| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Roy S. v. State, Dept. of Health & Social Services, Office of Children's Services (6/15/2012) sp-6680
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ROY S., )
) Supreme Court No. S-14377
Appellant, )
) Superior Court No. 3AN-08-00244 CN
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 6680 - June 15, 2012
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter A. Michalski, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for
Appellant. Michael G. Hotchkin, Assistant Attorney General,
Anchorage, and John J. Burns, Attorney General, Juneau, for
Appellee. Anita Alves, Assistant Public Advocate, and
Richard Allen, Public Advocate, Anchorage, for Guardian ad
Litem.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices.
PER CURIAM.
----------------------- Page 2-----------------------
1. Jade is the biological daughter of Roy and Sheila.1 Jade is an Indian
child as defined in the Indian Child Welfare Act (ICWA).2 Roy and Sheila have two
older children and Sheila has a daughter from a previous relationship. Between 1998 and
2007, the Office of Children's Services (OCS) received at least 12 reports of drug abuse
and child neglect in the family. Before Jade's birth in September 2004, the older
children were transferred to OCS custody for two years. Roy and Sheila attempted to
complete drug treatment programs but were unsuccessful. Sheila relapsed while
pregnant with Jade; her discharge report from the treatment program indicated she tested
positive for cocaine in August 2005 and stopped attending treatment sessions or
contacting drug counselors in October 2005. Roy was discharged for positive drug tests
and missing treatment. His discharge report noted his risk of relapse was "high" and he
"did not demonstrate the commitment" to maintain a sober lifestyle.
2. In February 2008, investigators found Sheila at a hotel with drug
paraphernalia in the room and arrested her on an outstanding warrant. Sheila did not
reveal the children's location. Roy was in Washington state and was difficult to contact.
OCS located the children at a family friend's home in July 2008 and placed them in
emergency custody. While Jade was generally healthy, her teeth were described as in
"horrible" condition, blackened and with visible holes in the top teeth.
3. Both Roy and Sheila lived outside of Alaska for several months after
their children were taken into custody. Roy was often unreachable; upon returning to
Alaska in February 2009, he canceled or failed to attend several meetings with OCS
social workers. OCS often did not have a working number to reach him. Roy
participated in the Ernie Turner Center's detoxification program in February 2010. He
1 Pseudonyms are used throughout to protect the privacy of the parties.
2 25 U.S.C. § 1903(4) (2006).
-2- 6680
----------------------- Page 3-----------------------
was diagnosed with opioid dependence with a recommendation for six months'
high-intensity residential treatment. Roy told counselors that he had used heroin daily
for three years, although he later testified he only said this to get into a residential
treatment program and comply with the terms of his case plan. Roy entered the Salvation
Army residential treatment program in February 2010 and was discharged in May 2010
for the use of a contraband cellphone. Roy stopped participating in drug tests from
June 2010 to early 2011.
4. Since being taken into OCS custody in July 2008, Jade has lived in
five separate placements. OCS investigated several relative placements. Multiple uncles
were unavailable to take the children. Jade was briefly placed with a great-aunt but
removed when the great-aunt failed her background check due to a negative reference
from a mental health clinician. Jade's paternal grandmother, Donna, who lived in
Illinois, was also identified as a potential placement in the fall of 2008. Because she
lived in another state, placing the children with Donna necessitated opening a request
with Illinois under the Interstate Compact for the Placement of Children (ICPC), which
OCS did in November 2008.
5. From January to July 2009, the children lived with their maternal
grandmother, Marilyn. The OCS social worker at the time testified that she helped
Marilyn with housing, clothing vouchers, furniture, heating assistance, transportation,
and referrals to food banks and day care. Marilyn struggled financially and was in
treatment for alcoholism. She had trouble getting Jade to medical and dental
appointments and told OCS on several occasions that although she wanted to keep the
children, she was struggling with the financial responsibility.
6. After a team meeting in July 2009, OCS moved Jade to a foster
family, the Mackenzies. The superior court reviewed the decision to send Jade to the
Mackenzies at least five times:
-3- 6680
----------------------- Page 4-----------------------
* Permanency Hearing (August 2009): OCS informed representatives of Jade's
tribe that Jade was placed with the Mackenzies. The tribal representative
expressed concern that the siblings were not placed in the same home, but OCS
responded that no placement had been found to take all the children. The tribal
representative stated: "As long as they're doing fine . . . we'll agree to the
placement." The court therefore found that the children's current placements were
"in-state, appropriate, and in their best interests." No party objected to these
findings or appealed the placement decision. Following the hearing, in
early 2010, Jade's maternal cousin, Delia, identified her own home in Alakanuk
as a potential placement for Jade.
