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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Danielle A. v. State, Dept. of Health & Social Services, Office of Children's Services (09/11/2009) sp-6410
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
| DANIELLE A., | ) |
| ) Supreme Court No. S- 13377 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-05- 20 CN | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH | ) |
| AND SOCIAL SERVICES, OFFICE | ) |
| OF CHILDRENS SERVICES, | ) |
| ) No. 6410 - September 11, 2009 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Robert B. Downes, Judge.
Appearances: James M. Hackett, Law Office of
James M. Hackett, Fairbanks, for Appellant.
Gayle L. Garrigues, Assistant Attorney
General, Fairbanks, Richard A. Svobodny,
Acting Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree, and Christen, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
A mother appeals the extension of a superior court
order granting custody of her daughter to the Office of Childrens
Services (OCS). In the mothers first appeal, we affirmed an
order extending custody. In this, her second appeal, the mother
challenges a subsequent extension of custody. She raises two
main arguments: the superior court erred in extending custody
(1) without making the findings necessary to remove the child
from parental custody under the Indian Child Welfare Act (ICWA),
25 U.S.C. 1912(e); and (2) without making the ICWA placement and
active efforts findings required by Alaska Child in Need of Aid
(CINA) Rule 10.1(b). We conclude that: (1) neither ICWA nor
Alaskas CINA statutes and rules require courts to make removal
findings before extending OCSs custody of a child; and (2) the
superior court did not clearly err when it found that the child
continued to be a child in need of aid and that extending custody
was in her best interests. But CINA Rule 10.1(b) requires that
courts inquire into and determine whether active efforts are
being made before extending custody. Because the court did not
make this inquiry and determination, we remand.
II. FACTS AND PROCEEDINGS
Roberta was born in 1997 to Danielle.1 Roberta is an
Indian child under ICWA.2 Robertas father was not involved in
her life and his parental rights were terminated.3 OCS took
emergency custody of Roberta on March 1, 2005, and custody was
later extended for one year.4 OCS filed a petition to terminate
Danielles parental rights in November 2006.5 Trial occurred in
November and December 2007.6 The court found that Roberta was a
child in need of aid,7 but it also found that OCS failed to make
active efforts to prevent the breakup of the Indian family and
did not provide proof beyond a reasonable doubt that leaving
Roberta in Danielles custody would likely cause serious emotional
or physical damage.8 The court concluded it was in Robertas best
interests to be returned to Danielle.9 The court ordered that
Roberta remain in OCS custody for up to an additional year
pending reunification efforts.10
Danielle moved for reconsideration on December 10,
2007.11 She argued that CINA Rules 10.1(b)(2) and 17(c)(2)
expressly prohibit a final disposition order given the courts
finding that OCS had not made active efforts.12 On December 12,
2007, Danielle filed a motion for an order: (1) directing OCS to
comply with active efforts requirements under 25 U.S.C. 1912(d);
(2) imposing sanctions against OCS for failing to make active
efforts; and (3) entering a one-year supervision order in lieu of
continued OCS custody of Roberta.13 The court held a hearing in
April 2008 but did not rule on these motions.14
In June 2008 the trial court issued its written
decision from the termination trial.15 The court ordered
continued OCS custody, and supervised and unsupervised visitation
until the [reunification] transition is complete, or until
December 4, 2008, whichever comes first.16 In October 2008 the
court issued written orders denying Danielles motions for
reconsideration, to compel active efforts, and for sanctions.17
In Danielles first appeal, we affirmed the superior
courts December 2007 extension of OCS custody and its denial of
Danielles motion to invalidate that extension.18 We concluded the
superior court did not err when it found that extending custody
was in Robertas best interests under AS 47.10.080(c)(1).19 We
reasoned that [t]he context of the [December 2007] hearing
discussion shows that the court considered a return to Danielles
care to be in Robertas long-term best interests, but the court
also recognized that work needed to be done for reunification
efforts to succeed.20 We explained: The [trial] court found that
it was not in Robertas best interests to be immediately returned
to Danielle, and that finding is more than adequately supported
by the evidence in the record.21
In November 2008, OCS again petitioned to extend
custody for up to another year. OCS stated the permanency plan
remained reunification with Danielle and recommended that
reunification continue through a gradual transition, culminating
in permanent placement with Danielle by March 2009. Danielle
opposed the motion, citing an October 2008 letter from Katharine
Furniss, a program manager at Resource Center for Parents and
Children, which stated that Danielle had successfully engaged in
all Family Reunification services from January to October 2008,
and recommended OCS continue to increase unsupervised in-home
visits and overnights with the intent to reunify [Danielle] and
her daughter within the next six months.
