Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sherman B. v. Dept. of Health & Social Services, Office of Children's Services (12/21/2012) sp-6739

Sherman B. v. Dept. of Health & Social Services, Office of Children's Services (12/21/2012) sp-6739

        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 



SHERMAN B.,                                   ) 

                                              )       Supreme Court No. S-14614 

                       Appellant,             ) 

                                              )       Superior Court No. 3AN-09-00129 CN 

        v.                                    ) 

                                              )       O P I N I O N 

STATE OF ALASKA,                              ) 

DEPARTMENT OF HEALTH &                        )       No. 6739 - December 21, 2012 

SOCIAL SERVICES, OFFICE OF                    ) 

CHILDREN'S SERVICES,                          ) 

                                              ) 

                       Appellee.              ) 

                                              ) 



               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Anchorage, William F. Morse, Judge. 



               Appearances:  Kristen Stohler, Stohler Law P.C., Palmer, for 

               Appellant. Michael G. Hotchkin, Assistant Attorney General, 

               Anchorage,   and   Michael   C.   Geraghty,   Attorney   General, 

               Juneau,     for   Appellee.      Lisa   Wilson,    Assistant   Public 

               Advocate, and Richard Allen, Public Advocate, Anchorage, 

               Guardian Ad Litem. 



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

                Stowers, Justices. [Maassen, Justice, not participating.] 



               CARPENETI, Justice. 



I.      INTRODUCTION 



               A father challenges the superior court's decision to terminate his parental 



rights, arguing that the court's conclusions were not supported by clear and convincing 


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

evidence, that termination was not in the best interests of the child, and that the court 



improperly considered certain facts.         Because the record supports the superior court's 



decision to terminate the father's parental rights, and because the superior court properly 



considered the record as a whole, we affirm. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                1.      Darcy's birth 



                Darcy M. was born cocaine- and marijuana-positive in March 2009, to Amy 

M.1  Because of Amy's ongoing substance abuse issues, because she was homeless, and 



because the father had not been definitively identified, the Office of Children's Services 



(OCS) took Darcy into emergency custody on March 20, 2009.                     At a probable cause 



hearing held shortly after, Amy stipulated that there was probable cause to find Darcy 



was a child in need of aid. OCS then placed Darcy with Vallerie M., Amy's mother who 



became a licensed foster parent. 



                Although OCS stated that the identity of the father was unknown at the time 



of   birth,   Sherman   B.   had   learned   that   Amy   was   pregnant   in   the   first   month   of   her 



pregnancy, and testified that as soon as Amy told him she was pregnant he "knew [he] 



was the dad right then."  At the time of the underlying proceedings in this case, Sherman 



and Amy had two children together:           Georgina, who has lived with Sherman's aunt in 

New York since she was about one year old;2  and Darcy.              Amy has also given birth to 



a stillborn son by Sherman, and at the time of the termination trial in this case Amy was 



pregnant   with   another   child   by   Sherman.     Following   Darcy's   birth,   Sherman   also 



        1       We use pseudonyms for family members to protect their privacy. 



        2       Georgina was born in September 2007.            According to the aunt, she took 



custody of Georgina after Sherman left Georgina at the home of another family member 

in Georgia and returned to Alaska. 



                                                 -2-                                              6739 


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

fathered a child with another woman, and their child, Khloe J., was born in April 2010. 



Khloe's mother also suffers from substance abuse issues, and Khloe is similarly in OCS 



custody. 



                Sherman   had   minimal   contact   with   Amy   while   she   was   pregnant   with 



Darcy.    For some of Amy's pregnancy with Darcy and at the time of Darcy's birth, 



Sherman was in Whittier working for a seafood processor.                In March 2009, a paternity 



test was facilitated by OCS; results confirmed that Sherman was the father.                  Sherman 



learned of the test results on June 3, 2009.         Before being asked to complete a paternity 



test and during the pendency of the paternity test, Sherman made no attempt to contact 



Amy or Vallerie regarding Darcy's birth or to otherwise see Darcy. 



                2.      March 2009 through mid-2010 



                After Sherman's paternity was established in June, OCS filed an Amended 



Emergency Petition for Adjudication of Child in Need of Aid for Temporary Custody. 



This petition noted that OCS scheduled both an advisement hearing for June 4, 2009, and 



an appointment for June 8, 2009, to discuss Sherman's contact with Darcy, gather a 



social history, and develop a case plan.          Sherman failed to show up on both dates.  He 



did show up at OCS on June 9, and agreed to come back the next day. On June 10,  OCS 



completed a social history but notes about the meeting explain that Sherman "refused to 



[work]   a   case   plan   until   his   lawyer   is   present." The   emergency   petition   also   noted 



Sherman's   extensive   history   of   trouble   with   the   law.    This   included   two   previous 



protective services reports concerning other children, one substantiated and the other 



unsubstantiated, alleging that Sherman "was selling crack and had shot a gun in a drug 



deal   altercation."    OCS   found   45   court   case   filings   involving   Sherman,   including 



"convictions for assault 4, several assault 1st, several misconduct-controlled substance, 



                                                  -3-                                             6739
 


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

felonies,    misdemeanors,       domestic    violence    petitions,   and   driving   without    a  valid 



license."   Based on the above information, OCS concluded that placement with OCS 



would promote Darcy's best interests. 



