial on termination of Lindsey's parental rights to Dylan. At the start of trial, Lindsey moved for a continuance on the grounds that the State and the guardian ad litem had not timely filed predisposition reports. The court denied the motion, holding that even if predisposition reports were typically required in this situation, the court had discretion to waive the requirement on the particular facts of the case. Next, counsel for the State said she intended to rely on findings of fact from the court's previous orders-in particular the orders adjudicating Dylan a child in need of aid and terminating Lindsey's parental rights to Addison and Jude-and “proceed from there.” Lindsey did not object.FN15
Social worker Sisson testified that, other than regular visitation, Lindsey had not made any new progress on her case plan, even despite OCS referring Lindsey to therapy providers recommended by Dr. Collins. Further, Lindsey entirely refused to communicate with OCS, even when communications were sent to her attorney as she requested. In addition, although her case plan required it, Lindsey refused to provide OCS with her home address.FN16 Sisson testified that she had observed two visits between Lindsey and Dylan since the last hearing. She observed that when Dylan would express interest in a toy, Lindsey would pull it out of reach and make it clear he wasn't supposed to be playing with it, causing Dylan to become frustrated. Instead, Lindsey wanted Dylan to sit next to her, even though Dylan was capable of crawling. Sisson also testified that she believed Lindsey was focused more on her own needs than on Dylan's, that Lindsey had not changed her parenting style, and that Dylan would be unsafe in Lindsey's care.
Dr. Collins testified that since his initial evaluation of Lindsey he had reviewed additional material, including notes from supervised visits between March and October 2009.FN17 He testified that Lindsey's parenting abilities had not changed and were unlikely to change. He said that Lindsey had some good qualities in that she was able to relate to Dylan's basic needs and feelings. Thus, Dr. Collins testified that Dylan would not be at a risk of abuse or neglect “[i]n the short run,” defined as within the “next few months,” if returned to Lindsey's custody. However, Dr. Collins testified he was more concerned about the risk presented by some of Lindsey's “disastrously bad” qualities, including the possibility of Lindsey exposing Dylan to Josh or another violent partner, Lindsey “being unable to respond to rejection by the child by doing things like overfeeding” as she did with Addison, and Lindsey isolating Dylan from care givers and the larger society. Lindsey's counsel asked whether Dr. Collins believed Lindsey would be a risk to Dylan if he were placed back in her care under OCS supervision with the conditions that caregivers have access and that no males be allowed in the house. Dr. Collins answered that while these conditions would make Lindsey “less likely” to be dangerous to Dylan, it would all depend on whether they were actually complied with.
The superior court terminated Lindsey's parental rights.FN18 First, the court restated the reasons it had previously found Dylan to be, by clear and convincing evidence, a child in need of aid under AS 47.10.011(8) and (9) based on domestic violence and neglect.
Second, the court found by clear and convincing evidence that Lindsey had not remedied the conduct and conditions that put Dylan at substantial risk of harm. The court based this finding on the following evidence: Lindsey did not participate in her case plan except for visitation since June 2009; Lindsey's conduct during visits indicated she could not perceive or meet Dylan's needs; Lindsey insisted that Dylan “meet her need for a fantasy family” during visits; Lindsey refused to allow Dylan to play or explore; Lindsey continued to “deny that she had any parenting problems”; Lindsey ignored and was hostile toward caregivers, rejected help, and was unwilling to change; conditions created by and conduct of Lindsey subjected another child in the same household to neglect; and Dylan would be neglected if returned home because the home was “chaotic with risks of domestic violence and substance abuse” from Josh or another partner.
Third, the court found by clear and convincing evidence that OCS made active and reasonable efforts to provide remedial services designed to prevent the break-up of the family, but those efforts failed.
Fourth, the court found that there was evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses pursuant to the Indian Child Welfare Act, that the return of Dylan to Lindsey was likely to result in serious emotional and physical damage to Dylan. The court based this finding on Dr. Collins's testimony that Lindsey required a major personality change before she could safely parent; that the required change was unlikely; that if returned to Lindsey, Dylan would be isolated from society and subjected to domestic violence from Josh or another inappropriate partner; and that Dylan would be harmed if removed from the foster family where he has lived with his siblings since birth.
