N.A. v. State

OPINION MATTHEWS, Justice. N.A. appeals the termination of her parental rights over SA., and D.A N.A. originally lost custody of S.A. and D.A. because she was unable to take care of them due to alcohol abuse. N.A. later entered alcohol rehabilitation and has been sober for two years. Nevertheless, the superior court terminated her parental rights. This case requires us to resolve a conflict in our prior decisions concerning the interpretation of AS 47.10.010(a)(2), the statute which governs when a child may be adjudicated to be a child in need of aid (CINA). We must determine which subsections of AS 47.10.010(a)(2) permit a CINA adjudication based on a parent’s or caregiver’s inability to care for a child. I. FACTS AND PROCEEDINGS N.A. is the mother of two boys, S.A, bom August 4,1989, and D.A, bom July 18,1990. The father of both children is R.S. S.A and D.A. are developmentally delayed. Their most significant delays are in the area of speech. Until 1992, N.A abused alcohol. At times, her alcohol abuse made her incapable of taking care of her children. The State filed a petition for temporary custody of S.A. and D.A. in June 1991. The superior court granted the petition, adjudicated the boys CINA and committed them to the custody of the Department of Health and Social Services (DHSS). Custody was given to the State because N.A was unable to take care of the boys at times because of intoxication, and R.S. was in sexual abuse treatment which prohibited him from having unsupervised contact with children. S.A and D.A. were eventually placed with foster parents. In November 1992, NA., again pregnant by R.S., entered the Dena A. Coy Center for Pregnant Women. N.A. stayed at Dena A Coy until June 1993. She received alcohol rehabilitation, parenting training, and other services there. N.A stopped using alcohol near the time she entered Dena A. Coy, and had been sober for two years at the time of trial. Sh.A., a female, was bom to N.A at Dena A. Coy in May 1993. N.A has had continuous custody over Sh.A. Social workers who worked with N.A testified that N.A. is a good parent to Sh.A., and the State admits that N.A is able to meet Sh.A’s needs. After leaving Dena A. Coy, N.A. utilized numerous, extensive services to help her maintain sobriety and improve her parenting skills. She attended Aeoholics Anonymous meetings and received other services to prevent a relapse into alcohol abuse. She regularly worked with several counselors on her parenting. [1237] Despite N.A.’s progress, the State filed a petition for termination of her parental rights over S.A. and D.A. in September 1993, contending that “[t]he boys’ needs are great and they need highly skilled parents to raise them in a healthy manner to their potential” and that NA’s “gains ... are not sufficient to parent the boys.” The trial took place in August 1994. R.S. relinquished his parental rights at the beginning of the trial. NA and R.S. were no longer in a romantic relationship at the time of trial. At trial, the State presented three types of evidence in order to make a case that SA and D.A. would suffer harm in NA’s care. First, the State introduced testimony that the boys’ progress in overcoming their developmental delays would lessen under NA’s care because N.A. is not able to provide the boys with “structure and consistency.” Second, there was evidence that N.A. sometimes disciplines the boys by yelling at them. Third, witnesses for the State testified that they were concerned that S.A. or DA could suffer physical injury as a result of encountering an environmental hazard in NA’s care. The superior court terminated NA’s parental rights over S.A. and D A II. STANDARD OF REVIEW Under AS 47.10.080(c)(3), a superior court may terminate parental rights only “upon a showing in the adjudication by clear and convincing evidence that there is a child in need of aid under AS 47.10.010(a)(2) as a result of parental conduct and upon a showing in the disposition by clear and convincing evidence that the parental conduct is likely to continue.” The superior court found by clear and convincing evidence that S.A. and D.A. are children in need of aid under AS 47.10.010(a)(2)(A) and (C) as a result of conduct by NA which is likely to continue. N.A. argues that the superior court erred in making this finding. In a CINA case, we will overturn the superior court’s findings of facts if they are clearly erroneous. We will declare a trial court’s findings to be clearly erroneous if a review of the entire record leaves us with a definite and firm conviction that a mistake has