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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sean B. v. State, Dept. of Health & Social Services, Office of Children's Services (1/21/2011) sp-6535

Sean B. v. State, Dept. of Health & Social Services, Office of Children's Services (1/21/2011) sp-6535, 251 P3d 330

        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 

SEAN B.,                                       ) 
                                               )       Supreme Court No. S-13759 
                        Appellant,             ) 
                                               )       Superior Court No. 
        v.                                     )       4FA-07-00072 CN 
                                               ) 
STATE OF ALASKA,                               )       O P I N I O N 
DEPARTMENT OF HEALTH &                         )
SOCIAL SERVICES, OFFICE OF                     )       No. 6535 - January 21, 2011
CHILDREN'S SERVICES,                           )
                                               ) 
                        Appellee.              ) 
                                               ) 

                Appeal from the Superior Court of the State of Alaska, Fourth 
                Judicial District, Fairbanks, Robert B. Downes, Judge. 

                Appearances:   Fleur   L.   Roberts,   Fairbanks,   for   Appellant. 
                Megan R. Webb, Assistant Attorney General, Anchorage, and 
                Daniel S. Sullivan, Attorney General, Juneau, for Appellee. 

                Before:   Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
                and Stowers, Justices. 

                CARPENETI, Chief Justice. 

I.       INTRODUCTION 

                A father appeals the superior court's termination of parental rights to his 

son, arguing that the court's conclusions were based on insufficient evidence and that the 

court made erroneous factual findings.  Because the record supports the superior court's 

decision to terminate the father's parental rights, we affirm. 

----------------------- Page 2-----------------------

II.     FACTS AND PROCEEDINGS 
                Josh1 was born April 5, 2001.         His biological parents Sean and Melanie 

were in an "off and on" relationship for close to two years.  About six weeks after Josh 

was born, Melanie met Mason, and the two soon married.  Melanie and Mason had three 

children together:   Kate, born in July 2002; Leon, born in October 2003; and Mia, born 

in July 2005.   Earlier in her relationship with Mason, Melanie at times returned to Sean 

when she and Mason fought. 

                Josh, Melanie, and Mason moved around Arkansas and Indiana several 

times during Josh's first five years.  They lived on their own at times; at other times they 

lived   with   Melanie's,   Mason's,  or   Sean's   relatives.   Sean   did   not   pay   formal   child 

support. Sean's mother Sarah occasionally gave Sean money, which he gave to Melanie 

when she visited him to ask for financial help. 

                Mason joined the army in 2006.  He was transferred to Alaska in the fall of 

2006.   Melanie and the four children lived with Sean's family briefly before moving to 

Alaska to join Mason.   Sean testified that he gave permission for Josh to move to Alaska 

because he did not want Josh to be separated from his half-siblings. 

                Melanie, Mason, and the children had been living in Alaska for roughly a 

year when the Office of Children's Services (OCS) started to have contact with them. 

On August 3, 2007, OCS received a report of harm, which alleged that the children were 

neglected and Melanie, their primary caregiver, was abusing crack cocaine and alcohol. 

OCS did not assume custody of the children at that time.              Two days later Mason was 

arrested for domestic violence after throwing Melanie against the garage, injuring her 

arm and wrist.     As a result, the military ordered Mason not have contact with Melanie. 

        1       Pseudonyms have been used to protect the privacy of all family members. 

                                                 -2-                                              6535 

----------------------- Page 3-----------------------

        On August 6 and 7, 2007, OCS social worker Jamie Batten made contact with 

Sean and Sarah in Arkansas.            Batten notified them of Josh's contact with OCS and 

gathered some information about Sean's relationships with Melanie and Josh.                      Sarah 

expressed a desire to maintain contact with Josh. 

                On August 14, Mason was found at home with Melanie and the children. 

He had left the military barracks without permission and was escorted back by state 

troopers.   Mason was then confined to the barracks and unable to care for the children. 

                On August 20, Melanie was arrested and incarcerated for domestic violence 

against her sister.     Melanie injured her sister while intoxicated and angry.              Her sister 

lived with the family and helped take care of the children. 

                A visit to the home showed that there were dried feces and urine stains on 

the carpet, urine-soaked clothes in the laundry room, and toys and clothes scattered 

throughout the house.   The children did not have clean clothes, were dirty, and smelled 

of urine.   There was no food at home.          Neither Josh nor Kate was enrolled in school. 

Josh needed a speech therapist.   It was not clear when the children had last seen a doctor. 

OCS assumed emergency custody of six-and-a-half year-old Josh and his siblings.  On 

August 21, Batten filed an Emergency Petition for Child in Need of Aid Adjudication 

and Temporary Custody. 

