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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Roland L. v. State, Office of Children's Services (05/08/2009) sp-6372

Roland L. v. State, Office of Children's Services (05/08/2009) sp-6372

     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

ROLAND L., )
) Supreme Court No. S- 13295
Appellant, )
) Superior Court No.
v. ) 3AN-06-166 CN
)
STATE OF ALASKA, OFFICE OF )
CHILDRENS SERVICES, ) O P I N I O N
)
Appellee. ) No. 6372 - May 8, 2009
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Craig F. Stowers, Judge.

          Appearances:  Angela  M.  Greene,   Assistant
          Public  Defender and Quinlan Steiner,  Public
          Defender, Anchorage, for Appellant.  Laura C.
          Bottger,    Assistant    Attorney    General,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for Appellee.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti,  and Winfree, Justices. [Matthews,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION
          I.   A father whose parental rights have been terminated
argues that the Office of Childrens Services (OCS) failed to make
statutorily  required  active efforts to  reunify  him  with  his
daughter.   We  agree  with the father that OCS  failed  to  make
active  efforts  during the first three months of  the  daughters
life.  But for the next year the father went on the run from  the
law,  and  could not be found.  After his re-arrest, OCS  delayed
proceedings  to terminate his parental rights for six  months  to
pursue  active  efforts, and the father did  make  some  progress
during  that  time.  We nonetheless conclude that  his  desultory
progress  was  insufficient considering his history  of  domestic
violence  and his problems with anger management, mental  health,
and  substance abuse.  We affirm the trial courts conclusion that
OCS made active efforts to reunify father and daughter.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Sherrie,1  an  Indian child, was born on May  2,  2006.
Roland is Sherries father.  He was in jail when Sherrie was born.
OCS  identified Sherrie as a child in need of aid  shortly  after
birth.   OCS  identified Roland as Sherries father within  a  few
weeks  of her birth.  But Sherries social worker did not  contact
Roland  at  the jail except to send someone to obtain a  specimen
for paternity testing and to give Roland her card.
          Roland got out of jail in July 2006, and on August 8 he
called  Sherries  social  worker and asked  for  visitation  with
Sherrie.   Sherries social worker set up visitation for Wednesday
mornings  from  nine to ten, but at first she could  not  contact
Roland  to  tell  him  because he did not give  her  his  contact
information.   A few weeks later, he contacted her and  she  told
him  about the visitation.  At the termination trial, the  social
worker testified that for three weeks in a row, Roland failed  to
show  up  at  the visitations.  She testified that  when  he  was
telephoned,2  Roland said that he just woke  up  because  he  was
working  the night shift as a janitor, and he lived too far  away
to get there in time, so he would have to miss the visitation.
          In  October  Sherries social worker  talked  to  Roland
about  a  case plan, but he refused to participate.   The  social
worker testified that in that conversation Roland said he was not
going  to work a fucking case plan.  She also testified  that  he
referred   to  Sherrie  as  the  damn  baby.   Rolands  testimony
differed, but the trial court believed the social workers version
of  events, finding that in 2006 Roland told the social worker in
no uncertain terms he would not work a case plan.
          The  social  worker had no further contact with  Roland
after  that.   She explained: He was on the run.   His  probation
officer  and I were talking and we had an agreement  if  he  were
found, if . . . I found out where he was, I would let him know or
if  he  found out, he would let me know.  Roland later  testified
that  he  had  been  staying with a friend at the  Alaska  Senior
Center.   He  agreed  that he had been on the  run,  and  if  law
enforcement had found him he would have gone back to jail.
          Roland  was  arrested and re-incarcerated in  September
2007.  The social worker learned his whereabouts in late November
or  early December 2007, when Roland called her to ask for visits
with Sherrie.
     B.   Proceedings
          In  December 2006 OCS filed for termination of  Rolands
parental  rights.  The case went to trial in December  2007.   At
trial,  evidence focused several times on OCSs failure to contact
or assist Roland while he was in jail during the first few months
of  Sherries  life.  On the second day of trial, OCS  decided  to
          continue the termination proceedings against Roland in order to
have  additional time to work with him.  OCS cited  the  evidence
that came out at the beginning of the trial and the concerns that
I  think everybody had about the efforts that had been made up to
[August 2006].  Superior Court Judge Craig F. Stowers agreed, and
admonished  Roland to take full advantage of his  second  chance.
Judge  Stowers advised Roland dont waste any time and dont let  a
single  opportunity to do what it is that you need to do  go  by.
Roland replied: Yes, sir.
          In  January 2008 Sherries social worker met with Roland
to  develop  a case plan and begin visitation with Sherrie.   But
after two visits, Roland told Sherries social worker not to bring
Sherrie to the jail any more because he was concerned about germs
at  the  jail.   In late March he asked for visitation  to  start
again.  In April he was moved to a jail in Palmer, and visitation
was  reduced  to once a month because of the time  needed  for  a
visit:  It  is  a  five-hour trip for a social  worker  to  bring
Sherrie  to  Palmer,  do  a one-hour visit,  and  drive  back  to
Anchorage.
          While   in   jail  in  Anchorage,  Roland  refused   to
participate  in  mental  health  evaluation  services  that  were
available to him there.  The social worker testified that he said
he  would not participate in [the Anchorage jails mental  health]
unit.3  She also testified that in the past . . . he had been  on
