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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Maisy W. v. State, Dept of Health & Social Services, Office of Children's Services (02/01/2008) sp-6227
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
| MAISY W., | ) |
| ) Supreme Court No. S- 12704 | |
| Appellant, | ) |
| ) Superior Court Nos. 4FA-04-87/88/89 CP | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, DEPART- | ) |
| MENT OF HEALTH AND SOCIAL | ) No. 6227 - February 1, 2008 |
| SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: Paul J. Ewers, Law Office of
Paul Ewers, Fairbanks, for Appellant. Megan
R. Webb, Assistant Attorney General,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh and
Carpeneti, Justices. [Matthews, Justice, not
participating.]
EASTAUGH, Justice.
I. INTRODUCTION
A mother appeals the superior courts judgment
terminating her parental rights to her three oldest children.
The superior court found that the children were in need of aid
based on abandonment, mental injury, neglect, and parental
substance abuse; that the mother had failed to remedy the conduct
that placed the children at risk; that the state had made
sufficient efforts to try to help the family; and that
terminating the mothers parental rights was in the childrens best
interests. The mother challenges the findings that she failed to
remedy any problematic conduct and that the state made sufficient
efforts to reunify her family. We affirm the termination of the
mothers parental rights because the record contains sufficient
evidence of her failure to remedy her conduct and of the states
many efforts to help the family.
II. FACTS AND PROCEEDINGS
Maisy W. has four children by three fathers.1 The
three oldest children are the subject of this appeal. Frank R.
is the father of Bart W., who was born in 1996. Ralph M. is the
father of Sophie M., born in 2001. Rick M. is the father of
Rickie M., born in 2003. Rick is also the father of another
child who is not involved in this case. The children are
affiliated through their mother with the Native Village of Fort
Yukon.
Maisys childhood was difficult. She was verbally and
sexually abused. She witnessed domestic violence. She has a
history of substance abuse involving marijuana, alcohol, and
cocaine. At the age of fifteen, she became pregnant and dropped
out of high school. She later earned a GED. Maisys arrests
include driving with a suspended license, consuming alcohol as a
minor, assault, and misconduct involving a controlled substance.
The Office of Childrens Services (OCS) received its
first report of harm alleging neglect by Maisy in May 1997. More
reports of harm followed, for allegations such as neglect and
substance abuse, in July 1997, October 1997, sometime in 2000,
January 2003, January 2004, and February 2004. The February 2004
report was in response to an incident in which screaming and
crying were heard coming from Maisys apartment. Police officers
who responded found Maisy with a swelling bump on her forehead.
OCS became officially involved after the February 2004 incident;
following an investigation, OCS set up a case plan for Maisy to
address neglect, substance abuse, domestic violence, and other
issues. Maisy did not adhere to the case plan; for example,
although transportation services were offered, she completed only
one of ten urinalysis (UA) tests, and the one she completed was
diluted.
On July 3, 2004, police officers responded to a fight
between Maisy and an armed, intoxicated Rick. On July 14, based
on that incident, OCS petitioned for temporary custody of the
children but did not remove them.2 On July 26 judicial services
officers attempted to serve Maisy with the custody petition
paperwork. According to the officers, the intoxicated man who
opened the door had difficulty waking Maisy, who did eventually
stagger to the door. The judicial services officers handed Maisy
the paperwork; she threw it on the ground, and the officers
called OCS for assistance. OCS social workers who arrived
reported Maisy slurring her speech, screaming, cursing, and
making threats, and believed her to be too intoxicated to care
for her children. OCS took the children, who were dirty and
hungry, into emergency custody. OCS then filed an emergency
petition for temporary custody, which the superior court granted.
In November 2004, per Maisys stipulation, the superior court
adjudicated the children to be in need of aid and gave OCS
temporary custody.
