LG v. State, Dept. of Health & Soc. Serv.

Decision Date15 December 2000
Docket NumberNo. S-9140.,S-9140.
Citation14 P.3d 946
PartiesL.G., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Appellee.
CourtAlaska Supreme Court

Michelle McComb, Assistant Public Defender, Fairbanks, Barbara Brink, Public Defender, Anchorage, for Appellant.

Nora King, Assistant Attorney General, Fairbanks, Bruce M. Botelho, Attorney General, Juneau, for Appellee.

Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

OPINION

MATTHEWS, Justice.

I. INTRODUCTION

The parental rights of L.G. (Linda)1 to her daughters, J.G. and S.G., were terminated on April 1, 1999. Superior Court Judge Richard D. Savell found that there was evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that the daughters were likely to suffer serious emotional and physical harm if returned to Linda's custody. Judge Savell also found that there was good cause to deviate from the placement preferences of the Indian Child Welfare Act (ICWA) to place J.G. with Foster Mother P.S. Linda appeals. We conclude that Judge Savell's findings are supported by the evidence and affirm the termination of parental rights and the finding of good cause to deviate from ICWA's placement preferences.

II. FACTS AND PROCEEDINGS

J.G. was born on September 16, 1991. In the first year after J.G.'s birth, Linda lived intermittently with her daughter at the Polaris Hotel in Fairbanks, a site known for drug trafficking and prostitution. Linda's long history of substance abuse continued after J.G.'s birth, leading to Linda's hospitalization and her arrest for assaulting her brother with a knife while drunk. While Linda was drinking or hospitalized because of drinking, she left J.G. with J.G.'s father, A.D. (Father). Doctors saw burn marks on the child when Father brought J.G. to the hospital to visit Linda.

In the fall of 1992 Deborah Hayes, an intern with the Division of Family and Youth Services (DFYS), was admitted to Linda's room at the Polaris Hotel. J.G. had been awake and mobile while Linda slept. After Hayes noticed track marks on Linda's arms, Linda said that Father "made her take drugs" and admitted that she had taken drugs the night before.

Linda was sentenced to seven months in jail for assaulting her brother. During her imprisonment, Linda left J.G. in Father's care. After being released from jail, Linda continued to drink to excess, violated her probation by using cocaine, and was returned to jail. Linda again left J.G. with Father, despite her reservations about his ability to care for the child; Linda had at least once left J.G. in Father's care and returned to find him intoxicated.

J.G. came into state custody for the first time when Father reported that he could not continue to care for the child. J.G. was placed with Linda's mother, C.L. (Grandmother). On May 9, 1994, however, Grandmother asked that the child be placed elsewhere. That same day, Linda's brother dropped the child off at the social work division with Lorita Clough, a social worker whom the child had never met. J.G. was unable to understand what was happening, and repeatedly asked where her uncle was.

J.G. was placed in the Village Center, but was removed from there after one month and eleven days. J.G. was then placed with Shirley Moses, but was removed after ten days when a caseworker realized that Moses had gone north to work and left J.G. in the care of her daughter. On July 6, 1994, J.G. was placed with Foster Mother P.S.

When Foster Mother P.S. became J.G.'s foster parent, J.G. appeared to be developmentally delayed. J.G. did not speak in complete sentences, screamed for what she wanted, and tended to be violent. Foster Mother P.S. established a routine for J.G., and J.G. was able to overcome her developmental delays and behavioral problems. While in Foster Mother P.S.'s care, J.G. was taken to see her grandparents almost every Sunday.

When released from jail for the birth of S.G., Linda was directed to enter a treatment program. S.G. was born on October 1, 1994, but Linda did not enter a treatment program until March 1995. While out of jail, Linda never saw J.G. Linda was sent back to jail for using cocaine in April 1995, and S.G. was eventually placed with Foster Mother R.K. Foster Mother P.S. brought J.G. to visit her mother while Linda was in jail, but J.G. exhibited little reaction to these visits.

Linda went from jail into the Regional Center for Alcohol and Other Addictions in May 1995. In June she entered the Women and Children's Residential Treatment Program. Her participation in treatment was court-ordered. While in the Women and Children's structured residential program, Linda was, in many respects, a model client.