                The case was soon transferred from intake worker Jamie Batten to Merrie 

Tullar, who oversaw the case for roughly the next two years.  Tullar, who made contact 

with   Sean   in   September   2007,   encouraged   him   to   send   letters   and   photographs   to 

reconnect     with   Josh.     Written    case   plans   also  instructed    Sean   to  send    weekly 

correspondence to Josh. When Tullar spoke with Sean over the phone, she reiterated the 

importance of sending letters to Josh. 

                Sean and Melanie stipulated that there was probable cause that Josh was a 

child   in   need   of   aid   as   a   result   of   Melanie's   conduct. In   April   2008,   Josh   and   his 

                                                  -3-                                            6535
 

----------------------- Page 4-----------------------

half-siblings were placed with Mason's parents in Arkansas.               When Josh came to live 

with his step-grandparents Lois and Trevor, roughly eight months had passed since 

Batten had notified Sean of concerns about Josh's care.  Tullar later testified that by this 

time, she had not received any letters from Sean. 

                Mason and Melanie soon relocated to Arkansas separately.                Mason then 

sought to have the child protection proceedings in Alaska dismissed.  OCS opposed the 

motion, arguing that keeping the case in Alaska would provide necessary continuity and 

benefit the children.     Superior Court Judge Robert B. Downes denied the motion to 

dismiss. 

                Tullar made contact with social worker Phillip Williams of the Arkansas 

Department of Health and Human Services.  Williams worked with OCS to administer 

Josh's case plan.      During the summer of 2008, while Tullar was on leave, OCS social 

worker Rebecca Buckles was assigned to Josh's case.               That summer OCS changed the 

permanency plan from reunification to adoption.            According to OCS records, Buckles 

spoke   with   Sean   about   terminating   his   parental   rights   on   July   7,   September   3,   and 

September 22. 

                Sean and his mother testified that they had trouble contacting and keeping 

in touch with caseworkers.   Tullar testified that she received one voice mail from Sean, 

which she returned the following day. 

                Around September 2008, Sean provided photographs to Arkansas social 

worker Williams to pass on to Josh.          Before the end of 2008, Sean also sent Josh two 

letters and a Christmas gift.  Lois admitted that she did not give Josh the first letter that 

she received from Sean because she considered Sean's statements in the letter about 

reuniting the family inappropriate and potentially confusing for Josh.  Lois testified that 

she read Josh the second letter, shared the photographs with Josh, and gave Josh the 

Christmas gift from Sean.       Lois testified that Josh did not receive a birthday gift from 

                                                  -4-                                           6535
 

----------------------- Page 5-----------------------

Sean.      According   to   Sean's   testimony,   he   stopped   writing   letters   to   Josh   after   he 

discovered that correspondence he had sent did not reach Josh. 

                 In September 2008, OCS requested the Arkansas Department of Health and 

Human Services to conduct a home study and consider placing Josh with Sean under the 

Interstate   Compact   on   the   Placement   of   Children.        Carl   Scott,   who   supervised   the 

Interstate   Compact   home   study,   testified   at   trial   that   Sean's   case   was   open   from 

September 10 to December 3.             There was limited evidence of the Interstate Compact 

investigator's attempts to contact Sean during this period.  Scott testified that a private 

contractor conducted the home study and that the records from its investigation had 
probably been destroyed under routine shredding procedures.2                  In December 2008, Scott 

denied placement with Sean.  That same month OCS filed a petition to terminate Sean's 

parental rights. 

                 Also in December 2008, Josh began to attend therapy sessions with licensed 

associate counselor Jillian Fennessee.   A "month . . . or two" after Josh had been placed 

with his step-grandparents in Arkansas in April 2008, Tullar made contact with Arkansas 

social worker Williams and asked him to seek counseling for Josh.                     But no counseling 

occurred   for   at   least   six   months.  Tullar   testified   that   the   delay   in   setting   up   these 

appointments was the result of a "communication breakdown" between OCS and the 

social workers in Arkansas.           Josh had 17 counseling sessions with Fennessee between 

December   2008   and   the   beginning   of   the   trial   in   September   2009.         According   to 

Fennessee's   testimony,   Josh   came   in   with   adjustment   issues,   disruptive   behavior, 

        2        Scott   also   testified   that   a   notice   sent   to   Sean   during   this   process   was 

returned to sender. 

                                                     -5-                                                 6535 

----------------------- Page 6-----------------------

                                                                                              3 
daytime and nighttime wetting (enuresis), and difficulty expressing himself.   Fennessee 

testified that these issues improved in the time Josh lived with Lois and Trevor. 