After it took emergency custody of the children, OCS
set up case plans for Rick and Maisy. Ricks case plan included
provisions for anger management and parenting classes, a
substance abuse assessment, random UAs, and visitation. Maisys
case plan included provisions for alternatives-to-violence and
parenting classes, an alcohol and drug assessment, random UAs,
and visitation. Maisy sporadically attended the classes. OCS
paid for Maisys substance abuse assessment and Maisy began the
recommended treatment program; it is unclear whether she finished
it. Maisy submitted to UAs, and the results indicated that she
was staying sober. OCS arranged for Maisy to visit with her
children regularly and offered transportation assistance.
Although she often arrived late, Maisy did visit with the
children.
Based on her progress, OCS returned the children to
Maisy in June 2005 for a trial home visit. The understanding was
that Maisy would continue with her case plan. A surprise home
visit by OCS on July 14 went well, but a report of harm prompted
another home visit on August 3. At this visit, Maisys eyes were
bloodshot and she had a cut on her face. She angrily refused to
participate in a UA despite the social workers offer of
transportation to and from the test location and childcare during
the test. At a visit on September 6, Maisys eyes were again
bloodshot and her cheeks appeared bruised. She was belligerent
toward social workers and refused to submit to a UA but did agree
to sign up for services through Cheghutsen, a Native
organization. The next day, a Tanana Chiefs Conference (TCC)
social worker visited Maisy to set up services at Cheghutsen.
The social worker reported that Maisy refused services and that
she looked worse than she had the day before. At a follow-up
visit on September 16, Maisy was again belligerent and refused to
complete a UA. She also called the police and requested that the
OCS social workers be removed from her property.
The trial home visit ended on September 17, 2005, when
the children were again removed because social workers and the
childrens guardian ad litem suspected Maisy of substance abuse.
The suspicions were based on Maisys appearance during home
visits, and her reluctance and later refusal to submit to UAs.
According to OCS, removal was also necessary because Maisy was
not attending classes; Bart was not attending school; Maisy would
not allow OCS to interview the children; and Maisy continued to
be involved with Rick, who was not complying with his case plan.
In January 2006 the superior court extended OCSs
temporary custody of the children even though OCS conceded that
between June and September 2005, it had not made active efforts
to reunify the family. OCS then updated Maisys case plan. The
new plan required that Maisy participate in random UAs, attend
parenting classes, visit regularly with her children, and
maintain a home free from violence. The updated case plan also
provided that OCS would assist Maisy with housing and that TCC
and Cheghutsen would help her find employment. Maisy did not
comply with the new case plan: she failed to complete UAs despite
Cheghutsens offers of transportation assistance; she visited with
her children only sporadically; and she moved several times but
refused to give OCS updated contact information. OCS petitioned
to terminate her parental rights.
Superior Court Judge Randy M. Olsen presided over the
termination trial, which took place over four days in March 2007.
The state noted that over the years, OCS had created and updated
multiple case plans for the family, including in July 2004,
August 2004, January 2005, July 2005, September 2005, January
2006, April 2006, May 2006, July 2006, and August 2006. The
state argued that Maisy failed to comply with her case plans
despite encouragement from social workers, multiple referrals to
social service organizations (both those serving the general
population and those focusing on Native communities), advice
regarding phone service, and offers for help with funding,
transportation, and the like. The state presented evidence of
harm to the children, especially Bart, who had been diagnosed
with post-traumatic stress disorder and as severely emotionally
disturbed. Maisy argued that the state had not been sufficiently
involved, especially given that her case had been passed from
caseworker to caseworker, and that she had in fact completed most
of the case plan requirements. At the conclusion of trial, the
superior court stated, I really dont adopt and I dont believe
[Maisys] testimony.
In April 2007 the superior court entered an order
terminating the parental rights of Maisy and the three fathers to
the three children. The superior court later denied Maisys
motion for reconsideration. In its Findings and Order
Terminating Parental Rights After Trial, dated May 2007 and
effective March 2007, the superior court found by clear and
convincing evidence that the children were in need of aid based
on abandonment, mental injury, neglect, and parental substance
abuse; that the parents failed to remedy the conduct that placed
the children at risk; that the state made reasonable efforts to
provide the family with support services; and that the state made
active efforts to prevent the breakup of the Indian family. The
superior court also found beyond a reasonable doubt that the
children would suffer serious harm if returned to a parents home
and that it was in the childrens best interests for parental
rights to be terminated.