The guardian ad litem (GAL) submitted a report in
December 2008 advising against an abrupt return home and
recommending extending custody so a six-month transition plan
could be implemented. By this time, Roberta was staying with
Danielle for three consecutive overnights and four days per week.
In December 2008 Danielle moved to enforce the courts
June 2008 judgment ordering reunification between mother and
daughter [and] directing reunification no later than December 4,
2008. She argued, among other things, that there were continuing
ICWA violations. In support of her motion, Danielle submitted a
letter from Elizabeth Kraska, the family therapist who was
providing joint counseling to Danielle and Roberta. Kraska
wrote: Due to the lengthy separation and the positive work I see
happening, it is my recommendation that visits continue to
increase by a day and an additional overnight each month. The
undated letter includes Kraskas estimation that reunification
could occur within or less than six months, barring any increased
signs of stress/anxiety, or if a therapist observes a
deterioration in their relationship.
On December 3 and 4, 2008, the court held a hearing on
OCSs motion to extend custody and Danielles motion to enforce the
December 4 reunification deadline. Danielle urged the court to
return custody to her immediately, claiming she had done
everything required by OCS, the court, and her counselors. She
characterized the issue before the court as removal. Danielle
argued that before the court could extend OCSs custody, it had to
find, by qualified expert witness testimony, that placement with
her would likely cause serious emotional or physical harm to
Roberta.
As she had over a year earlier, the GAL recommended
against returning Roberta to Danielles custody until further
reunification efforts could occur. The GAL told the court that
the counselor and the two clinical therapists working with the
family, Kraska (working jointly with Danielle and Roberta) and
Cathy McCarthy (working solely with Roberta), are adamant that if
you rush [reunification], this is going to be detrimental and not
be a success for [Danielle] and the child. The child is not
ready. They also believe [Danielle] is not ready. The GAL
expressed the entire clinical teams view that if the state drops
custody or the court does, . . . its going to harm this family.
OCS agreed, arguing that custody should be extended for another
year, [and] that the childs not yet ready to go home because of
some of the difficulties that occurred in the last year.22
The court issued an oral ruling on December 4, 2008
finding that Roberta continued to be a child in need of aid based
on neglect and denying Danielles request to return Roberta to her
immediately. The court relied on the GALs statements and Kraskas
letter. It also referred to the findings memorialized in its
June 2008 written order, stating it felt that it was important
that there be a transition and based on [the June 2008]
order, . . . continued custody and supervisions in the best
interests of the child. The court found Roberta was gradually
integrating into Danielles home, the transition was occurring but
had not been completed, more time was needed for reunification to
succeed, and its contrary to [Robertas] welfare to fully place
[her] in [Danielles] home at this time. The court extended
custody for six months, through June 4, 2009, ordering a review
of this case every two months during the next six months, and
explaining that if a review revealed that fewer than six months
was needed, the family could be reunited earlier.23
Danielle appeals.
III. STANDARD OF REVIEW
We affirm a trial courts factual findings in CINA cases
unless they are clearly erroneous.24 When interpreting CINA
statutes and rules, we apply our independent judgment, adopting
the rule of law that is most persuasive in light of precedent,
reason, and policy.25 We independently review the question of
[w]hether the superior courts findings comport with the
requirements of ICWA or the CINA statutes and rules.26
IV. DISCUSSION
A. The Superior Court Was Not Required To Make Removal
Findings Under 25 U.S.C. 1912(e) To Extend OCSs
Custody of Roberta.