Fifth, the court found that Dylan's best interests would be promoted by terminating Lindsey's parental rights.
III. STANDARD OF REVIEW
We review a denial of a motion to continue for abuse of discretion and will reverse only if we determine that a party has been deprived of a substantial right or seriously prejudiced by the trial court's ruling.FN19
In a child in need of aid case, we will not disturb the trial court's factual findings unless they are clearly erroneous, meaning that a review of the record in the light most favorable to the prevailing party leaves us with a definite and firm conviction that a mistake has been made.FN20
Whether a trial court's factual findings comply with ICWA requirements is a question of law which we review de novo.FN21 A trial court's conclusion that an Indian child is likely to be seriously harmed if returned to his parent is a mixed question of fact and law.FN22 We review the court's factual findings under the clearly erroneous standard.FN23 Whether expert testimony satisfies ICWA requirements is a legal question subject to de novo review.FN24
Lindsey appeals on three grounds. First, she argues that the trial court abused its discretion in denying her motion to continue in light of the failure of the State and guardian ad litem to timely file predisposition reports. Second, she argues that the trial court clearly erred in finding that she lacked the ability to perceive and meet her child's needs. Third, she argues that the trial court's finding that Dylan would be seriously damaged if returned to her custody was not adequately supported by witness testimony. We address each issue below.
A. The Trial Court Did Not Abuse Its Discretion In Denying Lindsey's Motion To Continue The Termination Trial.
At the start of the termination trial, Lindsey unsuccessfully moved to continue proceedings on the ground that the State and guardian ad litem had not timely filed predisposition reports as required by CINA Rule 16.FN25 Lindsey argues that the court erred in denying this motion and asks us to vacate the termination and remand the case for a new trial. We review a denial of a motion to continue for abuse of discretion and will reverse only if we determine that a party has been deprived of a substantial right or seriously prejudiced by the trial court's ruling.FN26
Here, Lindsey does not actually allege or point to any evidence showing that the absence of the reports caused her any prejudice or deprived her of any right. Indeed, it does not appear that the absence of the reports had any material effect at all on the proceedings. The purpose of a predisposition report is to provide a factual background “to aid the court in its selection of a disposition.” FN27 Specifically, a predisposition report must include a statement of the changes in the parent's behavior, a description of the reasons the child cannot be adequately protected in the home,FN28 a list of past OCS contacts with the family, and recommendations regarding what disposition would be in the child's best interest.FN29 This information was already well known to the court and to Lindsey far in advance of trial. First, the petition to terminate parental rights to Dylan contained all of this information, including a detailed history dating back to 2003, a thorough review of the evidence presented at Dylan's adjudication hearing, and OCS's recommendation that termination was in Dylan's best interests. Second, Dylan's termination trial included little new information; the State's case was based almost entirely on evidence presented and findings made at prior hearings. Lindsey's counsel, who had access to the termination petition and all materials from prior hearings, appears to have been fully prepared for the trial. Lindsey does not assert that she was surprised in any way or that she would have done anything differently had predisposition reports been timely filed.
Because Lindsey has not shown that the decision to deny a continuance deprived her of a substantial right or caused her to suffer serious prejudice, we conclude that the trial court did not abuse its discretion.FN30
B. We Need Not Reach The Issue Whether The Trial Court Clearly Erred In Finding That Lindsey Could Not Meet Her Children's Needs Because Lindsey Failed To Challenge The Trial Court's Alternative Basis For Finding Dylan To Be A Child In Need Of Aid.
Before a trial court can terminate a party's parental rights, it must find by clear and convincing evidence that the child is in need of aid.FN31 Here, the trial court determined that Dylan was in need of aid under both AS 47.10.011(8) based on domestic violence and AS 47.10.011(9) based on neglect. The court made 33 separate factual findings to support its determination, but it did not explicitly delineate which of the 33 findings went to domestic violence and which went to neglect. One of these findings was that Lindsey “lacks the ability to raise children. She cannot perceive the needs of children or meet those needs.” Lindsey argues that this finding was clear error. OCS and the guardian ad litem respond that we need not reach this issue because the contested finding went to neglect, and Lindsey does not challenge the court's alternate basis for finding Dylan to be a child in need of aid: domestic violence.
