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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Darcy F. v. State, Dept. of Health & Social Services, Office of Children's Services (4/22/2011) sp-6557

Darcy F. v. State, Dept. of Health & Social Services, Office of Children's Services (4/22/2011) sp-6557, 252 P3d 992

        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 

DARCY F.,                                     ) 
                                              )       Supreme Court No. S-13964 
                       Appellant,             ) 
                                              )       Superior Court No. 1JU-08-00070 CP 
        v.                                    ) 
                                              )       O P I N I O N 
STATE OF ALASKA,                              ) 
DEPARTMENT OF HEALTH &                        ) 
SOCIAL SERVICES, OFFICE OF                    ) 
CHILDREN'S SERVICES,                          ) 
                                              ) 
                       Appellee.              )       No. 6557 - April, 22, 2011 
                                              ) 

               Appeal from the Superior Court of the State of Alaska, First 
               Judicial District, Juneau, Philip M. Pallenberg, Judge. 

               Appearances:       Sharon Barr, Assistant Public Defender, and 
               Quinlan Steiner, Public Defender, Anchorage, for Appellant. 
               Megan R. Webb, Assistant Attorney General, Anchorage, and 
               Richard A. Svobodny, Acting Attorney General, Juneau, for 
               Appellee.      Dianne   Olson,   Law   Office   of   Dianne   Olson, 
               Guardian ad litem. 

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

               PER CURIAM. 

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

                A mother appeals the termination of her parental rights to her daughter, who 
qualifies for protection under the Indian Child Welfare Act (ICWA).1                 The mother has 

a history of severe chronic pain and other severe medical problems that led to substance 

abuse.     The mother argues that the State of Alaska made insufficient active efforts to 

address the medical conditions underlying her substance abuse. 

                Whether the State made active efforts as required by ICWA is a mixed 
question of law and fact.2      As for the facts, we review the superior court's findings for 

clear error.3   As for the law, we review de novo whether the superior court's findings 

satisfy the requirements of ICWA.4 

                                                          5 
                The mother in this case, Darcy F.,  argues that the Office of Children's 

Services (OCS) failed to make active efforts because it did not actively help her address 

the medical issues that caused her chronic pain and led to her substance abuse.                     She 

suggests   that   after   a   social   service   provider   recommended   she   receive   a   medically 

managed detoxification, OCS should have talked to her about where to go for the detox, 

        1       See 25 U.S.C.  1903(4). 

        2       See Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 235 P.3d 203, 210 (Alaska 2010) (quoting Sandy B. v. State, Dep't of Health & 
Soc. Servs., Office of Children's Servs., 216 P.3d 1180, 1186 (Alaska 2009)).   The State 
must prove by clear and convincing evidence that it made "active efforts . . . to provide 
remedial services and rehabilitative programs designed to prevent the breakup of the 
Indian family and that these efforts have proved unsuccessful."                25 U.S.C.  1912(d) 
(2006). 

        3       Dale H., 235 P.3d at 209 (citingBrynna B. v. State, Dep't of Health & Soc. 

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

        4       Id. at 210 (citing Carl N. v. State, Dep't of Health & Soc. Servs., Div. of 

Family & Youth Servs., 102 P.3d 932, 935 (Alaska 2004)). 

        5       Pseudonyms have been used throughout this opinion to protect the identities 

of the parties. 

                                                   -2-                                            6557
 

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

made referrals, or helped her to check in.  She also faults OCS for not discussing pain 

management with her or making a referral to a pain management center, especially at the 

beginning of the case when she would have had time to make more progress. 

