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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Burke P. v. State, Dept of Health and Social Services, Office of Children's Services (06/29/2007) sp-6137

Burke P. v. State, Dept of Health and Social Services, Office of Children's Services (06/29/2007) sp-6137, 162 P3d 1239

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

BURKE P., )
) Supreme Court No. S- 12347
Appellant, )
) Superior Court Nos.
v. ) 3KO-00-12, 01-40, 01- 41, 04-43 CP
)
STATE OF ALASKA, )
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, OFFICE OF )
CHILDRENS SERVICES, ) O P I N I O N
)
Appellee. ) No. 6137 - June 29, 2007
)
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Kodiak,
          Joel H. Bolger, Judge.

          Appearances:  Alan L. Schmitt, Jamin  Schmitt
          St. John, Kodiak, for Appellant.  Michael  G.
          Hotchkin,  Assistant  Attorney  General,  and
          Craig  J.  Tillery, Acting Attorney  General,
          Anchorage,    for    Appellee.    Jill     C.
          Wittenbrader, Assistant Public Advocate,  and
          Joshua  P.  Fink, Public Advocate, Anchorage,
          for Guardian Ad Litem.

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

          CARPENETI, Justice.
          MATTHEWS,  Justice, with whom BRYNER,  Justice,  joins,
dissenting.

I.   INTRODUCTION
          A  father  challenges the superior courts  decision  to
terminate his parental rights, arguing that his child was not  in
need of aid and that the state did not make reasonable efforts to
reunify  his  family.  He also contends that the  superior  court
should  have ordered post-termination visitation.  We affirm  the
superior courts decision in all respects.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          The  father, Burke,1 was born in Laos in 1958 and  came
to  the United States as a refugee in 1979.  During the period of
time  relevant  to  this case, he lived in Kodiak  with  Sondra.2
Sondra  suffers  from mild mental retardation and  schizophrenia.
Burke  and Sondra raised four children, Billy (age eleven),  Beau
(age  eight),  Alec  (age six), and Jesse (age  four).3   Because
Burke  was  often away from the home (both at work and at  play),
Sondra  served  as the primary caregiver for all  four  children.
Burke  also visited Laos or Thailand for approximately one  month
almost  every  year, leaving Sondra to act as the childrens  sole
caregiver during those absences.
          The  Office  of Childrens Services (OCS)  first  became
involved  with  the family in March 2000.  Sondra gave  birth  to
Alec prematurely while Burke was in Laos,  leaving no one to care
for  Billy  and  Beau.  OCS took Billy and Beau  into  protective
custody,  but dismissed the child in need of aid (CINA)  petition
when Burke returned to Kodiak about two weeks later.
          The  next  period of OCSs involvement began in December
2001  and  lasted until September 2004.  In December 2001,  while
Burke  was again in Laos, OCS removed Billy, Beau, and Alec after
Sondra  had a psychotic episode that rendered her unable to  care
for the children.4  After Burke returned several weeks later,  he
and  Sondra stipulated that the children were in need of aid  and
OCS commenced reunification efforts.
          As  part  of its reunification efforts, OCS established
goals  that  needed to be met before reunification  could  occur.
These goals included stabiliz[ing] the relationship between Burke
and  Sondra  in  order  to  provide a safe  environment  for  the
children  and plan[ning] appropriate activities for the  children
during visitation.  OCS referred Burke and Sondra to a variety of
support  services  to  help  them meet  those  goals.  Burke  was
referred to parenting classes, individual counseling, and couples
counseling.  Burke and Sondra enrolled in couples counseling, but
it  was  discontinued because Burke either dominated the sessions
or failed to attend them.  It is not clear whether Burke enrolled
in  individual counseling, but he did complete parenting classes.
Janet  Brenteson, the social worker in charge of the  CINA  case,
stated  that  Burke  did  not seem to engage  in  the  counseling
process.
          OCS  initially arranged for supervised visitation,  but
later  allowed  home visits between Sondra and  Burke  and  their
three  children.   During  some  of  these  home  visits,  Sondra
physically  abused  the children.  In April 2002,  for  instance,
Sondra  purposefully burned Alecs arm with the end  of  a  butane
candle lighter.  Sondra hit the children regularly, often without
explanation.  After learning about Sondras tendency to physically
abuse  her children, social service providers worked with her  to
improve her parenting skills.
          In  October  2002 Jesse was born.  He  lived  with  his
parents, despite the fact that his three older brothers  were  in
foster  care.  During much of the time that Jesse was  living  at
home,  Sondra received intensive assistance from various  service
providers in connection with the ongoing CINA case.
          In  May 2004, primarily because Sondra made significant
progress improving her parenting skills, OCS placed Billy,  Beau,
and  Alec back in Sondras and Burkes care for a trial home visit.
The  trial visitation period went well and in September 2004  OCS
moved to dismiss the CINA case.
          The  third  period of OCS involvement began only  three
months  after  the  previous CINA case had  been  dismissed.   In
December  2004 OCS removed all four children from the home  after
receiving reports that Sondra had physically abused them.  Sondra
had  kicked  Alec in the face, bit Beau on the face, and  spanked
Jesse  with  a  wooden spoon on his bare bottom.  Burke  was  not
alleged  to have physically abused any of the children.  However,
the  record shows that Burke consistently failed to intervene  on
his childrens behalf when Sondra became upset with them and Burke
testified  that he was unaware of Sondras tendency to  physically
abuse the children.
          OCS  began  supervised visitation  after  removing  the
children from their home.  Home visits were not permitted because
the  two  older  children stated that they were afraid  of  their
parents.  Burke attended almost all of the scheduled visits,  but
was  not  always actively involved in them.  Brenteson  testified
that  during  the supervised visits Burke interacted very  little
with  the  children  . . . .  Thats been his behavior  throughout
visitation.  The possibility of home visits was further  dampened
by  the  fact  that Burke and Sondra denied Brenteson  access  to
their  home  to assess the conditions inside.  In  an  effort  to
promote contact between Burke and his children, OCS arranged  for
regular telephonic visitation, but Burke called only twice.
          OCS did not finalize its case plan for Burke until June
2005.   The  case  plan identified two primary  goals:  improving
Burkes  parenting  skills and developing  and  sustaining  Burkes
interpersonal relationships with his children.  The case plan did
not  refer  Burke to service providers to help him achieve  these
goals.
          In  September  2005 the parties agreed  to  retain  Dr.
Susan  LaGrande  to conduct a psychological evaluation  regarding
the  familys strengths and weaknesses, including Burkes role, and
to  issue  a  report that OCS could use to guide  its  permanency
goals  and  service  referrals.   Dr.  LaGrandes  evaluation  was
critical  of  Burke.  She observed that [b]ecause [Burke]  places
responsibility for the problems in the family on Sondra, he takes
the   position   that  he  is  blameless,  and  does   not   take
responsibility regarding how his actions have negatively impacted
his children.  Dr. LaGrade concluded that Burke . . . believes he
understands  what  is  best  for his  family[,]  making  it  more
difficult to recommend services.  With such a perspective  it  is
unlikely that he would benefit from services.
     B.   Proceedings
          OCS  petitioned to terminate Burkes parental rights  in
November 2005.5 The superior court held a termination hearing  in
May  2006  and  concluded that Burkes parental rights  should  be
terminated.   The court concluded that the state had  established
by  clear  and  convincing evidence that all four  children  were
children in need of aid.  The state had also shown that  OCS  had
made   timely,  reasonable  efforts  to  provide  family  support
services  to  the children.  The court held that  termination  of
Burkes  parental rights was in the childrens best  interests  and
declined to order post-termination visitation.
          Burke appeals, but limits his appeal to the termination
of  his  parental rights concerning his youngest son, Jesse,  and
the  lack  of post-termination visitation with all three  of  his
biological children.
III. STANDARD OF REVIEW
          In  a  CINA  case  we will affirm the  superior  courts
factual  findings so long as they are not clearly erroneous.6   A
finding  is  clearly erroneous only if our review of  the  entire
record  leaves  us with a definite and firm conviction  that  the
superior  court  made  a mistake.7  Whether the  superior  courts
factual  findings  comport  with the  requirements  of  the  CINA
statutes is a question of law that we review de novo.8
IV.  DISCUSSION
          To  terminate parental rights, the superior court  must
make  three  findings by clear and convincing evidence.9   First,
the  court must find that the child has been subjected to conduct
or  conditions that establish that the child is in need of aid.10
Second,  there  must  be a finding that the  parent  has  failed,
within  a reasonable time, to remedy the conditions that  pose  a
danger to the child.11  Third, the court must find that OCS  made
reasonable efforts to promote reunification.12
          Burke  attacks  the first and third of  these  required
findings,  arguing that the superior court abused its  discretion
in  finding  that Jesse was a child in need of aid and contending
that OCSs reunification efforts were unreasonable as a matter  of
law.  Additionally, Burke suggests that the superior court should
have  ordered  post-termination visitation between  him  and  his
children.  We address each of these arguments in turn.
     A.   The Superior Court Properly Found That Jesse Was in Need of
          Aid.
          