Although the trial court did not explicitly delineate which of its 33 factual findings went to neglect and which went to domestic violence, we can fairly infer (and Lindsey does not dispute) that the contested findings related to neglect and not domestic violence.FN32 We have repeatedly held that when the trial court finds that a child is in need of aid on two or more alternative grounds, and the parent does not challenge the court's findings on one of those grounds, it is unnecessary for us to consider the parent's challenge to the alternative finding.FN33
Nevertheless, Lindsey argues that this court must consider her argument because, under Burke P. v. State, Department of Health & Social Services, Office of Children's Services,FN34 the conduct leading to a child in need of aid determination is directly related to another finding required to terminate parental rights: that continued parental custody is likely to result in serious emotional or physical harm to the child.FN35 In Burke P. we said that the “starting point for evaluating OCS's reunification efforts is the identification of the problems that caused the child or children to be in need of aid.” FN36 Common sense indicates that this is because it is impossible to evaluate whether remedial efforts were reasonable under AS 47.10.086 without knowing what problems OCS was trying remedy. However, it does not follow that the findings supporting the initial child in need of aid determination should also be the starting point for evaluating whether continued parental custody is likely to cause the child serious emotional or physical harm. That is a separate requirement with a different standard of proof which must be supported by separate findings,FN37 and which the trial court in this case did support with separate findings. Further, there is no obvious correlation between these two requirements, as there is between problematic conduct and remedial efforts. Thus, we follow our precedent against addressing contested findings of fact when sufficient alternative findings have not been contested. We decline to reach Lindsey's argument against the trial court's finding of neglect because Lindsey failed to contest the court's alternative finding that Dylan was in need of aid based on domestic violence.
C. The Trial Court Did Not Err In Finding That Continued Custody By Lindsey Was Likely To Result In Serious Emotional Or Physical Damage To Dylan.
Before a trial court may terminate parental rights in an ICWA case, ICWA section 1912(f) requires the court to find based on “evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child.” FN38 Lindsey argues that the trial court erred in finding that the requirement was met in this case. The determination that a child will suffer serious physical or emotional harm if returned to the parent's custody is a factual finding that we review for clear error, but whether qualified expert testimony sufficiently supports this determination is a legal question that we review de novo.FN39 Because we conclude that the finding was both supported by sufficient expert testimony and was not clearly erroneous, we affirm the superior court's decision.FN40
Evidence relevant to a finding under section 1912(f) must demonstrate both that the parent's conduct is likely to harm the child and that the parent is unlikely to change her conduct.FN41 These elements may be established “through the testimony of a single expert witness, by aggregating the testimony of expert witnesses, or by aggregating the testimony of expert and lay witnesses.” FN42 Although qualified expert testimony must support the trial court's determination, ICWA does not require that the expert's testimony be the sole basis of that determination.FN43
Here, the parties agree that Dr. Collins is a qualified expert witness. The parties also agree that social worker Sisson is a lay witness, and in putting its findings on the record, the trial court recognized that Sisson had not been explicitly qualified as an expert. However, at an earlier point in the proceedings, the trial court erroneously referred to Sisson as an expert. The trial court also erroneously referred to Sisson as an expert in its written findings. Because both OCS and Lindsey treat Sisson as a lay witness for the purposes of argument, we also treat Sisson as a lay witness.
Lindsey argues that Dr. Collins's testimony was insufficient to support the court's section 1912(f) finding because in Dr. Collins's view, Lindsey “was not an immediate danger” to Dylan and “any future perceived potential danger could have been controlled by the use of a care and safety plan.” Lindsey argues that Dr. Collins's testimony was too “ambivalent” about her parenting abilities to support a finding that Dylan would likely suffer serious emotional or physical harm if returned to her custody. Lindsey points specifically to Dr. Collins's testimony that Dylan would not be at risk of abuse or neglect within the “next few months” if returned to her care and that Lindsey would be less likely to be dangerous to Dylan under an OCS-supervised care and safety plan. Lindsey is right that this selection of testimony does not sufficiently demonstrate that Lindsey's conduct is likely to harm Dylan or that Lindsey is unlikely to change.FN44 However, Lindsey ignores the vast majority of Dr. Collins's testimony and takes even these selections out of context.
