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Doug Y. v. State, Dept. of Health & Social Services, Office of Children's Services

Supreme Court of Alaska

December 3, 2010

DOUG Y., Appellant,

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[Copyrighted Material Omitted]

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Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Appellant.

Laura C. Bottger, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellee.

Anita L. Alves, Assistant Public Advocate, Anchorage, and Rachel Levitt, Public Advocate, Anchorage, for Guardian Ad Litem.

Before: FABE, WINFREE, and CHRISTEN, Justices.


CHRISTEN, Justice.


This is a case involving the termination of parental rights of Damien's father, Doug.[1] Doug does not contest that Damien is a child in need of aid under AS 47.10.011(6) and (8) resulting from his excessive punishment; he does contest that Damien is a child in need of aid under AS 47.10.011(10). Doug also argues that the Office of Children's Services did not sufficiently assist him in complying with his case plan. Having reviewed the record, we affirm the superior court's judgment terminating Doug's parental rights.


Damien was born on November 8, 2000. He is the only child of Abigail and Doug. Damien is not an " Indian child" under the Indian Child Welfare Act. [2] Abigail relinquished parental rights on August 18, 2009 and is not a party to this case.

Abigail and Doug never married. During their relationship, Doug was arrested and jailed for domestic violence, including one incident of domestic violence when Damien was present in the room. In August 2004 Abigail filed for a protective order against Doug alleging that he assaulted her physically and mentally. At that time the court ordered OCS to investigate allegations of child abuse.[3]

A. Doug's First Interaction With OCS

Damien was first placed under the protection of OCS after a Head Start report in September 2005; he was four years old. Head Start contacted OCS after Damien complained that his bottom hurt. The OCS investigator examined Damien and found raised red and purple bruises on his bottom. Damien reported that Doug used a wooden spoon to beat him as a form of discipline. OCS immediately took Damien into emergency custody. After contacting his family, OCS placed Damien with his paternal step-grandmother, Joan.

OCS developed a case plan for Doug directing him to services including anger management and parenting classes. OCS also recommended that Damien begin counseling, making a referral for Damien and attempting to enroll him with a counselor. Doug refused to agree to counseling for Damien. He told the social worker that he would not agree for Damien to go to counseling unless Abigail went to counseling. Family counseling was presented as an option and Abigail agreed to engage in the sessions, but Doug never followed through. However, Doug completed his parenting classes and anger management classes and in July 2006 Damien was released to Doug's custody.

B. Doug's Second Interaction With OCS

Just over a year later, on August 30, 2007, OCS again became involved with Doug when Chester Valley Elementary School contacted the Anchorage Police Department (APD) and reported that Damien had suffered injuries. The responding APD officer took photographs of Damien showing extensive welts and bruises on his back, torso, bottom, and arms. Doug admitted that he used a leather belt to repeatedly hit Damien as punishment for receiving a disciplinary note at school. Damien told the OCS social worker " he wanted his dad to go to jail so his dad would quit beating him."

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Doug was arrested and charged with domestic violence assault and child abuse. He pled no contest to the domestic violence assault charge and stipulated that Damien was a child in need of aid under AS 47.10.011(6). The stipulation was adopted by the superior court in April 2008.

Damien was taken into OCS custody on September 5, 2007 for the second time in less than two years, and he was again placed in the custody of his grandmother Joan. Upon returning to his grandmother's care, Damien expressed excitement that his father would no longer be able to beat him. He said he was happy his father was in jail.

In the months that followed, Damien remained in fear and exhibited separation anxiety. Joan noticed that she " literally could not go to the restroom without him sitting outside the door crying and saying someone is going to get him." Damien had nightmares about his father coming to beat him again. The nightmares were severe enough that he would wake his grandmother to have her check that the burglar alarm was on. At other times, Damien approached his grandmother and asked her to beat him like his father would, once looking for a belt to bring to her. Damien had behavioral problems at school and at home during this period.

In September 2007 Damien was given a mental health examination by Staci Miller, LPC. Miller did not diagnose Damien with post-traumatic stress disorder (PTSD) but she opined that Damien might receive this diagnosis if more information became available. Miller referred Damien to the Anchorage Community Mental Health Services Trauma Center (Trauma Center) for individual and family therapy. She also recommended continued therapeutic support through On Target, a cooperative program between his school and a local mental health center.

Miller recommended against Doug visiting Damien. She noted Doug's " disregard for appropriate parenting help and not taking responsibility for removals." She also highlighted Damien's " fear of his father." Miller was concerned that visitation would be detrimental to any progress that Damien would hopefully make in " a stable, non-abusive environment and therapy."