          The superior court found that Jesse was a child in need
of aid under four separate statutory provisions.  The court found
(1)  that  Jesse was subject to substantial physical  harm  or  a
substantial  risk of suffering physical harm;13  (2)  that  Jesse
suffered  mental injuries;14 (3) that Jesse had been neglected;15
and  (4)  that Sondra suffered from a mental illness that  placed
Jesse at a substantial risk of physical harm or mental injury.16
          A  child  may  be in need of aid where  the  child  has
suffered  substantial physical harm, or there  is  a  substantial
risk  that the child will suffer substantial physical harm, as  a
result of conduct by or conditions created by the childs parent .
.  . or by the failure of the parent . . . to supervise the child
adequately.17   The  superior court made the  following  findings
regarding actual physical harm and the threat of physical harm:
          There is no serious question that Sondra  has
          physically  abused the boys over  the  period
          from 2001-2004.  She burned Alecs arm with  a
          lighter.   She spanked all four boys  with  a
          wooden  spoon and a suitcase strap.  She  hit
          Billy  over the head with a broom stick.  She
          kissed  and sucked on Alec and Beau  so  hard
          that  it  raised bruises on their faces.  She
          also  kicked Alec in the face raising bruises
          and  injuries inside and outside  his  cheek.
          There  remains  considerable  risk  that  she
          would    injure    the    children,    either
          intentionally or accidentally, if  they  were
          returned to her care.
          
