Cora G. v. State

• Decision Date: 24 April 2020
• Docket Number: Supreme Court Nos. S-17254/17272 (Consolidated)
• Citation: 461 P.3d 1265
• Parties: CORA G., Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN’S SERVICES, Appellee. Justin D., Appellant, v. State of Alaska, Department of Health & Social Services, Office of Children’s Services, Appellee.
• Court: Alaska Supreme Court

461 P.3d 1265

CORA G., Appellant,

v.State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN’S SERVICES, Appellee.

Justin D., Appellant,

v.State of Alaska, Department of Health & Social Services, Office of Children’s Services, Appellee.

Supreme Court Nos. S-17254/17272 (Consolidated)

Supreme Court of Alaska.

April 24, 2020

OPINION

WINFREE, Justice.

I. INTRODUCTION

The superior court terminated a mother’s and father’s parental rights based on a finding that they caused mental injury to their child. Relevant to this finding, the child in need of aid (CINA) statutes provide that a court may find a child in need of aid due to parental conduct or conditions causing the child "mental injury";¹ they also provide that a "mental injury" exists when there has been "a serious injury to the child as evidenced by an observable and substantial impairment in the child’s ability to function in a developmentally appropriate manner and the existence of that impairment is supported by the opinion of a qualified expert witness ."² The main issue before us is one of evidence rule and statutory interpretation in the context of a judge-tried CINA matter: Must the statutorily required expert witness be offered and affirmatively accepted as a qualified expert witness by the superior court? We conclude that the answer is "yes"; that we will review a claim of error in this regard despite a lack of objection in the superior court; and that we will conclude any such error is harmless only if — considering the parent was not necessarily on notice to make an on-record challenge to the expert’s qualifications — we can conclude the putative expert clearly was qualified to render the specific testimony required by statute.

The superior court’s child in need of aid finding in this case, made without a specific expert witness offer by OCS or a determination by the court qualifying an expert witness, is statutorily deficient and cannot be upheld as harmless error. And without a proper child in need of aid finding, we are unable to analyze the court’s other termination findings; we therefore vacate the termination order and remand for further proceedings.

II. FACTS AND PROCEEDINGS

We explain in some detail the facts and proceedings to provide context for our conclusion regarding the expert witness requirement.

A. Family Background³

In 2007 Cora G., a Romanian with limited English language skills, and Justin D., an American, had a son, Carlos, in Romania. Cora and Justin later married and relocated to the United States; Justin joined the military, and the family moved frequently between states while he served. The family eventually moved to Seward, where they lived in a small trailer with no toilet or running water. Cora and Justin informally separated in 2015, although they sometimes lived together afterward.

Carlos is very intelligent, but he also has special needs. Carlos’s social and emotional development has been described as "quite delayed," and during early childhood he was "non-verbal, non-communicative, very shut down" and "non-function[ing]." He has an individualized education plan to address delays in speech, language, social skills, and motor skills. He also has been known to "walk into walls," "scream," "cry," and "[u]rinate on himself." He has been described as having "trouble hearing" and can be overwhelmed by "[t]oo much noise."

In August 2017 a clinical neuropsychologist — relying in part on OCS’s reports about Carlos’s alleged trauma from parental abuse — diagnosed Carlos primarily with reactive attachment disorder, social (pragmatic) communication disorder, and attention-deficit/hyperactivity disorder.⁴ But based on information from Carlos’s foster mother and his occupational therapist, the neuropsychologist concluded that Carlos’s profile was consistent with autism

spectrum disorder, disruptive mood dysregulation disorder, oppositional defiant disorder, conduct disorder, and Asperger’s disorder.⁵

B. Removal From Cora

In April 2016 OCS received a report alleging that then-eight-year-old Carlos had been sexually and physically abused by Cora and neglected by Justin. According to OCS’s emergency custody petition, Carlos reportedly said at school that his mother referred to him as "pee boy" and "poo boy," that she had been "touching his ‘penis’ and ‘poop’ " and that the previous night she "kept ‘ripping his blankets off the bed[," and] picking him up and dropping him on the floor." According to the petition, Justin’s mother, who lived near the family, also had reported a recent incident when she had entered the home and Carlos apparently had been "nude from the waist down [and] was lying with his buttocks facing [Cora]." OCS’s petition noted that Justin’s mother said Carlos had "quickly covered himself with a blanket" upon seeing her and "seemed upset or like he’d been crying." The petition noted that Justin’s mother also reported that "this was not the first time she’[d] walked in on odd or uncomfortable, uneasy situations" between Carlos and Cora. Finally, the petition noted that in an interview with law enforcement, Carlos reported that his mother "regularly ‘plays with his penis,’ " "touches his penis and butt," "that ‘it feels bad’ and ‘sort of hurts,’ " and that his mother touches him "all the time."