Maisy appeals.
III. DISCUSSION
Maisy initially argues that Bart, Sophie, and Rickie
are not in need of aid, but she concedes the issue in her reply
brief. We thus affirm the superior courts finding that the
children are in need of aid. Maisy also argues that she
successfully remedied any problematic conduct and that the state
failed to make active efforts to prevent the breakup of the
family. We disagree.
A. Standard of Review
In a case involving the termination of parental rights,
we review a superior courts findings of fact for clear error.3
Findings are clearly erroneous if, after reviewing the record in
the light most favorable to the prevailing party, we are left
with a definite and firm conviction that a mistake has been made.4
Conflicting evidence is generally insufficient to overturn the
superior court,5 and we will not reweigh evidence when the record
provides clear support for the superior courts ruling.6 Whether
the superior courts findings satisfy statutory requirements and
the Child in Need of Aid (CINA) Rules7 is a question of law that
we review de novo.8 Whether the state complied with the active
efforts requirement of the Indian Child Welfare Act (ICWA) is a
mixed question of law and fact.9
B. Maisy Failed To Remedy Her Conduct.
Parental rights may be terminated only if the state
shows, by clear and convincing evidence, that a parent failed to
remedy the conduct that placed the child at risk.10 Parental
rights therefore may be terminated only if a parent has not
remedied the conduct or conditions in the home that place the
child at substantial risk of harm or has failed, within a
reasonable time, to remedy the conduct or conditions in the home
that place the child in substantial risk so that returning the
child to the parent would place the child at substantial risk of
physical or mental injury.11 Maisy argues that she successfully
remedied any conduct or conditions that may have placed her
children at risk. The state contends that Maisy waived this
issue by failing to brief it adequately.
We have recognized that a party waives appellate
consideration of a claim by briefing it inadequately.12 Thus, we
have stated that where a point is given only a cursory statement
in the argument portion of the brief, the point will not be
considered on appeal.13 Although the arguments are conflated in
her opening brief, Maisy did address her attempts to remedy the
questionable conduct. Moreover, her reply brief directly
addressed her efforts. Accordingly, we conclude that Maisy did
not waive the claim that she remedied the conduct.
The larger question is whether the superior court erred
in finding that Maisy failed to remedy her conduct sufficiently.
We conclude that the superior court did not err because the
record contains ample evidence of Maisys failure to comply with
her case plans. Maisy completed only one of the ten UAs required
by her February 2004 case plan, and that test was diluted. The
reports of harm continued after the trial home visit began in
June 2005, and social workers conducting home visits that summer
reported that Maisys eyes were bloodshot on several occasions;
that she appeared to have been involved in violent altercations;
that she refused to complete UAs; that she refused services; that
she failed to attend classes or ensure that Bart went to school;
that she refused to cooperate with OCS; and that, by allowing
Rick into her home, she failed to maintain a violence-free home
for her children. After the trial home visit ended, Maisy
refused to complete UAs, visited with her children only
sporadically, and, by not informing OCS when she moved, made it
difficult for OCS to even communicate with her.
C. The State Made Active Efforts To Prevent the Breakup of
the Family.
In order for a court to terminate parental rights, the
state must show by a preponderance of the evidence that doing so
is in the best interests of the child.14 In the case of an Indian
child, the state must further show by clear and convincing
evidence that active efforts have been made to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved
unsuccessful,15 and, by evidence beyond a reasonable doubt, that
continued custody of the child by the parent . . . is likely to
result in serious emotional or physical damage to the child.16
Under ICWA, an Indian child is any unmarried person under the age
of eighteen who is either a member of an Indian tribe or eligible
for membership in an Indian tribe and is the biological child of
a member of an Indian tribe.17 It is undisputed that Maisys
children are Indian children by way of their affiliation with the
Native Village of Fort Yukon. Maisy argues that the state failed
to make the required active efforts, pointing to the states lack
of involvement during the trial home visit and the fact that her
case was handled at various times by six different department
employees. The state argues that it made active efforts to
reunify the family over the course of several years and in
conjunction with organizations in the Native community.