Although Dr. Collins testified that he believed Dylan was not at risk for abuse and neglect “[i]n the short run,” he also testified that what most concerned him were the risks Lindsey presented to Dylan in the longer term: exposure to domestic violence and substance abuse, overfeeding as a form of forced affection, hostility toward caregivers, and isolation from society, all of which could be “very damaging” to Dylan's development. Further, although Dr. Collins testified that these risks might decrease in a hypothetical scenario in which OCS supervised Dylan in Lindsey's custody, caregivers had access to Dylan, and potentially violent partners were banned from the home, he also testified that this opinion was premised on the assumption that these conditions would in fact be complied with and Lindsey would in fact be open to accepting help. Much of Dr. Collins's testimony shows that he believed Lindsey was not open to accepting help or outside intervention, and that she was unlikely to change in that regard.FN45 Thus, viewing Dr. Collins's testimony as a whole, we conclude that the trial court's section 1912(f) finding was sufficiently supported by qualified expert testimony and was not clearly erroneous.
For the first time in her reply brief, Lindsey raises several new arguments as to why the trial court clearly erred in finding that Dylan was likely to suffer serious emotional or physical harm if returned to her care.FN46 New arguments presented for the first time on reply are considered waived.FN47 However, even if we did reach these new arguments, it would not change the result.
Lindsey makes four arguments.FN48 First, she argues that the court erred by ignoring the visitation records from Booth Memorial, which contained largely positive information about Lindsey's interactions with her children, and ignoring various positive comments by Dr. Collins. With this argument, Lindsey essentially asks us to reweigh the evidence. But “[c]onflicting evidence is generally insufficient” to overturn a trial court's factual finding, and we will not reweigh evidence when the record provides the challenged finding with clear support.FN49 Here, the trial court heard extensive testimony from Sisson and the visitation supervisor that Lindsey engaged in problematic behaviors at visits, including letting Addison play with potentially toxic paint and limiting Dylan's mobility unnecessarily. The court also heard testimony that Lindsey ignored or rejected suggestions from visit supervisors about how to improve her conduct, and that these problems persisted even after Lindsey participated in parenting classes. Although the court also heard evidence that Lindsey acted appropriately during visits at Booth Memorial, it did not clearly err by ascribing more weight to some pieces of evidence than to others.FN50
Second, Lindsey argues that the trial court clearly erred by considering her failure to participate in psychotherapy as prescribed by Dr. Collins, because OCS failed to assist her in accessing the therapy. However, it is not apparent that the court relied on this fact when making its section 1912(f) determination. Further, Lindsey does not dispute that, on her request, Sisson sent information regarding the case plan to Lindsey's attorneys, and that Lindsey still failed to follow Dr. Collins's recommendations.
Third, Lindsey argues that the trial court erred in concluding that Dylan would suffer harm in Lindsey's care because of exposure to domestic violence. Lindsey argues that this was error because “no evidence of any recent domestic violence was presented, nor was any evidence presented that Lindsey was still involved with Josh.” This is incorrect. Evidence was presented that Lindsey spoke to Josh daily when he was in jail in 2008, and social worker Sisson testified that she knew Lindsey and Josh were still together as of March 2009. Since that time, Lindsey has refused to provide OCS with her home address despite repeated requests, thus preventing OCS from determining Lindsey's living situation. In addition, the court heard testimony that Lindsey continued her relationship with Josh even after she participated in domestic violence awareness programs. As Dr. Collins reported, Lindsey has “demonstrated that she is willing to go to dangerous extremes to hold onto the fantasy of a happy family even in the face of abuse (emotional, physical, substance, and sexual) by her partner [Josh].” Thus, even without evidence that Lindsey and Josh were in a relationship as of the date of trial, we conclude that the trial court did not clearly err in determining that, if returned to Lindsey's custody, Dylan faced a serious risk of harm due to exposure to domestic violence.