Justin initially corroborated sexual abuse concerns; he reported Cora being hyper-sexual and sexually fixated, and he reported having observed her playing with Carlos’s penis. Justin also expressed concern about Cora showering with Carlos, wanting to have sex while Carlos was present, and being naked or dressing

inappropriately around Carlos. But Justin later "vacillate[d]," informing the OCS supervisor and testifying at the termination trial that Cora "has an over-nurturing problem"; he characterized her actions as treating Carlos like a baby and "inappropriate," rather than abuse.

Cora never was charged with an offense, and she consistently has denied abusing Carlos. According to OCS, Cora said that to avoid accidents she placed Carlos in a diaper before going to sleep in their trailer, with no toilet or running water, and that this caused diaper rash and skin irritation. She stated that Carlos often had diarrhea and would not properly clean himself, leaving him covered in feces. Cora reported that she regularly cleaned Carlos’s genital area with wipes and applied creams to help prevent rashes. She also recalled an incident when Carlos caught his penis in his zipper after refusing to wear underwear, and she examined his penis to be sure he was not injured, then applied cream to it. Cora reported that Carlos verbally abuses her and can be "defiant," once urinating on her while she slept. She stated that when he is angry he pulls down his pants, bends over, and spreads his butt cheeks, exposing his anus to her.

OCS removed Carlos from Cora’s care and placed him with Justin. At a contested temporary custody hearing the next month,⁶ the superior court found probable cause for Carlos’s removal from Cora and that Carlos was in need of aid under AS 47.10.011(7) (mother’s sexual abuse), (8) (mother’s mental injury to child), and (9) (mother’s neglect).⁷ The court ordered that Carlos be placed in OCS’s temporary legal custody. The court recognized Cora’s "tough position" in attempting to remedy these issues, noting that potential sex offender exams "can’t be given in her native language, and that these little turns of a phrase can shunt this whole exam off into a different area." The court inquired when Cora would be able to have contact with Carlos, and OCS suggested that it could determine whether letters could be sent through Carlos’s therapist. The court ultimately denied visitation with Cora "indefinitely in the best interest of the child."

C. Removal From Justin

When OCS placed Carlos with Justin, it relayed "specific [placement] guidelines" and "expectations." OCS advised Justin to attend Carlos’s therapy sessions and, pursuant to a court order, prohibited unauthorized contact between Carlos and Cora. Carlos also was not to be left alone in Justin’s mother’s care; according to OCS, she "had her own significant history of domestic violence and abuse," she "wasn’t able to be protective of [Carlos,] and [she] would not tell [Cora] no, ever."

In late May 2016 an OCS supervisor met with Carlos after learning that Justin’s mother had taken Carlos to a therapy session. The OCS supervisor learned that Justin had taken Carlos to the store where Cora worked and that she had hugged Carlos. The OCS supervisor removed Carlos from Justin’s home without prior notification based on concerns about Justin’s potential reaction. OCS filed an emergency petition to adjudicate Carlos as a child in need of aid and for temporary custody two days later.⁸

The superior court upheld the removal after a hearing in June, based in part on testimony from Carlos’s therapist, who held a master’s degree and license in social work and had been working in children’s behavioral health for nearly 20 years. The therapist recounted her previous five visits with Carlos and two discussions with Justin; she stated that, although she did not "have enough information" to have a negative view of Cora, she recommended no contact between Cora and Carlos.

The therapist stated that when she asked Carlos about his home life, "he was not able to say very much. ... He did not want to talk about it, and he kind of arched his back and kind of turned away from me as if he didn’t want to discuss that." She stated that Carlos has "an anxious avoidance as far as attachment goes with [the] biological family." She believed he had "experienced complex trauma." She recalled Carlos’s foster parent telling her about "finding [Carlos] huddled up, almost ... like in a fetal position, leaning up against the wall, whimpering" while having a nightmare following his first visit with Justin’s mother. The therapist acknowledged that Carlos’s covering himself with blankets while sleeping might be...