September 01, 2015

Mental Injury Must be Significant and Noticeably Impact Child’s Functioning to Support Termination of Parental Rights

Eva J. Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Theresa L. v. State, 2015 WL 4708858 (Alaska).

Finding that children were dependent based on mental injury was clearly erroneous in termination of parental rights proceeding, although psychologist diagnosed one child with post-traumatic stress disorder (PTSD) and testified that both children had poor boundaries. Psychologist did not testify as to his basis for PTSD diagnosis or its causes. The only evidence establishing the diagnosis also indicated the child had only a slight impairment, not that he was suffering an observable and substantial impairment. There was also no evidence linking the child’s diagnosis to mother’s conduct.

Theresa, the mother of three children, appealed the termination of her parental rights to her 16-year-old daughter and 14-year-old son. Another 18-year-old daughter was not a subject of the termination proceedings. Initially the 18-year-old was placed in a youth shelter but the agency did not remove the two younger children at that time.

The mother planned a later move to Arizona. Even though the younger children were not in child welfare custody and she had not been told they had to remain in Alaska, the agency considered her decision to send the children to Arizona before her unauthorized. The reason was because the social worker thought there was an agreement for the children to remain safe in her home.

In Arizona the children lived with the grandmother and uncle. The Alaska child welfare agency contacted its Arizona counterpart, which removed the children. The two states filed nearly simultaneous petitions for emergency custody and the children were placed in foster care in Arizona. Arizona decided that Alaska was the children’s “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act and transferred custody of them to Alaska.

As part of the dependency case, the mother completed a psychological evaluation with a psychologist on one of her visits to Alaska and attended family therapy with the younger children, mostly by phone. At the time of the termination trial, the son was no longer in counseling, and his sister wanted individual counseling.

The agency petitioned to terminate the mother’s rights to the younger children based on mental injury. The psychologist testified about his observations and expressed concern about poor boundaries in the family. His examples included laughing at inappropriate actions, engaging in baby talk, and trouble adjusting after visits with their mother; however, the psychologist stated it would not be in the children’s best interests to end all contact with Theresa. The mother’s therapist testified she had made substantial improvements and could be a safe and effective parent.

In adjudicating the children dependent, the trial court relied on the son’s diagnosis of post-traumatic stress disorder (PTSD), the children’s boundary issues, and their behavior. It also found that termination was in the children’s best interests, but ordered post-termination contact between the children and their mother based on the psychologist’s recommendation.

The mother moved for reconsideration, arguing that the court failed to consider less drastic alternatives to termination, and the children joined in her request. The agency and the guardian ad litem opposed reconsideration, with the agency arguing that no specific diagnosis is needed to prove that a child has suffered a mental injury under the statute.

There was no evidence that they were depressed, extremely anxious, or withdrawn, nor was there evidence that either child exhibited aggressive or hostile behavior. Rather, evidence showed the children had done reasonably well in school even before the agency intervened. No evidence showed behavioral problems at school.

Based on the statutory language and legislative history, which indicated that mental injury requires a significant or severe problem in functioning or behavior, the court found the child welfare agency did not meet its burden of showing by clear and convincing evidence that either child suffered a mental injury as defined in the statute.