* Termination Trial, Part I (June 2010): Roy clarified at the outset of the
termination trial that his primary goal was reunification with Jade and that he
wanted Jade placed with her paternal grandmother, Donna, only if reunification
was impossible. Roy later noted that he was willing to consent to an adoption by
Donna. The superior court found it was not in Jade's interests to live with Donna
in Illinois. The court also found that Jade "understands the realness of her
connection" to her biological parents and the Mackenzies but did not necessarily
have the same connection to Donna. Again, there was no objection to this finding,
and no party appealed it. The court continued the termination trial to give the
parents another chance to make necessary lifestyle changes.
* Permanency Hearing (September 2010); Permanency Order (October 2010):
The court recognized the tension between the ICWA placement requirements and
the importance of keeping Jade close to her family in Anchorage. Regarding
placement, the court stated that "in the long run it's going to be interesting to
see . . . what the evidence finally drives us to. But for now, I think the state has
made its proofs." The court clarified that it was finding good cause for Jade to
-4- 6680
----------------------- Page 5-----------------------
stay with the Mackenzies. No party objected to this ruling. The superior court
committed its oral ruling to writing: "[T]he court finds that at this time there is
good cause to go outside of the placement preferences stated in 25 U.S.C.
§ 1915." No party appealed the order.
* Termination Trial, Part II (March 2011): Months after the trial court continued
the termination proceeding, the trial recommenced. At that point, it became
apparent that the parents were continuing to have difficulties following their case
plans. Roy had stopped participating in drug tests for several months. Sheila was
discharged from her outpatient treatment and failed to return to treatment. At trial,
Roy noted his willingness to give consent for his mother Donna or Jade's cousin
Delia, who lived in Alakanuk, to adopt Jade. OCS argued the trial should go
forward and that, after 20 months of Jade's placement with the Mackenzies, there
was good cause to deviate from the ICWA placement preferences. For the first
time, Roy and Sheila argued that if OCS had "done what it should have done back
in 2008" regarding placement, "we would have had . . . an entirely different
result." The superior court ruled that the decision not to place Jade in Illinois with
Donna was reasonable in light of the goal of maintaining Jade's ties with family
in Anchorage: "[W]e can understand that intention to maintain the tie to the
extended family here. So I don't think that the choice not to place with [Donna]
early on was . . . unreasonable."
* Termination Order (May 2011): The superior court ruled that good cause
continued to exist to deviate from the ICWA placement preferences contained in
25 U.S.C. § 1915(b), based upon testimony of Dr. Laura Jones, the State's expert
witness, presented in March 2011, that breaking the bond between Jade and the
Mackenzies would have been harmful to Jade. The court adopted the expert's
view that "if [Jade], who is now 6 years old, were to be moved from the
-5- 6680
----------------------- Page 6-----------------------
[Mackenzie] home, she would probably not begin to bond with another care
provider until she was between 8 and 11 years old."
7. In its termination order, the superior court also found that termination
of parental rights was in Jade's best interests and that OCS made active efforts to prevent
the breakup of the Indian family.
8. Roy contests three of the superior court's findings: that OCS made
active efforts to prevent the breakup of the Indian family; that termination was in Jade's
best interests; and that good cause existed to deviate from the ICWA placement
preferences.3 Sheila did not appeal the superior court's decision.
9. To terminate parental rights to an Indian child, the superior court
must find by clear and convincing evidence that OCS made active efforts to help the
parent remedy the problematic behavior or conditions that placed the child in need of aid,
and that those efforts were unsuccessful.4 We review the superior court's factual
findings for clear error.5 Whether the superior court's findings satisfy the requirements
of the child in need of aid statutes and rules is a question of law, which we review
3 Roy has waived all arguments not briefed on appeal. See Frank E. v. State,
Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. , 77 P.3d 715, 719 n.14
(Alaska 2003) (where father failed "to make any [explicit] argument" regarding an
alleged failure of OCS, he "waived any consideration" of that argument because we "will
not consider arguments which are inadequately briefed on appeal") (internal quotation
marks omitted) (quoting Martinson v. ARCO Alaska, Inc. , 989 P.2d 733, 737 (Alaska
1999)).
4 25 U.S.C. § 1912(d) (2006).