meds,  but  he said he wasnt going to take meds again.   He  also
added  that if he did take meds, then people would think  he  was
mentally ill.  Mental health evaluation is not available  at  the
Palmer jail.
          Other than the mental health evaluation, Roland was  in
compliance  with the rest of his case plan.  Once  in  Palmer  he
started taking many of the classes offered in the jail.  He  took
classes  in  parenting, anger management, and  preventing  family
violence.4   He requested funds for a substance abuse assessment,
which could be done at the Palmer jail, and OCS agreed to provide
the money, although it had not yet done so at the time of trial.
          During these months, Rolands relationship with Sherries
social worker deteriorated.  He claimed that she interfered  with
his  visits with Sherrie and inappropriately discouraged him from
working  his case plan.  A number of credible witnesses, many  of
whom  were  witnesses to Rolands visits with  Sherrie  and  other
contact with Sherries social worker, rebutted his testimony.   He
continually  insisted that she be removed  from  the  case,  even
writing  a  letter to the court asking she be removed.   Sherries
social  worker  testified that shortly before the trial  she  had
been scheduled to take Sherrie to visit Roland in Palmer.  Before
the  visit she got a letter from Roland saying that he no  longer
wanted me as a social worker, he would like to file a restraining
order  against  me, he doesnt want me around  him.   Because  she
could  not  find someone else to take her place on the  scheduled
visit, that visit never happened.
          The  termination trial recommenced on  June  26,  2008.
After  the  trial, the court terminated Rolands parental  rights.
It  found  that OCS failed to make active efforts in  the  three-
month  period when Roland was in jail after Sherries  birth,  but
          that Roland then refused to work a case plan, and went on the
run,  making  no effort to support his daughter or  maintain  any
visitation with her.  The court wrote: Only with his most  recent
arrest and incarceration did he express an interest in working  a
case  plan  .  .  .  . [T]his interest and participation  is  too
little, too late . . . .
          The   court  discussed  Rolands  history  of   domestic
violence  and  violent crime, and his failure to protect  Sherrie
from  her mothers drug abuse.  The court found a serious question
whether  [Roland]  has  a  mental illness  or  serious  emotional
disturbance  that may place his daughter at substantial  risk  of
physical harm or mental injury, but that the state did not  prove
by  clear  and  convincing  evidence  that  this  was  the  case.
Finally,  the court found that Rolands refusal to cooperate  with
his  case plans requirement to undergo a psychological assessment
is  relevant to his failure to adequately work his case plan, but
it  does  not,  in  and of itself, prove he suffers  from  mental
illness.
          The  court also discussed Rolands decision to go on the
run  from  the law for a year.  The court noted that  Roland  has
been  in jail or on the run for all of Sherries life.  The  court
also  noted  that Rolands disappearance for a year  hampered  OCS
active  efforts.  Though the department could have done more,  it
was  [Roland], after all, who put himself in jail and on the run.
The court found OCS met the active efforts requirement:
          The  Court  finds that under the totality  of
          the   circumstances  and  given  the   social
          workers active efforts since the December 11,
          2007 testimony, [OCS] has proved by clear and
          convincing  evidence  that  it  made   active
          efforts  under the circumstances  to  provide
          remedial services and rehabilitative programs
          designed to prevent the breakup of the Indian
          family.   This is not to say that  this  case
          represents  [OCSs]  best active  efforts   it
          doesnt.    But   the  Court  has   considered
          [Rolands]  role,  especially  prior  to   his
          relatively recent change of heart, in earlier
          refusing to engage in a case plan, then going
          on  the run until his arrest in 2007. .  .  .
          In  the totality of circumstances, [OCS]  has
          crossed  the  minimum  threshold  of   active
          efforts  required given the circumstances  of
          this case.
(Emphasis in original.)
III. STANDARD OF REVIEW
          In  termination of parental rights cases, we  review  a
superior courts findings of fact for clear error.5  We find clear
error  when  the record, reviewed in the light most favorable  to
the prevailing party, firmly and definitely convinces us that the
superior  court made a mistake.6  Whether findings of  fact  meet
the  statutory standard is a question of law that  we  review  de
novo.7   Whether  the  state complied with the  statutory  active
efforts requirement is a mixed question of law and fact.8
IV.  DISCUSSION
          OCS  Proved  by Clear and Convincing Evidence  that  It
          Made  the  Active  Efforts  ICWA  Requires  To  Prevent
          Breakup of this Indian Family.
          When the state seeks to terminate parental rights to an
Indian  child, the Indian Child Welfare Act (ICWA) requires  that
it  must  prove  that it made active efforts to provide  remedial
services  and  rehabilitative programs designed  to  prevent  the
breakup  of  the  Indian  family, and  that  those  efforts  were
unsuccessful.9   Roland  argues that OCS failed  to  make  active
efforts when he was in jail May through July 2006,  and that this
initial failure undermined any subsequent remedial measures taken
by  OCS.  He also argues that OCSs efforts in the spring of  2008
were  too  little, too late.  Even if he followed his  case  plan
exactly, he argues, there was not enough time for him to complete
the  case  plan before termination of his parental  rights.   The
state responds that, although it admittedly failed to make active
efforts  during  the  first  three  months,  those  months   were
overshadowed by Rolands conduct in refusing to work a  case  plan
and  hiding out for a year.  The state argues that Roland  missed
his chance to become a father when he spent a year on the run.
