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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Neal M. v. State, Dept. of Health & Social Services, Office of Children's Services (08/05/2009) sp-6396
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
| NEAL M., | ) |
| ) Supreme Court No. S- 13288 | |
| Appellant, | ) |
| ) Superior Court Nos. 3AN-06-322/23/24/ | |
| v. | ) 25/3AN-07-149 CN |
| ) | |
| STATE OF ALASKA, DEPART- | ) O P I N I O N |
| MENT OF HEALTH AND SOCIAL | ) |
| SERVICES, OFFICE OF | ) No. 6396 - August 5, 2009 |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
LACEY A., )
) Supreme Court No. S-13289
Appellant, )
)
v. )
)
STATE OF ALASKA, DEPART- )
MENT OF HEALTH AND SOCIAL )
SERVICES, OFFICE OF )
CHILDRENS SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sharon Gleason, Judge.
Appearances: Angela Greene, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Neal M. Robert
Breckberg, Assistant Public Advocate, and
Rachel Levitt, Office of Public Advocacy,
Anchorage, for Lacey A. Megan R. Webb,
Assistant Attorney General, Anchorage, and
Richard A. Svobodny, Acting Attorney General,
Juneau, for Appellee. Jerald M. Reichlin,
Fortier & Mikko, P.C., for Native Village of
Pilot Point. Dianne Olsen, Law Office of
Dianne Olsen, Anchorage, Guardian Ad Litem.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
Lacey A. and Neal M. are the parents of six minor
children.1 The superior court terminated their parental rights
to the five oldest children after finding that all six children
were in need of aid based on Neals substance abuse and Laceys
neglect. Lacey and Neal appeal only the termination of Laceys
parental rights. Because the superior court did not clearly err
in determining that the children were in need of aid based on
Laceys neglect and that OCS had made active and reasonable
efforts to prevent the breakup of the Indian family, we affirm.
II. FACTS AND PROCEEDINGS
Lacey A. and Neal M. are the biological parents of six
minor children: Edward (born in 1998), Elliot (born in 2000), Eve
(born in 2003), Elan (born in 2005), Emma (born in 2007), and
Elsa (born in 2008). All six are Indian children within the
meaning of the Indian Child Welfare Act (ICWA).2
Lacey and Neal first had contact with the Office of
Childrens Services (OCS) in 1998, the year their first child was
born. By 2005 OCS had received six reports of harm concerning
the children. Those reports were unsubstantiated. But in April
2006 OCS received a new report of harm alleging neglect and
substance abuse. An OCS social worker began regular visits with
the family in May 2006 and by August 2006 had made about fifteen
visits to Lacey and Neals apartment.
Lacey and Neal had four children when the OCS social
worker began visiting their home. The social worker noticed that
the couples then two-and-a-half-year-old daughter, Eve, was not
very verbal. The social worker recommended that Neal and Lacey
enroll Eve in Head Start, but they refused. The social worker
also tried to get Programs for Infants and Children, Inc. (PIC)
to perform an in-home assessment. The social worker later
testified that Neal gave the PIC staff a really hard time about
scheduling and that PIC was never able to get into the family
home.
The social worker also learned that the two oldest
children were not getting to school on time and had accrued about
seventy-nine absences during one school year because Neal was
oversleeping. Neal claimed that the children were missing school
because they did not have clean laundry. The social worker took
Lacey to Pathway Families to get free clothes for the children.
The childrens school gave the family an alarm clock and wake-up
calls, but the social worker later testified that the schools
efforts did not help.
The social worker also transported Lacey to a job
center, helped her complete a resume, helped enroll her with her
tribe so she could receive free medical services, arranged bus
passes and taxi service for the family, and contacted Alaska
Housing Finance Corporation about possible housing assistance.
On August 18, 2006, the social worker conducted a mid-
morning unscheduled home visit. A woman identifying herself as a
friend of the family opened the door. Entering, the social
worker found Lacey and the children asleep and a group of six or
seven unknown adults smoking something other than cigarettes in
one of the bedrooms. The social worker called the police and the
unknown individuals quickly left. Upon arriving, a police
officer found an empty liquor bottle with a hole burned in the
middle and some type of residue inside. The officer wasnt sure
if it was marijuana or cocaine.
