(Cite as: 2003 WL 23018276 (Alaska))
Supreme Court of Alaska.
RUBY A., Appellant,
STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Division of Family
and Youth Services, Appellee.
Lloyd H., Appellant,
State of Alaska, Department of Health and Social Services, Division of Family
and Youth Services, Appellee.
Nos. S-10921, S-10933.
Dec. 29, 2003.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Charles R. Pengilly, Judge.
Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant Ruby A.
Michelle McComb, Law Offices of Michelle McComb, Fairbanks, and Robert S. Noreen, Law Offices of Robert S. Noreen, Fairbanks, for Appellant Lloyd H.
Gayle L. Garrigues, Assistant Attorney General, Fairbanks, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
MEMORANDUM OPINION AND JUDGMENT [FN*]
FN* Entered pursuant to Appellate Rule 214.
*1 The superior court terminated Ruby A.'s and Lloyd H.'s parental rights to the three children they had together, Jim, Larry, and Holly; the court also terminated Ruby's parental rights to Mona and Shari, two daughters of Ruby from other fathers. [FN1] Ruby and Lloyd challenge the trial court's findings that the five children were children in need of aid because Lloyd sexually abused Mona; that Ruby and Lloyd had failed to remedy the conduct that placed the children in danger; that the state had made reasonable efforts to reunite the family; and that termination would serve the children's best interests. Lloyd additionally claims that the court violated his right to equal protection by failing to apply the Indian Child Welfare Act's requirement of proof beyond a reasonable doubt--even though the act does not apply to the case. We find no merit in any of these claims and therefore affirm.
FN1. We have used pseudonyms for family members throughout the opinion to protect their privacy.
II. FACTS AND PROCEEDINGS
Ruby has five children: Mona (born 1988), Shari (born 1995), Jim (born 1997), Larry (born 1999), and Holly (born 2002). Lloyd is the father of the youngest three children. Mona and Shari have different fathers, who are not involved in their lives or this case.
Ruby and Lloyd met in Fairbanks in 1996 and began living together. In 1998 Mona reported to her school guidance counselor that Lloyd had sexually abused her. The guidance counselor reported Mona's allegations to the Division of Family and Youth Services (the division). Upon hearing of the allegations, Ruby evicted Lloyd from the house. At about the same time, Lloyd went to jail for driving while intoxicated; and after being released, he went to Texas at his mother's invitation.
The division investigated and substantiated the allegations of sexual abuse. It then filed a petition alleging that Mona, Shari, and Jim were children in need of aid and seeking to place them in temporary state custody. [FN2] The superior court granted temporary custody to the division and found probable cause to believe that Mona, Shari, and Jim were children in need of aid.
FN2. Ruby became pregnant with Larry before Lloyd left for Texas; Holly was not yet born.
The division began providing counseling to Mona and offered a non-offender's parenting class to Ruby. The division's temporary custody lapsed after three months, and the children remained at home.
Several months later, in March 1999, Mona reported that a different family friend had sexually molested her. Ruby told the division that she did not believe Mona's allegations. The division again placed the children in emergency custody. The family friend Mona accused was ultimately convicted of the sexual abuse. The division placed Mona in out-of-home custody until April 2001, but returned Shari and Jim to Ruby's care in April 1999.
In the summer of 2001 Lloyd returned to Fairbanks and moved in with Ruby and the children at her invitation. Ruby did not inform the division of her decision to invite him back into her home. By then, Ruby had given birth to Larry. Division social worker Retchenda George-Bettisworth made a home visit and found Lloyd taking care of the three youngest children. Mona, the oldest child, was away at camp but was scheduled to return in two days. George- Bettisworth told Ruby and Lloyd that unless Lloyd left the house the division would take emergency custody of Mona upon her return from camp and would petition for temporary custody of the three younger children. Ruby and Lloyd arranged for Mona to stay at their pastor's home over the weekend while they considered what to do. The following Monday, Ruby and Lloyd refused to sign a safety plan certifying that Lloyd would not live in the home and would not have unsupervised contact with the children. The division filed an emergency child- in-need-of-aid petition as to Mona and a non-emergency petition as to the other three children.