                In the months following OCS's initial involvement in the case, Sherman 



requested custody of Darcy - but his plan was to transfer Darcy to his aunt's home in 



New York, rather than to have Darcy live with him.                On February 11, 2010, Sherman 



filed a Motion to Change Placement, seeking to change Darcy's custody from Vallerie 



to Sherman's aunt.       During a placement review hearing on May 5, 2010, the superior 



court noted Sherman's position was "very clear and consistent" - he sought placement 



with his aunt in New York.  The superior court denied Sherman's motion, but instructed 



Sherman to notify the   court   within two weeks if he wanted to seek placement with 



himself.    After   the   superior   court's   denial,   OCS   continued   to   pursue   the   option   of 



sending   Darcy   to   live   with   Sherman's   aunt   but   eventually   denied   the   request   after 



receiving a report from the New York Department of Social Services explaining that the 



aunt lacked the resources to care for additional children.  In May 2010, about 14 months 



after Darcy's birth, Sherman made his first formal request for Darcy's placement in his 



home.   However, the court questioned whether Sherman's plan to have Darcy live with 



him was sincere. 



                Sherman's 2009 case plan required him to: (1) complete a psychological 



                                                     3 

assessment and follow the recommendations;  (2) commit no further crimes; (3) complete 



        3       Early    on   in  this   case,   OCS   moved    for   a   psychological   evaluation   of 



Sherman. In February 2010, noting that Sherman had not requested that Darcy be placed 

with   him,   the   superior   court   found   that   Sherman's   psychological   health   was   not   in 

controversy and therefore denied the motion.               After Sherman requested placement of 

Darcy   with   him,   OCS   renewed   its   request   for   psychological   evaluation.       Sherman 

refused.    Although the superior court agreed that Sherman's request for placement put 

                                                                                         (continued...) 



                                                   -4-                                             6739
 


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

a parenting class appropriate for infants and follow the recommendations; (4) maintain 



at least weekly contact with Darcy (more if possible); (5) make an appointment for the 



social worker to make a home visit; (6) provide telephone numbers and addresses of 



relative placements; and (7) provide urinalyses upon request. 



                Despite his case plan's requirement that he maintain weekly contact with 



Darcy, Sherman visited Darcy only intermittently from June 2009 through February 



2010.  After his first visit at OCS, in June 2009, he reported that he would be out of town 



for two or three months.      His visitation was sporadic; he often missed appointments or 



appeared late. His visits were transferred from OCS to a youth treatment center, but they 



were eventually returned to OCS because of Sherman's behavior - he had been making 



video recordings of his visits and when asked to stop he became verbally aggressive. 



Once visits returned to OCS, visits became more regular, Sherman consistently showed 



up, and interactions with Darcy improved. 



                In   early   2010,   Sherman   was   arrested   along   with   Khloe's   mother   at   an 



Anchorage hotel for possession of cocaine.   Cocaine was found in his room, and a large 



amount of cocaine was found just outside of his room in the snow.  These charges later 



were dropped. 



                In June 2010, OCS petitioned to terminate Sherman's and Amy's parental 



rights to Darcy.    A termination trial was originally scheduled for December 2010, but 



was later postponed to March 2011. 



        3       (...continued) 



his mental health in controversy, the court concluded that there was not good cause to 

order an exam.      OCS later added a parenting assessment to Sherman's case plan, but 

there were complications in completing a parenting assessment because such assessments 

generally include a mental health component. 



                                                  -5-                                           6739
 


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

                By July 2010 Sherman had "somewhat complied" with the requirement that 



he attend parenting classes, having attended most of his scheduled parenting classes with 



Fathers Insync over a two-month period.  But with only four classes left to complete, the 



social   worker   was   notified   that   the   class   was   going   to   terminate   Sherman   for   non- 



attendance.  Although the social worker intervened, Sherman missed further classes and 



was told that he would have to start over.           Ultimately, a compromise was struck that 



allowed him to complete the course work with Fathers Insync. 



                OCS had difficulty obtaining information regarding Sherman's employment 



and living arrangements.       An OCS social worker testified that, during this early part of 



the case, Sherman "moved around quite a bit and it was difficult for the department to 



. . . establish or know where he was living.          He was changing . . . places where he was 



staying quite a bit." A July 2010 report filed by Darcy's guardian ad litem explained that 



Sherman had not informed OCS where he lived until May 2010 and at that time his 



employment   had   yet   to   be   confirmed.    OCS   also   had   concerns   about   "how   he   was 



obtaining his income," specifically whether he was obtaining money through illegal 



means.    Sherman's total documented income for 2009 was $5,800.                  At the termination 



trial, Sherman testified that in fall 2009 he worked for NANA Regional Corporation, Inc. 



as a van and courtesy driver and was living in a condo.             The checks that he submitted, 



however, only showed that he worked at NANA for seven weeks.  Further, Sherman 



could not provide proof of income for 2010.  When asked about this at the trial, Sherman 



testified that he did not have a steady job in 2010 - specifically, he testified that his total 



work for the year consisted of cutting grass on three or four occasions (resulting in about 



$150), selling some seafood (resulting in about $400), and working for Wonder Bread 



for a month or two.  Sherman also claimed to have worked on a movie set for about one 



month.  Additionally, in August 2010 Sherman filed a financial statement with the court 



claiming zero income during the prior 12 months.              The only documentation of income 



                                                  -6-                                            6739
 


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

for 2011 showed that Sherman worked at a Pizza Hut restaurant for two months, for 



which he was paid $400.   At an October 2010 hearing, Sherman testified that he has not 



filed a tax return in at least 15 years. 