Fourth, Lindsey argues that the trial court erred in using her difficulties parenting Addison as evidence that she would have difficulty parenting Dylan. Lindsey asserts, citing Dr. Collins's testimony, that her “disrupted bond” with Addison was due to the trauma associated with OCS removing Addison after one year in Lindsey's care, and that Lindsey had a better relationship with Dylan because he was removed before the pair fully bonded. But Lindsey ignores that Dr. Collins also attributed the disrupted bond to two other factors-Lindsey's behavior, including her habit of excessively restraining Dylan, and Addison's repeated exposure to domestic violence in the home-and that Dr. Collins was concerned about those problems reoccurring if Dylan was returned to Lindsey's custody. Therefore, we conclude the record provides clear support for the trial court findings.FN51
Because the trial court's decision to deny Lindsey's motion for a continuance did not cause Lindsey to suffer prejudice or deprive her of any substantial right, we decline to remand the case on that basis. Because Lindsey did not challenge the trial court's finding that Dylan was a child in need of aid based on domestic violence, we decline to reach Lindsey's argument that the court erred in finding him a child in need of aid based on neglect. Because the trial court's finding that Dylan was likely to suffer serious physical or emotional damage if returned to Lindsey's custody was supported by sufficient expert testimony and was not clearly erroneous, we AFFIRM the decision.
FN1. Pseudonyms are used for all family members to protect the family's privacy.
FN2. See 25 U.S.C. § 1903(4) (2006).
FN3. See L.H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., Mem. Op. & J. No. 1269, 2006 WL 3530599 (Alaska, Dec. 6, 2006) (affirming termination).
FN4. The superior court decision regarding Addison and Jude is the subject of S-13784, a separate appeal currently pending before this court.
FN5. L.H., 2006 WL 3530599, at *2.
FN7. Emily Sisson was also the social worker assigned to Rhys's case.
FN8. Alaska Child in Need of Aid Rule 6(a) permits OCS to take emergency custody of a child pursuant to AS 47.10.142 without a court order. If OCS determines that continued custody is necessary to protect the child, it must petition the court within 24 hours that the child is in need of aid. CINA Rule 6(a). OCS timely filed this petition on January 12, 2009.
FN9. Addison, Jude, and Dylan lived with the same foster parents at the time Dr. Collins observed them. They remained in this placement at the time of trial.
FN10. OCS expressed substantial concern about various of Lindsey's behaviors-including excessive grooming, chronic forced overfeeding at visits that resulted in the children throwing up after the visits, and unnecessary diaper changes that included as many as five unnecessary changes in a 90-minute visit. We note OCS's concerns in this regard, but they do not form the basis for our conclusion that the superior court's termination decision should be affirmed.
FN11. See CINA Rule 6(b)(3) (“If the court determines that there is probable cause to believe that the child is a child in need of aid and is in such condition or surroundings that the child's welfare requires the immediate assumption of custody, the court may immediately issue an emergency custody order. In the case of an Indian child, the court may not order emergency removal unless it finds that removal is necessary to prevent imminent physical damage or harm to the child.” ).
FN12. For example, at one visit Sisson observed Addison licking potentially toxic paint off her hand and advised Lindsey to check for toxicity; Lindsey responded that she knew what she was doing.
FN13. A court may find a child to be in need of aid if it finds that “conduct or conditions created by the parent ... have subjected the child or another child in the same household to neglect.” AS 47.10.011(9).
FN14. The court stated it would not consider these materials as “findings made in ... this case as to these infants” but that the materials would, on the matters found, “collaterally estop [Lindsey] as to [her] history.” Lindsey does not appeal the court's decision to admit these materials.
FN15. The State later introduced these orders into evidence without objection.
FN16. At one point OCS offered to arrange in-home visits to create a more natural environment, but the visits never happened because Lindsey refused to give OCS her address.
FN17. He specifically stated that the visitation notes included records from Booth Memorial, one agency that conducted visits.
FN18. The court made findings on the record at the conclusion of trial and issued a written order on November 17, 2009. The court stated that it based its decision on evidence presented at the emergency adjudication hearing, the adjudication hearing, and the termination trial.
FN19. Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1018 (Alaska 2009).
FN20. Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004).
FN21. L.G. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 14 P.3d 946, 949-50 (Alaska 2000).
FN22. E.A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 46 P.3d 986, 989 (Alaska 2002).
FN25. The guardian ad litem filed a predisposition report five days before trial. OCS never filed a predisposition report.
FN26. Siggelkow v. Siggelkow, 643 P.2d 985, 986-87 (Alaska 1982).