*2 The superior court gave the division temporary custody of all four children. About six months later, in December 2001, Superior Court Judge Charles R. Pengilly held an adjudication hearing and found the children to be children in need of aid based on Lloyd's sexually abusive conduct and Ruby's willingness to allow him to continue living in her home. All four children were placed in state custody for a period of two years.
Ruby gave birth to Holly in May 2002. Because Lloyd and Ruby were still living together, the division immediately took Holly into emergency custody and petitioned to have her adjudicated as a child in need of aid. The superior court granted temporary custody to the division.
The division then petitioned to terminate Ruby's and Lloyd's parental rights to the children. In December 2002 Judge Pengilly held a hearing on the petitions and entered an order terminating Ruby's and Lloyd's parental rights to each child. Ruby and Lloyd appeal.
III. STANDARD OF REVIEW
We apply the "clearly erroneous" standard of review when analyzing a trial court's findings of fact regarding the termination of parental rights. [FN3] A factual finding is clearly erroneous if a review of the entire record leaves this court with a definite and firm conviction that a mistake has been made. [FN4] "Whether the superior court's factual findings satisfy applicable child in need of aid statutes and rules is a question of law that we review de novo." [FN5]
FN3. M.W. v. State, Dep't of Health & Soc. Servs., 20 P.3d 1141, 1143 (Alaska 2001).
To terminate parental rights, the state must prove by clear and convincing evidence that (1) the child is in need of aid under AS 47 .10.011 [FN6] and (2) the parents have failed to remedy the conduct or conditions that place the child at risk. [FN7] The state must also show by a preponderance of the evidence that it made reasonable efforts under AS 47.10.086 to provide family support services that would enable the child to remain in the home or return to the home. [FN8] Finally, the court must determine that termination of parental rights would be in the child's best interests. [FN9]
FN6. AS 47.10.011 provides, in relevant part:
Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following:
(7) the child has suffered sexual abuse, or there is a substantial risk that the child will suffer sexual abuse, as a result of conduct by or conditions created by the child's parent, guardian, or custodian or by the failure of the parent, guardian, or custodian to adequately supervise the child; if a parent, guardian, or custodian has actual notice that a person has been convicted of a sex offense against a minor within the past 15 years, is registered or required to register as a sex offender under AS 12.63, or is under investigation for a sex offense against a minor, and the parent, guardian, or custodian subsequently allows a child to be left with that person, this conduct constitutes prima facie evidence that the child is at substantial risk of being sexually abused[.]
FN7. AS 47.10.088(a)(1) provides, in relevant part:
(a) [T]he rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds
(1) by clear and convincing evidence that
(A) the child has been subjected to conduct or conditions described in AS 47.10.011; and
(B) the parent
(i) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
(ii) has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury[.]
FN8. AS 47.10.088(a)(2) requires the state to prove "by a preponderance of the evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts."
The reasonable efforts provisions of AS 47.10.086 state, in relevant part:
(a) Except as provided in (b) and (c) of this section, the department shall make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home, when appropriate, if the child is in an out- of-home placement. The department's duty to make reasonable efforts under this subsection includes the duty to
(1) identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid;
(2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; the department shall refer the parent or guardian to community-based family support services whenever community-based services are available and desired by the parent or guardian; and (3) document the department's actions that are taken under (1) and (2) of this subsection.
FN9. AS 47.10.088(c) provides: "In a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child." See also CINA Rule 18(c)(2)(C) (requiring the superior court to find by a preponderance of the evidence that termination of parental rights is in the best interests of the child).
A. Sexual Abuse by Lloyd
The trial court found that Lloyd had sexually abused Mona. Lloyd challenges this finding as unsubstantiated, claiming a lack of corroborating evidence to support Mona's reports of sexual abuse, which Lloyd describes as inconsistent. But, in cases involving allegations of sexual abuse, courts often must choose between conflicting claims of the accuser and accused. [FN10] While supporting evidence from therapists, social workers, or other experts can certainly help resolve the difficult questions these cases raise, [FN11] Alaska law ordinarily does not require a victim's report of sexual abuse to be corroborated, even when the state bears the burden of proving its case beyond a reasonable doubt. [FN12] And in extraordinary situations when Alaska law does require corroboration, [FN13] the rule governing corroboration "is a flexible one, which is grounded in common sense" [FN14] and which does not require the corroborating evidence "to relate directly and specifically to the sexual acts." [FN15] The rule simply asks the reviewing court to look at all the evidence in the case to determine whether reasonable jurors could conclude that the state met its burden of proof. [FN16]
FN10. See, e.g., Catherine T. v. State, Mem. Op. & J. No. 1143 at 11 (Alaska, October 1, 2003); Cox v. State, 805 P.2d 374, 378 (Alaska App.1991) ("In cases [involving allegations of child sexual abuse] where credibility is the main issue, the jury faces the difficult question of which witness to believe.").