                3.      Mid-2010 through March 2011 



                By June 2010 Sherman had moved into an apartment and taken steps to 



child-proof the home. OCS visited the apartment on at least two occasions and found the 



apartment safe for a child. 



                During this time, Sherman continued to engage in supervised weekly visits 



with Darcy.     In November 2010, visits were switched to Sherman's apartment, and for 



a time Sherman had about two visits per week with Darcy.                By the end of December, 



visits were no longer supervised.  A social service associate testified that visits became 



more productive after they moved from OCS to Sherman's apartment.                    In light of this 



improvement, OCS withdrew its petition to terminate parental rights and scheduled a 



Team Decision Meeting for March 2011 to discuss the possibility of beginning overnight 



visits. 



                4.      Sherman leaves for New York 



                On March 14, 2011, the day before the scheduled Team Decision Meeting, 



Sherman left a voice mail for an OCS social worker stating that he was "leaving state for 



a month or so to deal with some family issues."  Sherman's purpose in traveling to New 



York was to bring Georgina back to Alaska.             Sherman did not tell Darcy that he was 



leaving for New York.       In total, he was out of Alaska for about six weeks. 



                According to an August 2011 Decision and Order of a New York family 



court,   on   March   16   Sherman   arrived   unannounced   at   his   aunt's   home,   picked   up 



Georgina, and walked out the door.   Georgina was "upset and crying because she didn't 



know who [Sherman] was."           The aunt called the police and the court ordered Sherman 



to return Georgina. The New York court further found that between December 20, 2008, 



                                                 -7-                                            6739
 


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

when Georgina arrived in New York, and March 16, 2011, Sherman had no contact 



whatsoever with Georgina.  He did not visit, write, or provide any means of support for 



Georgina; although he did speak with his aunt once or twice a month.                      In its order, 



granting sole physical and legal custody to the aunt, the New York court commented on 



Sherman as follows: 



                The   respondent   demonstrated   incredibly   bad   judgment   on 

                March 16, 2011 when, after an absence of approximately 2 

                1/2 years from this child's life, he appeared at [the aunt's] 

                door     and   forcibly    took   the   child   into  his   care.     He 

                demonstrated   a   complete   insensitivity   to   the   needs   of   the 

                child     by   engaging      in  this   behavior.       It   is  almost 

                incomprehensible to the court to understand how a parent 

                who has not seen a very young child for the last two-thirds of 

                her   life   could   precipitously   and   forcibly   remove   the   child 

                from the one person who has been the ongoing caretaker of 

                that child.   The court can only imagine the discomfort the 

                child experienced when removed from the petitioner's home 

                and taken by an individual who was essentially a stranger to 

                this child.   This   behavior by the respondent demonstrated 

                such incredibly poor parental judgment as to have the court 

                question his fitness to be responsible for any child. 



                5.      Sherman's return to Alaska 



                Sometime in March 2011 Sherman was evicted from his apartment.  During 



Sherman's absence, OCS learned that Sherman had been allowing Khloe's mother, a 



woman   with   significant   and   untreated   substance   abuse   issues,   to   be   present   during 



unsupervised visits with Darcy and Khloe in Sherman's apartment, in violation of OCS 



directives.     Because     of  this  concern    OCS    required    that  visits  be  supervised     and 



transferred visits back to OCS.  These supervised visits began in mid-May, a month after 



Sherman had returned from New York. 



                An OCS social worker testified that these supervised visits at OCS during 



summer of 2011 were "very, very difficult."   The social worker stated that Sherman did 



                                                  -8-                                             6739
 


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

not allow OCS to provide assistance during visits and did not have the requisite tools to 



appropriately parent his children.  In mid-June, following an incident during a joint visit 



with   both   Darcy   and   Khloe,   where   Khloe   was   inconsolable,   Sherman's   visits   were 



canceled because OCS was concerned "that he wasn't taking direction from anybody" 



and    because    the  supervisor    had   concerns    regarding    OCS    workers'    safety   around 



Sherman.      After this incident, no further visits were held until September 2011 and 



Sherman had no contact with Darcy for over two months. 



                In early July, Sherman left Anchorage to go to Kenai for work, noting that 



he did not know when he would be back.              OCS informed him that it would be difficult 



to set up visits while he was out of town. In early September, OCS received a letter from 



Sherman informing them that he was back in town. 



                During this period, OCS was not sure where Sherman was living after he 



was evicted from his apartment.  Further, a social worker testified that, after April 2011, 



telephone communication with Sherman was "extremely difficult," with Sherman having 



provided multiple phone numbers, some of which were disconnected or wrong numbers. 



                6.      Visits at the Cook Inlet Tribal Council 



                At some point during summer 2011, Sherman commented that he did not 



want OCS's assistance and instead wanted "a professional" to assist him. OCS contacted 



a one-on-one parent coach who was willing to work with Sherman, but only after he 



completed "an intensive parenting class."           Sherman refused, stating that he had already 



completed parenting classes and would not engage in any further classes. 



                In late September, joint visits with Darcy and Khloe resumed.   Because of 



the   difficult   visits   during   the   summer   and   because   Sherman   asked   for   professional 



assistance, the visits were held at       Cook Inlet Tribal Council (Cook Inlet) - a family 



contact   site   generally   used   for   those   needing   a   higher   level   of   supervision. Esther 



England, a trained parent coach at Cook Inlet, supervised Sherman's visits.                  England 



                                                  -9-                                            6739
 


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

testified that Sherman would attempt to videotape the visits in order "to build his case." 