                The State responds that Darcy refused until shortly before trial to provide 

social workers with a release of medical information that would have allowed them to 

communicate with health providers, that each of Darcy's case plans indicated she should 

go to an emergency room for detox if necessary, and that "Darcy had a lengthy history 

of obtaining requisite medical care and continued to obtain medical care on her own 
without seeking assistance from OCS."6 

                We agree with the conclusion of Superior Court Judge Philip M. Pallenberg 

that there is 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."7     As    Judge    Pallenberg    recognized      in  his  oral   conclusions,     an 

        6       Though the record in this case does not contain medical records from earlier 

in Darcy's life, it is clear from Darcy's self-reporting that she has a lengthy history of 
obtaining medical care when needed.  Darcy testified to the superior court in June 2010 
that she had worked with doctors to resolve her medical problems, including kidney 
stones, and that she hoped to have jaw reconstruction surgery in the near future.                  After 
moving to Juneau in 2009, and thus while her case plan was in effect, Darcy traveled to 
Anchorage for treatment of her kidney stones and perhaps also a heart attack.                       She 
reported having reconstructive surgery on her jaw, or perhaps several surgeries, earlier 
in life.  She also described receiving serious dental work, hospitalization for ovarian 
cysts,   and,   during   her   youth,   admission   to   a   mental   health   unit   and   treatment   for 
depression and anxiety. 

        7       These active efforts include the following: (1) after Darcy gave birth, while 

she remained in the hospital in Anchorage, staff there and other social workers took 
numerous steps to secure future housing for her, the baby (Danielle F.), and the baby's 
father (Frank S.); (2) OCS assigned a secondary worker to Darcy while she remained in 
Anchorage to serve as a local contact; (3) OCS arranged for supervised visits between 
Darcy   and   Danielle   at   OCS,   then   at   the   Cook   Inlet  Tribal   Council   (CITC),   with 
                                                                                         (continued...) 

                                                   -3-                                               6557 

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

answer to Darcy's substance abuse problems "probably . . . is going to require a solution 

to her physical problems."  But the court accurately noted that "there have been a lot of 

situations where OCS has asked things of [Darcy] that weren't unreasonable that didn't 
happen."8    "[O]ne can always say maybe there's one more thing we could do that would 

        7       (...continued) 

Danielle's   foster   care   provider   and   a   nurse   helping   Darcy   to   learn   how   to   address 
Danielle's needs, until Darcy requested they stop; (4) OCS arranged for a variety of 
medical and therapeutic services for Danielle; (5) OCS developed a case plan for Darcy 
identifying   specific   concerns   and   services   to   address   those   concerns,   discussed   the 
services with Darcy, provided bus passes, and wrote a letter to assist with housing; (6) 
OCS   repeatedly   followed up   with   Darcy   regarding   her   plan   while   she   remained   in 
Anchorage; (7) OCS reminded Darcy about her obligatory drug tests when she began 
missing them; (8) CITC provided a substance abuse assessment, but Darcy did not follow 
most of its recommendations; (9) CITC also offered access to a mother's group and 
employment training, neither of which Darcy used; (10) OCS continued making efforts 
to stay in communication with Darcy after her arrival in Juneau in January 2009, despite 
many      obstacles,     including     Darcy's     mother     eventually     saying    that   all   future 
communications should be via letter, but hanging up before providing an address; (11) 
after re-establishing contact with Darcy in May 2009 by successfully guessing that she 
might be at the Bergman Hotel and leaving a message there, OCS updated her case plan 
and provided another letter to assist with housing; (12) OCS made numerous further 
efforts to arrange for substance abuse assessments, drug tests, and treatments; (13) after 
Darcy fell asleep and became volatile during an assessment at the Rainforest Recovery 
Center (RRC), OCS arranged for an assessment at a different institution, the SouthEast 
Alaska Regional Health Consortium (SEARHC); (14) SEARHC then offered weekly 
services to Darcy, but Darcy participated only sporadically; (15) SEARHC also helped 
Darcy apply for residential treatment programs, explained how to get a physical and TB 
test, and referred her for an obligatory mental health assessment; (16) RRC offered Darcy 
inpatient   treatment   from   which   she   was   discharged   for   violating   the   program's   no- 
smoking rules; (17) RRC admitted Darcy again for outpatient treatment; (18) and, finally, 
OCS   continued   to   monitor   Darcy's   progress   and   efforts   up   to   the   beginning   of   the 
hearings by calling various service providers.  The commitment of OCS's workers in this 
case appears exemplary. 