                 Around the time Josh began to meet with the counselor, the parties agreed 

to a new strategy for reintroducing Sean and Josh:  Sean would contact Fennessee, who 

would help facilitate his contact with Josh.  But the plan failed, and in the end, Sean met 

with Fennessee only once:           Fennessee fit him into her schedule on March 11, 2009, the 

day after he missed a scheduled appointment.  On two other occasions, Sean intended to 

meet with Fennessee but missed the scheduled appointments. The parties disagree about 

why   Sean's   first   meeting,   scheduled   for   January   19,   did   not   take   place.   They   also 

disagree about what role Sean played in setting up an appointment for April 29 and 

whether   Sean   should   have   been   informed   of   the   scheduled   date   when   he   visited 

Fennessee's office on April 28. 

                 In addition to the scheduling problems, the parties had a misunderstanding 

about   Fennessee's   role   in   the   reunification   process.        At   first,   OCS   and   Arkansas 

caseworkers believed that Fennessee was authorized to oversee the reunification; Sean 

believed     Fennessee      would    hold    sessions   that   he  and    Josh   could   attend    together. 

According   to   Fennessee,   she   informed   Sean  in   March   that   she   could   not   conduct   a 

reunification because she was not authorized to provide therapy to adults. She stated that 

she had a list of providers prepared for Sean, which he never picked up.  Sean disputed 

this testimony, but the superior court concluded his testimony on this point was not 

credible.   By May 2009, all the parties were informed that Fennessee could not provide 

direct services to Sean. 

                 In   August   2009,   OCS   and   Arkansas   caseworkers   agreed   to   arrange   a 

meeting for Sean, Lois, and Trevor to help them establish a healthier relationship.  Sean 

        3        Lois and Tullar also testified about Josh's special needs and involvement 

in services. 

                                                     -6-                                                 6535 

----------------------- Page 7-----------------------

was unable to attend the first meeting, scheduled for September 1, so they rescheduled 

for September 8.       Sean met with Lois and Trevor under the supervision of a court- 

appointed special advocate. They discussed reintroducing Sean and Josh by having Sean 

attend Josh's soccer games.  They agreed that Sean would attend some of Josh's soccer 

games and could spend time with Josh, Lois, and Trevor afterward.                    Sean could not 

attend the next game because he had a work conflict.  Josh's team did not have a game 

the following week.  The first game Sean could attend was the week of the termination- 

of-parental-rights trial. 

                Following the trial, Judge Downes concluded that Sean had engaged in 

conduct that constituted abandonment. In the court's words, this conduct "caused [Josh] 

to   be   a   child   in   need   of   aid   independently   of   and   subsequent   to   the   situation   in 

[Melanie]'s home" that led to the initial child-in-need-of-aid adjudication. The court also 

concluded that Sean failed to remedy this conduct, that OCS engaged in reasonable and 

tenacious efforts to reunify Sean and Josh, and that termination of Sean's rights was in 

Josh's best interests.   Sean appeals. 

III.    STANDARD OF REVIEW 

                Sean challenges factual findings and issues of law.  We will conclude that 

a factual finding is clearly erroneous, and refuse to affirm that finding, if review of the 

entire record leaves us with "a definite and firm conviction that a mistake has been 
made."4     "Conflicting evidence is generally insufficient to overturn the superior court, 

and we will not reweigh evidence when the record provides clear support for the superior 

        4       Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 175 P.3d 1263, 1267 (Alaska 2008) (quotingA.B. v. State, Dep't of Health & Soc. 
Servs., 7 P.3d 946, 950 (Alaska 2000)). 

                                                  -7-                                              6535 

----------------------- Page 8-----------------------

court's   ruling."5     Because   "trial   courts   are   in   the   best   position   to   weigh   witness 

credibility,   .   .   .   we   give   particular   deference   to   findings   based   on   oral   testimony."6 

Whether the record supports the statutory requirements for termination is a question of 
law to which we apply our independent judgment.7 

IV.     DISCUSSION 

                The decision to terminate parental rights in this case is governed by title 47 

of the Alaska Statutes and our precedent.  In order to terminate parental rights under AS 

47.10.088, the trial court must find, by clear and convincing evidence, that: (1) the child 

has been subjected to conduct or conditions described in AS 47.10.011 (that is, the child 
is in need of aid);8 (2) the parent has not remedied the harmful conduct or conditions or 

has failed to address the conduct or conditions that are likely to harm the child in the 
future;9 and (3) the State has made reasonable efforts to reunite the parent and child.10 

In addition, the court must find, by a preponderance of the evidence, that termination of 
parental rights is in the child's best interests.11 

        5       Id. (citing Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family 

& Youth Servs., 88 P.3d 527, 529 (Alaska 2004)). 