Neal, who was not then at home, returned to the
apartment while the police were there and became angry that Lacey
had allowed the police into the home. The social worker
testified that she was worried about Laceys safety because Neal
was in her face yelling at her. The police arrested Neal for
failing to comply with his sex offender registration
requirements, but Neal returned to the apartment later that day.3
The social worker questioned both parents at the time
about drug use in the home and asked Neal to complete a drug
test. Neal tested positive for cocaine and admitted that he had
used drugs at a neighbors house earlier that day. The social
worker asked Lacey to participate in a plan to ensure the
childrens safety. Under that plan, Neal would move out of the
home until August 22, 2006, when the social worker would
reevaluate the plan. Lacey agreed that she would not allow Neal
or anyone else who might be a threat to the children back into
the home. Laceys father, who lived nearby, agreed to care for
the children while Lacey was at work.
The social worker returned to Laceys apartment on
August 22 to reevaluate the safety plan. Both Lacey and Neal
were there. The social worker spoke with both parents about
their drug use and Neal admitted he was using drugs. The social
worker also spoke with eight-year-old Edward, who reported that
Neal had stayed in the apartment over the weekend in violation of
the safety plan.
On August 30, 2006, OCS filed an emergency petition to
adjudicate Edward, Elliot, Eve, and Elan as children in need of
aid, stating that Neal and Lacey were unable to be protective and
assure safety in the home. OCS alleged that Edward told a social
worker that Neal often smoked crack with his friends in the
bedroom where Edwards toys were, that Edward claimed his dads
friends had been in and out of his house two hundred times and
that they had spent the night more than ten times, and that
Edward reported feeling unsafe in the house because his parents
let everyone in the house.
OCS placed the children in foster care. A social
worker later testified that Edward and Elliot suffered from a lot
of delays including speech, medical, educational, and social
delays.
In September 2006 the superior court granted OCS
temporary custody of the four children, concluding that there was
probable cause to believe they were children in need of aid based
on Neals substance abuse. Although Lacey and Neal were permitted
supervised visitation with the children, OCS claimed that the
parents missed three visits in September and arrived at another
visit ten minutes before it was to end. The parents allegedly
told OCS that they missed the visits because Lacey was sick or at
work and Neal was doing laundry. Neal allegedly also stated that
it hurt too much to see the children.
In October 2006 Lacey agreed to a new safety plan
making her the childrens sole care provider. She agreed that
Neal would not contact her or the children unless authorized by
OCS. Neal and Lacey were given a case plan that reiterated that
Lacey should not allow [Neal] to reside in her home with the
children present and should ensure that the children attend
school on time.
The social worker helped Lacey obtain shelter by
referring her to Clare House, a thirty-day temporary shelter for
homeless women with children. Laceys four children were placed
with her at Clare House in November 2006. Later that month,
Lacey moved into an apartment with her children. She completed a
Clare House exit plan that indicated she did not wish to receive
follow-up services from her Clare House case manager after her
discharge.
In December 2006 OCS received a report from a teacher
and special education supervisor that Edward and Elliot had
stated that Neal was back in the home. A social worker later
witnessed Neal leaving the residence. Based on Laceys violation
of the safety plan, OCS again removed the children and placed
them in foster care.
In April 2007 Lacey gave birth to Emma, her fifth child
with Neal. A social worker created a safety plan calling for
Lacey to move into Clare House with Emma when she was discharged
from the hospital. Lacey agreed and was admitted to Clare House
on April 23. OCS filed a non-emergency petition to adjudicate
Emma a child in need of aid.
Lacey completed parenting classes on May 10. But an
OCS social worker later testified that Lacey still was not able
to demonstrate that she could protect her children. The social
worker then referred Lacey for counseling at Southcentral
Foundation.
On May 24, 2007, Clare House staff discovered that
Lacey had been meeting her boyfriend on the bus and giving him
food from the center. Emma was reportedly present at the time.
Four days later Clare House staff caught Lacey taking food out of
Clare House in a coat-covered stroller. Lacey later admitted
that she was attempting to take the food to Neal.