Based on Miller's recommendation, Damien began therapy with Kristin Howard, LPC at the Trauma Center. Howard, like Miller, recommended that Doug not have visitation with Damien because it was against Damien's best interest. During therapy sessions, Damien repeatedly expressed fear of his father, fear of being sent back to live with his father, and fear that he would be subjected to beatings.[4] Damien was plagued by " nightmares of his father drowning him, killing him, hurting him, [and] beating him." During therapy sessions he often manifested classic signs of PTSD including physiological arousal (rapid heartbeat and shaking) and avoidant behavior (lowering his head in shame and refusing to talk). Howard diagnosed Damien with PTSD and attention deficit hyperactivity disorder (ADHD).[5]

Howard noted that Damien showed progress and improvement during her sessions but was prone to return to problem behavior when confronted with abuse triggers. Damien's triggers included Doug's facial expressions or seeing Doug's belt. Damien told Howard that " every time he closed his eyes he would see his father beating him." By April 30, 2009, Howard assessed that Damien still did not feel safe around his father.

Howard focused on developing a sense of security and stability in Damien. She worked on family therapy with Joan and Damien to increase his sense of security and attachment. Focus was also placed on developing " routines and rituals in his life to help him feel safe." Work was done to " help create physical and emotional safety in the home, and school, and in the clinic and the community." Howard helped Damien develop coping strategies for moments when his PTSD was triggered. The overarching goal

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was to help Damien attain a sense of safety and stability.

In addition to individualized therapy, Damien received school and social services. He participated in On Target to help reduce anxiety at school, and received psychiatric services to help with his PTSD and ADHD. Alaska Children's Services provided intensive rehabilitation, including case management and family skill development. All of these services were aimed at dealing with Damien's mental health issues and sense of security and stability.

C. Doug's Case Plan

Following the September 2007 removal, Doug received a psychological evaluation as part of his OCS case plan. The stated permanency goal of the case plan was " reunification." In November 2007 Dr. Michael Rose conducted a psychological evaluation of Doug as part of the case plan. His report was provided to OCS in February 2008.

Dr. Rose reviewed mental health records, interviewed Doug twice, and administered a battery of diagnostic testing. He ultimately diagnosed Doug as meeting the diagnostic criteria for child abuse and personality disorder not otherwise specified with antisocial features. His assessment indicated that Doug did " not appear to be in a position to independently care for [Damien] ... and it is difficult to know if he will be able to make changes that will allow him to appropriately parent his son in the future." He observed that Doug " has had multiple opportunities to make changes in his parenting practices and to enter family therapy to address problems between [Damien] and himself but has apparently made few if any [changes]." Dr. Rose linked Damien's PTSD to Doug's abusive practices, concluding that " exposing [Damien] again to the possibility of further physical or psychological abuse by [Doug] may be entirely too risky."

Based on his evaluation Dr. Rose concluded that it was " doubtful [Doug] will be able to make the changes necessary to effectively parent [Damien] in the future." He nonetheless provided five recommendations to help Doug " get into a position to care for [Damien]." Dr. Rose's first recommendation was that Doug address financial and housing issues. Doug was unemployed and living with his father at the time. The second recommendation was that Doug " enter individual psychotherapy to address his Personality Disorder with antisocial features, anger management difficulties, and low frustration tolerance." He cautioned that Doug would " require a considerable treatment period to properly address [these issues]." He also warned that " individuals with [Doug's] diagnoses are difficult to successfully treat, and they are typically resistant to virtually any form of psychological intervention." He concluded that " [u]nless [Doug] can make significant progress toward addressing his psychological and life adjustment problems, it is unlikely he will be able to satisfactorily meet [Damien's] needs." The third recommendation was that Doug needs to appreciate " the nature and extent of [Damien's] psychological problems" and the role he played in contributing to them. The fourth was that Doug " abstain from the use of all substances since he may be addiction-prone." Finally, Dr. Rose recommended that once Doug made " demonstrable and consistent progress" with the first four objectives that he be allowed supervised visitation with Damien.

Dr. Rose's recommendations were incorporated into a revised case plan dated February 2008. The revised case plan continued to set a goal of reunification, and made clear that Doug needed to make " substantial progress with his mental health therapy" before he could progress to reunification. A revised May 2008 case plan continued with the goal of reunification. By August 2008 OCS's recommendation for Damien's permanency plan shifted to the concurrent goals of adoption and reunification, with an observation that given " the parents' lack of engagement in case plans, the goal of adoption is recommended over reunification."

D. Doug's Visitation With Damien

Doug was not allowed any visitation with Damien until late January 2008. Visitation was permitted only after Damien stabilized to some extent and options for therapeutic supervised visits had been ...

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