Larry W. v. State, Dept. of Health and Soc.

208 P.3d 156, 2009 WL 484423
CourtAlaska Supreme Court
DecidedFebruary 25, 2009
DocketS-13072
StatusPublished

This text of 208 P.3d 156 (Larry W. v. State, Dept. of Health and Soc.) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larry W. v. State, Dept. of Health and Soc., 208 P.3d 156, 2009 WL 484423 (Ala. 2009).

Opinion

208 P.3d 156 (2009)

LARRY W., Appellant,
v.
STATE Of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Office of Children's Services, Appellee.

No. S-13072.

Supreme Court of Alaska.

February 25, 2009.

*157 G. Blair McCune, Anchorage, for Appellant.

Mary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for Appellee.

Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

MEMORANDUM OPINION AND JUDGMENT[*]

I. INTRODUCTION

Larry W. appeals the superior court's termination of Larry's parental rights to his daughter, Jenna W.[1] Larry argues that the superior court erred under the Indian Child Welfare Act in finding beyond a reasonable doubt that Larry's continued custody likely would result in serious emotional or physical damage to Jenna. Because we conclude that the superior court did not err, we affirm.

II. FACTS AND PROCEEDINGS

Jenna W. was born on November 11, 1998 to Larry W. and Francine A. Francine was affiliated with the native village of Kaltag, making Jenna an Indian child per the Indian Child Welfare Act (ICWA).[2]

Francine had a longstanding problem with alcohol abuse and, according to Larry, tended to become verbally aggressive towards him when she drank. Larry worked with the Office of Children's Services (OCS) to obtain a protective order against Francine and, in April 2003, she moved out of the apartment in which Larry and Jenna resided. Larry then became Jenna's sole caretaker.

In February 2005, while Larry and Jenna were living in a four-unit apartment complex that he managed for the owner, OCS received a report from a building tenant that Larry had sexually abused Jenna. The state petitioned for temporary custody under both the ICWA and children in need of aid (CINA) statutes.[3] Jenna was taken into *158 emergency custody and placed with an unrelated native family.

An emergency custody hearing was held in February and March 2005. The tenant who had reported sexual abuse and an OCS specialist who had investigated the allegations both testified. The specialist testified that, during her investigation of the potential sexual abuse, Jenna had said that Larry sometimes left her alone at night and became "mean" when he drank. The specialist also testified that Larry had admitted that he sometimes locked Jenna in the bathroom as a discipline technique.

Larry testified at the emergency custody hearing and admitted to leaving Jenna alone for fifteen to twenty minutes at a time while he went to the grocery store. He testified that he was aware Jenna was "a little bit concerned" about being left alone but that he was trying to get her used to being able to "take care of herself." He also stated that he felt the social workers were "overexaggerating" the problem of leaving Jenna unattended.

At the end of the hearing, the superior court concluded that there was a substantial risk Jenna would suffer sexual abuse and substantial physical harm for want of supervision if left in Larry's custody. The court concluded that it was in Jenna's best interests to remain in the temporary custody of the state.

Larry was given a case plan that required him to get a sex offender evaluation, attend parenting classes, obtain a substance abuse evaluation, and attend visitation with Jenna. Larry was reportedly "diligent in participating in treatment services requested." But OCS remarked that he was not progressing in his treatment and seemed "unable to develop and demonstrate appropriate new skills, understandings and abilities to ameliorate the problems that affect the health and safety of his daughter."

In August 2005 Larry underwent a mental assessment in which a licensed clinical social worker determined that Larry "presents with a complexity of mental health issues." The evaluator reported that his "odd thinking and speech, suspicious and paranoid ideation, and excessive social anxiety indicate Schizotypal Personality Traits." The social worker later testified at the termination trial that Larry's personality traits caused him to be suspicious of outsiders and misinterpret social cues.

In May 2006 OCS petitioned to terminate Francine and Larry's parental rights. OCS filed an amended termination petition in September 2006, asserting abandonment, inadequate supervision, neglect, substance abuse, and mental illness. OCS no longer alleged sexual abuse.

A five-day termination trial was held in February 2007. An OCS social worker testified that Jenna had spent eight days in Hawaii state custody after a social service agency received a report indicating that she and Larry were sleeping on the streets. Larry testified that having Jenna in state custody came in "real handy" as it allowed him to install a roof over his makeshift shelter, which he characterized as a "hut" or "hacienda." The licensed clinical social worker who had evaluated Larry in August 2005 testified that Larry told her he would leave Jenna home alone in Hawaii, presumably at their camp, for a few hours at a time and that he was proud of Jenna's ability to "take care of herself when he had to be gone." Larry testified that Jenna was around five years old at the time.

A certified chemical dependency counselor also testified during the termination trial about the services OCS had been providing Jenna. Given her mother's history of alcohol abuse and the learning difficulties Jenna was beginning to exhibit, the counselor testified there was suspicion that Jenna might be afflicted with fetal alcohol syndrome (FAS). A physician had examined Jenna for an initial evaluation but had not yet reached a diagnosis of her condition at that time.

At the conclusion of the trial, the court terminated Francine's parental rights but declined to terminate Larry's. The court concluded that, even though it was in Jenna's best interests that Larry's parental rights be terminated, it could not find evidence beyond a reasonable doubt that Jenna would suffer *159 serious emotional and physical harm if she were placed in Larry's care.[4]

The court ordered Larry to undergo a mental health assessment, and Larry received a psychological evaluation in April 2007. The psychologist concluded that, although Larry was not suffering from a mental disorder, he did exhibit "personality traits" similar to the schizotypal or schizoid traits first observed during Larry's 2005 mental health assessment. The psychologist noted that these traits were "characterized by the preference to maintain interpersonal distance and behavior that has little regard for social convention." He stated that the prognosis of a good therapeutic outcome was "guarded."

In September 2007 Jenna's FAS evaluation was completed. The doctor who examined Jenna diagnosed her with alcohol-exposed neurobehavioral disorder, attention deficit hyperactivity disorder (ADHD), and a moderate mixed language disorder.

In March 2008 the superior court permitted the parties to produce more evidence relevant to whether Larry's parental rights should be terminated. OCS elicited new testimony concerning the impact of Jenna's newly diagnosed condition on her needs. Four experts testified that Jenna required stability, consistency, structure, and attention, the absence of which might make her more susceptible to frustration, depression, behavioral problems, or even delinquency.

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Bluebook (online)
208 P.3d 156, 2009 WL 484423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larry-w-v-state-dept-of-health-and-soc-alaska-2009.