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Lindsey H v. State of Alaska

December 2, 2010


Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, John Suddock, Judge. Supreme Court No. S-13711 Superior Court No. 3AN-09-00012 CN


Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).


Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen.

[Stowers, Justice, not participating.]


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.


Lindsey H. is the biological mother of Dylan, born January 8, 2009.*fn2 Dylan is an Indian child as defined in the Indian Child Welfare Act (ICWA).*fn3 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.*fn4 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.*fn5 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.*fn6 Lindsey did not keep the children away from Josh, and OCS removed the children.*fn7 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,*fn8 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, ...

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