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

                                                                                          (continued...) 

                                                   -4-                                                6557 

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

work, maybe if [Darcy] had some more time, another surgery, another medical visit 

might find the answer." But the court reasonably concluded that "at some point there has 

to be an end to that." 

               We join in Judge Pallenberg's view that the decision in this case does not 

imply a moral judgment of Darcy.  As the judge concluded in his oral decision: 

               I don't feel good about the result.  It is a sad one.   I hope that
 
               when [Danielle] is old enough to understand all of this, that
 
               she knows what I know now, which is that [her mother] loves
 
               her, that [her mother] did not give up on her, that she was not
 
               adopted because her mother abandoned her or didn't love her
 
               or didn't want her, but rather because her mom has a lot of
 
               challenges in her life that just don't make it possible for her
 
               to meet her needs.
 

               For the reasons stated above and in the superior court's written opinion,
 

which we attach in relevant part as an appendix, we AFFIRM the termination of parental 

rights. 

        8      (...continued) 

Servs., 204 P.3d 1013, 1021 (Alaska 2009) ("Where services have been provided and a 
parent has demonstrated a lack of willingness to participate or take any steps to improve, 
this court has excused minor failures by the state and rejected arguments that the state 
could possibly have done more."). 

                                               -5-                                          6557
 

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

                                          APPENDIX
 

In the Matter of:                     ) 
                                      ) 
D.F.                                  ) 
Date of Birth: 7/19/08                 ) 
                                      )               Case No. 1JU-08-70 CP 
A Child Under the Age                  ) 
of Eighteen (18) Years.                ) 
__________________________ ) 

           FINDINGS, CONCLUSIONS, AND ORDER TERMINATING
 
                  PARENTAL RIGHTS AND RESPONSIBILITIES1
 

                                           [Darcy F.]
 

               This matter came before the court for hearing on April 12 and 13, June 29 

and July 2, 2010. 

               Having     considered    the  allegations   of  the   petition  and   the  evidence 

presented, the court makes the following FINDINGS AND CONCLUSIONS, in addition 

to the oral findings and conclusions made on July 2, 2010, which are incorporated herein 

by reference. 

                                    FINDINGS OF FACT 

               Darcy F., mother of Danielle F., has a significant history of substance abuse. 

She    has  used   opiates  since   age  17,  first  as  prescribed  for  pain   following   a  jaw 

reconstruction surgery, which progressed to buying opiates and other drugs on the street. 

During her pregnancy with Danielle, Darcy was chronically abusing street drugs, coming 

to her doctor's appointments with withdrawal symptoms and vomiting, which resulted 

        1      The superior court's order has been edited to conform to our style and 

formatting requirements.       Citations to the record have been silently omitted, and real 
names   have   been   silently   replaced   with  pseudonyms   to   protect  the   identities   of   the 
parties.   Other alterations are indicated by ellipses and brackets. 

                                                -6-                                            6557 

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

in weight loss.   In order to help Darcy gain appropriate weight during pregnancy, Darcy 

was prescribed methadone for the remainder of the pregnancy, with the understanding 

that, because she had violated previous pain [contracts], she would be prescribed no more 

methadone once the baby was born.            In addition to the methadone prescription, Darcy 

was also smoking marijuana during the pregnancy, as evidenced by Danielle's urine drug 

screen at birth testing positive for THC. 

                On July 21, 2008, two days after Danielle's birth at Alaska Native Medical 

Center (ANMC) in Anchorage, OCS received a report about Danielle's positive drug 

screen for marijuana and about the methadone use during the pregnancy.                    Darcy was 

discharged from ANMC on July 24th, but Danielle remained in the hospital for the next 

month due to her premature birth, dependency to methadone, and significant feeding 

issues.    Because Danielle was born addicted to methadone, her withdrawal symptoms, 

being jittery and inconsolable, began within her second day of life, so methadone was 

prescribed.   While in the hospital, her doctor tried to wean Danielle off methadone three 

times,   eventually   doing   a   slower   wean   that   was   still   occurring   at   the   time   of   her 

discharge. 

