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Jena H. v. State5/4/2005
's witnesses for further cross-examination, but Darrell did not make such a request, or object to the structure of the reopened hearing.
Lastly, Darrell's asserted inability to help with cross-examination is not a structural error that would require reversal without a showing of prejudice. Because Darrell cannot show he was harmed by the procedures in the reopened hearing, we conclude that reopening the hearing cured the initial due process violation.
B. The Superior Court Did Not Err in Terminating Darrell's Parental Rights Under AS 47.10.088
Under AS 47.10.088, a trial court must make several findings before it may terminate parental rights. Darrell challenges three of these findings: (1) that clear and convincing evidence shows Nick has been subjected to conduct or conditions making him a child in need of aid under AS 47.10.011; (2) that clear and convincing evidence shows that Darrell has not remedied the conditions or conduct placing Nick at risk, or has failed to make sufficient progress in a reasonable period of time such that Nick remains at a substantial risk of physical or mental injury; and (3) that a preponderance of the evidence shows that DFYS made reasonable efforts at reunification. We consider each of these contentions below.
1. The superior court did not err in finding that Nick is a child in need of aid.
The superior court found that Nick was a child in need of aid (CINA) based on clear and convincing evidence that Nick was exposed to domestic violence, substance abuse and some neglect, relying on AS 47.10.011(8), mental injury; (9), neglect; and (10), substance abuse. Only one of the grounds in AS 47.10.011 is needed for a CINA finding. Because we conclude that the record adequately supports the finding that Nick was a child in need of aid under AS 47.10.011(10), we will not reach Darrell's contentions against the other statutory grounds.
Under AS 47.10.011(10), the court must find that the parent's "ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child." Darrell argues that subsection .011(10) is inapplicable because he never "used or was under the influence of an intoxicant" in Nick's presence.
We held in Stanley B. v. State, DFYS that subsection .011(10) is satisfied when the parent's drug addiction was "at least partially responsible for his current and past incarcerations, and that his frequent and prolonged absences while incarcerated substantially impair his ability to parent" his children.
In that case, a finding that the parent took drugs in the presence of his children was not required for a determination that the child was a child in need of aid under subsection .011(10). Here, as in Stanley B., Darrell's drug use has at least in part contributed to his numerous incarcerations, which have negatively impacted his ability to properly parent Nick. Since Nick's birth in 1999 Darrell has been incarcerated numerous times. He admits to using cocaine in the past and to continuing to drink alcohol. Just before Nick's removal, Darrell, who had recently absconded from custody, was arrested for being in possession of a drug pipe. As recently as 2003 police discovered a crack pipe in Darrell's possession when he was arrested on other charges. Jena has accused Darrell of selling his son's belongings to buy drugs. On three different occasions, police officers observed that Darrell was intoxicated and arrested him for crimes including trespass and driving under the influence .
Therefore, the superior court did not err in finding tha
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