Sherman continued to resist parent coaching, telling England that he had completed 



parenting   classes   and   did   not   need   any   assistance. England   testified   that   she   had   a 



number of concerns regarding Sherman's understanding of child development.   For 



example, England testified that Sherman had decided to enroll Darcy in piano lessons 



that were an hour long.  England told Sherman that hour-long piano lessons might be too 



long for a two-year-old, and Sherman responded that he had a right see Darcy and that 



he would be bringing England before the court. 



                During a visit in October 2011, Khloe had to be removed by Cook Inlet 



staff because she would not stop screaming and crying.   A case manager for a parenting 



class called Fathers' Journey came in to offer Sherman support and to tell him about the 



class's meeting times.        Sherman responded that he had already completed parenting 



classes, that "he could not be compelled even by law to come to a fathers' group," and 

that "he already knows everything he needs to know about caring for his children."4 



After this visit, Sherman had visits alone with Darcy, because OCS determined that the 



visits were too traumatizing for Khloe. 



                While the next visit, in mid-October, was "by far the best visit for Darcy," 



England testified that Sherman missed three of the next four visits without notifying 



Cook Inlet.  Sherman showed up for the following visit, on December 2, but, because he 



had not called to confirm that he would be coming, Darcy was not available.                  Sherman 



then    had   what   England    describes    as  four   "appropriate"    visits  with   Darcy    during 



December, including a holiday family gathering at Cook Inlet at which Sherman did a 



"pretty good job."       However, England testified that she still had concerns about his 



        4       Sherman did testify, however, that he later   did   an intake with Fathers' 



Journeys in December. He testified at the termination trial that he had also signed up for 

a class with Fathers' Journeys. 



                                                  -10-                                              6739 


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

interactions and would not recommend unsupervised visits.                   Sylvia Berg, England's 



supervisor at Cook Inlet, agreed that the visits had improved over time, but noted that 



Sherman was not yet ready for unsupervised visits. 



        B.      Proceedings 



                On   October   3,   2011,   OCS   filed   a   second   Petition   for   Termination   of 



Parental Rights and Responsibilities for Sherman and Amy. In its petition, OCS alleged 



that   as   a   result   of   Sherman's   actions   Darcy   was   a   child   in   need   of   aid   pursuant   to 



AS 47.10.011(1) (abandonment) and (9) (neglect). The superior court held a termination 



hearing in January 2012.        Amy presented a signed relinquishment of parental rights on 

the first day of the termination trial.5     After a three-day trial, the court concluded that the 



State had shown by clear and convincing evidence that Sherman had abandoned Darcy 



and had failed to remedy such abandonment in a reasonable time, and that OCS made 



reasonable   efforts   to   provide   family   support   services.     Finally,   the   court   held   that 



termination of Sherman's parental rights was in the Darcy's best interests.                   Sherman 



appeals. 



III.    STANDARD OF REVIEW 



                In child in need of aid cases a superior court's factual findings are reviewed 

for clear error.6   Findings are clearly erroneous if review of the entire record leaves us 



with   "a   definite   and   firm   conviction   that   a   mistake   has   been   made."7 "Conflicting 



        5       The   termination   of Amy's   parental   rights   is   not   at   issue   in   the   present 



appeal. 



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



Servs., 254 P.3d 1095, 1103 (Alaska 2011) (citing Maisy W. v. State, Dep't of Health & 

Soc. Servs, Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008)). 



        7       Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's 



                                                                                         (continued...) 



                                                  -11-                                             6739
 


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

evidence is generally insufficient to overturn the superior court, and we will not reweigh 

evidence   when   the   record   provides   clear   support   for   the   superior   court's   ruling."8 



Whether a child is in need of aid and whether the parent failed to remedy the "conduct 



or the conditions that placed the child at substantial risk" of harm are factual findings 

reviewed for clear error.9       Best interest determinations are also factual findings subject 



to clear error review.10      Whether OCS made reasonable efforts to reunify the family is 



a mixed question of law and fact.11         We review questions of law de novo.12           "We bear in 



mind at all times that terminating parental rights is a drastic measure."13 



        7        (...continued) 



Servs., 234 P.3d 1245, 1253 (Alaska 2010) (citing Brynna B. v. State, Dep't of Health 

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



        8       Maisy W. , 175 P.3d at 1267 (footnote omitted) (quoting Brynna B. , 88 P.3d 



at 529; DM v. State, Div. of Family & Youth Servs. , 995 P.2d 205, 214 (Alaska 2000)) 

(internal quotation marks omitted). 



        9       Pravat   P. v. State, Dep't of Health & Soc. Servs., Office of Children's 



Servs., 249 P.3d 264, 270 (Alaska 2011) (citing T.B. v. State, 922 P.2d 271, 273 (Alaska 

1996); Barbara P. , 234 P.3d at 1253). 



        10       Christina J., 254 P.3d at 1104 (citing Frank E. v. State, Dep't of Health & 



Soc. Servs., Div. of Family & Youth Servs., 77 P.3d 715, 721 (Alaska 2003)). 



        11       Cf. id. (citing Ben M. v. State, Dep't of Health & Soc. Servs., Office of 



Children's Servs., 204 P.3d 1013, 1018 (Alaska 2009)) ("[W]hether OCS has made 

active efforts as required by ICWA is a mixed question of law and fact; our court reviews 

the questions of law de novo."). 



        12      Id. 



        13      Id.   (quoting   Martin   N.   v.   State,   Dep't   of   Health   &  Soc.   Servs.,   Div.   of 



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



                                                   -12-                                              6739
 


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

IV.	    DISCUSSION 



                To terminate parental rights under AS 47.10.088, a superior court must 



make three findings by clear and convincing evidence. First, the court must find that the 



child has been subjected to conduct or conditions that have caused the child to be in need 

of aid.14  Second, there must be a finding that the parent has failed, within a reasonable 



time, to remedy the conduct or conditions that placed the child at substantial risk of 

harm.15    Third,   the   court   must   find   that   OCS   made   reasonable   efforts   to   promote 



reunification.16     The   court   must   also   find   by   a   preponderance   of   the   evidence   that 



termination is in the child's best interests.17 



        A.	     The Superior Court Did Not Err In Finding That Darcy Was A Child 

                In Need Of Aid. 



                Alaska Statute 47.10.011(1) provides that a child may be found to be a child 



in   need   of  aid  if  "a  parent   or  guardian   has   abandoned     the  child   as  described    in 



AS   47.10.013,   and   the   other   parent   is   absent   or   has   committed   conduct   or   created 

conditions that cause the child to be in need of aid under this chapter."18            Alaska Statute 



47.10.013(a) defines abandonment as "a conscious disregard of parental responsibilities 



toward the child by failing to provide reasonable support, maintain regular contact, or 



        14      AS 47.10.088(a)(1); AS 47.10.011.
 



        15      AS 47.10.088(a)(2)(A)-(B).
 



        16
     AS 47.10.088(a)(3), AS 47.10.086 (describing department's duty to make 



reasonable efforts). 



        17      CINA Rule 18(c)(3) (comporting with AS 47.10.088(c)). 



        18      AS 47.10.011(1). 



                                                  -13-	                                           6739
 


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

provide normal supervision, considering the child's age and need for care by an adult."19 



In considering whether a parent consciously disregarded parental obligations, a court 



applies "an objective test to see if actions demonstrate a willful disregard of parental 

responsibility."20 



                The superior court found that Sherman abandoned Darcy.  To support this 



finding of abandonment, the superior court did not rely primarily on one period of no 



contact, but considered Sherman's actions over the entire course of Darcy's life.  The 



superior court found that Sherman had not maintained regular contact with Darcy, had 



not provided reasonable support, either financial or emotional, for Darcy, and had not 



created a parent-child relationship with Darcy. 



                Sherman argues that he has been active throughout this case, that he has 



maintained visits with Darcy, and that the superior court's consideration of whether he 



can provide reasonable economic support penalized him for being poor in contravention 

of AS 47.10.019.21       He further challenges the superior court's reliance on his actions 



during Amy's pregnancy and his plan to send Darcy to New York to live with his aunt. 



The State contends that the superior court's finding that Sherman abandoned Darcy is 



adequately supported by the record.          We agree. 



                Alaska   Statute   47.10.013   specifically   requires   a   court   to   consider   "the 



child's age and need for care by an adult."   Darcy is a very young child - at the time of 



        19      AS 47.10.013(a). 



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



270 P.3d 767, 775 (Alaska 2012) (quoting  Sean B. v. State, Dep't of Health & Soc. 

Servs.,   Office   of   Children's   Servs.,   251   P.3d   330,   335-36   (Alaska   2011))   (internal 

quotation marks omitted). 



        21      AS 47.10.019 provides, in relevant part, that a court "may not find a minor 



to be a child in need of aid . . . solely on the basis that the child's family is poor . . . ." 



                                                  -14-                                            6739
 


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

the termination trial she was not yet three years old - and therefore requires constant, 



24-hour supervision and stability.   In this context, Sherman's minimal and inconsistent 



contact   with Darcy, failure to provide emotional or financial support, and failure to 



cooperate with OCS or comply with his case plan all support the superior court's finding 



that Sherman consciously disregarded his parental responsibilities. 



                Sherman's assertion that he worked diligently to develop his relationship 



with   Darcy   is   not   supported   by   the   record. The   superior   court   correctly   noted   that 



reasonable contact is evaluated in light of OCS's limitations on visitation and found that 



Sherman did not maintain reasonable contact.             Sherman's 2009 case plan directed him 



to maintain weekly contact with Darcy.             Although there was a period of Darcy's life 



when Sherman kept a regular visitation schedule, for much of 2009 and 2011 he had little 



contact with Darcy.  Most recently, from April 2011 to December 2011, he spent a total 



of 16 hours with Darcy.  On three separate occasions Sherman left Anchorage for weeks 

at a time without notifying Darcy or OCS in advance.22               Even when present, Sherman 



missed a number of visits without notice.  The superior court characterized Sherman's 



contact with Darcy as minimal and analogized his relationship with her to that of a 



"distant uncle," visiting when it was convenient for him.               This evidence satisfies the 



objective standard for "willful disregard of parental responsibility." 



                We   have   previously   stated   that   in   order   to   refute   evidence   of   a   willful 



disregard of parental responsibility, a parent must show a "continuing interest in the child 



        22      In March 2011, Sherman left for New York for six weeks, without prior 



notice to OCS, to deal with a custody hearing regarding Georgina.  OCS resumed visits 

upon his return in May, but a month later the visits were cancelled because they were 

very difficult for Darcy and Khloe.          Sherman then left for work in Kenai and for travel 

back to New York, and visits did not resume until late September. 



                                                  -15-                                            6739
 


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

and [. . . make] a genuine effort to maintain communication and association."23                  Here, in 



addition     to  Sherman's   minimal   contact   with   Darcy,   the   superior   court   considered 



Sherman's minimal efforts at compliance with other aspects of his case plan, including 



the requirements to provide urinalyses, provide basic contact information, and complete 



a parenting assessment.  He also had difficulty completing parenting classes and without 



OCS intervention he would have been terminated for non-attendance.  Sherman argues 



that he did not agree with certain components of his case plan, and therefore "pushed 



back."  Even if he did not agree with or trust OCS, the reality is that communication with 



OCS and compliance with the case plan's reasonable requirements were necessary to 



build a relationship with his daughter under the circumstances. Further, the record shows 



that Sherman is unable to provide sufficient care for a child of Darcy's age, and has 



continually refused assistance from OCS on how to comfort or relate to Darcy (and 



Khloe).    Objectively, Sherman's actions do not demonstrate a genuine effort to build a 



parent-child   relationship.       While   there   is   no   doubt   that   Sherman   cares   for   Darcy,   a 



                                                                                                24 

"parent's subjective intent or . . . token efforts to communicate with the child"                  are not 



enough to establish a parent-child relationship. 



                 Sherman argues that he has been diligent in seeking stable employment and 



consistent   housing,   and   the   superior   court's   consideration   of   his   financial   situation 

violates AS 47.10.019.25        However, the superior court's concern regarding Sherman's 



finances was his lack of transparency - he was secretive about his income and housing, 



        23       Sean B., 251 P.3d at 336 (alteration in original) (emphasis added) (quoting 



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



        24      Id. (alteration omitted) (internal quotation marks omitted). 



        25       See supra note 21. 



                                                   -16-                                              6739
 


----------------------- Page 17-----------------------

making      it  difficult  for  OCS    to  make     decisions    concerning     Darcy's    placement.26 



Sherman's   refusal to provide even basic information and communicate with OCS is 



evidence of his conscious disregard of his parental responsibilities. Further, the superior 



court found that Sherman was also not able to provide reasonable emotional support for 



Darcy.    Sherman's financial situation was not the basis for the superior court's finding 



that Darcy was a child in need of aid, and therefore the superior court did not violate 



AS 47.10.019. 



                The superior court did not err when it considered Sherman's initial plan to 



send Darcy to New York.           Sherman did not affirmatively request that Darcy be placed 



with him until she was almost 14 months old; instead, he originally wanted to send Darcy 

to live with his aunt.27   While Sherman is correct that his intent to send Darcy to live with 



        26      The superior court stated: 



                [S]ecrecy about such a significant set of events, housing and 

                employment, when OCS is trying to figure out should we 

                give the child back to the father, suggests that his priorities 

                were certainly not to have the child returned to him.  The 

                reasonable      thing   to  do  would    be   to  set  up  a  house,   be 

                transparent   about   your   jobs   -     even   if   there's   a   lack  of 

                employment, just be transparent about that so OCS can say, 

                is   this   somebody      that   is  a  prospective      parent   and    a 

                responsible parent, and who has parenthood as a priority? 

                And the answer has to be no. 



        27      Sherman argues that his intent was always to parent Darcy himself, and he 



had asked his aunt to care for Darcy on a temporary basis and therefore challenges the 

superior court's reliance on his plan to send Darcy to New York.  He points to a "Home 

Study Narrative" completed by the New York Department of Social Services, which 

indicates that Sherman asked his aunt to care for Darcy on a temporary basis.  But before 

May   2010   he   repeatedly   stated   that   he   wanted   to   send   her   to   New   York,   with   no 

indication that this was a temporary placement.  In a May 2010 order, the superior court 

denied Sherman's motion for placement with his aunt, and stated that Sherman                      "shall 

                                                                                         (continued...) 



                                                  -17-                                             6739
 


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

a relative does not automatically result in a finding of abandonment, the superior court's 



finding that Sherman abandoned Darcy was not limited to consideration of this issue. 



Further, the superior court considered Sherman's plan in context - Sherman's daughter 



Georgina had been sent to New York to live with his aunt, and Sherman did not have 



contact with her for over two years, until he attempted to forcibly remove Georgina from 

his   aunt's   care.28   Admittedly,      Sherman's     conduct    with   his  other   children    is  not 



determinative of his conduct with Darcy.              But a court is not required   to ignore this 



history; Sherman's similar plan to send Darcy to live with his aunt provides some insight 



into his willingness to assume parental responsibility. 



                Although       the  facts   before    us   do   not   present   the   typical   case    of 



abandonment, where a parent is absent for a long period of time, the facts as a whole 



support a finding that Sherman has consciously disregarded his parental responsibilities 



by failing to maintain regular contact, failing to provide reasonable support, and failing 



to   provide   normal   supervision.   Thus,   the   superior   court   did   not   err   in   finding   that 



Sherman   abandoned   his   daughter   under   AS   47.10.013(a).            Because   we   affirm   the 



        27      (...continued) 



have until [May 19, 2010] to indicate whether he wants [Darcy] to be placed in his 

home."     Further, even after Sherman requested Darcy be placed with him, the superior 

court expressed doubt as to his true intentions.  The superior court's determination that 

Sherman did not request placement until May 2010 was supported by the record, and we 

will not reweigh this evidence 



        28      A New York court later terminated Sherman's parental rights to Georgina 



commenting that his behavior "demonstrated such incredibly poor parental judgment as 

to have the court question his fitness to be responsible for any child."  See supra at 6-7. 



                                                  -18-                                             6739
 


----------------------- Page 19-----------------------

superior    court's   finding   of  abandonment,       we  do   not  reach   the  State's   alternative 

argument for termination based on neglect.29 



                B.	     The Superior Court Did Not Err In Concluding That Sherman 

                        Failed To Remedy The Conditions That Placed Darcy In Need 

                        Of Aid. 



                Sherman argues that there is insufficient evidence to support the superior 



court's conclusion that he failed to remedy the conduct or conditions that placed Darcy 



in need of aid.    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.30        When a court makes this determination, 



AS 47.10.088(b) requires it to consider "any fact" relating to the best interests 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."31 



                Sherman contends that "[s]ince [Darcy] was taken into the state's custody, 



[he] has worked stridently to form a bond with his daughter."                 He argues that he has 



taken   parenting     classes,   requested   additional   parenting    help   as   needed,   completed 



urinalysis testing, secured housing, and sought out assistance   from other sources as 



needed.     The   State   responds   that,   as   of   the   date   of   the   termination   trial,   Sherman's 



        29      See Rick P. v. State, Office of Children's Servs., 109 P.3d 950, 956 (Alaska 



2005) (noting that it is unnecessary to consider other finding where one ground for 

finding child to be in need of aid is supported by record). 



        30      AS 47.10.088(a)(2). 



        31      Sean B. v. State, Dep't of Health & Soc. Servs., 251 P.3d 330, 337 (Alaska 



2011). 



                                                 -19-	                                           6739
 


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

abandonment of Darcy was ongoing and therefore he had not remedied the conduct or 



conditions that endangered her.   Taken together, the facts suggest that Sherman's efforts 



to   remedy   his   conduct   were   minimal;   that   his   pattern   of   missing   visits,   refusing   to 



comply with his case plan, and refusing assistance from OCS was likely to continue 



because he lacks a fundamental understanding of how his behavior affects Darcy; and 



that it was therefore unlikely that Darcy would be placed with Sherman in a reasonable 



time. 



                 The   history   of   Sherman's   visitation   with   Darcy   demonstrates   that   his 



contact was minimal and inconsistent over the course of her life. This history supports 



a finding that Sherman has not remedied his abandonment of Darcy.                       In June 2010, a 



year after OCS's initial involvement with Sherman, OCS first petitioned to terminate 



parental rights.    A guardian ad litem report at that time noted that Sherman was "non- 



compliant   with   important   parts   of   his   case   plan   and   [was]   still   having   only   weekly 



supervised visits with his daughter after all this time.            He has not demonstrated that he 



is   focused   on   raising   and   parenting   this   small   child." The   termination   hearing   was 



scheduled for March 2011.           As the superior court acknowledged, there was a period in 



late 2010 when Sherman was having regular visits and OCS was increasing his contact 



with   Darcy.    OCS   withdrew   its   petition   for   termination.      However   in   March   2011, 



Sherman left Alaska without advance notice and traveled to New York for six weeks. 



When visitation resumed in May the visits regressed, and OCS cancelled the visits in 



June because they were going very badly, Sherman would not accept help from the 



caseworkers, and the caseworkers feared for their safety.                Sherman then left for Kenai 



to find work.  When he returned in September, OCS resumed visits, but, as he had done 



before,   Sherman   missed   several   visits.      In   October   2011,   OCS   again   petitioned   for 



termination. Although there were some positive visits in December, a few isolated visits 



do not remedy Sherman's history of disregarding his parental responsibilities. 



                                                   -20-                                              6739
 


----------------------- Page 21-----------------------

                Over almost three years, Sherman has also failed to               provide reasonable 



support or develop a parent-child relationship.             The superior court explained that the 



income he identified since Darcy's birth "now totals about $6,000, which is not enough 



to provide for a child . . . .    [Yet, Sherman] was not interested in working with public 



assistance to obtain income . . . ."       Further, as the superior court noted, Sherman lacks 



a fundamental understanding of child development and several OCS workers expressed 



concern     about    Sherman's     ability  to  perceive    the  needs    of  his  young    children   or 



understand   the   ways   his   behavior   impacts   Darcy.     He   continually   refused   to   accept 



assistance   from   parent   coaches   supervising   visits   to   aid   in   building   a   parent-child 



relationship; he even refused to comply with the prerequisites for one-on-one coaching 



that was offered at his request. 



                It is telling that after three years, two Cook Inlet staff members testified that 



they would not recommend unsupervised visits.   The superior court found that it would 



be at least a year before placement with Sherman would be considered.  Therefore, even 



if Sherman's performance showed consistent improvement, Darcy would not be placed 

with him in a reasonable time, given Darcy's age and need for permanency.32 



                Darcy had been a child in need of aid for almost three years at the time of 



trial.  Although   there   were   periods   of   time   when   Sherman's   contacts   with   Darcy 



improved, these periods do not overcome the evidence in the record that Sherman was 



unable to maintain regular contact, provide reasonable support (financial or emotional), 



or provide normal supervision for Darcy, including at the time of termination.  The 



superior court did not err in finding that Sherman failed to remedy the conditions that 



placed Darcy in need of aid. 