          The  states  concession that it  did  not  make  active
efforts  when Roland was in jail in 2006 is well taken.   No  one
contacted Roland while he was in jail, except to take a paternity
sample  and  give him the social workers business  card.   Roland
first  initiated  contact with OCS when he was  released  in  the
summer  of  2006.  OCS apparently did not formulate a  case  plan
until that time.
          But  we  disagree with Rolands theory that  the  states
failure  of  active  efforts during the  first  three  months  of
Sherries  life  prevented  him from ever  becoming  a  parent  to
Sherrie.  We have held that active efforts must be evaluated over
time.10  These three months  out of the twenty-six months  before
termination  of Rolands rights  do not determine the  outcome  of
this case.
          We  also disagree with Rolands argument that the active
efforts from January through July 2008 were too little, too late.
First,  we  think the state made active efforts during that  time
period.  Social workers met with Roland to discuss his case plan,
offered him a mental health evaluation at the Anchorage jail, and
brought  Sherrie regularly for visits.  Furthermore,  the  Palmer
jail  provided a number of classes to Roland.11  We conclude that
the state made active efforts.
          We  agree with the trial court that Rolands involvement
during that time was too little, too late.  Although he made some
progress  during  that  time,  he failed  to  take  a  number  of
opportunities  that the state made available to  him.   The  slow
progress  that resulted was insufficient considering his  history
of domestic violence, his prior refusal to work with a case plan,12
and his disappearance for a year of his daughters short life.13
          First,  after getting a second chance and being advised
by  the  court  not  to let a single opportunity  go  by,  Roland
incredibly  terminated his visits with Sherrie in  January  after
only  two  visits.  He had showed little interest in his daughter
          in the past, and then decided to halt visitation for two months
between  mid-January  and mid-March 2008.  In  2006,  Roland  had
failed  to attend the few visitations scheduled for him  when  he
was still in contact with OCS.  He did not attempt to contact  or
provide  for his daughter during the year he was hiding from  the
law,  and  also  for his first few months in jail after  his  re-
arrest.  An important part of his case plan was bonding with  his
daughter and forming an attachment with her.  But after only  two
visitations  in January, Roland called off the visitations  until
late  March.   Those two months were Rolands best opportunity  to
bond  with  his  daughter  because  shortly  thereafter  he   was
transferred to Palmer where visitation with his daughter, who had
to  be  brought  from Anchorage, was reduced  to  once  a  month.
Rather than seizing his opportunity, Roland tossed it away.
          Second, there is some evidence that Roland suffers from
mental health problems, and he refused to comply with the portion
of  his case plan requiring him to get a mental health evaluation
when  he  had  the  opportunity to do so in  jail  in  Anchorage.
Mental  health  evaluations were available  for  inmates  at  the
Anchorage  jail,  but  Roland refused to be  involved  with  that
program.  He was then transferred to a Palmer jail that does  not
offer mental health evaluations.  Therefore, Roland would have to
wait until his release in September to get a private evaluation.
          Third,  Roland  refused to work with the social  worker
assigned  to  Sherries case.  Indeed, he told her  he  wanted  to
commence  a  lawsuit  against her.   This  further  hindered  his
ability  to comply with his case plan in the few months available
to  him.   It  resulted in the cancellation of his monthly  visit
with  Sherrie while in Palmer.  It is troubling that he  gave  up
time with Sherrie in order to avoid a social worker he disliked.
          Roland  was aware of how hard he would have to work  at
his  case  plan  during  the  continuance.   When  Judge  Stowers
continued the termination trial in January 2008 in order to  give
OCS  more time to work with Roland, he made clear to Roland  that
he  would have to act diligently and take full advantage  of  the
continuance in order to avoid termination of his parental rights:
          THE  COURT:   I  would note  that  the  child
          [Sherrie],  you know, needs to get permanency
          and  consistency and things  like  that.   So
          time  is of the essence in terms of her  best
          interest.  And [Roland], I would say to  you,
          sir,  you  know, youve managed to  have  this
          case resurrected to give you a chance to work
          a  case plan and to do all of the things that
          [OCS]  believes is necessary, so please  dont
          waste   any  time  and  dont  let  a   single
          opportunity to do what it is that you need to
          do go by.
          [ROLAND]: Yes, sir.
          THE COURT: Because the clock is running.
          [ROLAND]: Yes, sir.
          Roland  let a number of opportunities pass him by,  and
did  waste time, in this crucial second-chance period.  For a man
with significant domestic violence and anger management problems,
and possible mental health and substance abuse problems,  who had
been  on the run from the law for almost half his daughters short
life, he made insufficient progress on his case plan when he  had
a  second  chance at reunification with  his daughter.  We  agree
with  the  trial court that OCS made active efforts  during  this
time, and that those efforts failed.
V.   CONCLUSION
          Although OCS did not make ICWA-required active  efforts
during  the  first  three months of this  case,  it  made  active
efforts  after  that,  but they failed.  The fathers  intervening
year-long   disappearance  gave  him  a   limited   time   before
termination  of  his  parental rights in  which  to  address  the
various  requirements  of his case plan.  Sherrie  is  now  three
years  old,  and has spent all three years with a  foster  family
that wishes to adopt her.  She can no longer wait for Roland.  We
AFFIRM the termination of Rolands parental rights.

