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Ralph H v. State of Alaska

February 4, 2011

RALPH H., APPELLANT,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, APPELLEE.



Supreme Court No. S-13852 Superior Court No. 3PA-07-00082 CN Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Beverly Cutler, Judge.

The opinion of the court was delivered by: Stowers, Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.

OPINION

Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers, Justices. [Christen, Justice, not participating.]

I. INTRODUCTION

Ralph appeals the superior court's judgment terminating his parental rights to his only son, Rex.*fn1 The Office of Children's Services (OCS) removed Ralph's and Nell's five children after Ralph physically assaulted their oldest daughter.*fn2 OCS put the children in foster care and provided the parents with case plans. The parents moved away from the community where the children were placed, which made visitation with Rex difficult. OCS and the children's guardian ad litem (GAL) petitioned to terminate Ralph's and Nell's parental rights. The superior court terminated Ralph's and Nell's parental rights to Rex after finding that OCS made reasonable efforts at reunification and that termination was in Rex's best interests. Because the superior court's factual findings were not clearly erroneous and its legal conclusions were correct, we affirm the judgment in all respects.

II. FACTS AND PROCEEDINGS

Ralph and Nell are the parents of Ava, Bella, Daria, Emma, Rex, and Faith. OCS involvement with the family due to chronic neglect and physical abuse began in 1992. In May of 1992 eight-month-old Ava was taken to Seward General Hospital "with serious bruising and abrasions[,] a possible fractured rib, [and] serious physical injuries." OCS assumed emergency custody of Ava.

Over the next eight years, OCS received approximately 23 reports of harm on the family. The reports involved allegations of physical abuse or instances of neglect. Throughout this time, Ralph and Nell neither acknowledged nor addressed their parenting problems through the services that OCS offered. A pattern developed in that OCS would begin to investigate a report of harm or engage the family in services, but the parents would move the family to another community.

From 1997 until 2006 the family had an open file with the Department of Health and Social Services, Division of Public Health (Public Health). Public Health personnel considered the family "high risk." The Public Health file shows chronic neglect because of repeated infestations of head lice, poor parenting, and lack of housing, clean clothing, and food. OCS worked with Public Health to provide services to the family.

In 2001, when the family lived in Homer, OCS social workers attempted to engage the parents but the family moved further and further out of town. The family then moved to Seward, but abandoned their rented home in July 2001, leaving it in a filthy state.

The family next moved into a camper parked illegally near Resurrection Bay. After receiving another report of neglect, an OCS social worker arranged wrap-around services for the family. These services included referrals to or assistance provided by a number of agencies and programs: Public Health, Infant Learning Program, a parent training program, Head Start, the school district, a mental health program, law enforcement, and OCS. Despite this, the family moved to the Mat-Su Valley. The social worker transferred the case file to the OCS office there.

Between 2002 and 2004 multiple reports of harm were filed against the family in the Mat-Su Valley. Social workers arranged food donations, conducted home visits to monitor the status of the home, spoke to Ralph and Nell about getting assistance through Alaska Housing Finance Corporation, offered to pay for repair of the family's heating system, and referred the family to Dual Track.*fn3 At the end of the program, Dual Track referred the family to the Salvation Army Family Services Program. After receiving reports of neglect based on poor school attendance, a social worker referred the family back to Dual Track, which provided additional services.

The family had moved to Homer by September 2006. OCS received another report alleging that the family was homeless and that the children missed school because of head lice. A social worker and school staff found a cabin for the family and provided mattresses and laundry cards to help the family get rid of the lice. The social worker also created a case plan in December 2006 that required Ralph and Nell to seek consistent employment, maintain clean and adequate housing, and work with school nurses to get rid of the lice.

On March 30, 2007, OCS received a report alleging that Ralph had "pulled [Ava's] hair and scratched her face." Ava told the social worker that she had argued with her father, and that when she tried to leave the home, Ralph "grabbed her face by reaching over her from behind and his fingernails caused a cut on her nose." Ava said Ralph then "pulled her hair and forced her back into the home." She said that her father had previously slapped her face and back, and that he had kicked her. The social worker testified that Ava had "marks on her head from being hit by her father." Ava's siblings corroborated Ava's allegations and expressed concern about the condition of their home.

Based on the evidence of physical abuse, mental injury, and chronic neglect, OCS assumed custody of all five children and put them in foster care. An OCS social worker created a case plan for the family. OCS referred Ralph for a substance abuse assessment, referred both parents for psychological assessments to determine what other services were necessary, and arranged for supervised visits at the OCS office. The social worker also referred the children to counseling services.

After their removal, the children remained in the Homer area to facilitate visits with their parents. Rex's initial placements included two different Homer foster homes. He participated in a behavioral health assessment which recommended that he receive mental health services. Due to his aggressive behavior and the unavailability of a closer placement, Rex was moved to a foster home in Kasilof where he began individual therapy at Nakenu Family Services. The record does not suggest that Rex has left this foster home.