Addressing Burkes lack of involvement with his family, the  court
found  that Burke had never exhibited the experience, ability  or
inclination to be the primary care taker for the boys.
          Burke  challenges  the superior courts  findings  about
harm  or  risk of harm by arguing that Jesse was not  subject  to
anything  beyond  permissible corporal  discipline.   Burke  also
argues  that  the  superior court erred as a  matter  of  law  in
concluding  that  Jesse  was  at risk  of  suffering  substantial
physical  harm,  but provides little support for  this  argument.
The state contends that the risk of harm that Jesse would face if
returned home is well documented in the record.
          Although  the  record may not show that Jesse  suffered
substantial physical harm, there is ample evidence to support the
superior  courts  finding that Jesse risked substantial  harm  if
returned home.  The record contains evidence documenting  Sondras
past  physical abuse, which for the couples three older  children
went well beyond corporal discipline.18  In 2002 she branded  her
son  Alec on the arm with a lighter, in 2004 she kicked  Alec  in
the  face  and  bit Beau on the face.  That this  abuse  was  not
isolated is evidenced by several other incidents of abuse.
          Sondras  abusive behavior was also likely to  continue.
Social  worker Brenteson testified that although Sondra had  made
progress in parenting classes between 2001 and 2004, she believed
that  Sondra  was  still  unable to use appropriate  disciplinary
techniques. The timing of the December 2004 incident of  physical
abuse,  which  occurred only days after Sondras  primary  service
provider  was  forced to temporarily suspend in-home  assistance,
shows  that  even  after  over  two years  of  parenting  support
services  Sondra continued to resort to physical abuse  when  she
felt unable to control her children.
          The  record shows that Burke did not prevent the  abuse
and his lack of involvement as a parent often exacerbated Sondras
abusive behavior.  Burke testified that he did not notice Sondras
physical  abuse of the children; he also failed to  intervene  on
the   childrens  behalf  when  Sondra  became  upset  with  them.
Further, Burke traveled to Laos and Thailand for frequent  visits
lasting  a  month or more, leaving Sondra alone to care  for  the
children.   When  he  was not traveling or working,  Burke  often
played  cards with friends instead of spending time at home  with
          his children and Sondra. These absences from the home put
substantial  stress  on  Sondra, which on  occasion  led  her  to
physically  abuse  the children.  Dr. LaGrandes  conclusion  that
Burke  was  a father who claims he is the mainstay of the  family
but  through  his actions demonstrates neglectful and non-engaged
behaviors  supports  the conclusion that  Burke  would  not  have
prevented Sondra from harming Jesse if Jesse were returned home.
          In  sum, the superior courts findings that Jesse was  a
child  in need of aid because he faced a substantial harm  if  he
returned  home are well supported by the record.  These  findings
are sufficient to establish that Jesse was a child in need of aid
under  AS 47.10.011(6).19 As we conclude that the superior  court
correctly  determined  that Jesse faced  a  substantial  risk  of
injury  if  he  were  returned home, we need not  address  Burkes
challenges  to  the superior courts other grounds for  concluding
that Jesse was a child in need of aid.20
     B.   The  Superior Court Did Not Err in Concluding That OCSs
          Reunification Efforts Were Reasonable.
          
