TF v. STATE, DEPT. OF H & S SERVICES
| Decision Date | 20 July 2001 |
| Docket Number | No. S-9674.,S-9674. |
| Citation | 26 P.3d 1089 |
| Parties | T.F., Appellant, v. STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Division of Family & Youth Services, Appellee. S.L.M., Appellant, v. State of Alaska, Department of Health & Social Services, Division of Family & Youth Services, Appellee. |
| Court | Alaska Supreme Court |
Bethany Spalding, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant T.F.
Thomas E. Fenton, Law Office of Thomas E. Fenton, Fairbanks, for Appellant S.L.M.
Karla Taylor-Welch, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
S.F. and C.F. are twin children in need of aid. Their mother suffers from a serious and long-term addiction to cocaine, and she saw the twins only once between their birth and the termination proceeding in this case. Their father was incarcerated at the time of their birth and absconded from custody shortly thereafter. In part because of his absence and in part because of delays by the State, Department of Health & Social Services, Division of Family & Youth Services (DFYS), the father's paternity was not promptly determined and DFYS did not develop a case plan for him until nearly eight months after the twins' birth. The superior court terminated the parental rights of both parents, and the parents challenge that termination. We affirm the superior court's termination of parental rights for both parents.
S.F. and C.F. are Indian twins born prematurely on July 22, 1999. The twins were developmentally damaged by prenatal cocaine exposure and may also suffer from fetal alcohol syndrome. Within days of their birth, DFYS assumed emergency custody of them. Since that time, they have primarily been cared for by a foster mother. In October a court found the twins to be children in need of aid, and committed them to the temporary custody of the State. DFYS petitioned on November 15, 1999 for termination of parental rights, and in April 2000 Superior Court Judge Ralph R. Beistline terminated the rights of both parents.
S.M., the mother, acknowledges a "significant history of substance abuse and associated illegal activity"; the trial court expressed particular concerns about the likelihood of her overcoming her addiction to cocaine. S.M. used cocaine and alcohol during her pregnancy, received almost no prenatal care, and did not know she was having twins until the second baby was born. As of S.F. and C.F.'s nine-month birthday, S.M. had visited the twins once, and had missed three other scheduled visits. According to a social worker's account of S.M.'s sole visit with the twins, S.M. was afraid to be alone with the children and allowed her son to cry for ten minutes without picking him up or attempting to soothe him. She also failed to appear for a residential rehabilitation program after DFYS had arranged bed dates for her in September 1999 and again in January 2000. Only in the month before trial—almost eight months after the birth of the twins—did S.M. enter a rehabilitation program. S.M. may have to remain in the program for up to two years, and her potential for successful completion of the program is uncertain. The court found that she has a high relapse potential. S.M. has other children who do not live with her and for whom she has been unable to care.
S.M. told DFYS that T.F. was the twins' father. Although T.F. initially questioned paternity, a blood test eventually proved him to be the twins' biological father. Like S.M., T.F. has a long-term problem with cocaine, although the court found that his addiction is less severe than hers. He also has another child, an eight-year-old daughter with whom he has lost contact. The trial court found that T.F. "has an extensive criminal record and has been unable throughout his adult life to remain clean and sober for any significant period of time," or to comply with rehabilitation efforts.
T.F.'s whereabouts were unknown at the time of the twins' birth, but in early August the DFYS intake supervisor learned that T.F. was incarcerated in the Fairbanks Correctional Center. The supervisor mailed T.F. a letter and preliminary case plan indicating that the department would arrange for paternity testing. The supervisor then transferred the case, including a plan for paternity testing for T.F., to a social worker. The social worker, Holly Byrnes, was unfamiliar with the testing process, had a family emergency at the time, and assumed that the incarcerated T.F. would easily be available for testing; it therefore took her somewhat longer than usual to arrange for a paternity test. DFYS filed a motion for the test on August 17, and the superior court ordered paternity testing; it distributed the order on September 9, 1999. The test was scheduled for October 13.