                On August 28, 2008, OCS took emergency custody of Danielle because the 

hospital refused to discharge her to Darcy, who was assessed as an unsafe caregiver and 

unable to meet Danielle's high medical needs.             For example, Darcy was observed to 

leave Danielle unwrapped after changing her diapers, to wake her up after she had been 

fed and settled, and to not [follow] directions from the nursing staff to let the infant rest. 

Also, during the rooming-in period when Darcy was supposed to stay with her child 24 

hours per day and provide complete care for her child, she would be away from the room 

for prolonged periods of time, requiring the hospital staff to feed the baby and change 

diapers.   When she was in the room, Darcy was observed to nod off, once nearly falling 

out of a rocking chair, to stumble over the infant and to fall asleep while standing up. 

                                                  -7-                                            6557
 

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

Danielle's pediatrician . . . concluded that discharging the infant to Darcy would create 

a "serious risk for neglect and infant death."            The doctor also believed the risk was 

exacerbated by the likelihood that Darcy would be cut off from prescription methadone, 

and that the "florid" withdrawal would result in an "untenable situation for a [newborn] 

infant."    At   the   time   of   emergency   custody,   placement   of   Danielle   with   her   father, 

Frank S., was not an option because he was homeless and unable to provide a safe home 

for the child or meet her medical needs.  Frank subsequently relinquished his parental 

rights to Danielle. 

                For the first [eight and a half] months of custody, Danielle was placed with 

. . . a therapeutic foster home in Anchorage . . . [that] specializes in medically fragile 

babies.    [The   woman      who    runs   the  home]    testified   about   the  problems     Danielle 

experienced while being weaned off methadone, including her inability to self-regulate 

and   calm   herself   down,   her   extreme   need   for   routine   and   an   environment   free   of 

stimulation, and the diaper rash burns caused by the chemicals coming through her 

system during the methadone wean. 

                On May 13, 2009, after two eye operations that allowed her to be medically 

cleared to leave Anchorage, Danielle was placed in Juneau in the home of her paternal 

aunt and uncle . . . .   [Her aunt] testified that although [Danielle] has made considerable 

improvements, she still has significant delays . . . requiring weekly speech and physical 

therapy, and she still needs a very structured environment in order to function as well as 

she can.   In May 2010, Danielle was placed in a new foster home in Juneau, where she 

remains while OCS locates a permanent foster home. 

                After Danielle entered state custody, Darcy remained in Anchorage for four 

months.    While there, Darcy worked with Cook Inlet Tribal Council (CITC), [which] 

offered   services   for   substance   abuse,   parenting,   employment/training,   housing,   and 

supervised visitation.   Visitation was initially twice weekly, but was decreased to once 

                                                  -8-                                             6557
 

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

weekly   because   [of]   the   disruption   it   caused   to   Danielle,   in   part   caused   by   Darcy 

repeatedly   over-stimulating   Danielle,   despite  instructions   otherwise,   by   taking   flash 

photos or changing her clothes unnecessarily during the visits.  Darcy also was provided 

with parenting instruction during the visitations and was invited to Danielle's medical 

appointments, only some of which she attended.  Darcy was also offered, and provided 

with, monthly bus passes through OCS and a letter for housing. 

                After the baby was born, Darcy continued to abuse non-prescription drugs. 

A urine drug screen collected on September 9, 2008, was positive for marijuana/THC, 

cocaine, opiates, and benzodiazepines.   Darcy failed to complete any of the 19 random 

[urine analyses (UAs)] scheduled in Anchorage thereafter.               In November 2009, Frank 

was charged and later convicted of trying to deliver non-prescription methadone to her. 