        6       Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

212 P.3d 756, 762 n.16 (Alaska 2009). 

        7       Maisy W., 175 P.3d at 1267 (citing Martin N. v. State, Dep't of Health & 

Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 53(Alaska 2003)). 

        8       AS 47.10.088(a)(1); see also AS 47.10.011. 

        9       AS 47.10.088(a)(2). 

        10      AS 47.10.088(a)(3). 

        11      J.H. v. State, Dep't of Health & Soc. Servs., 30 P.3d 79, 86 n.10 (Alaska 

2001) (citing AS 47.10.088(b)-(c)); see also Child in Need of Aid Rule 18(c). 

                                                  -8-                                             6535
 

----------------------- Page 9-----------------------

                Sean raises several issues in his appeal, including claims that the State's 

evidence is insufficient to support the superior court's conclusions that he abandoned 

Josh and failed to remedy the conditions or conduct that made Josh a child in need of aid, 

that the State did not engage in "reasonable efforts" to reunite him with Josh, that the 

superior court's best-interests analysis was erroneous, and that other statutes bar the 

superior court's conclusions.         In addition,  Sean challenges      several factual findings, 

which are addressed as they arise in the discussion below. 

        A. 	    The Superior Court Did Not Err In Concluding That Sean Abandoned 
                Josh. 

                Sean challenges the superior court's conclusion that he abandoned Josh 

under   AS   47.10.013.      We   have   articulated  a   two-part   test   for   reviewing   cases   of 

abandonment: "(1) [t]here must be parental conduct evidencing a 'willful disregard' for 
parental obligations, leading to (2) the destruction of the parent-child relationship."12  We 

apply an objective test "to see if actions demonstrate a willful disregard of parental 
responsibility."13   A showing of willful disregard under the first prong is not effectively 

refuted by evidence of "the parent's subjective intent or 'wishful thoughts and hopes for 
the child,' "14 nor by "token efforts to communicate with [the] child."15  Rather, a parent 

must show "continuing interest in the child and [ . . . make] a genuine effort to maintain 

        12      Rick P. v. State, Office of Children's Servs., 109 P.3d 950, 957 (Alaska 

2005) (citing G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 
67 P.3d 648, 651-52 (Alaska 2003)). 

        13     Jeff A.C., Jr. v. State, 117 P.3d 697, 704 (Alaska 2005). 

        14     Id. (citing G.C., 67 P.3d at 652). 

        15     Id. (citing D.K. v. State, Dep't of Health & Soc. Servs. (In re H.C.), 956 

P.2d 477, 481 (Alaska 1998) (quoting E.J.S. v. State v. Dep't of Health & Soc. Servs., 
754 P.2d 749, 751 (Alaska 1988)). 

                                                 -9-	                                           6535
 

----------------------- Page 10-----------------------

communication and association."16            The second prong is satisfied if there is a causal 

connection between the parent's conduct and the destruction of the relationship.17                    We 

have concluded that "it is indicative of a breakdown of the parent-child relationship if the 
child's best interests are promoted by legal severance of the relation."18 

                The record in this case supports the conclusion that Sean abandoned Josh 

under this two-part test.        Tullar testified that in April 2008, when Josh had been in 

custody for approximately eight months, she had not received a single letter from Sean, 

despite her instructions to send letters and re-establish contact with Josh.  Based on the 

testimony   of   Fennessee   and   other   evidence,  the   superior   court   found   Sean   "missed 

appointments or showed up on the wrong day at the wrong time, and he repeatedly failed 

to   nurture   his   child."  And   the   superior   court   credited   Tullar's   testimony   that   Sean 

showed no sense of urgency about reconnecting with his son. 

                Faced with conflicting testimony, the superior court found Sean "did not 

show   any   compulsion,   any   zeal,   to   be   a   parent   to   [Josh]." Specifically,   the   court 

determined that Sean's testimony about sending weekly correspondence to Josh was not 

credible. The court also determined that Sean's testimony that Fennessee failed to inform 

him that she would be unable to oversee the reunification was not credible. 

                Sean argues that he provided photographs and letters for Josh in September 

2008. This is supported by testimony from Sean and other witnesses. The State does not 

contest the fact that Sean provided Josh with some photographs and two letters; however, 

        16      Id. (citing H.C., 956 P.2d at 481) (internal quotation marks omitted). 

        17      H.C., 956 P.2d at 483 (quoting E.J.S., 754 P.2d at 750-51). 

        18      Id. (quoting In re B.J., 530 P.2d 747, 749 (Alaska 1975)). 

                                                   -10-                                               6535 

----------------------- Page 11-----------------------

the State persuasively argues that these communications are  " 'token efforts[,]' . . . 

insufficient to satisfy Sean's parental duty." 