On May 31, 2007, Laceys case manager at Clare House
wrote a discharge letter for Lacey. It indicated that the reason
for the discharge was space limitations and the fact that Lacey
was not eligible for an extension. An OCS social worker stated
in an affidavit that she was told Lacey was being asked to leave
due to her non-compliance with the rules at Clare House. OCS
obtained an order authorizing OCS to remove Emma from Laceys
custody after Lacey reportedly disclosed that she could not think
of any place to go where Emma would be safe. OCS took Emma into
custody on June 1.
Lacey moved to Glenallen and began living with Neal in
June 2007. It was about this time that Lacey became pregnant
with her sixth child, Elsa. On July 2, 2007, OCS placed the five
children with Laceys maternal uncle in Pilot Point. OCS arranged
for Lacey to stay with another uncle in the same village. A
social worker flew out with the children and Lacey and provided
them with food and other necessities, such as clothing and beds.
When she moved to Pilot Point, Lacey had not yet begun
the counseling sessions OCS required. But a social worker
testified that she referred Lacey to a family service worker in
Pilot Point who was willing to meet with Lacey for counseling
sessions.
Lacey testified telephonically at a mid-July
disposition hearing that she had met with the family service
worker and was told that counseling would begin after the worker
returned from a two-week vacation. Lacey also testified that if
she had to choose between Neal and her children, she would choose
[her] kids and that she cant stand being without them. She
testified that she would not let Neal have contact with their
children without scheduled visits and that she would turn him in
to the local police if he showed up in Pilot Point.
Lacey never began therapy in Pilot Point. She later
testified that she was unable to get counseling in Pilot Point
because they [didnt] have qualified people down there. In
October 2007 Lacey moved back to Anchorage without telling OCS.
Her children remained in Pilot Point. Lacey testified that she
moved because she had no housing down there. She told a licensed
clinical psychologist that she left Pilot Point because they have
brown water sometimes I went without electricity and water in the
house, sometimes no propane. Lacey also allegedly told the
psychologist that she left Pilot Point to get an ultrasound.
After returning to Anchorage, Lacey began counseling at
Southcentral Foundation in November 2007 in an attempt to comply
with her OCS case plan. During her intake assessment, Lacey
indicated that she was living with Neal, whom she described as
her fianc‚, and described their relationship as excellent.
Although she acknowledged that OCS did not want the children to
live with Neal, Lacey allegedly stated that she intended to
continue living with Neal even after she received custody. The
intake counselor determined that Lacey needed parenting
techniques to regain custody. The counselor indicated that
Laceys prognosis with treatment was good, even though she
recognized that Laceys attitude towards treatment as an OCS-
imposed requirement might become a barrier to treatment. The
counselor recommended that Lacey participate in individual
therapy.
Meanwhile, Neal continued to struggle with substance
abuse. Of the eleven urinalysis appointments he had in November
2007, he failed to show up for seven and tested positive for
cocaine at the other four. Salvation Army Clitheroe Center had
performed a substance abuse assessment on Neal in July 2007 and
observed that Neal demonstrated a lack of awareness and
understanding regarding addiction and would benefit from
receiving substance abuse treatment. Although Neal was not
appropriate for treatment at Clitheroe, the counselor who
evaluated Neal recommended that he seek treatment at a facility
like Akeela House that could address his history of criminality,
antisocial behavior/traits, denial, and thinking errors. There
is no evidence Neal participated in the recommended treatment.
In December 2007 OCS petitioned the superior court to
terminate Lacey and Neals parental rights as to the five oldest
children. OCS alleged that Neal had not addressed his problems
with substance abuse, neglect of the children, and anger
management; OCS also alleged that Lacey continues to be unable or
unwilling to protect the children from [Neal].
In February 2008 Lacey gave birth to Elsa, her sixth
child with Neal. OCS assumed temporary custody of Elsa. An OCS
social worker later testified that she had given Lacey the option
of returning to Pilot Point after OCS assumed custody of Elsa but
that Lacey wasnt willing to go.
Although Lacey later testified that she and Neal had
broken up a couple weeks before Elsa was born, the record
indicates they were still associating after Elsas birth. The
superior court observed that the return of service on the
petition OCS filed to adjudicate Elsa as a child in need of aid
showed that Lacey and Neal were both at Beans Caf‚ on March 10,
2008 when they were served. And Neal described Lacey as his
fianc‚e during a March 21 intake assessment.