been made. See In re T.W.R., 887 P.2d 941, 944 (Alaska 1994); K.N. v. State, 856 P.2d 468, 475 (Alaska 1993). Determinations of law are reviewed de novo. E.g., Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987). III. IMMINENT AND SUBSTANTIAL RISK OF SUBSTANTIAL PHYSICAL HARM We will consider whether the superior court clearly erred by adjudicating S.A. and DA. CINA under AS 47.10.010(a)(2)(C) (subsection (C)) before discussing AS 47.10.010(a)(2)(A) (subsection (A)). A child can be declared CINA under subsection (C) upon a showing of the child having suffered substantial physical harm or if there is an imminent and substantial risk that the child will suffer such harm as a result of the actions done by or conditions created by the child’s parent, guardian, or custodian or the failure of the parent, guardian, or custodian adequately to supervise the child[.] (Emphasis added.) A careful and thorough review of the entire record leaves us with a definite and firm conviction that the record cannot support a finding that SA and D.A. have suffered substantial physical harm as a result of parental conduct which is likely to continue or that there is an imminent and substantial risk that they will suffer such harm due to conduct by N.A. which is likely to continue. The evidence presented by the State that N.A. is unable to provide her sons with sufficient “structure and consistency” cannot support a CINA adjudication under subsection (C). The only consequence that the State’s witnesses predicted would flow from a failure to give S.A. and D.A. the necessary “structure and consistency” was that the boys would not “meet their potential” or make the kinds of gains in overcoming their developmental delays which they would make otherwise. If S.A. and D.A. would indeed suffer this type of harm under NA’s care, the [1238] harm would be gradual and not imminent, and it would not be substantial physical harm. The State’s witnesses did not identify any concrete physical harms that the boys would suffer as a result of not being supplied with enough “structure and consistency.” Likewise, the testimony that N.A. sometimes disciplines S.A. and D.A. by yelling at them cannot justify a CINA adjudication under subsection (C). According to the State’s witnesses, this manner of disciplining the boys could cause them to suffer a loss of self-esteem. The possibility of a gradual loss of self-esteem does not amount to an imminent risk of substantial physical harm.1 Finally, some of the State’s witnesses had concerns about the physical safety of S.A. and D.A. in N.A.’s care, as the boys are very active and may enter dangerous places in their environment if not watched. But the State introduced no evidence that N.A. was so unaware of potential dangers that it was likely that S.A. or DA. would be seriously injured as a result of encountering an environmental hazard in her care. The State’s witnesses did not testify that the boys were ever in any immediate danger under NA.’s care; in fact, there was testimony that N.A. removed her sons from potentially dangerous situations. The State only presented testimony that N.A.’s awareness of possible dangers was not as great as that of the social workers observing her, and that NA was not able to keep her attention focused on S.A., DA, and ShA. all of the time.2 The record in this case thus cannot support a finding that S.A. and DA would face an imminent and substantial risk of substantial physical harm as a result of the possibility of encountering a physical hazard in N.A.’s care, and the superior court’s CINA adjudication under subsection (C) is reversed.3 IV. ABILITY TO CARE Since the superior court’s CINA adjudication cannot be upheld under subsection [1239] (C), we must determine whether it can be justified under subsection (A). Subsection (A) permits a child to be declared CINA as a result of the child being habitually absent from home or refusing to accept available care, or having no parent, guardian, custodian, or relative caring or willing to provide care, including physical abandonment by (i) both parents (ii) the surviving parent, or (iii) one parent if the other parent’s rights and responsibilities have been terminated under AS 25.28.180(c) or AS 47.10.080 or voluntarily relinquished[.] (Emphasis added.) The superior court’s decision that S.A. and D.A. are CINA under subsection (A) as a result of parental conduct which is likely to continue is based on a finding that N.A. cannot provide the care required by the boys and cannot meet their needs.4 This finding raises the issue of whether a