                According to the superior court, Sean's "pattern of behavior demonstrates 

that he has failed to objectively manifest a desire to be involved in [Josh]'s life."             Sean 

asserted that he wanted to be a part of Josh's life.         Without more, these manifestations 
of subjective intent do not outweigh the evidence that Sean was inattentive to Josh.19  The 

evidence   described   above   satisfies   the   objective   standard   for   "willful   disregard   of 

parental responsibility" under the first prong of the abandonment test; the superior court 

properly applied the legal standard. 

                We now turn to the second prong of the abandonment test:  whether Sean's 

disregard of parental responsibility led to the destruction of his relationship with Josh. 

The evidence supports this conclusion.           Sean did not meet with Josh in person for two 

years, from September 2007 to September 2009.                His correspondence with Josh was 

limited, and the evidence suggested that his son did not know much about him.                      The 

superior court found that Sean failed to "remedy the disruption" in his relationship with 

Josh.    This finding is supported by evidence of Sean's failure to comply with the case 
plan, to send letters,20   and to attend meetings.  This evidence satisfies the second prong 

of the test for abandonment. There is clear and convincing evidence that Sean abandoned 

Josh; the superior court did not err in reaching this conclusion. 

        19      See also R.J.M. v. State, Dep't of Health & Soc. Servs., 946 P.2d 855, 868 

(Alaska 1997) (explaining that "a parent's stated willingness" to care for children is not 
enough to preclude finding that the child is in need of aid (citing O.R. v. State, Dep't of 
Health & Soc. Servs., 932 P.2d 1303, 1310 (Alaska 1997))). 

        20      The superior court disbelieved Sean's testimony that he sent weekly letters 

to Josh. 

                                                 -11-                                            6535
 

----------------------- Page 12-----------------------

        B.	     The Superior Court Did Not Err In Concluding That Sean Failed To 
                Remedy Josh's Abandonment. 

                Sean challenges the superior court's conclusion that he failed to remedy the 

conduct that placed Josh at substantial risk of harm. Sean argues that the State presented 

insufficient evidence to support this conclusion. Before terminating parental rights under 

AS 47.10.088, the court must find by clear and convincing evidence that the parent has 
not remedied the conduct that placed the child at substantial risk of harm.21               In making 

this determination, AS 47.10.088(b) directs courts to consider any fact relating to the best 

interest of the child including the parent's efforts; the history of harmful conduct or 

conditions created by the parent; the likelihood that harmful conduct will continue; and 

the likelihood of returning the child to the parent within a reasonable time, considering 

the   child's   age   and   needs.    "The   superior   court   is   entitled   to   rely   on   a   parent's 
documented history of conduct as a predictor of future behavior."22 

                Taken together, the facts suggest that Sean's efforts to remedy harmful 

conditions and conduct were minimal, that his pattern of inattentive conduct contributed 

to Josh's behavioral problems, that this pattern was likely to continue, and that it was 

unlikely     Josh   would    be   returned    to  Sean's   care   in  a  reasonable     time.    Sean's 

correspondence with Josh was limited. Sean's communications with social workers and 

service providers were irregular. There is no evidence suggesting that Sean took serious 

interest in Josh's life beyond stating that he wanted his son back.  For example, Sean did 

not seek information regarding Josh's foster family in Fairbanks, his emotional and 

behavioral problems, or how he was adjusting to his life in Arkansas.  The record is also 

        21	     AS 47.10.088(a)(2). 

        22      Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 74 P.3d 896, 902-03 (Alaska 2003) (affirming trial court determination that parent 
failed to remedy harmful conditions within a reasonable time). 

                                                  -12-	                                              6535 

----------------------- Page 13-----------------------

missing evidence that would show Sean took any initiative to play a role in Josh's life, 

such    as  finding   out   more   about   Josh's    living  conditions    or  trying   to  establish   a 

relationship     with   Josh's   caretakers.     Arkansas     social  workers     had   denied   Josh's 

placement with Sean; it was not clear how long a new determination would take. In light 

of these facts, it appeared unlikely that Sean would address Josh's needs in the near 

future. 

