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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Winston J. v. State, Dept. of Health & Social Services, Office of Children's Services (04/28/2006) sp-6008

Winston J. v. State, Dept. of Health & Social Services, Office of Children's Services (04/28/2006) sp-6008, 134 P3d 343

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12002
Appellant, )
) Superior Court No.
v. ) 4FA-03-79 CP/4FA-03- 80 CP
Appellee. ) No. 6008 - April 28, 2006
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:   Lori   M.  Bodwell,   Conflict
          Counsel, Fairbanks Section, Office of  Public
          Advocacy, Fairbanks, for Appellant.   Dan  N.
          Branch, Assistant Attorney General, and David
          W.  M rquez,  Attorney General,  Juneau,  for

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          CARPENETI, Justice.

          Twins  Tanya  and  Wilfred G.1 were  born  while  their
father  was incarcerated for assaulting their mother.  They  were
immediately  taken  into  state custody  and  placed  with  their
mothers  aunt.  Two years later, the Office of Childrens Services
(OCS) brought a petition to terminate the parental rights of both
parents.   The superior court terminated the parental  rights  of
          both parents and approved the permanent placement of the twins
with their great aunt.  The father appeals.  Because the superior
court did not err in finding (a) that OCS made reasonable efforts
to  reunite  the father with his children, (b) that the  children
were  in need of aid, and (c) that the father did not remedy  his
conduct,  we  affirm the order terminating the  fathers  parental
     A.   Facts
          Twins  Tanya  and Wilfred G. were born in Fairbanks  to
Tricia  G. on April 12, 2003.  The children were born prematurely
and  spent  the first month of their lives in intensive  care  at
Fairbanks Memorial Hospital.  On May 8, 2003 the state brought  a
petition requesting that the children be adjudicated in  need  of
aid  and  that  they be taken into state custody.   The  petition
noted  that Tricia was reportedly a chronic drug abuser  and  was
failing  to show up at appointed times to feed the twins.   Their
father  was  not present at all.  The twins tested  positive  for
Hepatitis  C at birth but negative for any drugs.  It  was  later
established that both children were exposed to cocaine during the
          In  May  2003  Superior Court Judge Richard  D.  Savell
found  the children to be in need of aid and placed them  in  the
custody  of  the  state.  The court stated that  the  father  was
identified as [Winston J.].  He is currently incarcerated.  He is
not  listed  on  the  birth certificates, so  paternity  must  be
established.  Winston was incarcerated for a domestic assault  on
Tricia  which  occurred when she was eight months  pregnant.   He
chas[ed] her around [a] truck and kicked at her.  Winston  has  a
long  history of domestic assaults.  In 1993 a restraining  order
was  obtained against him in Fairbanks by a former girlfriend  on
her complaint that he had choked her and slammed her head several
times against a wall.  He was incarcerated for a domestic assault
in  Yakima,  Washington in 1998.  He was later  incarcerated  for
domestic  assault in Spokane, Washington.  All of these  assaults
involved different women.  He was also convicted of driving under
the influence in Seattle in 1990.
          The  superior  court committed the  children  to  state
custody  for a period of up to two years in September 2003.   The
court found that Winston
          was  incarcerated  until  early  August,  and
          indicated that he did not wish to participate
          in a case plan or services until his criminal
          case had been resolved.  Since being released
          from  custody, the father has not engaged  in
          services,  nor has he identified  himself  to
          the social worker so that services and visits
          between  the  father and the  children  could
Rather  than  attempting  to establish a  relationship  with  his
children,  Winston  went to Seattle after  his  release.   Tricia
apparently  lived with him there from time to time.   In  January
2004 Winston took a paternity test which definitively established
him to be the twins father.
          Winston  returned  to Alaska for a week-long  visit  in
March  2004.  While in Fairbanks he met with a social worker  and
signed  a  case plan aimed at allowing the children to live  with
him.   During  the visit Winston underwent parenting  skills  and
anger  management assessments.  As a result of the assessment  in
Fairbanks,  OCS  recommended that Winston  complete  a  full-year
Alternatives to Violence program.  The social worker  recommended
a  specific  program in Seattle in a letter of  April  15,  2004.
Following  substantial delays because Winston was  out  of  touch
with  OCS,   Winston  started the program in or  around  November
2004, but stopped after attending two classes.
     B.   Proceedings
          On  December 23, 2004 OCS filed a petition to terminate
Tricias and Winstons parental rights to the twins.2  The petition
was  tried  before Judge Savell in May 2005.  Judge Savell  found
that  Winston  and  Tricia had failed to remedy  the  conduct  or
conditions  that  made the children in need of  aid.   The  court
cannot return children to the parents without substantial risk of
physical  and  mental injury.  The court found by a preponderance
of the evidence that the state made reasonable efforts to reunite
the  children with their parents and found it to be in  the  best
interests  of  the children to terminate the parental  rights  of
Winston and Tricia.  The termination order was issued on June 23,
2005.3   Winston appeals the termination of his parental  rights,
arguing that the superior court erred in finding (1) that OCS had
made  reasonable  efforts to reunite him with his  children,  (2)
that the twins were in need of aid, and (3) that he had failed to
remedy  the conditions that caused the children to be in need  of
aid.  Tricia does not appeal.
          It  is  a  question of law whether the superior  courts