A probable cause hearing for Elsa was held on February
29, 2008. The superior court held that there was probable cause
to find that Elsa was a child in need of aid and that removal was
warranted for the same reasons that justified removing the five
older children. The court asked an OCS social worker to
articulate her expectations for Lacey and Neal. The social
worker explained that OCS would ask Lacey to abstain from having
a relationship with Neal if he continued to be non-compliant with
his case plan. She stated that her goal for Lacey was to get her
really active in her therapy in order to help her overcome her
dependency on Neal and realize that leaving Neal was a decision
that [Lacey] will have to make.
Lacey continued to receive counseling through May 2008
and completed the eight sessions OCS required plus three
additional sessions. An OCS social worker observed that Lacey
began to show some progress around May 2008 when she claimed that
she would discontinue contact with Neal, move back to Pilot
Point, and get her children back. But the social worker later
testified that Lacey never followed through on those intentions.
In June 2008 Neal was driving Laceys car when the
police stopped him because of a defective headlight. Neal, who
had a suspended license and two outstanding warrants, was
arrested and taken to the Anchorage Correctional Complex. Lacey
visited Neal nine times between June 4 and June 14 and identified
herself as Neals fianc‚e during her visits. Lacey testified at a
June 20 placement review hearing that she self-identified as
Neals fianc‚e just so she wouldnt have to go through a lot of
talk. Lacey testified that she and Neal were no longer involved
and that they had not lived together since February 2008. But in
mid-July 2008 Lacey posted Neals fifty-dollar bail after he was
charged with vehicle tampering.
A three-day termination trial was held in August 2008.
Neal testified at the trial and admitted that he continued to use
cocaine and that, despite seeking treatment on a number of
occasions, he had failed to complete his treatment plan.
Dr. Melinda Glass, a clinical psychologist who
evaluated Lacey in June and July 2008, testified as an expert
witness at the termination trial. Dr. Glass testified that she
did not believe Lacey would keep her children away from Neal or
that she would discontinue her relationship with him. Dr. Glass
testified that, although Lacey had stated that she was willing to
do anything to get her children back, Lacey had not demonstrated
any such willingness on a concrete level.
The superior court concluded that there was clear and
convincing evidence that all six children were children in need
of aid based on Neals substance abuse and Laceys neglect. The
court found that:
[Lacey] has engaged in conduct that subjects
the children or has subjected the children in
this household to neglect, and the neglect is
not so much of neglect as a parent but
neglect in the way of being unable or
unwilling to prevent [Neal] . . . from being
around the children.
The court found that it was unlikely that the children could be
returned to Lacey within a reasonable time because she had chosen
to be involved with Neal and would likely continue to be involved
with him in the foreseeable future.4
The court also concluded that there was clear and
convincing evidence that OCS had made active and reasonable
efforts to reunify the family, which proved unsuccessful. As to
Lacey, the court noted that providing the Clare House services
and sending Lacey and the children to Pilot Point where they
would be separated from Neal was sufficient to meet the statutory
standard. The court accordingly terminated Lacey and Neals
parental rights to their five eldest children and adjudicated the
youngest child, Elsa, as a child in need of aid.
Lacey appeals the termination of her parental rights.
Neal joins in Laceys appeal but does not argue that the superior
court erred by terminating his parental rights.
III. DISCUSSION
A. Standard of Review
Whether the superior courts factual findings comport
with ICWA and are sufficient to support termination of parental
rights under the Child in Need of Aid (CINA) statutes and rules
are questions of law that we review applying our independent
judgment.5 Whether the state has complied with ICWAs active
efforts requirement presents a mixed question of law and fact.6
We will reverse the factual findings of the superior
court in a termination of parental rights case only when those
findings are clearly erroneous.7 This standard is met only if we
are left with a definite and firm conviction that a mistake has
been made after review of the entire record.8 In reviewing a
superior courts determination to terminate parental rights, we
bear in mind at all times that terminating parental rights is a
drastic measure.9
B. Were the Children in Need of Aid in Part Because of
Laceys Neglect?