                On October 30, 2008, Darcy completed her substance abuse assessment 

through CITC, which recommended outpatient treatment.  Darcy was to begin her pre- 

treatment at CITC on December 1st and to enroll in Dena [A.] Coy services the following 

day, but she never did so. 

                In January 2009, Darcy moved back to Juneau in the mistaken belief that 

Danielle would be moving to Juneau that month.              After Darcy's return, OCS provided 

her with monthly bus passes, payment to obtain a Rainforest Recovery Center (RRC) 

assessment, and payment for the random UA/hair follicle testing. OCS has also provided 

a letter of support to help move her higher on the waiting list for low-income housing. 

Darcy did obtain stable housing in September 2009.  OCS was unable to offer parenting 

classes to Darcy because the timing of the classes did not coincide with the caseworker's 

ability to contact her. 

                [T]he OCS worker on this case . . . testified that she met with Darcy in 

January 2009, but due to Darcy's homelessness, and unwillingness to provide contact 

information, the next meeting was not until May 2009.  [The OCS worker] tried to meet 

                                                  -9-                                            6557
 

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

monthly with Darcy thereafter; however, due to Darcy's trips to Anchorage, and her 

resistance to meeting with [the OCS worker], meetings occurred only in July and August 

2009, and January . . . and March 2010. 

                A primary goal of Darcy's case plan was to achieve sobriety, and so she was 

required to obtain another substance abuse assessment, follow its recommendations, and 

submit to random drug testing.          RRC attempted an assessment, but was unsuccessful 

because Darcy was falling asleep during the assessment and becoming very volatile. On 

July 29, 2009, Darcy completed a hair follicle/UA test, which was positive for cocaine, 

opiates,    marijuana,    and   methadone.      Darcy     was   asked    to  obtain   additional    [hair 

follicle/UA]   testing   at   later   dates   but   did   not   do   so. [On]   August   28,   2009,   Darcy 

completed   her   substance   abuse   assessment  with   [a   social   worker   at]   the   SEARHC 

Behavioral Health Clinic.         Darcy told [the SEARHC worker] that she "tries to" smoke 

marijuana daily, even doing so the day of her assessment, and that she buys methadone 

on the street "as much as possible when she can afford to buy it." She also stated that she 

uses "more than she intended[,] trying to limit herself without success" and notices "signs 

of withdrawal when she tried to stop or days when she could not afford to buy it."  The 

assessment recommended long-term inpatient treatment, and [the SEARHC worker] 

testified that she has worked with Darcy to get her into inpatient treatment, but that Darcy 

never completed the application process.  Darcy did enter RRC in March [2010], but was 

discharged shortly thereafter for not following the non-smoking rules. She then attended 

outpatient treatment, but was discharged as incomplete due to her having to travel to 

Anchorage for [medical] issues.          Darcy testified on June 29, 2010, that she has been 

sober for the previous six weeks and [is] attending outpatient treatment at RRC. 

                Another goal of Darcy's case plan was to work on the medical problems 

that were causing her pain and drug-seeking behavior.  Darcy testified that she has been 

                                                  -10-                                            6557
 

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

working with medical doctors, and hopes to have jaw reconstructive surgery in the near 

future. 

                After   Danielle's   return   to   Juneau   in   May   2009,   OCS   resumed   weekly 

visitation between her and Darcy.           [The OCS worker in Juneau] who supervised these 

visits . . . testified that between July 2009 and April 2010, Darcy missed 18 of the 44 

scheduled visits, was 5-14 minutes late to about a quarter of the visits she attended, and 

at times would leave the visit for 10-25 minutes at a time, and a few times left the visits 

early.   Her interaction with Danielle during the visits was unpredictable as well, which 

made it difficult for her and the child to bond.  Darcy was frequently stressed, anxious, 

and physically tense during visitations, and her agitation would cause Danielle to become 

upset, shown by crying and at times becoming stiff as a board.  Despite the attempts by 

[the OCS worker in Juneau] and the foster parents to make the visits as successful as 

possible, Darcy has not been able to bond with her child. 