_______________________________
     1     We  use  pseudonyms to protect the identities  of  the
parties.

     2     By  this  time the social worker had obtained  contact
information for Roland.

     3     Roland testified that he spent a week in the Anchorage
jails  mental health unit for observation, but that he was  never
given  an  assessment, and was returned to the general population
after  a  week of observation revealed no problems.   The  judge,
however,  found the social workers testimony that Roland  refused
to cooperate with an assessment to be credible.

     4     At  the time of trial, OCS had not yet reviewed  those
classes   to   determine  if  they  meet   Rolands   case   plans
requirements.   Sherries social worker testified  that  sometimes
jail classes do not meet OCS standards: Some of those classes are
very  short  and probably dont address what is needed  by  people
that have a long history . . . of violence.

     5     Maisy  W.  v. State, OCS, 175 P.3d 1263, 1267  (Alaska
2008).

     6    Id.

     7    Id.

     8    Id.

     9    25 U.S.C.  1912(d) (2006).

     10    See Maisy W., 175 P.3d at 1268-69 (three-month failure
of  active  efforts did not prevent termination of  ICWA  parents
rights  where there was substantial OCS involvement  and  efforts
during  three  years that case lasted); E.A. v. State,  DFYS,  46
P.3d  986,  990  (Alaska  2002) (seven-month  failure  of  active
efforts over many years of OCS involvement with this ICWA  parent
did  not  prevent termination of parents rights where parent  not
sober,  failed  to take many opportunities to get treatment,  and
when  active  efforts started again, she was hard to contact  and
uncooperative).

     11     See  T.F. v. State, Dept of Health & Soc. Servs.,  26
P.3d  1089,  1096  (Alaska 2001) (noting that ICWA  requires  the
state  to  make  active  efforts, and therefore  the  efforts  of
different   agencies,  such  as  OCS  and   the   Department   of
Corrections, may be considered together when determining  whether
the state made active efforts).

     12    See Maisy W., 175 P.3d at 1268 (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.  (quoting N.A. v. State, DFYS, 19 P.3d 597,
603 (Alaska 2001))).

     13     We have previously considered a fathers disappearance
and  avoidance  of OCS when determining whether  the  state  made
active  efforts.   See Ben M. v. State, Dept  of  Health  &  Soc.
Servs.,  No. 13090, 2009 WL 879755, at *8 (Alaska Apr.  3,  2009,
amended  Apr.  21, 2009).  See also Rick P. v. State,  Office  of
Childrens Servs., 109 P.3d 950, 957 (Alaska 2005).

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