Lacey argues that the superior court erred in
concluding that her children were in need of aid based on her
neglect. She contends that she did everything that OCS required
of her by completing parenting classes, attending counseling
sessions, and recognizing that Neal could not be around her or
the children until he resolved his drug problem.10
The superior court may find a child to be a child in
need of aid if it finds by a preponderance of the evidence that
the child has been subjected to conduct by or conditions created
by the parent, guardian, or custodian [that] have subjected the
child or another child in the same household to neglect.11 The
court may find neglect if the parent
fails to provide the child with adequate
food, clothing, shelter, education, medical
attention, or other care and control
necessary for the childs physical and mental
health and development, though financially
able to do so or offered financial or other
reasonable means to do so.[12]
The superior court found clear and convincing evidence
that Lacey and Neals children were in need of aid based in part
on conditions created by Lacey and Neal that had subjected the
children to neglect. The court based this finding on evidence
that: (1) Edward and Elliot missed almost eighty days of school
during the 2005-2006 school year, reportedly because the parents
overslept; (2) on August 18, 2006, Neal tested positive for
cocaine after an OCS social worker found six to seven unknown
adults smoking something other than cigarettes in the apartment
while the children were home; (3) the parents missed visits with
the children after OCS assumed custody; and (4) Edward, Elliot,
and Eve suffered from significant delays in speech and verbal
skills and required dental care when they entered state custody
in 2006.
Lacey does not argue that these findings were clearly
erroneous, and each is amply supported by the evidence discussed
in Part II, above.
Moreover, evidence discussed in Part II concerning the
August 18, 2006 family-home incident raises grave doubts about
Laceys ability to provide the care and control needed for her
childrens physical and mental health and development.
In Audrey H. v. State, Office of Childrens Services, we
stated that the superior court, when determining whether the
child has suffered from neglect, may consider a childs exposure
to drug use.13 We held that the superior court did not err by
concluding that the mother had failed to provide her children
with the care and control necessary for their mental health and
development, in part because she exposed her children to illegal
drug use and open sexual activity.14
The August 18, 2006 incident similarly demonstrates
that Lacey failed, on at least one occasion, to provide the care
and control necessary for her childrens health and development.
Lacey may not have invited the individuals into her home to
engage in what was likely illicit drug use, but she seemed unable
(or unwilling) to prevent the occurrence from happening.
Laceys arguments that she complied with her case plan
and admitted that Neal had a drug abuse problem have little
bearing on the children-in-need-of-aid finding.
We conclude, as OCS argues, that there was more than
sufficient evidence to demonstrate that Lacey and Neals children
were children in need of aid based on neglect, that the evidence
demonstrates that Lacey failed to provide the children with
adequate education, medical attention, or other care and control
necessary for their physical and mental health and development,
and that the superior court correctly concluded that Laceys
inability or unwillingness to prevent Neal from being around the
children amounted to neglect. The record contains ample evidence
supporting the superior courts finding by clear and convincing
evidence that all six children were in need of aid based in part
on Laceys neglect.
Lacey also challenges particular evidence bearing on
the courts child-in-need-of-aid finding. She argues that Dr.
Glass improperly based her opinion of Laceys parenting ability on
Laceys decision to leave Pilot Point and return to Anchorage
without her children. Dr. Glass testified that Laceys decision
to leave her children in Pilot Point demonstrated that, despite
her stated willingness to do anything to get her children back,
Lacey had not historically done what it would take to regain
custody. On cross-examination, Dr. Glass acknowledged that Lacey
claimed she left Pilot Point to obtain counseling services that
she could not get in the village. But Dr. Glass then testified
that, even if Lacey was faced with competing case plan
requirements, she should have discussed with OCS which
requirement was to have priority.
Lacey asserts that she left Pilot Point only because
she could not obtain counseling services there. She argues, at
least implicitly, that she moved back to Anchorage to complete
her case plan requirements. She contends that it is not fair to
place her in a Catch 22 situation, in which her attempts to
comply with OCSs requirements help support the termination of her
parental rights. She accordingly asks that the termination be
reversed and that on remand her decision to return to Anchorage
not be used to support terminating her parental rights.