We have stated that a parents demonstrated lack of
willingness to participate in treatment may be considered in
determining whether the state has taken active efforts.18
Additionally, we look to the states involvement in its entirety.
For example, in E.A. v. State, Division of Family & Youth
Services, we noted that the states failure to make active efforts
in a particular seven-month period was insignificant in light of
the extensive remedial efforts the state [had] provided
throughout its involvement with the family apart from that seven-
month period.19 And in N.A. v. State, Division of Family & Youth
Services, decided in 2001, we examined state efforts dating back
to 1987 and concluded that, even though the state did not provide
the mother in that case with a particular treatment program, the
numerous services it did offer her were sufficient to meet the
active efforts requirement.20
Because the state made sufficient efforts to try to
help Maisys family over a period of several years, we affirm the
superior courts finding. The state concedes that it failed to
make active efforts for three months in 2005, but the superior
court properly looked to the entirety of the states efforts from
the time OCS became involved in February 2004 until trial in
March 2007. In that period, OCS created and updated more than
ten case plans for Maisy and her family; arranged for and offered
transportation to UAs; provided referrals to and assisted with
funding for alternatives-to-violence classes, parenting classes,
and substance abuse assessment; arranged visitation; carried out
home visits; coordinated Native-oriented services through TCC and
Cheghutsen; gave advice regarding phone service; and offered
assistance with housing. The state tried to help Maisy even
though she moved on several occasions and refused to give OCS her
contact information, and even though she acted belligerently
toward social workers and tried to have police remove them from
her property.
IV. CONCLUSION
Because the record contains sufficient evidence both of
Maisys failure to remedy the conduct that placed the children at
risk and of the states many efforts to assist the family, we
AFFIRM the superior courts order terminating Maisys parental
rights.
_______________________________
1 We use pseudonyms for all family members.
2 Rick was later charged with assault. He pleaded no
contest and, after failing to complete the required domestic
violence program, served a jail sentence.
3 Brynna B. v. State, Dept of Health & Soc. Servs., 88
P.3d 527, 529 (Alaska 2004) (citing A.B. v. State, Dept of Health
& Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
4 Id. (quoting A.B., 7 P.3d at 950).
5 Id. (citing Martin N. v. State, Dept of Health & Soc.
Servs., 79 P.3d 50, 53 (Alaska 2003)).
6 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 214 (Alaska 2000).
7 See Martin N., 79 P.3d at 53 (citing V.S.B. v. State,
Dept of Health & Soc. Servs., 45 P.3d 1198, 1203 (Alaska 2002)).
8 See Brynna B., 88 P.3d at 529.
9 T.F. v. State, Dept of Health & Soc. Servs., 26 P.3d
1089, 1092 (Alaska 2001).
10 AS 47.10.088(a); CINA Rule 18(c)(1). Clear and
convincing evidence is evidence more than a preponderance but
less than proof beyond a reasonable doubt. Brynna B., 88 P.3d at
530 n.12.
11 AS 47.10.088(a); CINA Rule 18(c)(1).
12 Frank E. v. State Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 77 P.3d 715, 719 n.14 (Alaska 2003)
(quoting Martinson v. Arco Alaska, Inc., 989 P.3d 733, 737
(Alaska 1999)).
13 Martinson, 989 P.3d at 737 (quoting Adamson v. Univ. of
Alaska, 819 P.2d 886, 889 n.3 (Alaska 1991)).
14 CINA Rule 18(c)(3).
15 CINA Rule 18(c)(2)(B).
16 CINA Rule 18(c)(4).
17 25 U.S.C. 1903(4) (2006).
18 N.A. v. State, DFYS, 19 P.3d 597, 603 (Alaska 2001).
19 E.A. v. State, Div. of Family & Youth Servs., 46 P.3d
986, 990 (Alaska 2002).
20 N.A. v. State, DFYS, 19 P.3d 597, 599, 603 (Alaska
2001).
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