Danielle argues that to extend OCSs custody of Roberta,
the court was required to find under 25 U.S.C. 1912(e), by clear
and convincing evidence, including testimony of qualified expert
witnesses, that the continued custody of the child by the
parent . . . is likely to result in serious emotional or physical
damage to the child.27 OCS contends the superior court did not
have to make this ICWA finding to extend OCSs custody because AS
47.10.080 and CINA Rule 19.2 control, and that those authorities
require the court to find that: (1) the child is a child in need
of aid and (2) continued OCS custody is in the childs best
interests. We agree with OCS.
ICWA requires courts to make subsection 1912(e)
findings to remove an Indian child from the custody of his or her
parent or Indian custodian,28 but ICWA does not address custody
extensions.29 Here, the issue is extending OCS custody so Roberta
and Danielle may reunify gradually, not removal.30
Alaskas CINA statutes and rules expressly address
custody extensions.31 As OCS points out, courts in Alaska must
make two findings before extending OCSs custody of a child: (1)
the child continues to be a child in need of aid and (2) extended
custody is in the childs best interests.32 Alaskas CINA statutes
and rules do not require courts to make ICWAs section 1912(e)
removal findings to extend custody; we have not held otherwise33
and we do not now.34
B. The Superior Court Did Not Clearly Err in Extending
OCSs Custody of Roberta.
1. The superior court did not clearly err in finding
Roberta continued to be a child in need of aid.
Danielle argues the court erroneously found that
Roberta continues to be a child in need of aid based on its
previous finding of neglect. She claims the court must determine
a childs CINA status at the time of adjudication, not at some
earlier time. OCS disagrees, arguing that the legislature amended
former AS 47.10.010, which required courts to adjudicate CINA
status based on conditions existing at the time of adjudication,
and that the amended version of the statute permits courts to
look at past conduct or conditions.
OCS has the better of these arguments. Consideration
of past neglect is consistent with our statutes and case law.
Alaska Statute 47.10.011 provides that the 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 any of twelve
conditions, including neglect.35 We have interpreted this statute
as only requir[ing] a finding that the child has been subjected
to neglect, and we have clarified that in determining a childs
CINA status, the trial court may consider all evidence of the
parents pre-termination hearing conduct, including evidence of
parental conduct predating the CINA adjudication. 36 The court
did not err in adjudicating Robertas CINA status based on
Danielles previous neglect; the record supports the courts
finding that Roberta has been exposed to neglect.37
2. The superior court did not clearly err in finding
that extending custody was in Robertas best
interests.
The court found that returning Roberta to Danielle
immediately would not be in Robertas best interests. It found
that a gradual transition would increase the likelihood of
successful reunification and ordered review of the case every two
months for the following six months to see how everything is
progressing. The court stated: If things progress faster, then
as soon as the therapists believe that the mother should have the
child, or the childs with the mother full-time, that will be the
ultimate proof and there will be reunification.
The record supports the courts findings and order.
Extending custody to permit a gradual reunification and to avoid
the emotional trauma that can result from immediate transition
may be in the childs best interests.38 In another case concerning
an Indian child, we concluded the superior court did not err by
extending custody where the GAL stated that doing so was in the
childs best interests, and where the social worker explicitly
stated in the petition for extension that returning the child to
her mother without a gradual reunification process . . . would be
likely to cause emotional damage to the child.39
Here, the GAL stated in her report that [a]n abrupt
return home is seen as potentially damaging and not clinically
sound. She recommended [a] gradual increase in to [Danielles]
full time care . . . to provide [Danielle] with more parenting
experience . . . as well as providing the family with stability
and clinical support. She reported that the familys clinical
treatment team proposed a six-month transition plan. The GAL also
told the court if you rush [reunification], this is going to be
detrimental and not be a success, [t]he child is not ready, and
returning Roberta to Danielle immediately would harm this family.