parent’s inability to care for a child can support a CINA declaration under subsection (A) if the parent is willing to care for the child. Our prior decisions conflict in their resolution of this issue. In In re J.L.F., 828 P.2d 166, 170 (Alaska 1992), we stated, without analysis: “While a finding of inability to care would be grounds for jurisdiction under subsection (2)(A), that finding must also extend to any relatives who are in fact caring for or willing to assume care.” We cautioned, however, that “adjudication under subsection (2)(A) normally would arise under abandonment.” Id. at 170 n. 9. In A.M. v. State, 891 P.2d 815, 824 (Alaska 1995), and In re T.W.R., 887 P.2d 941, 945 (Alaska 1994), we interpreted J.L.F., again without analysis, as meaning that a CINA adjudication under subsection (A) may be predicated on a parent’s lack of ability to care for a child. But in F.T. v. State, 862 P.2d 857, 861 (Alaska 1993), we rejected an argument that inability to care could support a finding that a child is CINA under subsection (A). We stated, “AS 47.10.010(a)(2)(A) would support a CINA adjudication only if [the child] had no parent, guardian, custodian, or relative caring or willing to provide care. Specifically, the parties’ dispute whether [the parent] was willing to provide care.” Id. The State argued “that [the parent] could not have been willing to provide care because he was unable to meet [the child’s] needs.” Id. We rebuffed this argument and the State’s “conclusion that if a child has needs a parent cannot meet, then the parent cannot be ‘willing to provide care’ for that child.” Id. We explained that “the State’s conflation of willingness to care and ability to satisfy needs leads to absurd conclusions.” Id. We now determine that the approach taken in F.T. is the correct one, and we hold that a parent’s or caregiver’s inability to care for a child cannot support a CINA adjudication under subsection (A) if the parent or caregiver is willing to care for the child. Our conclusion is based on the plain language of subsection (A) and a careful examination of the structure and purposes of AS 47.10.010(a)(2) as a whole. The clear language of subsection (A) covers only willingness to care, not ability to care. Subsection (A) allows a CINA adjudication if there is no “parent ... caring or willing to provide care.” (Emphasis added.) Subsection (A) does not state “having no parent ... caring and willing to provide care.” The State has argued that subsection (A) covers ability to care because AS 47.10.990(1) states, “ ‘care’ or ‘caring’ under AS 47.10.010(a)(2)(A) ... means to provide for the physical, emotional, mental, and social [1240] needs of the child.” See F.T., 862 P.2d at 861 & n. 5; J.L.F., 828 P.2d at 169. However, plugging the definition in AS 47.10.990(1) into subsection (A) results in the following: “having no parent ... providing for the physical, emotional, mental, and social needs of the child or willing to 'provide for the physical, emotional, mental, and social needs of the child.” The statute still would not require ability to care — willingness is enough. An analysis of the structure and purposes of the entirety of AS 47.10.010(a)(2) shows that while ability to care is relevant under subsections (B) through (F) of the statute, it is not relevant under subsection (A), for three main reasons. First, the State’s interpretation of subsection (A) would permit CINA adjudications based on parenting deficiencies much less severe than those covered under AS 47.10.010(a)(2)(B)-(F). Second, unlike subsection (A), subsections (B) through (F) set clear, specific standards for adjudicating a child CINA based on a parent’s inability to care. Third, permitting ability to care to be considered under subsection (A) would make subsections (B) through (F) virtually superfluous. The full text of AS 47.10.010(a)(2) states: (a) Proceedings relating to a minor under 18 years of age residing or found in the state are governed by this chapter, except as otherwise provided in this chapter, when the court finds the minor [[Image here]] (2) to be a child in need of aid as a result of (A)the child being habitually absent from home or refusing to accept available care, or having no parent, guardian, custodian, or relative caring or willing to provide care, including physical abandonment by (i) both parents (ii) the surviving parent, or (in) one parent if the other parent’s rights and responsibilities have been terminated under AS 25.23.180(c) or AS 47.10.080 or voluntarily relinquished; (B) the child being in need of medical