                In his reply brief, Sean asserts that he provided care and support to his son 

the best he could in light of the circumstances.  There is indeed evidence that Sean cared 

for Josh in his first years of life; that when Josh first moved to Alaska, Sean tried to keep 

in touch through webcam; that Sean called Tullar to ask about Josh; and that Sean wanted 

to be a good father to Josh.  These isolated facts are insufficient to disrupt the conclusion 

that Sean failed to remedy the conduct and conditions threatening Josh's well-being. The 

weight of the evidence supports the State's argument that after the State took custody of 

Josh, Sean "took an altogether passive role in parenting" and did not remedy the situation 

as required by AS 47.10.088(a)(2). 

                The superior court found that Sean expected "others would exert all the 

efforts and he could sit back and wait."  According to the superior court, Sean "did not 

show any compulsion . . . to be a parent to [Josh].  Instead, he appeared content to let it 

happen to him if it would."        The court also found that Sean's lack of monitoring and 

initiative caused a "disruption in the parent-child relationship" and that Sean failed to 

change his conduct "in any meaningful way over the course of the case."  Although the 

superior     court  did   not  list  the  factors   identified   in   AS   47.10.088(b),   its   findings 
demonstrate a thorough consideration that satisfies the requirements of this provision.23 

        23      See Seth D. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 175 P.3d 1222, 1226 n.5 (Alaska 2008) ("[T]he superior court made findings and 
                                                                                        (continued...) 

                                                  -13-                                              6535 

----------------------- Page 14-----------------------

The superior court did not err in concluding that Sean failed to remedy the harmful 

conduct or conditions that rendered Josh a child in need of aid. 

       C.	     The   Superior   Court   Did   Not   Err   In   Concluding   That   The State 
              Engaged In Reasonable Reunification Efforts. 

               Sean   challenges   the  superior  court's  conclusion   that  the  State  made 

reasonable efforts to reunite him with Josh.       Sean argues that there was insufficient 

evidence in the record to support this conclusion.       Before terminating parental rights 

under AS 47.10.088, the court must find by clear and convincing evidence that the State 

made timely and reasonable efforts to provide services to the family for the purpose of 

reunification.  Alaska Statute 47.10.086 elaborates on this requirement.  The State must: 

               (1) identify family support services that will assist the parent 
               or guardian in remedying the conduct or conditions in the 
              home that made the child a child in need of aid; 
               (2) actively offer the parent or guardian, and refer the parent 
               or guardian to, the services . . . whenever community-based 
               services are available and desired by the parent or guardian; 
               and 
               (3) document the department's actions . . . .24 

       23      (...continued) 

a conclusion that appear to satisfy [AS 47.10].011(8).") 

       24     AS   47.10.086. 

                                             -14-                                         6535 

----------------------- Page 15-----------------------

The State has some discretion in determining what efforts to pursue and whether the 
timing is reasonable.25     A parent's willingness to participate in services is relevant to the 

scope of the efforts OCS must provide.26 

                The superior court found that OCS created three reunification plans, first 

requiring Sean to write letters to Josh, next requiring him to meet with Josh's counselor, 

and finally facilitate meetings between Sean, Lois, Trevor, and later Josh.                  OCS also 

provided paternity testing, requested a home study through the Interstate Compact on the 

Placement   of   Children,   conducted   regular   meetings,   and   participated   in   mediation 

sessions.     The record contains evidence that Tullar and her colleagues at OCS stayed 

abreast of Josh and Sean's situation, tried to maintain contact with Sean, encouraged 

Sean to reconnect with Josh under the terms of the case plan, and tried to help Sean 

navigate the Arkansas child protection system.            OCS workers continued to coordinate 

efforts after Josh relocated to Arkansas.           Based on this evidence, the superior court 

concluded that "OCS's efforts . . . were reasonable, tenacious, suited to their purpose and 

unsuccessful." 

                The record includes some contrary evidence.               OCS had some difficulty 

bringing reunification plans into effect and balanced the goal of reunification against 

        25      See Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska 2005) ("In determining 

reasonable efforts, we permit the state to consider the 'amount of time available' for 
reunification,   considering   how   long   the   child   has   been   in   foster   care   and   whether 
allowing more time for reunification would not be in the child's best interests." (citing 
G.C. v. State, Dep't of Health & Soc. Servs., 67 P.3d 648, 653 & n.23 (Alaska 2003))); 
see also G.C., 67 P.3d at 653 (noting that opportunity for reasonable efforts was limited 
by parent's incarceration). 

        26      Cf. Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs.,   204   P.3d   1013,   1019-21   (Alaska   2009)   ("[A]   parent's   demonstrated   lack   of 
willingness to participate in treatment may be considered in determining whether the 
state has taken active efforts [under ICWA].") (internal quotation marks omitted). 