The OCS social worker agreed. And although the family therapist
stated she had observed positive interaction between Danielle and
Roberta, she recommended that visits continue to increase, not
that Roberta be returned to Danielle immediately.
This evidence, viewed in the light most favorable to
OCS, more than adequately supports the courts finding that
extending custody to permit a gradual reunification was in
Robertas best interests.
C. The Superior Court Must Inquire into and Determine
Whether OCS Is Making Active Efforts Under CINA Rule
10.1(b) Before It Extends OCSs Custody of a Child.
Danielle contends that Alaskas CINA Rule 10.1(b)
requires the superior court to determine whether OCS complied
with ICWAs placement and active efforts requirements under 25
U.S.C. 1915(b) and 1912(d), respectively, before it may extend
OCSs custody of an Indian child. She claims the court erred in
issuing the December 2008 order extending custody without making
placement or active efforts findings. OCS concedes that if CINA
Rule 10.1(b) requires superior courts to make these ICWA
findings, the superior court erred by extending custody without
making them. But OCS argues reversal is not required because
CINA Rule 10.1(b)(2) provides that a finding that these ICWA
requirements have not been met is not in itself a ground for
restoring the child to the parent.40 Alternatively, OCS urges us
to remand so the superior court can make any necessary findings.
CINA Rule 10.1 sets forth the requirements for ordering
out-of-home placements. Subsection (b) applies to cases
involving Indian children. It states:
(1) Findings. At each hearing at which the
court is authorizing an Indian childs removal
from the childs parent . . . or continuing a
previous order authorizing removal, the court
shall inquire into and determine:
(A) whether the Department has complied with
the placement requirements of 25 U.S.C.
1915(b) and
(B) whether active efforts have been made to
provide remedial services and rehabilitative
programs as required by 25 U.S.C.
1912(d).[41]
This rule applies when a court continues a previous
order authorizing removal; therefore, it applies to custody
extensions. The rule requires the superior court to inquire into
and determine whether OCS has complied with ICWAs placement and
active efforts requirements each time the court addresses custody
extensions.
It is uncontested that the superior court extended OCS
custody in this case without addressing ICWAs placement or active
efforts requirements. Because the court did not make this
inquiry or determination, we must remand.42
In Danielle A., we concluded that the courts finding
that active efforts had not been made did not require reversing
the order extending OCSs custody of Roberta.43 In reaching that
result, we relied on CINA Rule 10.1(b)(2), which make[s] clear
that a finding that the [active efforts] requirements . . . have
not been met is not in itself a ground for restoring the child to
the parent . . . or dismissing the petition. 44 In this appeal,
the court made no active efforts findings. It is the absence of
any inquiry into whether OCS was making active efforts that
requires remand.
Robertas case illustrates the importance of making this
inquiry: she has been in OCSs custody for over four years.45
Since the court denied the petition to terminate parental rights,
OCS has presented the court with evidence of the difficulties it
has encountered in trying to reunify Roberta and Danielle,
difficulties that have required it to seek custody extensions and
that have delayed achieving permanency. The inquiry required by
CINA Rule 10.1(b)(2) gives the court an important opportunity to
discover why reunification has not been achieved. When OCS is
making active efforts and reunification is significantly delayed,
the permanency goal may need to be revisited. When reunification
is not occurring because OCS is not making active efforts, the
court may direct an appropriate response. Either way, the
findings required by CINA Rule 10.1(b)(2) provide an important
check on the reunification process to insure that permanency is
achieved as soon as possible.
Although we emphasize the importance of making this
inquiry and determination, our holding does not require the
immediate return of Roberta to Danielles custody. On remand, the
superior court must make the inquiry and determination required
by CINA Rule 10.1(b)(2) on an expedited basis.46
V. CONCLUSION
The superior court was not required to make removal
findings to extend OCS custody. We AFFIRM the courts finding
that Roberta remains a child in need of aid. We REMAND to the
superior court for the active efforts finding required by CINA
Rule 10.1(b).