          Burke next argues that OCSs reunification efforts  were
unreasonable  as a matter of law.  He argues that the  case  plan
that  OCS  prepared for him after the December 2004  removal  was
late and substantively deficient due to its failure to refer  him
to any remedial services.  The state suggests that when viewed in
the  context  of OCSs previous reunification efforts  and  Burkes
failure  to  cooperate  with OCSs prior referrals,  OCSs  efforts
after  December 2004 were reasonable.  Although the reunification
efforts  here present an extremely close case, we agree with  the
state and affirm the superior courts conclusion that OCSs efforts
were reasonable.
          When  interpreting what types of reunification  efforts
are required under AS 47.10.086(a),21 we have stated that OCS must
provide  a  parent with a reasonable opportunity . . . to  remedy
the  behavior that caused his [or her] children to be in need  of
aid.22   In  determining whether reunification efforts  during  a
specific  time  period were reasonable, we  look  at  the  entire
history of the services that OCS has provided a parent23 as  well
as the parents level of cooperation with OCSs efforts.24
          Our  starting  point for evaluating OCSs  reunification
efforts  is  the identification of the problems that  caused  the
child  or  children to be in need of aid.  Here, Burkes  lack  of
engagement  with  his family helped to cause the conditions  that
left  Jesse  in need of aid.  Burkes frequent absences  from  the
home meant Sondra had to parent the couples four children on  her
own,  which,  because  of her mental problems,  she  was  largely
incapable  of  doing without resorting to physical  abuse.   When
Burke  was  at home, he was not supportive of Sondra  and  rarely
interacted  with  his  children in  a  meaningful  way.   Sondras
ability  to parent without resorting to physical abuse  was  thus
negatively  affected by Burkes lack of involvement.  Importantly,
Burkes  disengagement from his family was the same  problem  that
OCS attempted to address between December 2001 and September 2004
as part of its earlier reunification efforts.
          The record also shows that Burkes own shortcomings as a
          parent contributed to OCSs decision to remove the children from
Burkes and Sondras home.
Burke was either unwilling or unable to realize that his behavior
adversely  impacted  his children:  Dr. LaGrande  concluded  that
Burke does not take responsibility regarding how his actions have
negatively  impacted his children.  There is evidence that  Burke
had  other parenting problems as well.  Brenteson testified  that
it   cannot  be  perceived  that  [Burke]  is  providing  support
emotional  support, either to [Sondra] or to the boys  .  .  .  .
Brenteson  observed  that throughout visitation  Burke  did  very
little  interacting with his children and she  heard  Billy  tell
Burke  that  he  didnt  want to talk to him because  Burke  didnt
listen  to  what he had to say.  Billy also told a social  worker
that  Burke  chose  to  play cards with his  friends  instead  of
playing  with him.  As the superior court found, Burke has  never
exhibited  the  experience, ability  or  inclination  to  be  the
primary caretaker for the boys.  In sum, both Sondras and  Burkes
parenting  problems contributed to OCSs decision  to  remove  the
children from their home.
          Having  identified the problems that  Burke  needed  to
remedy,   we  must  next  consider  whether  OCSs  efforts   were
reasonable.  We conclude that they were, but only marginally so.
          Over  the  four-plus years that OCS was  involved  with
Burke and his children, it provided him with several referrals to
counseling  programs that were designed to help him  become  more
involved  with  his family.  During the CINA case  that  involved
Burkes  three  older  children, OCS  referred  Burke  to  couples
counseling, individual counseling, and parenting classes.   These
programs  were  designed to help Burke become  more  involved  in
parenting  his children and in assisting his partner,  but  Burke
declined  to  participate meaningfully in couples counseling  and
there  is no evidence he enrolled in individual counseling.   Dr.
LaGrande explained that Burkes disinclination to participate owed
to the fact that he places responsibility for the problems in the
family on Sondra, [and therefore] takes the position that  he  is
blameless,  and  does not take responsibility regarding  how  his
actions  have  negatively  impacted his  children.   Despite  the
referrals he received, Burkes belief that he was not to blame for
his  familys problems does not appear to have changed during  the
pendency of the CINA cases.
           Burke argues that OCSs failure to refer him to service
providers   in   his  2005  case  plan  rendered   OCSs   efforts
unreasonable.  Although a case plan normally should refer parents
to  appropriate service providers,25 in the specific  context  of
this  case  OCSs  failure to make referrals was  reasonable.   In
addition to the fact that OCS referred Burke to service providers
during  the  three-year duration of the previous CINA  case,  two
other  factors  mitigate  OCSs failure to  include  referrals  in
Burkes  2005  case plan.  First, OCS was entitled  to  take  into
account  the  fact  that Burke had completed only  one  of  three
previous referrals.26  Thus, the fact that Burke previously failed
to  complete couples counseling and appears not to have  enrolled
in  individual counseling weigh in favor of concluding that  OCSs
efforts were reasonable.27  Second, and more importantly, at  the
time  of  the December 2004 removal remedial services  in  Kodiak
appear  to  have  been  exhausted.  The  parties  turned  to  Dr.
LaGrande  for recommendations about further services  only  after
they  were  unable  to  determine what other  services  could  be
offered  in  Kodiak to promote reunification.  As  the  childrens
guardian  ad  litem explained, Because of the services  that  had
been made available in the past, I didnt know what else could  be
done  at  this point in time to provide services to  this  family
.  .  .  .   In sum, Burkes previous lack of cooperation and  the
exhaustion of resources mitigate OCSs failure to refer  Burke  to
service providers in the 2005 case plan.
          Burke argues that OCS failed to explain to him what  he
needed  to  do in order to be reunited with Jesse.  We  disagree.
After  December  2004,  but sometime before  the  case  plan  was
finalized,  Brenteson  met with Burke to discuss  what  types  of
support  services were needed to provide a stable  home  setting.
Although  the  case plan could have been written in  more  simple
language, it sufficiently apprised Burke of the improvements that
he  needed to make in order to be reunited with Jesse.  The  case
plan  explained that Burke needed to develop the skills necessary
to  positively interact with his children or find[] ways to spend
quality  time  with  them.  Burkes progress was  to  be  measured
through  talking  about  the activities that  he  does  with  the
children  during visitation.  The second problem area  identified
in  Burkes  case  plan  was that Burke does not  demonstrate  the
ability to interact with his family on a positive basis.28  Burke
was  asked  to develop family-based activities during visitation.
Social worker Brenteson also testified that on occasion she would
explain   what  was  happening  in  the  case  and   had   simple
conversations about whats next.  In light of the facts  that  OCS
had  identified  the  same problems, created similar  goals,  and
referred Burke to services designed to help him reach those goals
during  the previous CINA case, we believe that what Burke needed
to do under the 2005 case plan was reasonably clear.29
          Burke  also challenges the timeliness of the 2005  case
plan.   Even though it took OCS a total of six months to finalize
the  case  plan, after the case plan was finalized  OCS  provided
Burke   with   a  reasonable  opportunity  to  show  improvement.
Supervised  visitation was scheduled once each week  and  it  was
Burkes  children who requested that the frequency of  the  visits
not  be  increased  and home visits not be allowed.   During  the
supervised visits, Burke failed to demonstrate any greater  level
of  involvement  with  his children than before.   Social  worker
Brenteson  testified that Burke interacted very little  with  the
children  throughout the supervised visitation that OCS arranged.
On at least one occasion, instead of interacting with his family,
Burke left visitation twenty minutes early and waited in the  car
for  the visit to end.  During another visit, Burke became  upset
with  one of his sons for not eating food that Burke had  brought
to  the visit.  His son responded that he did not want to talk to
Burke, stating you dont listen to me anyway.  Although visitation
provided  Burke  with a reasonable opportunity to  show  that  he
could be more involved as a parent, he failed to do so.
          In  sum,  OCS was involved with Burkes family for  over
          four years and during that time attempted to remedy the same
problem:   Burkes lack of involvement as a parent.   Because  OCS
referred  Burke to classes designed to address this  problem  and
because  Burke  ultimately did not become more  involved  despite
numerous opportunities to prove to the contrary, we conclude that
OCSs   efforts  were  reasonable.   We  acknowledge   that   OCSs
reunification  efforts in this case were far from perfect.30   In
the  specific  context of this case, however,  we  conclude  that
despite  OCSs  deficiencies  its efforts  at  reunification  were
reasonable.
     C.   The Superior Court Did Not Err in Declining to Order Post-
          Termination Visitation.
          