The superior court did not expressly mention Laceys
decision to leave Pilot Point in 2007 when it determined that the
children were still in need of aid. But it seems to have
considered this fact in its active efforts analysis, and noted
that OCS had attempted to create a physical separation between
Lacey and Neal by relocating Lacey and her children to Pilot
Point. It then found that Lacey chose to return to Anchorage in
October 2007 rather than reside near the children.
It was not error to allow OCS to elicit evidence that
Lacey left Pilot Point to return to Anchorage in 2007, and it
appears OCS is correct in arguing that Lacey did not object to
Dr. Glasss testimony in this regard. Even assuming Lacey
relocated to get OCS-mandated counseling, there was a valid
dispute whether, as Dr. Glass also testified, Lacey should have
sought clarification from OCS before moving back to Anchorage.
Moreover, there was conflicting evidence about why
Lacey returned to Anchorage. She claimed she left to complete a
counseling requirement that could not be satisfied in Pilot
Point, but there was evidence permitting a contrary finding. An
OCS social worker testified that she referred Lacey to a family
service worker in Pilot Point who was willing to meet with Lacey
for counseling. Lacey testified in mid-July that she met with
the family service worker and was told that her counseling would
begin after the family service worker returned from a two-week
vacation. And when she was asked at a placement review hearing
why she moved back to Anchorage, Lacey testified: Because I have
no housing down there and I was looking for housing down here.
She later told Dr. Glass that she left Pilot Point because she
needed an ultrasound and because they have brown water sometimes
I went without electricity and water in the house, sometimes no
propane.
This conflicting evidence raised credibility disputes
to be resolved by the superior court. The court appears to have
weighed Laceys decision to relocate from Pilot Point against her.
The record provides support for the implicit finding that Laceys
decision to leave Pilot Point was inappropriate.
C. Was There Clear and Convincing Evidence OCS Made Active
and Reasonable Efforts To Prevent the Breakup of the
Indian Family?
Lacey argues that the superior court erred in finding
that OCS made active and reasonable efforts to prevent the
breakup of the Indian family. She contends that the courts
active-and-reasonable-effort analysis ended when OCS relocated
her to Pilot Point, and that the findings do not reflect that OCS
effectively abandoned her after the relocation. Lacey appears to
argue that OCS should have, first, determined whether there was
any additional treatment available in Anchorage that would
benefit her and, second, provided her with any such treatment.
ICWA requires that before a court may terminate
parental rights, it must find 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 We have held that no pat formula exists for
distinguishing between active and passive efforts and have
adopted a case-by-case approach for active efforts analysis.16 We
have nevertheless recognized the following distinction between
active and passive efforts:
Passive efforts are where a plan is drawn up
and the client must develop his or her own
resources towards bringing it to fruition.
Active efforts, the intent of the drafters of
the Act, is where the state caseworker takes
the client through the steps of the plan
rather than requiring that the plan be
performed on its own. For instance, rather
than requiring that a client find a job,
acquire new housing, and terminate a
relationship with what is perceived to be a
boyfriend who is a bad influence, the Indian
Child Welfare Act would require that the
caseworker help the client develop job and
parenting skills necessary to retain custody
of her child.[17]
In evaluating whether the state met its active efforts
burden, the court may consider a parents demonstrated lack of
willingness to participate in treatment.18 Courts also look to
the states involvement in its entirety.19 In Maisy W. v. State,
Department of Health & Social Services, Office of Childrens
Services, we affirmed a termination even though the state
conceded it had not made active efforts during a three-month
period.20 We concluded that the entirety of the states efforts
after it first became involved met the active efforts
requirement.21 We similarly held in E.A. v. State, Division of
Family & Youth Services that the states failure to make active
efforts during one seven-month period was insignificant in light
of the extensive remedial efforts the state has provided
throughout its involvement.22
The superior court here concluded that there was clear
and convincing evidence that OCS made active and reasonable
efforts to prevent the breakup of the Indian family. In support,
the court made these findings:
a. [An OCS social worker] offered
assistance to the family between May and
August 2006 by providing wake-up calls,
an alarm clock, transportation,
assistance with benefits, food, diapers,
household goods, bus pass, PIC referral,
Head Start referral, and job
applications.
b. A Care and Safety Plan was signed by the
parents on August 18, 2006, which
required [Neal] to leave the home so the
children could remain in the home with
[Lacey]. The plan failed because [Neal]
returned to the home.
c. [Neal] was referred to urinalysis.
d. [Neal] was referred to Clitheroe for a
substance abuse assessment. He
completed an assessment on July 27,
2007. He was diagnosed as cocaine
abuse/rule out cocaine dependent and
recommended for treatment.
e. The children were placed with [Lacey] at
Clare House on November 3, 2006.