_______________________________
1 Danielle A. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., Mem. Op. & J. No. 1339, 2009 WL
1140442, at *1 (Alaska, Apr. 29, 2009). A more complete
discussion of the facts pertaining to Danielles case appears in
Danielle A., 2009 WL 1140442, at *1. We use pseudonyms to
protect the parties privacy.
2 Id.
3 Id.
4 Id.
5 Id.
6 Id.
7 Under AS 47.10.011, the court may find a child to be a
child in need of aid if it finds by a preponderance of the
evidence that any of twelve conditions exist, including
abandonment, per subsection (1); substantial physical harm or
substantial risk of substantial physical harm, per subsection
(6); and neglect, per subsection (9).
8 Danielle A., 2009 WL 1140442, at *1.
9 Id.
10 Id.
11 Id.
12 Id. (internal quotation marks omitted).
CINA Rule 10.1(b)(2), dealing with out-of-home
placements of Indian children, provides:
Effect of a Finding that Requirements Have
Not Been Met. A finding that the requirements
of 25 U.S.C. 1912(d) [active efforts] or
1915(b) [placement requirements] have not
been met is not in itself a ground for
restoring the child to the parent . . . or
dismissing a petition and does not affect the
courts ability to proceed to adjudication.
However, the court cannot enter a disposition
order if the court finds that the
requirements of 25 U.S.C. 1912(d) have not
been met. In those circumstances, the court
must postpone disposition until the court
finds that active efforts have been made. On
motion of a party . . . the court may order
the Department to comply with 25 U.S.C.
1912(d) or 1915(b) within a reasonable time.
If the Department fails to comply with this
order, the court may impose appropriate
sanctions.
CINA Rule 17(c), governing disposition hearings and
orders, states, in relevant part:
If the child has been placed outside the
home, the court cannot enter a disposition
order if the court finds . . . (2) in cases
involving an Indian child, that the
requirements of 25 U.S.C. 1912(d) (active
efforts) have not been met. If the court
finds that the Department has failed to make
required reasonable efforts or that the
requirements of 25 U.S.C. 1912(d) have not
been met, the court must postpone entering a
disposition order until the court finds that
reasonable efforts or active efforts have
been made. The child should remain in
temporary custody pending disposition.
13 Id. at *2.
14 Id.
15 Id.
16 Id. (internal quotation marks omitted).
17 Id. at *2, *5.
18 Danielle A., 2009 WL 1140442, at *1, *4-*5.
19 Id. at *3.
Under AS 47.10.080(c):
If the court finds that the child is a child
in need of aid, the court shall (1) order the
child committed to the department for
placement . . . for a period of time not to
exceed two years . . . except that the
department or the childs guardian ad litem
may petition for and the court may grant in a
hearing (A) one-year extensions of
commitment . . . if the extension is in the
best interests of the child.
20 Danielle A., 2009 WL 1140442, at *3.
21 Id.
22 In its petition to extend custody, OCS described
Danielle as being inconsistent in helping Roberta with
schoolwork; failing to attend more than one parent-teacher
conference in a year; denying that Roberta has fetal alcohol
syndrome, educational and social delays, and mental health needs;
and belittling Roberta. Additionally, family counseling was
delayed because Roberta initially refused to participate in
counseling with [Danielle], and because when counseling began,
Danielle was very defensive.
23 On December 26, 2008, the court issued a written order,
effective December 4, extending custody for six months and
providing written findings; it issued a corrected order on
January 22, 2009 that did not change the dispositive rulings or
effective date.
24 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)).
25 Id. (citing S.S.M. v. State, Dept of Health & Soc.
Servs., 3 P.3d 342, 344 (Alaska 2000)).
26 Carl N. v. State, Dept of Health & Soc. Servs., 102
P.3d 932, 935 (Alaska 2004) (citing Sherry R. v. State, Dept of
Health & Soc. Servs., 74 P.3d 896, 901 (Alaska 2003) (CINA
statutes and rules); J.J. v. State, Dept of Health & Soc. Servs.,
38 P.3d 7, 8 (Alaska 2001) (ICWA)).
27 25 U.S.C. 1912(e) (2006). In Danielle A., we said
Danielle waived this argument by failing to raise it in her
opening brief. See Danielle A. v. State, Dept of Health & Soc.