                                                  -15-                                            6535
 

----------------------- Page 16-----------------------

other goals.      There were break-downs in communication between OCS, the Arkansas 

social   workers,   and   Fennessee.       OCS   workers   sought   voluntary   relinquishment   of 

parental rights and were cautious about reintroducing Sean and Josh.                        These efforts 

reflect OCS's interest in finding a permanent and stable living arrangement for Josh and 

a concern that contact with Sean might upset Josh.  Not all of OCS's efforts were aimed 

directly at placing Josh in Sean's care or protecting Sean's visitation rights, but the fact 

that OCS helped facilitate Josh's placement outside the father's home does not undercut 
the conclusion that OCS engaged in reasonable efforts in this case.27  The superior court 

found   that   Sean's   "failure   to   participate   in   his   case   plan   has   prevented   OCS   from 

progressing in its efforts to reunify [Josh] with [Sean].  The fault for this is [Sean]'s and 
not the department's."       This finding is supported by the record.28           The limits of OCS's 

success in connecting Sean with services and introducing him to Josh do not bar the court 

from concluding that the reasonable efforts requirement was satisfied. 

        27       The requirement that OCS engage in reasonable efforts under AS 47.10.088 

helps to ensure that parental rights are not terminated without sufficient cause. The same 
statute   makes   clear,   however,   that   where  the   requirements   are   met,   termination   of 
parental   rights   is   justified   "for   purposes   of   freeing   a   child   for   adoption   or   other 
permanent placement." AS 47.10.088.               By its very terms, this statute permits OCS to 
pursue reunification while considering other permanent placements that may be in the 
child's best interests.      In other words, the statute requires OCS to consider competing 
goals.  See also J.H. v. State, Dep't of Health & Soc. Servs., 30 P.3d 79, 88-89 (Alaska 
2001) (rejecting the argument that termination of parental rights was improper where 
parent relied on case plan that was later changed). 

        28       In addition to challenging the legal sufficiency of the evidence under the 

statutory definition of reasonable efforts, Sean appears to challenge the factual finding 
that efforts to reunify him with Josh were unsuccessful because Sean failed to participate. 
Sean   argues   that   OCS's   mistakes   or   lack   of   commitment   to   reunification   caused 
reunification plans to fail.  As the discussion in the text makes clear, there is evidence in 
the record to support the finding that Sean's failure to participate was detrimental to 
reunification; this finding is not clearly erroneous. 

                                                   -16-                                              6535
 

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                OCS caseworkers made efforts to maintain contact with Sean, connected 

him with services, and documented communications as required under the statute.  The 

record provides   clear and convincing evidence that OCS met the statutory requirements 

for "reasonable efforts."  The superior court did not err in reaching this conclusion. 

        D.	     The Superior Court Did Not Err In Concluding That Termination of 
                Sean's Parental Rights Was In Josh's Best Interests. 

                Sean challenges the superior court's conclusion that termination of parental 
rights was in Josh's best interests.29      Under AS 47.10.088(c) and Alaska Child in Need 

of Aid Rule 18(c)(3), the trial court must determine, by a preponderance of the evidence, 

whether termination of parental rights is in the best interests of the child.  In making this 

determination, the court may consider (1) the likelihood of returning the child to the 

parent within a reasonable time based on the child's age or needs; (2) the amount of 

effort by the parent to remedy the conduct or the conditions in the home; (3) the harm 

caused to the child; (4) the likelihood that the harmful conduct will continue; and (5) the 
history of conduct by or conditions created by the parent,30 as well as favorable present 

placements (or lack thereof).31 

        29      Sean also argues that the superior court should not have reached the best 

interest inquiry because the other prongs of the AS 47.10.088 analysis were not satisfied. 
As explained in sections IV.A, IV.B, and IV.C of this opinion, we disagree. 

        30	     AS 47.10.088(b). 

        31      Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 185 (Alaska 2008) 

("[W]e have held that the fact that a child has bonded with her foster parent can be a 
factor in considering whether it is in the child's best interests to terminate a parent's 
rights."); T.F. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 26 
P.3d 1089, 1096 (Alaska 2001) (affirming "superior court's decision to terminate [that] 
depended   in   part   on   its   finding   that   delay   in   permanent   placement   would   harm   the 
twins"). 

                                                  -17-	                                           6535
 

----------------------- Page 18-----------------------

                 The   evidence   in   this   case   supports   the   conclusion   that   termination   of 

parental rights was in Josh's best interests. Josh has found a stable and loving home with 

his step-grandparents Lois and Trevor.   Lois and Trevor have also taken in Josh's three 

half-siblings.    The court heard testimony that Josh needs stability and attention to his 

special needs.       Sean has failed to show his commitment to Josh through regular and 

reliable   contact.     Sean   has   not   demonstrated   the   ability   to   meet   Josh's   needs.  The 

superior court did not err in concluding that termination of Sean's parental rights is in 

Josh's best interests. 