          Burke  argues that the superior court erred as a matter
of  law  when it concluded that  [t]here is probably no authority
for  the  court to require post termination-visitation.31   While
recognizing  that there is no CINA statute that expressly  grants
the  superior  court  the  authority  to  order  post-termination
visitation, Burke argues that such visitation should  be  allowed
where  it  is  in the childrens best interests.   The  state  and
guardian ad litem respond that public policy considerations weigh
strongly against recognizing any authority in the superior  court
to   order   post-termination  visitation  in   cases   involving
involuntary termination of parental rights.
          We  addressed the issue of post-termination  visitation
in  C.W.  v.  State.32   We noted that when adequate grounds  for
termination exist, there is no presumption that the parent should
have  visitation  rights.33  This was so because  where  parental
rights  are terminated the biological parent does not retain  any
residual  rights  relating to his or her child.34   We  did  not,
however, foreclose the possibility that the superior court  could
authorize    post-termination   visitation    in    extraordinary
circumstances.   We  noted  that  in  such  circumstances   post-
termination visitation would only be permitted to the extent that
the authorized visitation is in the best interest of the child.35
          The   superior   court   did  not  find   extraordinary
circumstances  to  support post-termination  visitation,  and  we
conclude that it was not error for the superior court to  decline
to  make  such  a  finding.   The  childrens  guardian  ad  litem
testified  that  the children needed permanency  in  their  lives
after  having been moved in and out of OCS custody multiple times
in a five- to six-year period.  In an effort to secure permanency
for  the children, the state had placed them with foster families
that expected to adopt them.  Because visits with Burke, who  was
in  an  adversarial  relationship with the  prospective  adoptive
families,  could  clearly  interrupt  the  childrens   sense   of
permanency  with  these  families,  it  is  unlikely  that   such
visitation  would  have been in the childrens  best  interests.36
Accordingly, the superior court did not err when it  declined  to
order post-termination visitation.
V.   CONCLUSION
          Because   the  record  supports  the  superior   courts
conclusions  that  Jesse was a child in need of  aid,  that  OCSs
reunification efforts were reasonable, and that the court  lacked
          authority to order post-termination visitation, we AFFIRM its
decision in its entirety.
MATTHEWS, Justice, with whom BRYNER, Justice, joins, dissenting.
          I  believe  that the state failed in its obligation  to
make reasonable efforts to reunite Jesse with Burke.
          Jesse  was removed from the custody of Burke and Sondra
for  the  first  and final time in December of  2004  because  of
reports  that  Sondra had physically abused their children.   The
specific  allegations  of  physical abuse  involving  Jesse  seem
relatively  minor.  But there was no question that  in  light  of
Sondras  mental  illness  and history of physically  abusing  the
other children Jesse was at risk of physical injury so long as he
was  cared for by Sondra.  This meant that Jesse was a  child  in
need  of  aid  and justified at least the temporary  exercise  of
state custody over him.
          Child-in-need-of-aid status is step one in a three-step
process  that  can result in the termination of parental  rights.
The third and final step is a parents failure to remedy within  a
reasonable time the condition that made the child in need of aid.
The second step is that the state must make reasonable efforts to
enable the safe return of the in-need-of-aid child to one or both
parents.   These reasonable efforts should be aimed at helping  a
parent  remedy  the  condition  that  caused  the  in-need-of-aid
status.   If the efforts succeed, the condition will be remedied,
the  final step will not be reached, and the parents rights  will
not be terminated.
          As noted above, the condition that caused Jesse to be a
child  in need of aid was that he was at risk of physical  injury
from Sondra.  This condition could have been remedied by Burke if
he  had  separated from Sondra and made arrangements to care  for
Jesse  in  a  way  that protected Jesse from risk  of  injury  by
Sondra.   Our  case  law  contains examples  where  state  social
workers  have advised a parent to separate from a live-in partner
where  the continued presence of the partner could result in  the
termination of the parents rights.1  But no such advice was given
to Burke.2
          In many cases efforts at reuniting parent and child are
likely to fail because of the nature of the parents problems.  In
such  cases, the reasonable efforts requirement can be  satisfied
by  making  efforts  that are relevant to the  problem  that  has
caused child-in-need-of-aid status even though there is not  much
hope  that  the efforts can succeed.3  But this is not a  typical
case.   Burke  has  no obvious problems that make  him  an  unfit
parent.  He is a man who, as the superior court found, works long
hours  in  the fish processing facilities in Kodiak.  He  is  not
addicted  to  drugs or alcohol and is not sexually or  physically
abusive.   And  while  Burke was not an ideal  parent,  there  is
considerable evidence of his parental involvement.  The  superior
court  noted  Burkes contributions at the April 2005 adjudication
hearing:  [Burke], the childrens father, provides a great deal of
support.   When  he  is  at  home,  he  shoulders  many  of   the
responsibilities for cooking and laundry and for childcare.  Case
worker  Rush, who was in the household quite a bit in 2004,  also
noted Burkes parental support:
          [Burke]  did  grocery shopping,  he  did  the
          laundry,  you  know, when he got  up  in  the
          morning,  he would get [Billy] up, make  sure
          [Billy] was ready to go, you know, just  kind
          of  help [Sondra] make sure all the kids were
          ready  to  go when they needed to  be  ready.
          Before he walked out in the morning, he  just
          made  sure  everybody  was  up.  So  he   got
          [Sondra]  up and made sure all the kids  were
          up  before he left in the morning. . . .   He
          works at the cannery, so he worked odd hours,
          but  he  tried to make sure he was available,
          you know, left early morning, and then in the
          evening, and then theyd let him off for   for
          lunch to pick up the kids during summer camp,
          and sometimes in the evening.  Ive stopped by
          there  a  couple evenings, and he was cooking
          dinner,  or he was getting dinner ready.   So
          he  was doing his part of the share of  house
          house  keeping chores and making sure  things
          were going okay.