                Darcy's participation in the court hearings concerning the termination trial 

was   problematic.      She   was   over   [one   and   a   half]   hours   late   to   the   first   day   of   the 

termination trial, and when she did appear, she had difficulty staying awake . . . [and 

performing] basic tasks, like swallowing water without it dripping out of her mouth.  She 

also missed a scheduling date on May 3 and a trial date on June 3, 2010. 

                                   CONCLUSIONS OF LAW 

                There is no doubt that Darcy has been dealt a tough hand in life and her 

difficulties are not her fault.  She does not take drugs to get high or to party; instead, she 

does so to self-medicate due to life-long medical problems, numerous surgeries on her 

jaw, and the resulting pain.   There is al so no doubt that Darcy dearly loves her child and 

wants to raise her; however, Danielle is almost two years old and in need of a permanent 

home, and Darcy remains unable to manage her own care, let alone a child with really 

                                                  -11-                                            6557
 

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

high needs. It is hoped that Danielle will understand [some day] that Darcy loves her and 

did not abandon her or otherwise give up on her. 

              1.     There is clear and convincing evidence that Danielle is a child in 

need of aid pursuant to AS 47.10.011(6) and (10). Danielle suffered substantial physical 

harm while she was withdrawing from the methadone addiction with which she was born, 

as evidenced by the physical pain caused by the acidity of her feces as the drug was 

eliminated, and the developmental delays she has experienced.  Also, Danielle is at risk 

of substantial physical harm due to her high needs and her mother's inability to care for 

her, which is in part due to Darcy's addiction to opiates and marijuana. 

              2.     There is clear and convincing evidence that Darcy has failed within 

a reasonable time to remedy the conduct or conditions in the home that put the child at 

substantial risk of harm.  This finding may create the impression of a moral judgment, 

but it is rather a recognition that two years have passed; although one hopes that Darcy 

can overcome [the] addictions and medical issues that cause her inability to care for her 

child, it is not likely that these conditions will change.  Hope is not enough.   Moreover, 

the outpatient treatment that Darcy is now attending is not enough to solve her problems. 

Fairly rudimentary things have not yet been done. There will need to be a solution to her 

physical problems, followed by a longer-term treatment program.        Darcy cannot get to 

steps two to five without completing step one. 

              3.     There is clear and convincing evidence that reasonable and active 

efforts have been made toprovide remedial services and rehabilitative programs designed 

to prevent the breakup of the Indian family, and these efforts have been unsuccessful. 

Although there are always more things that could have been done, active efforts have 

been made to get Darcy to participate in substance abuse treatment.         At some level, 

especially with respect to substance abuse, others cannot walk Darcy through treatment; 

fighting an addiction has to come from within. 

                                            -12-                                      6557
 

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

               4.     It is contrary to the welfare of the child to return home. 

               5.     There is evidence beyond a reasonable doubt, including the testimony 

of . . . a qualified expert pursuant to the Indian Child Welfare Act, that return of the child 

to Darcy's custody is likely to result in serious emotional and/or physical damage to the 

child.  Although one cannot predict the future with certainty, the court is convinced 

beyond a reasonable doubt of this likelihood. 

               6.     The best interests of the child will be promoted by terminating Darcy 

F.'s parental rights.   . . . [A]t some point there has to be an end to the attempts to reunify. 

Although Danielle is not yet in an adoptive home, it may be easier to find such a home 

after termination of parental rights. 

               IT IS THEREFORE ORDERED that the parental rights and responsibilities 

of Darcy F. are terminated under AS 47.10.088 and that the child is committed to the 

custody of the Department of Health and Social Services for adoptive purposes pursuant 

to AS 25.23.010 et seq. or for other permanent placement.           The Commissioner of the 

Department of Health and Social Services is authorized to consent to an adoption of this 

child or is authorized to consent to a guardianship. 

               DATED:          7/26/10 

                                                    /s/	   Philip M. Pallenberg 
                                                           SUPERIOR COURT JUDGE 

                                              -13-	                                        6557
 
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