        E.	      Sean's Other Arguments Lack Merit. 

                 1.	     Alaska      Statute    47.10.019     does   not   preclude     termination       of 
                         parental rights in this case. 

                 Sean argues that AS 47.10.019 applies to his case.              This statute provides: 

                Notwithstanding other provisions of this chapter, the court 
                 may not find a minor to be a child in need of aid under this 
                 chapter solely on the basis that the child's family is poor, 
                 lacks adequate housing, or exhibits a lifestyle that is different 
                 from     the   generally    accepted     lifestyle    standard    of   the 
                 community where the family lives.             However, this section 
                 may not be construed to prevent a court from finding that a 
                 child   is   in   need   of   aid   if   the   child   has   been   subjected   to 
                 conduct or conditions described in AS 47.10.011- 47.10.015. 

Sean asserts that he "was not steadily employed and had indigent status."                   He suggests 

that   he   was   faced   with   a   dilemma:  He   was   criticized   if   he   did   not   have   work   and 

"blamed" when his work schedule interfered with attending meetings.                      The record and 

factual findings do not support this argument.  Sean could have communicated his work 

schedule more clearly.        Instead the record suggests that Sean relied on others to keep 

track of meetings concerning Josh.  The superior court found that Sean expected "others 

would exert all the efforts" and "give him his child," rather than taking the initiative 

necessary to reunite with Josh.          In light of these facts, AS 47.10.019 does not preclude 

                                                   -18-	                                             6535
 

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the superior court's conclusions that Josh was a child in need of aid and that termination 

of Sean's parental rights was proper. 

                2.      Alaska Statute 47.10.080(o) does not apply to this case. 

                Sean    also   draws   our   attention   to   AS  47.10.080(o).     This    provision 

authorizes termination of parental rights where the parent is incarcerated.           Sean suggests 

that this standard should have been applied in his case because he spent three weeks in 

county jail while Josh was in OCS custody.             In Rick P. v. State, Office of Children's 
Services,32 we explained: 

                [Alaska     Statute   47.10.080(o)]     is  merely    an   additional, 
                independent authority OCS may rely on to terminate rights in 
                cases where the parent's incarceration itself is likely to injure 
                the    child   in   the   future;    it  does    not   supplant    AS 
                47.10.088(a)(1)(A)        and    47.10.011[]      as    grounds     for 
                terminating      the   rights   of   a  parent    who    [meets     the 
                requirements under those statutes].[33] 

The     superior     court   was    not    required    to   apply    AS     47.10.080(o)      because 

AS 47.10.088(a)(1)(A) provides sufficient authority for terminating parental rights in this 

case. 

                3.      Admission of Exhibit 11 does not constitute reversible error. 

                Sean also argues that the trial court improperly found that placement with 

him was denied as result of his non-cooperation with the Interstate Compact on the 

Placement of Children home study.            However, the superior court did not make this 

specific finding.  At most, the court considered evidence to that effect.  While this does 

        32      109 P.3d 950, 957 (Alaska 2005). 

        33      Id. 

                                                 -19-                                             6535 

----------------------- Page 20-----------------------

not appear to be error,34 even if error it was harmless because there was sufficient other 

evidence in the record to support the superior court's conclusion that termination was 

justified under AS 47.10.088. 

V.      CONCLUSION 

                For the above stated reasons, we AFFIRM the superior court's termination 

of Sean's parental rights. 

        34      A memo authored by Carl Scott, who oversaw the home study conducted 

under the Interstate Compact on the Placement of Children, suggested that Sean failed 
to cooperate with the home study.         This memo was admitted at trial as Exhibit 11.           At 
first Sean objected to the admission of the memo because it was offered before the 
record's author had authenticated it; Carl  Scott was later called to testify, apparently 
meeting that objection, because Sean had conceded that the memo was admissible as a 
record kept in the ordinary course of business.  The superior court admitted the memo, 
noting   that   its   probative   value   was   limited. Admission   of   the   memo   was   at   most 
harmless error.  Aside from the memo, there is testimony in the record that the Arkansas 
Department of Health and Human Services denied placement because the Interstate 
Compact investigators were not able to meet with Sean. There is also sufficient evidence 
in the record that is unrelated to the home study and that supports the superior court's 
conclusions. 

                                                 -20-                                             6535 
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