[Lacey] obtained housing for herself and
the children as part of a second trial
home visit. The plan failed because
[Neal] returned to the home.
f. [Neal] completed a mental health
assessment with [a licensed marriage and
family therapist].
g. [Neal] attended some anger management
classes at Southcentral Foundations
Fathers Journey Program.
h. [Elsa] was placed with [Lacey] at Clare
House on April 21, 2007.
i. [Lacey] attended counseling at
Southcentral Foundation between November
2007 and May 2008. [Lacey] reported
that she did not see the need for
treatment and was only attending to get
her children back. In November 2007,
[Lacey] reported that when she regained
custody of her children, she would
reside with the childrens father.
j. Both parents attended parenting classes.
Lacey completed a parenting class at
Alaska Youth and Family Network (AYFN).
k. [Neal] attended substance abuse
assessments at Clitheroe and Cook Inlet
Tribal Council (CITC) Recovery Services.
In March 2008, CITC diagnosed him as
cocaine dependent and recommended
intensive outpatient treatment, but
[Neal] did not participate in treatment.
l. In July 2007, the children were placed
with relatives in Pilot Point. [Lacey]
was allowed to reside in Pilot Point and
have unlimited contact with the
children. The department created a
physical separation between [Lacey] and
[Neal], but [Lacey] chose to return to
Anchorage in October 2007 rather than
reside near the children. She reunited
with [Neal].
(Internal citations omitted.)
Lacey does not argue that these findings are clearly
erroneous. Contrary to her argument that the superior courts
analysis ended when OCS relocated her to Pilot Point, the courts
findings note that Lacey received counseling at Southcentral
Foundation through May 2008, after she left Pilot Point. OCS also
resolved disputes between Lacey and the foster family in Pilot
Point and paid for Lacey and the children to remain in telephonic
contact after Lacey returned to Anchorage.
OCSs involvement with Lacey and Neal from May 2006
until May 2008 demonstrates that OCS did not expect them to
satisfy the case plan without assistance. Although OCS expected
Lacey to become a more protective parent and to learn to
appreciate the dangers of Neals drug abuse, OCS attempted to help
her develop the skills and mental resolve to accomplish those
things through parenting classes and counseling sessions.
The superior court found that these efforts were
unsuccessful. It noted that Lacey and Neal remain together
despite [Laceys] assertions to the contrary, and that Lacey
continued to be unable or unwilling to parent the children
without [Neal] in the home. The court further found, after
relying on Dr. Glasss testimony, that Lacey does not perceive any
danger to the children related to the home conditions or
parenting and has no desire to change.
Looking at the totality of the efforts made, we agree
with OCS and hold that the superior court did not err in
concluding that OCS made active efforts to identify and provide
remedial services that ultimately happened to be unsuccessful.
We also hold, as OCS contends, that OCS did not abandon Lacey but
continued to make ongoing efforts through the summer of 2008 by
identifying a mental health services provider in the village,
communicating with Laceys counselors in Anchorage, and ensuring
that Lacey kept in telephonic contact with her five oldest
children even after she left Pilot Point.23
We therefore conclude that the superior court did not
err in holding that OCSs efforts were active and reasonable.
IV. CONCLUSION
For these reasons, we AFFIRM the termination of Laceys
parental rights.
_______________________________
1 Pseudonyms are used for all family members.
2 25 U.S.C. 1903(4) (2006).
3 Neal was convicted of sexual assault in the first
degree in 1988. This conviction is unrelated to the present
case.