          In  the case plan that the state developed for Burke on
June 2, 2005, the state identified only two interrelated concerns
with respect to Burke:  (1) he had not demonstrated an ability to
interact with his family on a positive basis and (2) he  had  not
developed  the skills necessary to positively interact  with  his
children or find ways to spend quality time with them.  These are
common shortcomings among parents.  They are not the reasons  why
Jesse was a child in need of aid, nor are they reasons that would
stand in the way of the safe return of Jesse to Burke.
          The overriding concern that resulted in Jesses in-need-
of-aid  status was that Sondra could not be trusted  to  be  left
alone with Jesse.  So long as Burke and Sondra remained a couple,
Jesse  could  not  be returned to Burke.  In  the  face  of  this
concern,  Burke needed the frank advice that unless he  separated
from Sondra he could not regain custody of Jesse and his parental
rights  were  likely  to  be  terminated.4   I  think  that   any
reasonable effort at reuniting Jesse with Burke necessarily would
have  included this advice.  Since it was not given, I would hold
that  the  reasonable efforts requirement was not  satisfied  and
reverse the order of the superior court.
_______________________________
     1    Pseudonyms have been used to protect the privacy of the
parties.

     2    Sondra is not a party to this appeal.

     3    Burke is not Billys biological father, but has acted as
his  parent and is considered Billys psychological father.  Burke
is the biological father of the other three children.

     4    Jesse was not born until October 2002.

     5    At the same time OCS also sought termination of Sondras
parental rights.

     6    Carl N. v. State, Dept of Health & Soc. Servs., Div. of
Family  &  Youth Servs., 102 P.3d 932, 935 (Alaska 2004) (quoting
Brynna  B.  v. State, Dept of Health & Soc. Servs., 88 P.3d  527,
529 (Alaska 2004)).

     7     M.W.  v. State, Dept of Health & Soc. Servs., 20  P.3d
1141, 1143 (Alaska 2001).

     8    Carl N., 102 P.3d at 935.

     9    AS 47.10.088(a).

     10    AS 47.10.088(a)(1).

     11    AS 47.10.088(a)(2)(A)-(B).

     12    AS 47.10.088(a)(3).

     13    See AS 47.10.011(6).

     14    See AS 47.10.011(8).

     15    See AS 47.10.011(9).

     16    See AS 47.10.011(11).

     17    AS 47.10.011(6).

     18    See In re D.C., 596 P.2d 22, 23 (Alaska 1979) (holding
that   discretion  allotted  to  parents  in  administration   of
punishment is not unlimited).

     19     See  6  Arnold  H. Rutkin, Family  Law  and  Practice
64.11[2]  (2005)  (The rights of a parent who  allows  the  other
parent . . . physically to abuse the child may also be terminated
for failing to protect the child.).

     20     See Rick P. v. State, Office of Childrens Servs., 109
P.3d  950,  956  (Alaska 2005) (noting that it is unnecessary  to
consider other findings where one ground for finding child to  be
in need of aid is supported by record).

     21    AS 47.10.086(a) provides:

          (a) Except as provided in (b) and (c) of
               this  section, the department shall
               make timely, reasonable efforts  to
               provide family support services  to
               the  child  and to the  parents  or
               guardian  of  the  child  that  are
               designed   to  prevent  out-of-home
               placement of the child or to enable
               the safe return of the child to the
               family  home, when appropriate,  if
               the  child  is  in  an  out-of-home
               placement. The departments duty  to
               make  reasonable efforts under this
               subsection includes the duty to
               
          (1)  identify  family support  services  that
          will   assist  the  parent  or  guardian   in
          remedying  the conduct or conditions  in  the
          home  that made the child a child in need  of
          aid;
          
          (2)  actively  offer the parent or  guardian,
          and  refer  the  parent or guardian  to,  the
          services   identified  under  (1)   of   this
          subsection;  the department shall  refer  the
          parent  or guardian to community-based family
          support   services  whenever  community-based
          services  are  available and desired  by  the
          parent or guardian; and
          
          (3) document the departments actions that are
          taken under (1) and (2) of this subsection.
          
     22     Frank E. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 77 P.3d 715, 720 (Alaska 2003).

     23     Erica A. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 66 P.3d 1, 7 (Alaska 2003).

     24    See Jeff A.C., Jr. v. State, 117 P.3d 697, 707 (Alaska
2005).

     25     See Frank E., 77 P.3d at 720 ([T]he requirement  that
the  state  offer reunification services is fulfilled by  setting
out  the types of services that a parent should avail himself  or
herself  of  in  a manner that allows the parent to  utilize  the
services.).