findings  are  consistent  with  child-in-need-of-aid  rules  and
statutes.4   We  review  questions of law using  our  independent
judgment.5   Factual  findings  underlying  the  superior  courts
termination decision are reviewed for clear error.6  Clear  error
exists when we are left with a definite and firm conviction  that
the superior court has made a mistake.7
     A.   The Superior Court Did Not Err in Finding that OCS Made
          Reasonable   Efforts  To  Reunite  Winston   with   his
          1.   We  need not determine whether OCS was required to
               make   reasonable  efforts  until  paternity   was
               definitively established.
          OCS  argues that it was not required to make reasonable
efforts  until it was definitively established that  Winston  was
the  twins father.8  OCS analogizes to child welfare cases in the
context  of the Indian Child Welfare Act (ICWA).9  We  have  held
that  ICWA  did  not obligate the State to provide  such  efforts
until   .  .  .  paternity  had  been  established.10    As   OCS
acknowledges,   however,   ICWA   defines   parent   much    more
          restrictively than do the Alaska statutes; ICWA excludes the
unwed  father  where  paternity  has  not  been  acknowledged  or
established.11   In Alaska custody proceedings, however,   parent
means  the biological or adoptive parent of the child.12  But  we
need  not  decide  this  question now.  As  we  conclude  in  the
following section, OCS met its reasonable efforts burden  in  any
          2.   OCS made reasonable efforts.
          OCS was required to demonstrate, by a preponderance  of
the  evidence, that it had made reasonable efforts to prevent the
breakup  of the family.13  Under AS 47.10.086(a), OCS is required
to  make  timely,  reasonable efforts to provide  family  support
services  .  .  .  to  the parents . . . of the  child  that  are
designed  to  . . . enable the safe return of the  child  to  the
family home, when appropriate.  We have stated that we allow  the
state to consider the amount of time available for reunification,
considering  how  long  the child has been  in  foster  care  and
whether allowing more time for reunification would not be in  the
childs best interests.14
          At trial, the superior court rejected Winstons argument
that not enough services were provided.  The court stated:
          It is ironic that in Mr. [J.]s case were told
          that  not enough services were entered.   The
          normal  argument which has been well received
          from this court and has some weight to it is,
          Judge,  you  put  too much  on  this  persons
          plate,  they  couldnt do it all,  it  wouldve
          been  more appropriate, Judge, for . . .  OCS
          to  triage these needs and give [the]  person
          one  task and one step at a time. . . . Under
          the  circumstances here and given  Mr.  [J.]s
          response . . . I cant fault the state for not
          .  .  . load[ing] these services on Mr. [J.]s
The  courts implied finding that OCS had made reasonable  efforts
is  supported  by  the record: OCS provided parenting  and  anger
management assessments to Winston, and directed him to  parenting
classes  and  alternatives  to  violence  counseling.   OCS  also
brought  Winston to Alaska at state expense to see his  children.
Winston argues on appeal that in failing to provide a recommended
mental  health  evaluation  for  Winston,  OCS  failed  to   make
reasonable efforts to reunify the family.
          The  courts  ruling  indicates  that  it  believed  OCS
provided   an   appropriate   level   of   services   under   the
circumstances.   Winston  initially  informed   OCS,   when   OCS
contacted  him  in prison, that he did not want to  be  contacted
regarding  the  children until his criminal  case  was  resolved.
Upon  his  release, he did not . . . identif[y]  himself  to  the
social worker so that services and visits between the father  and
the  children could commence.  We have indicated that  reasonable
efforts  should  be  reasonably calibrated  to  the  interest  in
parenting  demonstrated by the parent.15  When Winston  initially
demonstrated  no interest, the states efforts were  appropriately
less.   As  Winston became more involved, then the state  offered
          more services.  It seems clear from the record that Winston
eventually  showed a substantial interest in raising  his  twins.
Unfortunately,  he was not able to make enough  progress  in  the
short time that he had allowed himself.
          Not  only  Winstons  level of  interest  but  also  his
actions  must be considered.16  Upon his release from  prison  he
returned  to Washington rather than contact OCS or his  children.
While  he  eventually did participate in assessments required  by
OCS,   visited  the  children  multiple  times,  and  took  anger
management classes, Winston failed to complete the case  plan  he
signed.  The state initiated an interstate placement review under
AS  47.70.010 while Winston was in Washington, sending  a  social
worker to visit him in Seattle.  Interstate placement was denied,
however, due to Winstons lack of participation.
          Most significantly, he attended only two sessions at  a
one-year program set up for him in Seattle by OCS.  This  despite
Winstons understanding that if he went to this program, he  would
likely have his kids back.  The social worker assigned to Winston
testified  that she reiterated to him that if you  just  show  an
effort,  . . . that youre trying, thats the only thing,  just  as
long as youre trying to get your children back.  As the childrens
guardian ad litem testified, Winston had only one major hurdle to
overcome,  but  did  not  make  the effort,  attending  only  two
sessions of the year-long class.
          Finally,  he ceased making efforts completely when  OCS
notified  him  in  December  2004 that  it  intended  to  file  a
termination  petition in fairly short order.  The superior  court
correctly  found  that  the  states termination  petition  was  a
warning:  that Winstons failure to obtain the services he  needed