4 Clare Houses records, which were admitted into evidence
at Laceys disposition hearing, indicate that Lacey had previously
stayed at the facility in December 2005. The superior court
noted that there were reports in Laceys file from her past stays
that tended to show her inability to supervise her children on
her own. Staff members documented one instance in which Lacey
was sleeping on the floor with one child while Eve, then two-
years old, was running wild around the room after pulling off her
diaper and urinating on the floor. Elan, about two months old at
the time, was lying in her basinet with a wet diaper and spit-up
running down her mouth. Clare House staff remarked that Lacey
seem[ed] to have no clue what to do with her kids. Another time,
one of Laceys children pushed open an emergency exit door due to
lack of supervision. The superior court relied on these staff
reports in finding that Lacey was unable to adequately supervise
the children in the sheltered environment of Clare House. The
court used this finding as support for its failure-to-remedy
analysis, which Lacey does not seem to contest on appeal.
5 Rick P. v. State, OCS, 109 P.3d 950, 954-55 (Alaska
2005) (CINA); L.G. v. State, Dept of Health & Soc. Servs., 14
P.3d 946, 950 (Alaska 2000) (ICWA); see also Martin N. v. State,
Dept of Health & Soc. Servs., Div. of Family & Youth Servs., 79
P.3d 50, 53 (Alaska 2003) (explaining that when engaging in de
novo review, this court adopts the rule of law that is most
persuasive in light of precedent, reason, and policy (citing Guin
v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979))).
6 J.S. v. State, 50 P.3d 388, 391 (Alaska 2002) (citing
A.A. v. State, Dept of Family & Youth Servs., 982 P.2d 256, 259
(Alaska 1999)).
7 Martin N., 79 P.3d at 53 (When reviewing factual
findings, [this court views] the evidence in the light most
favorable to the party prevailing below. (quoting In re J.L.F. &
K.W.F., 828 P.2d 166, 170 n.12 (Alaska 1992), superseded on other
grounds by statute, ch. 99, 1, SLA 1998)).
8 Id. (internal citation omitted).
9 Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177,
184 (Alaska 2008) (internal quotation marks omitted) (quoting
Martin N., 79 P.3d at 53).
10 To terminate parental rights to Indian children, the
superior court must find: (1) by clear and convincing evidence
that the child has been subjected to conduct or conditions
described in AS 47.10.011; (2) by clear and convincing evidence
that the 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 at substantial risk
of physical or mental injury; (3) 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; (4) by evidence beyond a reasonable doubt that the
continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to
the child; and (5) by a preponderance of the evidence that
termination of parental rights is in the best interests of the
child. 25 U.S.C. 1912(d), (f) (2006); AS 47.10.088; CINA Rule
18(c); Maisy W. v. State, ex rel. Dept of Health & Soc. Servs.,
Office of Childrens Servs., 175 P.3d 1263, 1268 (Alaska 2008);
Gilbert M. v. State, 139 P.3d 581, 589-90 (Alaska 2006); Carl N.
v. State, Dept of Health & Soc. Servs., Div. of Family & Youth
Servs., 102 P.3d 932, 935 (Alaska 2004). The superior court here
addressed all five requirements. Laceys appeal challenges only
the first and the third required findings as listed here.
11 AS 47.10.011(9).
12 AS 47.10.014.
13 Audrey H. v. State, Office of Childrens Servs., 188
P.3d 668, 675 (Alaska 2008).
14 Id. at 675.
15 25 U.S.C. 1912(d) (2006); CINA Rule 18(c)(2)(B).
16 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 261 (Alaska 1999) (internal quotation marks omitted) (citing
A.M. v. State, 945 P.2d 296, 306 & n.12 (Alaska 1997)).
17 Id. at 261 (quoting Craig J. Dorsay, The Indian Child
Welfare Act and Laws Affecting Indian Juveniles Manual 157-58
(1984)).
18 Maisy W. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 175 P.3d 1263, 1268 (Alaska 2008) (quoting
N.A. v. State, DFYS, 19 P.3d 597, 603 (Alaska 2001)).
19 Id. at 1268.
20 Maisy W. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 175 P.3d 1263, 1269 (Alaska 2008).
21 Id. at 1269.
22 E.A. v. State, Div. of Family & Youth Servs., 46 P.3d
986, 990 (Alaska 2002).
23 The Native Village of Pilot Point filed a notice
joining in the arguments made in OCSs brief of appellee.
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