     26     See  K.N.  v. State, 856 P.2d 468, 477 (Alaska  1993)
(Although  . . . [OCS] might have done more, it is unlikely  that
further  efforts by [OCS] would have been effective in  light  of
[the parents] attitude.).

     27     However,  we  give  Burkes lack of  cooperation  only
limited   weight  because  his  lack  of  cooperation   was   not
pronounced.  Cf. E.A. v. State, Div. of Family & Youth Servs., 46
P.3d  986,  990  (Alaska  2002) (holding  that  seven-month  long
failure  to provide active reunification services did not  render
overall  efforts  unreasonable where parent had long  history  of
either refusing services altogether or abandoning treatment plans
prior to completion).

     28     The dissent credits Burkes testimony that he did  not
know  what  to  do  in  order to increase visitation  and  regain
custody.  (Dissent note 4) But the case plan specifically  called
upon him to develop the skills to identify appropriate activities
and  entertainment in order to spend more time with his children,
and to demonstrate an active participation in the family and meet
the  support needs of his family.  Moreover, Brenteson  testified
that visitation was not increased over time primarily because  of
the childrens objections.

     29      The   dissent  concludes  that  OCSs  efforts   were
insufficient  because OCS did not advise Burke to  separate  from
Sondra.

          We  note  first,  in  response to this  argument,  that
nowhere  on  appeal  has Burke suggested  that  OCS  should  have
advised  him to separate from Sondra.  Nor is there any  evidence
that he would have been willing to separate from her.

          Second, and assuming that the couples separation was  a
course that Burke might have accepted, the cases that the dissent
relies  on are inapposite: Because of the deficiencies in  Burkes
own  parenting  skills, this was not a case  in  which  the  only
serious   obstacle   to   reunification  was   Burkes   continued
relationship with Sondra.  Cf. Ruby A. v. State, Dept of Health &
Soc.  Servs., Div. of Family & Youth Servs., Mem. Op.  &  J.  No.
1152,  2003  WL 23018276 (Alaska, December 29, 2003) (where  only
obstacle   preventing   reunification   was   parents   continued
relationship with sexually abusive partner and OCS warned  parent
of  need  to  end  relationship with that partner  in  order  for
reunification   to   occur,  OCSs  reunification   efforts   were
reasonable);   V.H. v. State, Dept of Health & Soc. Servs.,  Div.
of Family & Youth Servs., Mem. Op. & J. No. 1124, 2003 WL 393768,
*2  (Alaska,  February 19, 2003) ([T]he only serious obstacle  to
reuniting  Victor with Ruth appeared to be Victors  inability  or
unwillingness to end his relationship with Lisa.).

          The  dissent also suggests that Burke for the  sake  of
his children may have chosen to do the very thing that caused him
to  lose  them.  This possibility was based  on the testimony  of
social  worker Jaquelyn Rush that Burke had told her that he  was
not  going  to marry Sondra but would stay with her to  help  her
with the kids.  But Rush also testified that Sondra had told  her
that  she felt Burke only wanted her for her money and always was
asking  her  for her Social Security money.  Rush also  testified
that Burke asked for the boys PFD checks for the purpose of going
back  to  Laos  to  visit.  The superior court made  no  findings
either way in this regard.

     30    OCS could have finalized Burkes case plan more quickly
and  reiterated in the 2005 case plan the types of services  that
Burke should have availed himself of.

     31      Unlike  Burkes  previous  arguments,  this  argument
involves all three of his biological children.

     32    23 P.3d 52 (Alaska 2001).

     33    Id. at 57.

     34    Id.

     35    Id. at 58.

     36     Burke  characterizes this case as  one  where  it  is
undisputed that post-termination visits are in the best interests
of  the children, but that characterization is not accurate.   It
is  true that the superior court did amend its findings at Burkes
behest  to include the following: Dr. Susan LaGrande, the  states
expert  psychologist,  testified that it would  be  in  the  best
interests of the . . . children to have contact with their father
in  the future.  But Dr. LaGrandes report was highly conditional.
Referring  to  post-termination visitation as an ideal  scenario,
Dr.  LaGrande  noted  that  [t]o meet this  ideal  scenario  [the
parents] each must establish an[] improved relationship with  the
children.  [Burke] will need to learn how to be  interactive  and
support  the  individuality of each child.   Later  Dr.  LaGrande
noted  that Burke had made no progress in this regard.  She  also
noted  that  at this time [Burke] has not demonstrated respectful
engagement with support services.

1     See  Ruby  A.  v.  State, Dept of  Health  &  Soc.  Servs.,
Div.  of  Family & Youth Servs., Mem. Op. & J. No. 1152, 2003  WL
23018276,  at  *1  (Alaska, December 29, 2003) (noting  that  the
parents  OCS  social worker told her that unless she evicted  her
boyfriend, who had sexually molested one of her children  in  the
past, she would lose immediate custody of her children); V.H.  v.
State,  Dept  of  Health & Soc. Servs., Div. of  Family  &  Youth
Servs.,  Mem. Op. & J. No. 1124, 2003 WL 393768, at  *1  (Alaska,
February  19, 2003) (finding that the father has been  repeatedly
and  explicitly warned by . . . the social worker, and the  court
that if [the substance-abusing mother] remained in his home,  his
parental rights would likely be terminated).