Servs., Office of Childrens Servs., Mem. Op. & J. No. 1339, 2009
WL 1140442, at *4 n.27 (Alaska, Apr. 29, 2009).
28 See 25 U.S.C. 1912(e) (2006); CINA R. 10(c)(3).
29 See 25 U.S.C. 1901-1922.
30 See Danielle A., 2009 WL 1440442, at *4 (explaining
[t]he trial and related [placement] decision [in December 2007
and June 2008] did not involve Robertas removal from Danielles
home, as she had long since been removed).
31 See AS 47.10.080(c)(1)(A); AS 47.10.083; CINA Rule
19.2.
32 See AS 47.10.080(c)(1)(A); AS 47.10.083; CINA Rule
19.2.
33 See AS 47.10.080(c)(1)(A); AS 47.10.083; CINA Rule
19.2; A.H. v. State, 779 P.2d 1229, 1233 & n.4 (Alaska 1989)
(concluding superior court did not clearly err in finding
returning children to parents home would result in serious harm
under section 1912(e) without explicitly holding that section
applied to the extension of custody); In re A.S., 740 P.2d 432,
433 n.1 (Alaska 1987) (concluding appellant had waived this
argument by failing to properly brief or preserve it); In re
D.C., 715 P.2d 1, 1 (Alaska 1986) (vacating and remanding order
of foster care placement of Indian child because court had not
issued written factual findings and expert witness did not give
the predictive testimony required by section 1912(e), but not
clarifying whether the issue was extension of custody or
removal); Danielle A., 2009 WL 1140442, at *4 nn. 22 & 27
(concluding mother waived this argument for failure to raise it
in her opening brief).
34 Because we conclude the court was not required to make
section 1912(e) removal findings to extend OCSs custody of
Roberta, we do not reach the parties arguments about whether the
court made such findings.
35 AS 47.10.011(9).
36 A.H. v. State, Dept of Health & Soc. Servs., 10 P.3d
1156, 1161 (Alaska 2000) (quoting D.M. v. State, Div. of Family &
Youth Servs., 995 P.2d 205, 209 (Alaska 2000)); see also id.
(holding Indian child was a child in need of aid based on a
history of neglect and emphasizing AS 47.10.011 uses the past
tense, has been subjected to (quoting AS 47.10.011) (emphasis in
A.H.) (internal quotation marks omitted)).
37 The cases Danielle cites to support her argument
otherwise are unpersuasive because they deal with CINA
adjudications under the former statute, AS 47.10.010, which did
not use the past tense has been subjected to and which was
amended to include this language in 1998. See D.M., 995 P.2d at
207, 208 n.7; V.D. v. State, Dept of Health & Soc. Servs., 991
P.2d 214, 216 (Alaska 1999); former AS 47.10.010 (1997); ch. 99,
18, SLA 1998.
38 In re A.S., 740 P.2d 432, 436 (Alaska 1987).
39 Id.
40 See supra note 12 for the full text of CINA Rule
10.1(b)(2).
41 CINA Rule 10.1(b)(1).
42 Because we remand, we do not address the parties
arguments as to whether OCS made active efforts.
43 Danielle A. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., Mem. Op. & J. No. 1339, 2009 WL
1140442, at *5 (Alaska, Apr. 29, 2009).
44 Id. (quoting CINA Rule 10.1(b)(2)) (second alteration
in Danielle A.).
45 Danielle A., 2009 WL 1140442, at *1.
46 The courts June 2008 order includes the finding that
OCS complied with ICWAs placement requirements, and the record
does not indicate that Robertas foster home has changed.
Therefore, we do not remand for a determination of compliance
with ICWAs placement requirements.
Danielle failed to brief the other arguments she lists
in her supplemental points on appeal, so we consider those points
waived. Washington Ins. Guar. Assn v. Ramsey, 922 P.2d 237, 247
n.29 (Alaska 1996).
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