5 S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs.,
42 P.3d 1119, 1122 (Alaska 2002) (citing M.W. v. State, Dep't of Health & Soc. Servs. ,
20 P.3d 1141, 1143 (Alaska 2001)).
-6- 6680
----------------------- Page 7-----------------------
de novo.6 Active efforts occur when "the state caseworker takes the client through the
steps of the plan rather than requiring that the plan be performed on its own."7 The
record supports the superior court's conclusion that OCS made active efforts to help Roy
and Sheila progress with their case plans, even while the parents "intentionally evad[ed]
the department." A parent's willingness to cooperate with OCS is "relevant to
determining whether the state has met its active efforts burden."8 Both Roy and Sheila
were out of contact with OCS for months after their children were taken into state
custody in July 2008. Roy was out of state or unreachable until he attended a team
meeting in July 2009, and he canceled several meetings after that. He then moved to
Soldotna without notifying OCS until a few weeks before the June 2010 hearing. Sheila
was out of state until May 2009 and was incarcerated for two months upon her return.9
OCS arranged for visitation before, during, and after Sheila's drug treatment. The record
supports the superior court's conclusion that OCS made active efforts to help Roy and
Sheila progress with their case plans in the face of reluctance from the parents to
communicate with OCS.
10. Roy also argues that OCS failed to make active efforts to place Jade
in an ICWA-compliant household. But ICWA does not "require[] consideration of
6 Id. (citing M.W. , 20 P.3d at 1143).
7 A.A. v. State, Dep't of Family & Youth Servs. , 982 P.2d 256, 261 (Alaska
1999) (quoting CRAIG J. DORSAY , THE INDIAN CHILD WELFARE ACT AND LAWS
AFFECTING INDIAN JUVENILES MANUAL 157-58 (1984)).
8 Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
212 P.3d 756, 763 (Alaska 2009).
9 See id. (" '[I]ncarceration is a significant factor' that . . . [']affects the scope
of the active efforts that the [s]tate must make.' ") (quoting A.A. , 982 P.2d at 261-62).
-7- 6680
----------------------- Page 8-----------------------
placement options in determining whether to terminate parental rights."10 Therefore, as
the superior court correctly noted, failure to follow ICWA's placement preferences
cannot provide a basis for determining that OCS failed to undertake active efforts.11 The
exception is where a placement decision directly affects a parent's ability to participate
in remedial efforts.12 Such a situation does not exist here; in fact, as the trial court found,
keeping Jade in Anchorage probably enabled visitation with her biological parents.
Indeed, 25 U.S.C. § 1915(b) lists a child's "reasonable proximity to his or her home" as
a priority for pre-adoptive or foster placement.13
11. Although the superior court continued the termination trial for ten
months to give the parents another chance to make necessary changes, in the intervening
period Roy stopped taking drug tests and did not inform OCS of his living arrangements,
and Sheila ceased attending drug treatment and left the state more than once without
OCS's knowledge. The superior court did nor err in finding that Roy and Sheila did not
make "the long-term changes that would be necessary to successfully parent" Jade. Roy
cites the State's expert witness's acknowledgment of Jade's bond to her biological
family. But Dr. Jones's testimony in full indicates that Jade was more strongly bonded
to her foster family than her biological family. Roy also argues there was insufficient
10 Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
244 P.3d 1099, 1120 (Alaska 2010) (quoting Jacob W. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., Mem. Op. & J. No. 1319, 2008 WL 5101809, at *9
(Alaska, Dec. 3, 2008)).
11 See David S. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 270 P.3d 767, 779-81 (Alaska 2012).
12 Id. at 779.
13 We decline to adopt Roy's interpretation of the statute, advanced at oral
argument, that "reasonable proximity" refers to something other than geographic
proximity.
-8- 6680
----------------------- Page 9-----------------------
evidence of harm caused to Jade. But the superior court did not err in finding, based
upon Dr. Jones's testimony, that the parents' prolonged absence from Jade's life has
itself caused harm. The superior court considered the factors listed in AS 47.10.088(b)
and did not err in finding that a preponderance of the evidence supported termination.14
12. Roy also appeals the superior court's finding that there was good
cause to deviate from the ICWA placement preferences. We have recognized "the
importance of early placement decisions that are compliant with ICWA."15 And CINA
Rule 10.1(b) requires the superior court, at each hearing authorizing an Indian child's
removal from her parent, to review "whether [OCS] has complied with the placement
requirements of 25 U.S.C. § 1915(b)." In this case, OCS's efforts to facilitate the
placement process with Jade's paternal grandmother, Donna, and her cousin, Delia, were
distracted and inefficient at best. An OCS social worker failed to contact Donna after
being told that she was a potential placement for Jade. Another social worker closed the
pending ICPC request for Donna without following up with Illinois to find out why the
process had become delayed. The social worker did not reopen the request for weeks
after learning that its closure was due to an error. OCS also waited for at least two
months to submit a home study request for Delia, without explaining the delay. The fact
that this case was transferred between four different social workers over the course of
two years is no excuse for OCS to lose track of its responsibility to investigate potential
ICWA-compliant placements.
14 See Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 222 P.3d 841, 850-51 (Alaska 2009) (affirming superior court's decision to
terminate parental rights because children needed "a permanent, stable relationship" and
"a home where they have an ongoing sense of permanence and security").
15 David S. , 270 P.3d at 780.
-9- 6680
----------------------- Page 10-----------------------
13. We have explained that placement decisions in CINA cases are "final
for purposes of appellate review" when they leave "nothing further for the court to do
with respect to" the placement question.16 That certain issues in a CINA case are still
pending does not "destroy[] the finality, and therefore the appealability, of other
issues."17 Here - as outlined above - the superior court approved the decision to place
Jade with the Mackenzies three times between August 2009 and the commencement of
the second phase of the continued termination trial in March 2011. Because "absent a
change in the placement plan . . . the placement goals for [Jade] would not change" after
at least some of those rulings, the parties could have appealed the decision much earlier
in the process.18 However, the parties did not object to or seek appellate review of any
of these rulings. In addition, until late in the process, no party raised the question with
the trial court whether OCS was following CINA Rule 10.1(b)(2)'s requirement that
OCS "comply with 25 U.S.C. § . . . 1915(b) within a reasonable time."19
14. By the end of the termination trial, the State's expert witness,
Dr. Jones, testified that Jade was very fully bonded with and "embedded" in her foster
family, and losing contact with them would be "a very significant loss" for Jade. Jade has
been sent to five separate placements throughout the pendency of this case. Dr. Jones
found that if Jade were to be moved from the Mackenzie family, with whom she had
bonded, she would likely form a new attachment only "cautiously . . . because of the
16 S.S.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 3 P.3d 342, 345 (Alaska 2000).
17 Id.
18 Id.
19 We emphasize that the parents' failure to appeal the earlier placement
decisions does not legitimize or minimize the serious concerns raised by OCS's failure
to adequately investigate placements with Donna in Illinois and with Delia in Alakanuk.
-10- 6680
----------------------- Page 11-----------------------
previous experiences of loss she's had." It was Dr. Jones's opinion that it would take
Jade from two to five years to bond with another caregiver. The superior court relied
upon that evidence in finding good cause to deviate from the ICWA placement
preferences and keep Jade in the Mackenzie home.
15. We have affirmed decisions to deviate from the ICWA placement
preferences based on findings that "another separation is certain to cause serious
emotional harm and would create a significant likelihood that [the child's] ability to
attach would be irrevocably destroyed."20 We have also held that "the best interests of
the child are . . . paramount in making pre-adoptive placement determinations under
ICWA" and a "superior court did not err by . . . primarily stressing [the child's] best
interests."21 In this case, Jade was four when she was first moved to her current foster
home after living in four separate placements, and she has lived there ever since. She
was six at the close of the termination trial. In finding good cause to deviate from
ICWA's placement preferences, the superior court did not err in relying on Dr. Jones's
concerns that Jade would be damaged emotionally if her strong bond to the Mackenzies
was broken.
16. Finally, Roy argues that the superior court abused its discretion by
allowing Jade's adoptive parents to have excessive control over the biological parents'
post-termination visitation with Jade. Here, the superior court noted expert testimony
that Jade would benefit from visitation as long as it was "appropriate and emotionally
20 L.G. v. State, Dep't of Health & Soc. Servs. , 14 P.3d 946, 955 (Alaska
2000); see also In re Adoption of F.H., 851 P.2d 1361, 1365 (Alaska 1993) (where "an
early interventionist stated that [the child's] bond with [the foster parent] is the best she
will ever have," that bond was "a proper factor for the superior court to consider").
21 C.L. v. P.C.S., 17 P.3d 769, 776 & n.30 (Alaska 2001) (citing L.G. , 14 P.3d
at 955).
-11- 6680
----------------------- Page 12-----------------------
healthy." The superior court therefore ordered Jade's adoptive parents to follow her
"counselor's recommendations regarding future contact with the parents." Roy has not
shown that this order is an abuse of discretion.
17. We therefore AFFIRM the superior court's rulings on termination
and placement, and we AFFIRM its order providing for post-termination visitation.
-12- 6680
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