would  lead  to  termination.  At this point  the  children  were
twenty  months old but had never lived with Winston  and  had  no
prospects  of  doing so.  The superior court  indicated  that  it
viewed  the filing of the termination petition as the last chance
allowing the parents time to demonstrate that conditions had been
          Considered  as a whole, the record indicates  that  OCS
made  reasonable efforts to reunite Winston with his twins.   The
state  flew  Winston  up  to  Fairbanks  from  Seattle  for   the
evaluations  it  conducted.   It arranged  for  him  to  see  his
children  while  in  Fairbanks.  It arranged, long-distance,  for
Winston  to  attend a comprehensive, year-long  anger  management
counseling  program in Seattle.  It appears from the record  that
the  social  workers  on  the case were  reasonably  diligent  in
attempting  to  follow  up  on Winstons  progress.   Furthermore,
Winston was directed to attend parenting classes by the court  as
a  condition  of  his probation.  Winston failed  to  attend  the
classes.  We take into account the actions of the parent involved
and  look  at  the states efforts in their entirety,17  including
actions taken by other state agencies.18  While the states actions
here might not have been a model of efficiency,19 the law does not
require  perfect efforts, just reasonable ones,  and  the  record
indicates that the state made reasonable efforts.
     B.   The Superior Court Did Not Err in Finding the Twins  To
          Be  in  Need  of  Aid and in Finding that  Winston  Had
     Failed  To  Remedy  the Conditions that Caused  Them  To  Be
          in Need of Aid.
          Winston argues that the superior court erred in finding
the  twins  to  be  in  need of aid under AS 47.10.011(8).   That
statute  provides, in relevant part, that a child can be adjudged
to  be in need of aid if conduct by or conditions created by  the
parent . . . have . . . (B) placed the child at substantial  risk
of  mental  injury  as  a result of (i) a pattern  of  rejecting,
terrorizing,  ignoring,  isolating, or corrupting  behavior  that
would,  if  continued, result in mental injury.   At  trial,  the
superior  court  found  that this statute  was  satisfied:  [t]he
domestic  violence . . . placed the children in risk of  exposure
that  we know causes mental harm, that could cause physical harm.
Winston  argues  that the court misread the statute  because  the
children had not been born when the incident of domestic violence
against their mother occurred and that the statute does not allow
the  court to make findings based on prospective acts of domestic
violence.   We  disagree: The court still could  reasonably  find
that  Winstons commission of domestic violence against the  twins
mother  coupled with his history of violence against other  women
created a substantial risk of harm to them should they be  placed
with him.
          As  the state notes, we rejected an argument similar to
Winstons  in Martin N. v. State.20  That case involved  a  father
who,   like Winston, was shown to have committed several acts  of
violence  against the childs mother and others, but none  against
the child.21  Also like Winston, Martin committed one of the acts
of violence against the mother when she was pregnant.22  Martin N.
argued  that  because he had never directed violence against  his
child, the state had not shown that the child faced a substantial
risk  of mental injury under AS 47.10.011(8)(B)(i).23  We  firmly
rejected that argument:
          The  statute itself directs the court to  the
          question  of  whether  the  child  would   be
          mentally   injured   if   the   behavior   is
          continued, thereby contemplating an  analysis
          of future harm. . . . We have previously held
          that witnessing domestic violence is mentally
          harmful  to  children.  There was  clear  and
          convincing evidence that Martins acts  toward
          [the  mother]  create a significant  risk  of
          mental injury to [the child] if continued.[24]
          Judge  Savells  conclusion  in  the  present  case   is
perfectly  consistent  with our holding in  Martin  N.   Winstons
argument  focuses on the fact that the children  never  witnessed
domestic violence, but this is because they were in utero when it
first  occurred and Winston was incarcerated (for committing  the
domestic violence) when the twins were born.  In order to  remedy
the  potentially injurious circumstances in the home environment,
Winston  was  obligated  to address his  repeated  problems  with
domestic  violence.  As he did not do so, the superior court  was
justified in holding that he had not remedied the conditions that
          caused the children to be in need of aid.  As the superior court
noted in its findings, the law and society have recognized [that]
the  priority  [is]  these  two  little  kids,  not  the  parents
          Especially  when   young children are involved,  it  is
important  that  a  parent  with a history  of  violent  behavior
particularly  one as long and serious as Winstons    address  the
causes  of the behavior.  As noted, Judge Savell found  that  the
domestic  violence . . . placed the children in risk of  exposure
that  we  know causes mental harm [and] that could cause physical
harm.    This  finding  was  starkly  supported  by  the   family
assessment:  [Winston] reported the intent to  use  spanking  and
slapping  the  hand to discipline his children and believes  that
they  are  already at an age where this would be  appropriate  to
implement.   At  the  time of this statement  the  children  were
barely a year old.
          Because the superior court did not err in finding  that
OCS made reasonable efforts to ensure that the children could  be
returned to Winston, and it did not err in finding that the twins
were  in  need of aid and that Winston had failed to  remedy  the
conditions  that caused them to be in need of aid, we AFFIRM  the
judgment of the superior court.
     1     Pseudonyms have been used throughout this  opinion  to
protect the identity of the parties.