Linda was reunited with her children in October 1995. After being returned to Linda's care, J.G. would attach to adults and then become fearful if separated from them. J.G. was also violent towards other children. Because J.G. appeared anxious, she was prescribed Defakote. Although J.G. had been returned to her mother's custody, Foster Mother P.S. continued to care for J.G. almost every Saturday.

Linda left the Women and Children's program in early 1996. Within two weeks of leaving, she relapsed. Foster Mother R.K. had repeatedly attempted to call Linda on one evening during this period. Foster Mother R.K. was told by J.G. that she could not get Linda up, although Foster Mother R.K. could hear the child trying to awaken her mother. On the day of her relapse, Linda passed out. When Women and Children's personnel came to the apartment to help her get the children ready for day care and Head Start, Linda was still passed out and still intoxicated. Lynn Marie Eldridge, the clinical supervisor for the Women and Children's program, testified that this relapse was cocaine based. Linda refused to submit to urinalysis, but did agree to enter detox. J.G. and S.G. were placed in Foster Mother R.K.'s home.

After detox, Linda re-entered the Women and Children's program and the children were returned to her care. Within a week, however, Linda relapsed again. Eldridge testified that this relapse, too, involved cocaine use. Linda again refused to submit to urinalysis, and her children were placed with Foster Mother R.K. Foster Mother P.S. continued to maintain contact with J.G. after the girl was placed with Foster Mother R.K., and took care of her almost every weekend.

Linda returned to serious alcohol abuse, which resulted in her hospitalization, caused her to fear for her own life, and led her to drink for three days in a row without sleep. Ultimately, Linda asked the Women and Children's program to readmit her, knowing that her parental rights could be terminated if she did not change her life. Linda was required to spend three months at the Regional Center for Alcohol and Other Addictions before re-entering the Women and Children's program. After Linda re-entered the Women and Children's program, J.G. and S.G. were again placed with her. While in the Women and Children's program, Linda successfully completed her GED and worked for a short time at a part-time job.

After being discharged from the Women and Children's program, however, Linda's urinalysis tested positive for cocaine. J.G. and S.G. were again removed from Linda's custody. The girls were first placed with Emily Crook, but Crook asked that the children be removed from her care because of S.G.'s behavior. J.G. and S.G. were then placed in the Bermudez foster home, a non-ICWA compliant placement, because their younger sister had been placed there.

Linda refused to enter extended residential treatment in Anchorage, and was unsuccessful in gaining admission to the Regional Center for Alcohol and Other Addictions as an out-patient. Linda visited her children at DFYS only twice. Linda was charged with DWI in October 1997. During the next twelve months, Linda never saw her children.

After months went by without contact between Linda and her children, DFYS's ICWA committee unanimously recommended that Linda's parental rights be terminated and that the children be immediately placed in permanent homes. Despite the fact that such a placement would be non-ICWA compliant, the committee believed that J.G. clearly needed to be placed with Foster Mother P.S. J.G. was placed with Foster Mother P.S., and S.G. was placed with Foster Mother R.K.

While in Foster Mother R.K.'s custody, S.G. encountered Linda at Grandmother's house. S.G. exhibited out-of-control behavior after that encounter. S.G. has also had nightmares. According to Foster Mother R.K., S.G. has said that she misses her sisters, but has never mentioned Linda and shows no desire to return to her mother.

The State of Alaska, Department of Health and Social Services, petitioned to terminate Linda's parental rights to J.G. and S.G. and to commit the girls to the department's custody for adoptive purposes. After seven days of hearings, Judge Savell issued an oral ruling and a written order terminating Linda's parental rights and finding good cause to deviate from ICWA's placement preferences so as to place J.G. with Foster Mother P.S. Linda appeals.

III. DISCUSSION
A. Standard of Review

In a case involving the termination of parental rights, the trial court's factual findings will be reviewed under a clearly erroneous standard, and will be overturned only if this court is left with a definite and firm conviction that a mistake has been made.2 The trial court's decision that a witness is qualified to testify as an expert is reviewed for abuse of discretion;3 the test for determining abuse of discretion is whether the reasons for the exercise of discretion are clearly untenable and unreasonable.4 However, a determination of whether the trial court's findings comport with the requirements of ICWA involves a question of law and will be reviewed de novo.5

We will reverse a lower court's adoptive placement preference determination only if convinced that the record...

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