treatment to cure, alleviate, or prevent substantial physical harm, or in need of treatment for mental harm as evidenced by failure to thrive, severe anxiety, depression, withdrawal, or untoward aggressive behavior or hostility toward others, and the child’s parent, guardian, or custodian has knowingly failed to provide the treatment; (C) the child having suffered substantial physical harm or if there is an imminent and substantial risk that the child will suffer such harm as a result of the actions done by or conditions created by the child’s parent, guardian, or custodian or the failure of the parent, guardian, or custodian adequately to supervise the child; (D) the child having been, or being in imminent and substantial danger of being, sexually abused either by the child’s parent, guardian, or custodian, or as a result of conditions created by the child's parent, guardian, or custodian, or by the failure of the parent, guardian, or custodian adequately to supervise the child; (E) the child committing delinquent acts as a result of pressure, guidance, or approval from the child’s parents, guardian, or custodian; (F) the child having suffered substantial physical abuse or neglect as a result of conditions created by the child’s parent, guardian, or custodian. Under subsections (B) through (F), only serious forms of parental misconduct can support a CINA adjudication. Subsection (B) deals with failure to provide needed medical treatment. Subsection (C) concerns “substantial physical harm” caused by parental conduct. Subsection (D) addresses sexual abuse. Subsection (E) is about parental encouragement of criminal conduct. And subsection (F) speaks of “substantial physical abuse or neglect.” The legislature thus intended for the State to be able to assume custody of minors only to remedy severe parenting deficiencies and prevent significant harm to children. [1241] But the State’s reading of subsection (A) would give the State the power to assume custody over children for much less serious types of parental misconduct and harm to children. The State would define ability to care as the ability to provide for the physical, emotional, mental, and social needs of a child, relying on AS 47.10.990(1). See F.T., 862 P.2d at 861 & n. 5; J.L.F., 828 P.2d at 169. This interpretation would permit the State to assume custody over any child who had needs the child’s parents could not meet. Applied to the facts of this case, the State’s interpretation would justify terminating N.A.’s parental rights on the grounds that S.A. and D.A. would not “meet their potential” with N.A. because she would not be able to satisfy their needs for “structure and consistency.” The better way to interpret subsection (A) is in accordance with its plain intent — subsection (A) is designed to deal with situations where the parent abandons the child, the child runs away, or the child refuses to accept the parent’s care. The seriousness of these kinds of situations is congruent with the types of circumstances covered by subsections (B) through (F). Unlike subsection (A), which focuses on a parent’s willingness to care and does not explicitly give superior courts guidance in determining what constitutes inability to care, subsections (B) through (F) contain specific standards for adjudicating a child CINA and terminating parental rights based on a parent’s or caregiver’s5 inability to care. Under subsection (B), inability to provide needed medical treatment can support a CINA finding. Subsection (C) covers inability to care that causes, or creates an imminent and substantial risk of, substantial physical harm. Subsection (D) deals with sexual abuse or a danger of sexual abuse caused by a parent’s inability to supervise a child or by other conditions created by the parent. Subsection (E) permits a CINA adjudication if a parent approves the commission of delinquent acts by the child. Subsection (F) concerns “substantial physical ... neglect.” Reading subsection (A) as permitting a CINA adjudication based on inability to care would make all these parts of subsections (B) through (F) superfluous. A superior court would not have to determine whether the requirements in subsections (B) through (F) were met if the court could easily declare a child CINA upon a general finding of inability to care under subsection (A).6 Such a result would violate basic principles of statutory construction. See, e.g., Journey v. State, 895 P.2d 955, 959 n. 10 (Alaska 1995) (“as a general rule, statute should be construed so that effect is given to all its provisions and no part is