FN27. AS 47.10.081(b).
FN29. CINA Rule 16(a).
FN30. OCS argues that predisposition reports are not required in the context of a termination trial and alternatively that the trial court properly waived the requirement by excluding it from the trial calendaring order. However, in light of our conclusion that Lindsey suffered no prejudice from denial of her motion, we need not reach these arguments.
FN31. AS 47.10.088(a)(1); CINA Rule 18(c).
FN32. Several of the trial court's other findings in support of its child in need of aid determination specifically reference domestic violence. In addition, not meeting a child's needs is in essence the definition of neglect. See AS 47.10.014 (defining neglect).
FN33. E.g., Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 165 P.3d 605, 618 (Alaska 2007) (“Because either finding alone would support the termination order and because [the parent] does not challenge the court's finding of abandonment, her challenge to the mental illness finding has no impact on the outcome of the case.”); Rick P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 109 P.3d 950, 956 (Alaska 2005) (holding that where trial court did not err in finding abandonment, it was “unnecessary” to consider parent's challenge to neglect finding).
FN34. 162 P.3d 1239 (Alaska 2007).
FN35. See 25 U.S.C. § 1912(f) (2006); CINA Rule 18(c)(4).
FN36. 162 P.3d at 1245 (emphasis added).
FN37. See 25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
FN38. 25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
FN39. E.A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 46 P.3d 986, 989 (Alaska 2002).
FN40. We note that the universe of properly considered evidence for purposes of this question includes both evidence presented at Dylan's adjudication hearing (held jointly with Addison and Jude's termination hearing) and evidence presented at Dylan's termination hearing, per the parties' stipulation. We may also properly consider Dr. Collins's testimony from Dylan's emergency custody hearing, as Dr. Collins essentially incorporated this testimony by reference at Dylan's adjudication hearing when he testified, without objection, that his opinion had not changed since the prior hearing. It does not appear that Lindsey disputes the validity of this stipulation; indeed, she repeatedly relies on evidence from the prior hearings herself in her briefs before this court.
FN41. L.G. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 14 P.3d 946, 950 (Alaska 2000).
FN42. Id. (footnotes omitted).
FN43. See id. at 951.
FN44. See id. at 950 (holding that evidence relevant to section 1912(f) finding must demonstrate both that parent's conduct is likely to harm child and that parent is unlikely to change conduct).
FN45. In addition the court heard evidence that Lindsey had previously violated both a restraining order and an OCS case plan prohibiting contact with Josh, that Lindsey had lied about being in contact with Josh on at least one occasion, and that Lindsey and Josh were still together as of March 2009. Thus, the court had good reason to believe that it was not realistic to expect that a condition banning Josh from the home would be complied with.
FN46. Cf. E.A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 46 P.3d 989, 989 (Alaska 2002) (holding that trial court's determination that Indian child will suffer serious physical or emotional damage if returned to parent's custody is a mixed question of fact and law, with factual determinations reviewed for clear error).
FN47. Zaverl v. Hanley, 64 P.3d 809, 815 n.15 (Alaska 2003).
FN48. In addition, Lindsey argues that we should reverse the termination order because OCS withheld relevant information from Dr. Collins, namely the visitation records from Booth Memorial. This is simply incorrect. Dr. Collins testified at the termination trial that he had received and reviewed the Booth records prior to testifying, and Sisson testified that she had given the records to Dr. Collins.
FN49. Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008).
FN50. See Tessa M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 182 P.3d 1110, 1114 (Alaska 2008) (“[I]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence.”) (internal quotation marks omitted); Wasserman v. Bartholomew, 38 P.3d 1162, 1166-67 (Alaska 2002) (“In a bench trial, the judge is the trier of fact, determining the credibility of witnesses and deciding how to weigh the evidence presented.”).
We also note that Lindsey did not call any witnesses to testify about the Booth Memorial visits; they are only part of the record because OCS offered them as an exhibit. The trial court as factfinder acted within its power to give more weight to live witnesses who could be cross-examined and whose credibility could more readily be assessed.
FN51. See Maisy W., 175 P.3d at 1267 (noting that “[c]onflicting evidence is generally insufficient” to overturn trial court's factual finding, and we “will not reweigh evidence when the record provides clear support” for original ruling).