OCS sought to coordinate regular visits between the parents and the children. Visits with Rex were scheduled twice a month in Kenai. Ralph and Nell were responsible for buying gas for the first monthly trip and OCS paid for gas for the second. In September 2007, shortly after the children were taken into OCS custody, the parents moved away from their children, back to the Mat-Su Valley.

OCS prepared another case plan in September 2007, which required that Ralph complete an Alaska Family Services (AFS) parenting class in Palmer. It also required that he participate in individual therapy, show that he could refrain from aggressive behavior, participate in an intake assessment at AFS's Family Violence Intervention Program, and follow that assessment's treatment recommendations. An OCS social worker wrote a letter to Alaska Housing Finance Corporation to assist Ralph and Nell with housing.

Ralph finished the Family Violence Intervention Program in June 2008. Ralph and Nell participated in psychological evaluations with Michael Rose, Ph.D. Dr. Rose concluded that Ralph met the diagnostic criteria for Child Abuse/Neglect, Partner Relational Problem, and Cannabis Abuse. Dr. Rose also diagnosed Ralph with "personality disorder with antisocial and passive-aggressive features." Dr. Rose recommended that Ralph's visits with his children be supervised until he showed progress in his treatment.

Rex was evaluated by Paul Turner, Ph.D., in January 2008 because of abuse in his home. He told Dr. Turner that his father would "yell, scream, and throw things at people." He also described his father "smacking" a sister, and stated that his father spanked him very hard with a paddle.

During 2008 Ralph attended the Family Violence Intervention Program. However, he was not considered to have completed the program because he failed to pay for the program in full which demonstrated a lack of accountability. At the time of the termination trial Ralph was under a recommendation to redo the program because of his ongoing aggressiveness.

OCS continued to offer the parents visits with the children to promote reunification but the parents' visits with Rex were inconsistent. To help with travel expenses, the social worker gave gas vouchers to Ralph and Nell and arranged for OCS to provide airfare and mileage reimbursements so they could fly to some visits. Despite this offered assistance, Ralph and Nell failed to visit Rex regularly. Between October 2007 and June 2008, they visited Rex just once, at Christmas 2007.

In April 2009 Nell asked about restarting visits, but visits did not resume because Rex's therapist recommended that in-person visits with Ralph and Nell should not continue. Other reunification efforts continued through 2009 with an OCS social worker again updating the parents' case plans. The social worker conducted home visits and spoke with the parents about services including couples and individual therapy. OCS initially filed a petition to terminate parental rights of all the children when Rex was eight. After doing so, OCS once again referred Ralph and Nell for psychological evaluations with Dr. Rose. Based on the results of Dr. Rose's evaluations, OCS decided it was in the children's best interests to give the parents further access to reunification services. Ralph and Nell sought a six-month continuance of the termination trial. The children's GAL opposed this request but OCS did not.

The superior court denied the continuance with respect to Rex. Based on this ruling, OCS attempted to withdraw its termination petition as to Rex. The GAL objected and the superior court refused to allow OCS to withdraw its petition. Instead, the court permitted the GAL to prosecute OCS's petition to terminate parental rights to Rex.*fn4 By the conclusion of the termination trial, Rex had been in foster care for over two years.

The superior court terminated parental rights to Rex. The superior court concluded that Rex was a child in need of aid (CINA) pursuant to Alaska Statute 47.10.011(1) (abandonment), (6) (physical harm), (8) (mental injury), (9) (neglect), and (11) (mental health). The superior court further concluded that the parents failed within a reasonable time to remedy the conduct or conditions that placed Rex at risk of harm, and that OCS made reasonable efforts to reunify the family. It also concluded that it was in Rex's best interests for Ralph's and Nell's parental rights to be terminated.

Ralph appeals that order; Nell does not.

III. STANDARD OF REVIEW

We review a superior court's factual findings regarding termination of parental rights for clear error.*fn5 A finding is clearly erroneous when a review of the entire record leaves this court with "a definite and firm conviction that the superior court has made a mistake."*fn6

We review de novo whether the superior court's findings satisfy applicable CINA statutes and rules, adopting "the rule of law that is most persuasive in light of precedent, reason, and policy."*fn7

We will reverse factual findings under the clearly erroneous standard only if, after a review of the entire record in the light most favorable to the party prevailing below, we are left with a definite and firm conviction that a mistake has been made.*fn8 Conflicting evidence is generally insufficient to overturn the superior court, and we will not reweigh the evidence when the record provides clear support for the superior court's ruling.*fn9

Whether the parent has remedied the conduct or conditions that places the children at substantial risk of physical or mental injury, and whether returning the child to the parent would place the child at substantial risk of physical or mental injury, are ...


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