inoperative or superfluous, void or insignificant”) (citing Homer Elec. Ass’n v. Towsley, 841 P.2d 1042, 1045 (Alaska 1992)). For these reasons, we overrule A.M., 891 P.2d at 824, T.W.R., 887 P.2d at 945, and J.L.F., 828 P.2d at 170, to the limited extent that those cases stated that ability to care may be considered under subsection (A). We continue to follow the central teaching of those eases — parental rights may be terminated because a parent is unable to care for a child.7 We only clarify that superior courts [1242] should be guided by the specific, explicit standards of subsections (B) through (F) in determining whether a parent or caregiver is able to care for a child. Since a child may not be adjudicated CINA under subsection (A) based on a parent’s inability to care for the child if the parent is willing to care for the child, we overturn the superior court’s finding that S.A and D.A. are CINA under subsection (A). We realize that our opinions in AM., J.L.F., and T.W.R. may have led some superior courts to make CINA findings solely under subsection (A) and not address subsections (B) through (F) in cases where the evidence would support a CINA adjudication under subsections (B) through (F). If this were such a case, the proper remedy would be to remand for consideration of whether the children are CINA under the appropriate provision(s) in subsections (B) through (F). However, the record in this case cannot support a CINA adjudication under subsections (B) through (F), meaning that the termination of N.A.’s parental rights must be reversed.8 V. CONCLUSION We hold that a child may not be adjudicated CINA under AS 47.10.010(a)(2)(A) on the grounds that the child’s parent or caregiver is unable to care for the child if the parent or caregiver is willing to care for the child. A parent’s or caregiver’s ability to care may be considered under the specific, explicit standards of AS 47.10.010(a)(2)(B)-(F). We thus overturn the superior court’s determination that S.A. and D.A. are CINA under AS 47.10.010(a)(2)(A). We also conclude that the superior court’s holding that S.A. and D.A. are CINA under AS 47.10.010(a)(2)(C) is erroneous. The record cannot support a CINA adjudication under any other subsection of AS 47.10.010(a)(2). The termination of N.A.’s parental rights is REVERSED. EASTAUGH, J., with whom COMPTON, J., joins, concurs in part and dissents in part. Footnotes [1] The record does not contain evidence that N.A.'s yelling amounts to severe emotional abuse of the sort that could support a CINA adjudication under AS 47.10.010(a)(2)(B), which permits a CINA finding as a result of the child being in need of medical treatment to cure, alleviate, or prevent substantial physical harm, or in need of treatment for mental harm as evidenced by failure to thrive, severe anxiety, depression, withdrawal, or untoward aggressive behavior or hostility toward others, and the child's parent, guardian, or custodian has knowingly failed to provide the treatment. (Emphasis added.) [2] Three of the State’s witnesses testified about possible safety risks to the boys with N.A. DHSS social worker Paula Bettano Everts stated that she had safety concerns for the boys, as "the boys are very easy victims because they can’t talk,” and "the boys' behavior is very unpredictable.” Everts expounded that the boys run around a lot and could encounter a physical danger in their environment because N.A. is unable to focus her attention on them all of the time. Connie Kind, a family consultant who worked with N.A. on parenting skills, stated that “there ... could be some safety issues” if S.A. and D.A. were placed with N.A. Kind explained that at times she feared that the boys would enter places that were not safe. But Kind also stated that she never saw the boys in "any immediate danger” while under N.A.’s care, and acknowledged that she never saw N.A. "expose her sons to anything that would put them in physical danger while she was with them.” Kind elaborated that her own awareness of potential safety risks was greater than N.A.’s and that Kind “was quicker to react than [N.A.] was sometimes to [potential] dangers.” Lillian Coleman, a counselor who worked with N.A., testified that S.A. and D.A. require constant supervision and at times engage in behavior that raises concerns about their safety. Coleman also testified, however, that N.A. removed the boys from danger when they engaged in risky behavior, and that she never saw N.A. do anything to endanger S.A. and D.A. When asked whether the boys would be at risk if placed in N.A.'s care, Coleman