     2     OCS  was  required to file a petition  at  this  point
because  the  children had been in state custody  for  more  than
fifteen of the previous twenty-two months.  AS 47.10.088(d)(1).

     3     Since Judge Savell retired on the day the trial ended,
the  termination order was signed by Superior Court Judge  Robert

     4     Jeff  A.C.,  Jr. v. State, 117 P.3d 697,  702  (Alaska

     5    Id.

     6    Id.

     7    Id.

     8      Alaska  Statute  47.10.086(a)  directs  OCS  to  make
reasonable  efforts  to provide family support  services  to  the
child and parents or guardian of the child.

     9    25 U.S.C.  1901-1963 (2000).

     10    A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 262 (Alaska 1999).

     11    25 U.S.C.  1903(9) (2000).

     12    AS 47.10.990(19).

     13    CINA Rule 18(c)(2)(A); AS 47.10.086.

     14     Jeff  A.C., Jr. v. State, 117 P.3d 697,  706  (Alaska

     15    Id. at 707.

     16     See id. ([T]he state, in determining what efforts  to
reunite parent and child are reasonable, may consider the parents

     17     Frank  E. v. State, Dept of Health & Soc. Servs.,  77
P.3d 715, 720 (Alaska 2003).

     18     See  T.F. v. State, Dept of Health & Soc. Servs.,  26
P.3d  1089, 1095-96 (Alaska 2001); A.M. v. State, 945  P.2d  296,
305  (Alaska  1997) (considering efforts made  by  Department  of
Corrections).   Although  T.F. and A.M.  are  ICWA  cases,  their
reasoning  on this point is applicable to non-ICWA cases  because
the active efforts requirement of ICWA is more demanding than the
reasonable efforts requirement of AS 47.10.086.

     19    For example, OCS did not arrange paternity testing for
eight  months after the children were born, despite Judge Savells
comment  that  paternity  must be established,  and  even  though
Winston was incarcerated and available.

     20    79 P.3d 50 (Alaska 2003).

     21    Id. at 54.

     22    Id. at 51.

     23    Id. at 54.

     24    Id. at 55 (footnote omitted).

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