FN11. See, e.g., Catherine T., Mem. Op. & J. No. 1143 at 11.
FN12. See Burke v. State, 624 P.2d 1240, 1253-54 (Alaska 1980) (abrogating traditional rape corroboration requirement and disapproving jury instruction to "examine the testimony of the female person named in the indictment with caution").
FN13. See Brower v. State, 728 P.2d 645, 647-48 (Alaska App.1986) (requiring prior report of sexual abuse to be corroborated when alleged victim testifies at trial and recants report).
FN14. Bodine v. State, 737 P.2d 1072, 1075 (Alaska App.1987).
FN15. Clifton v. State, 758 P.2d 1279, 1281-82 (Alaska App.1988).
*3 Here, the trial court examined the credibility of Mona's claims and separately examined the credibility of Lloyd's testimony before choosing to credit Mona's reports. The court found Mona's version persuasive because she made consistent reports on four separate occasions, giving similar descriptions of Lloyd's sexually abusive conduct to her school counselor, a division social worker, her mother, and her therapist, Linda Fraini. The court also found Mona's reports credible because of Fraini's expert testimony, which refuted Lloyd's efforts to depict Mona as biased and unreliable. Furthermore, the court permissibly viewed Lloyd's action of fleeing the state shortly after Mona's initial report as conduct that tended to support Mona's claim; and it properly found Lloyd's denial of the abuse to be unpersuasive, particularly because of his self-serving claim that his memory was "foggy" as a result of excessive drinking--a claim inconsistent with other statements by Lloyd indicating that he only drank small amounts of alcohol during the period in question.
In short, Mona's reports alone amounted to substantial evidence supporting the state's claim of sexual abuse by Lloyd. And other evidence added considerable corroborating weight to these reports. The superior court was not clearly erroneous in finding by clear and convincing evidence that Lloyd had sexually abused Mona.
B. Risk of Harm to All the Children and Failure To Remedy the Risk
Given its finding that Lloyd had molested Mona and the undisputed evidence that he had failed to obtain sexual offender treatment to address this behavior, the superior court concluded that Lloyd was an untreated sex offender. Based on this conclusion, on expert testimony, and on relevant law, the court found that Lloyd's presence in the household posed a substantial risk of abuse to all the children. And because the evidence established that Ruby consistently favored her relationship with Lloyd over her relationship with the children, the court further concluded that Ruby was unwilling or unable to protect her children from future abuse by Lloyd. Lloyd and Ruby challenge these findings. But in our view they are supported by the record and are not clearly erroneous. [FN17]
FN17. We find no merit in the contention that the superior court erred in ignoring Lloyd's and Ruby's claims that they had separated and that Lloyd had moved out of the home at the time of the termination hearing. The court could properly reject their self-serving claims as lacking in credibility.
Moreen Fried, a licensed clinical social worker with expertise in child sexual abuse and the treatment of sex offenders, described multiple ways in which Lloyd's presence in the home could create long-term difficulties for all the children. Fried believed that all the children were at risk of abuse by Lloyd. Moreover, as the superior court correctly recognized, our case law supports the proposition that an untreated sex offender who abuses one of his children poses a serious risk to his other children as well. [FN18] Finally, as the superior court also properly found, the language of AS 47.10.011(7) implicitly recognizes that all children in a family may be presumptively considered at risk when an untreated sex offender lives in their home and a parent or guardian condones the offender's presence. [FN19]
FN18. See In the Matter of P.N., 533 P.2d 13, 16 (Alaska 1975) (father who admitted sexually abusing his ten-year-old adopted daughter posed a "substantial risk to the physical and emotional well-being of [his] boys as well as the girl").