     2     Ironically,  there is evidence suggesting  that  Burke
stayed  in his unhappy relationship with Sondra for the  sake  of
the  children.  Case worker Rush described their relationship  as
follows:

          And [Burke] made it very clear that they were
          not going to get married and at the time that
          he  was  going  to stay there with  [Sondra],
          help  her with the kids, and they would  work
          on their relationship as time goes on, but  I
          think  they  have  decided  that  their  best
          interest  is  the children,  and  they  could
          remain  just friends, and take care of  their
          kids,  and that they would not [sic]  have  a
          platonic relationship, and that they were not
          going to get married.  (sic in original.)
          
Thus,  it seems that Burke for the sake of his children may  have
chosen  to do the very thing that caused him to lose them.   This
underscores the fact that he needed sound advice from OCS.

          Todays  opinion seeks to cast doubt on this  conclusion
by  noting  that  Sondra at one point told Rush that  Burke  only
wanted her for her money.  Slip Op. at 16 n. 29.  The court seems
to be suggesting that instead of staying with Sondra for the sake
of  the  children  Burke  was staying with  Sondra  for  personal
enrichment.  No witness, not even Sondra (who testified that  she
spent the boys PFD money on clothes, shoes, a computer, and  back
rent),  testified  that this was so, and Rushs  account  of  what
Sondra  told her does not support any such inference.   According
to  Rush,  Sondra did not make these statements at the time  that
Burke  told  Rush  that the couple had decided to  stay  together
because  of  the  children, but at another time when  Sondra  was
dissatisfied with their relationship and was considering  leaving
Burke.   The  Q&A between counsel for the guardian at  litem  and
Rush on this point was as follows:

     Q    And did she, at times, tell you that she felt like
          he  only  wanted her for her money and always  was
          asking her for her Social Security money?
          
     A    To  pay   to  pay rent, to help him pay  rent  and
          stuff like that, correct.
          
     Q    Did  she  also tell you that he asked her for  the
          boys PFD checks?
          
     A    Yes, he did.
          
     Q    And  what  was  he  intending  to  do  with  them,
          according to her?
          
     A    She felt like he was going to take off and go back
          to  Laos  to  visit.  He wanted  to  do  a  burial
          celebration  for his grandparents  or  father.   I
          cant remember which one it was.
          
Later in the same examination Rush confirmed that as of the  time
of trial in May 2006 Burke and Sondra were making sincere efforts
to stay together in the hope that the children would be returned:
[T]hey appear to be really working on their relationship and  the
communication to maintain that, and to continue to work  on  that
so that if the kids come back in the home, they will do better.

     3     I  am  less  convinced than the court that  Burke  was
unreceptive to the remedial suggestions of OCS.  Burke  completed
the  parenting  class and participated in the couples  counseling
until  it was discontinued because he tended to dominate sessions
and had attendance problems.  The court twice suggests that Burke
did not enroll in individual counseling after it was suggested by
OCS.   Slip  Op.  at 13, 14.  But the record is unclear  on  this
point.   When asked about the matter, Brenteson testified I  cant
honestly   recall   if  [Burke]  actually  did   any   individual
counseling.  Thus, we know that he successfully completed one  of
OCSs  suggested  programs, attended another with less  successful
results,  and compliance with the third  whatever it  might  have
consisted of  is simply unclear.

     4     Burke testified that the social worker assigned to his
case, Jan Brenteson, never told him what he needed to do in order
to regain custody.  He testified that Brenteson

          never have no conversation with me, you know.  She
          never tell me what I should do to get my kid  what
          I  do   what  I  do wrong or what.  You  know,  no
          communication, you know.
          
     Q    So,  since  December of 2004, have you known  what
          youre supposed to do to get your children back?
          
     A    No, I dont know.  I dont know nothing.
          
          When  Brenteson  was  in  the  process  of  taking  the
children from the home Burke asked her to leave the children with
him.   He  testified  that  he  received  no  response  and  felt
powerless to act in the face of authority:

          [S]omehow  Jan [Brenteson] come into my  house   I
          going take your kid away from you, I say why, what
          I  do wrong to my kid.  Then I asked her, Jan,  if
          you  think  there some  if you know  if   can  you
          leave my kid here at home with me and can you take
          [Sondra] somewhere else and just emergency for her
          if she get well, and she come back, you know, with
          my kids and she dont talk to me.  She just took my
          kid away from me.  And I dont know until I have to
          go  to  court next day then I know whats going  on
          and well, what can I do.  I dont know nothing.   I
          just  do what they want me to  I mean do what they
          want  to do because I have no right to say nothing
          to  her  especially when the police go over there,
          so I dont.  They got power; I dont have power.
          
Burke   further  testified  that  his  requests  for   additional
visitation were also denied and that again he felt that there was
nothing he could do:

     Q    And  have you had any concerns about what the  the
          way the visits have happened?
          
     A    I  been thinking a lot and how do I going to  open
          how  got I have  some kind of key to talk  to  Jan
          that  I  can see more my kid in the kind  of   see
          more my kid when I like to visitation more, but  I
          just dont  because Jackie [Rush], you know, I just
          dont  want  to   I  always like  talk  to  Jackie.
          Jackie,  can you find some kind of door or  window
          to get to Jans office.  Lets see if I can visit my
          kid  more, you know.  And I just  I dont know.   I
          dont have no answer from anybody.  It just  I just
          what  I do is tell [Sondra], [Sondra], you do what
          you  like at home, okay, just try to make yourself
          comfortable,  and I going go work   fight  for  my
          bill now, you know, and just do what they want  us
          to  do.   One time  one hours a day  a  week   its
          okay, you know.  Thats all we can do.
          
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