Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

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

Maisy W. v. State, Dept of Health & Social Services, Office of Children's Services (02/01/2008) sp-6227, 175 P3d 1263

     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).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC