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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

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 . 

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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 


               Before:      Carpeneti,    Chief   Justice,   Fabe,   Winfree,    and 

               Stowers, Justices. 

               PER CURIAM. 

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                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 

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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

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*	      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

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        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 


        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

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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 


        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

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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 


                                                  -8-                                             6680

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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

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                 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

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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

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