responded, "I don't know.” In addition, Carolyn Cyr, a therapist at Dena A. Coy, testified that N.A. never did anything to jeopardize the safety of her sons during visits. Ruth Evans, one of N.A.'s counselors, stated that the boys would be safe with N.A. N.A. herself testified that supervising S.A. and D.A. required preventing them from "getting into stuff ... like the medicine cabinet, and running out to the street, and ... play[ing] with anything that’s dangerous, like tools, knives.” [3] N.A.'s past alcohol abuse also cannot support the superior court’s finding that S.A. and D.A. are CINA under subsection (C) as a result of conduct by N.A. which is likely to continue. N.A. no longer uses alcohol. Cf. In re R.K., 851 P.2d 62, 66-67 (Alaska 1993) (reversing superior court's termination of parental rights where father had once neglected his children, apparently because of alcohol or drug use, but claimed to no longer be using alcohol or drugs; explaining that father's substance use could be monitored). [4] The superior court stated in its written decision: The evidence demonstrates clearly and convincingly, however, that [N.A.] is not able to understand and meet the children's significant needs for structure, stability, consistency and nurturing. The court finds by clear and convincing evidence that the parental conduct which caused the children named above to be children in need of aid is likely to continue if [N.A.] parental rights are not terminated. [N.A.] has never demonstrated an understanding of or ability to meet her children’s needs. [5] If a parent intends to place a child with a caregiver who would harm the child as proscribed in subsections (B) through (F), the child can be declared CINA under the appropriate provision(s) of subsections (B) through (F). [6] For example, in this case, while the superior court did declare S.A. and D.A. CINA under subsections (A) and (C), its findings appear to fit in mainly under the State’s interpretation of subsection (A). And we are aware of at least two other pending termination of parental rights appeals where the superior court adjudicated children CINA only under subsection (A), without considering other subsections, even though the records in those cases arguably could have supported CINA adjudications under subsections (C) or (F). [7] The results we reached in A.M., T.W.R., and J.L.F. would not change under our holding in this case. In AM., the superior court’s termination of parental rights was based solely on a finding that the father had abandoned his children. 891 P.2d at 820. We ruled that the abandonment finding was clearly erroneous. Id. at 824. We remanded the case for consideration of whether the father was able to care for the children. Id. at 824-25. We noted: [1242] The superior court specifically found, beyond a reasonable doubt, that A.M.'s daughter was likely to suffer sexual abuse -if placed in his custody; that both children were likely to suffer physical abuse resulting from A.M.’s domestic violence; and that both were likely to suffer physical deprivation due to A.M.’s inability to meet their needs on a consistent, ongoing basis. Id. at 825. These findings would support CINA adjudications under subsections (D), (C), and (F), respectively. In T.W.R., we affirmed the superior court’s termination of parental rights and finding that the mother was unable to care for her children. 887 P.2d at 945. In that case, the record showed and the superior court specifically found that the children were CINA under subsection (B) as a result of the mother’s failure to provide them with needed medical attention. Id. at 946. In J.L.F., we refused to uphold a termination of parental rights where the superior court relied only on subsection (A). 828 P.2d at 169-70. We noted that the superior court's findings "fit well under subsection (2)(C).” Id. at 170. We remanded for determination of whether parental rights could be terminated under subsection (C). Id. [8] Our resolution of the AS 47.10.010(a)(2) issues makes it unnecessary to consider the other arguments made on appeal by N.A., who is an Alaska Native. We doubt, however, that Ae evidence presented by Ae State in this case satisfied the requirements of Alaska Child in Need of Aid Rule 18(c)(2), which prohibits termination of Ae parental rights of a Native parent unless Ae evidence shows beyond a reasonable doubt Aat custody of Ae child by the Native parent will likely cause Ae child to suffer serious emotional or physical damage. See also 25 U.S.C. § 1912(f) (1988); K.N. v. State, 856 P.2d 468, 474 (Alaska 1993).