FN19. AS 47.10.011(7) provides, in relevant part, that prima facie evidence of a substantial risk of sexual abuse to a child will exist upon proof that a parent with actual notice that a person under investigation for a sex offense against a minor allows a child to be left with that person. See above, note 6.
*4 We conclude that the superior court did not clearly err in finding by clear and convincing evidence that Lloyd and Ruby had placed all the children at substantial risk of abuse and had failed to remedy the conduct creating the risk.
C. Reasonable Efforts Finding
Lloyd next contests the superior court's reasonable efforts finding, asserting that the division failed to provide him with appropriate services to reunite him with his family, as required under AS 47.10.086 and 47.10.088(a)(2). [FN20] But the record shows that Lloyd refused to sign the division's safety plan, failed to participate in sexual offender treatment, and was often late to supervised visits with the children. The superior court's reasonable efforts finding is supported by substantial evidence and is not clearly erroneous.
FN20. See above, note 8.
D. Best-Interests Finding
AS 47.10.088(b)-(c) requires that termination be in the child's best interests. [FN21] "The best interests of the child, not that of the parents are paramount." [FN22] Ruby and Lloyd both contend that the superior court erred in finding that an order terminating their parental rights would be in the children's best interests. Ruby argues, under J.J. v. State, Department of Health & Social Services, [FN23] that the superior court should have deferred its termination decision so that Ruby would have more time to prove that she intended to stay separated from Lloyd. But J.J. does not support Ruby's claim. There we found that an expert's testimony was insufficiently tailored to the specific facts of the case to support the required ICWA finding that the children were likely to suffer serious harm if returned to the mother's custody. [FN24] Recently, in Jerry C. v. State, Department of Health & Social Services, we emphasized that J.J. considered the "option of deferral only after holding that the expert testimony was insufficient to support termination." [FN25] Here, as in Jerry C., there was no evidentiary deficiency calling for deferral of the superior court's decision on termination.
FN21. The relevant portions of AS 47.10.088 are:
(b) In making a determination under (a)(1)(B) of this section, the court may consider any fact relating to the best interests of the child, including
(1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs;
(2) the amount of effort by the parent to remedy the conduct or the conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the parent.
(c) In a proceeding under this chapter involving termination of the parental right of a parent, the court shall consider the best interests of the child.
FN22. A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 260 (Alaska 1999).
FN23. 38 P.3d 7 (Alaska 2001).
FN25. Mem. Op. & J. No. 1137 at 8 (Alaska, July 9, 2003).
Lloyd separately faults the court for failing to discuss the statutory best interests factors and failing to rule expressly on the children's need for permanency. But AS 47.10.088(b) specifies that the best interests factors listed in that provision are factors that the court "may" consider. We have never required trial courts to make express findings addressing these factors. And AS 47.10.088(c) makes it clear that the trial court's basic duty is to "consider the best interests of the child"--a duty that the court satisfied here by making an express best-interests finding. Because substantial evidence supports the superior court's finding, it is not clearly erroneous.
E. Lloyd's Equal Protection Claims
It is undisputed that none of the children in this case qualify as "Indian children" under the provisions of ICWA. Lloyd nevertheless advances a conclusory argument that the superior court violated his constitutional right to equal protection by failing to apply ICWA's provision requiring the state to prove "by evidence beyond a reasonable doubt" that his continued custody of the children was likely to result in serious emotional or physical damage to them. [FN26]
FN26. See CINA Rule 18(c)(3).
*5 But Lloyd failed to raise this argument below, and he fails to meaningfully brief it here. In the analogous case of Matter of W.E.G., we rejected as frivolous an argument that Alaska's adoption statute violated equal protection because it did not generally provide a preference for adoptive placement with relatives, as ICWA does for adoptions involving Indian children. [FN27] Other courts have rejected claims similar to the one Lloyd raises here. [FN28] And Lloyd cites no contrary authority. Given these circumstances, we find Lloyd's constitutional claim to be meritless.
FN27. 710 P.2d 410, 414 n.3 (Alaska 1985).
FN28. See Matter of M.K., 964 P.2d 241, 244 (Okla.Civ.App.1998); Application of Angus, 655 P.2d 208, 212-13 (Or.App.1982).