By the time the superior court issued the test order, however, T.F. had absconded from custody. Because S.M. told Byrnes that she was in contact with T.F., Byrnes gave S.M. information about T.F.'s scheduled testing appointment and explained that T.F. could participate in the test without risk of the authorities being notified. Although T.F. spoke to S.M. during this period, he did not appear for the test and did not contact DFYS.
T.F. returned to custody on November 7, 1999, a Sunday. However, Byrnes was already scheduled to depart the following morning for a month-long stint at the Nome DFYS office. She asked another DFYS representative in Fairbanks to set up the test, but learned upon her return to Fairbanks that no test had been arranged. Byrnes arranged for the test on her first day back in Fairbanks, on December 9, 1999. The test took place on December 28, but results were not available until February 29, 2000.
On January 11, 2000, while the test results were still pending, Byrnes visited T.F. in jail. They spoke for thirty or forty minutes about his case, but did not develop a substantive case plan. T.F. expressed an interest in involvement in the case if the children were his, but remained very doubtful that he was the father. Byrnes apparently next contacted T.F. in a March 1 letter, advising him that the twins were in fact his son and daughter. T.F. called and wrote to Byrnes to request visits with the babies, and his attorney called Byrnes on March 17 to arrange a meeting. Byrnes, T.F., and T.F.'s attorney met on March 28; apparently they would have met earlier but for the attorney's schedule. The three met for thirty minutes and prepared a case plan for T.F. They did not discuss classes and services available to T.F. in jail, although Byrnes did later contact the jail to learn which services T.F. had participated in, and to confirm that he had completed a substance abuse program. T.F. testified that, while incarcerated, he took a six-week parenting class and extra courses on fetal alcohol syndrome, and completed an eight to ten-week inmate alcohol and substance abuse program.
Byrnes also supervised three visits between T.F. and the twins, on March 23, March 30, and April 6, 2000; a fourth visit was canceled due to a DFYS scheduling problem. She initially worried about the twins' reactions to the unfamiliar environment of the jail and the presence of a strange man, in light of their previous difficult visit with their mother. However, Byrnes ultimately concluded that the visits were positive.
The superior court held a trial on termination of parental rights on April 17-19, 2000. The parties stipulated to the existence of clear and convincing evidence that the children had been subjected to conditions sufficient to render them children in need of aid under AS 47.10.011(2)1 and (10)2 and that the parents, at the time of trial, had not remedied the conduct that placed the children at substantial risk of harm. The superior court terminated the rights of both parents. It found that the twins "have no ties with either biological parent" and expressed strong skepticism about the potential for either parent, particularly S.M., to become a sober and mature caregiver in the foreseeable future. But it emphasized that, even assuming the speediest possible recovery by the parents, the resulting delay in permanent placement would be "too long for the twins to wait." Because the twins urgently needed stable family placement, the court determined that termination of parental rights was in the best interests of the children. S.M. and T.F. now appeal.
In cases concerning the termination of parental rights, we will affirm the trial court's factual findings unless the findings are clearly erroneous.3 Whether the factual findings are sufficient to satisfy the Child In Need of Aid (CINA) rules is a question of law, to which we apply our independent judgment.4
The question of whether the State has complied with the Indian Child Welfare Act's (ICWA's) "active efforts" requirement is a mixed question of law and fact.5 The legal elements of this question, and any other purely legal questions, are reviewed* de novo.6
In order to terminate parental rights, a court must find by clear and convincing evidence that the children are in need of aid under AS 47.10.011, and that the parents have not remedied the conduct or conditions that place the children at substantial risk of harm.7 The parties stipulated to these facts. Under ICWA, the court may not terminate parental rights to Indian children unless it finds by a preponderance of the evidence that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful."8 In determining whether to terminate parental rights, "the court shall consider the best interests of the child."9
The parental rights of both S.M. and T.F....
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