        32      Whether Darcy could be placed with Sherman within a reasonable time, 



given her age and need for permanency is discussed in further detail infra in section 

IV.D. 



                                                  -21-                                               6739 


----------------------- Page 22-----------------------

        C.	      The   Superior   Court   Did   Not   Err   In   Concluding   That   OCS   Made 

                 Reasonable Efforts To Reunify Sherman With Darcy As Required By 

                AS 47.10.086(a). 



                 Sherman next contends that the record does not support the superior court's 



conclusion that OCS made reasonable efforts to provide family support services.  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(a) elaborates on 



this requirement.      It requires the State to 



                         (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 . . . . 



We have acknowledged that the State has some discretion both in determining what 

efforts to pursue and when to pursue them.33             "A parent's willingness to participate in 



services is relevant to the scope of the efforts OCS must provide."34                 "The efforts that 



OCS makes must be reasonable but need not be perfect."35 



                 Sherman   asserts   that   because   of   personality      conflicts   with   OCS     staff 



members       he  did   not   receive   proper    assistance    from   OCS.     These     assertions    are 



        33      Sean B., 251 P.3d at 338 (citing Jeff A.C., Jr. v. State , 117 P.3d 697, 706 



(Alaska 2005)). 



        34	     Id. 



        35      Audrey H. v. State, Office of Children's Servs. , 188 P.3d 668, 678 (Alaska 



2008) (citing Jeff A.C., Jr. , 117 P.3d at 706). 



                                                   -22-	                                             6739
 


----------------------- Page 23-----------------------

unsupported by the record.        Sherman points to the fact that he chose to file grievances 



against two OCS case workers. His discontent with the case workers is not determinative 



of the reasonableness of their decision making. 



                The record shows that despite the difficulty in working with Sherman - 



including his refusal to provide financial and contact information, failure to attend visits 



without   notifying   OCS,   and   failure   to   accept   OCS   assistance   during   visits   -   OCS 



provided a number of services in an attempt to reunify Sherman with Darcy.  OCS first 



provided Sherman with the test that established his paternity.            It began a referral under 



the Interstate Compact for the Placement of Children to Sherman's aunt in New York to 



evaluate the possibility of placing Darcy there; and the superior court found that, had the 



home been approved, OCS would have placed Darcy there.   OCS arranged and paid for 



parenting classes at Fathers Insync.  When Fathers Insync wanted to terminate Sherman 



for lack of attendance, OCS intervened on his behalf, allowing him to complete the 



course.    OCS facilitated ongoing visits with Darcy and, at Sherman's request, located 



outside parenting coaches to work with him on parenting skills.                From late 2010 until 



March 2011, OCS increased Sherman's visits appropriately.                  When on the verge of a 



scheduled overnight visit, Sherman chose to leave the state without advance notice. OCS 



offered other services, including a parenting assessment, assistance obtaining housing 



or   income   through   public   assistance,   and   additional   parent   coaching,   but   Sherman 



refused these offers.     As the superior court noted, while many of OCS's efforts were 



directed toward evaluation of Sherman, this was a reasonable choice given Sherman's 



resistance to working with OCS, its suspicion that he was involved in illicit activities, 



Sherman's conduct with his other children, and his plan to send Darcy to New York. 



                Sherman further asserts that OCS is unfairly punishing him for going to 



New York to attend to another custody hearing for his daughter Georgina.  He contends 



that after his return, OCS's efforts were patently unreasonable under the circumstances 



                                                 -23-                                            6739
 


----------------------- Page 24-----------------------

as   it   delayed  visits  for  an  additional   month    and   failed  to  make    arrangements      for 



continued contact with Darcy while he was traveling. It was Sherman's decision to leave 



Alaska with no advance notice to OCS and no estimated date when he would return. 



There is no evidence that Sherman attempted to contact Darcy during his absence.  Over 



a month after Sherman left, OCS contacted him to find out if he had returned.                  Further, 



while Sherman was in New York, OCS learned that he had allowed Khloe's mother, a 



woman with significant substance abuse problems, to attend unsupervised visits at his 



apartment.     Under these circumstances, OCS's decision to return visits to OCS was 



warranted      and  a  30-day    delay   in  restarting   visits  does   not  render    OCS's    efforts 



unreasonable.      Moreover, even after OCS restarted visits, Sherman's visits were soon 



cancelled   due   to   Sherman's   behavior,   leading   to   further   disruptions   in   contact   with 



Darcy.    He then left for Kenai, and OCS warned Sherman that it would be difficult to 



schedule visits while he was out of town.           OCS worked to set up visits upon his return. 



                OCS      caseworkers     made    reasonable     efforts  to  maintain     contact   with 



Sherman, connect him with services, and facilitate the establishment of a relationship 



between   him   and   Darcy.     The   superior   court   did   not   err   in   finding   that   OCS   made 



reasonable efforts to reunify Sherman with Darcy. 



        D.	     The Superior Court Did Not Err In Concluding That Termination Of 

                Sherman's Parental Rights Was In Darcy's Best Interests. 



                Sherman challenges the superior court's conclusion that termination of 



parental rights was in Darcy's best interests.          Under AS 47.10.088(c) and CINA 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.  We have stated that "in 



                                                  -24-	                                           6739
 


----------------------- Page 25-----------------------

a   termination     trial,  the  best  interests  of   the  child,  not   those   of  the  parents,    are 

paramount."36 



                 The Alaska Legislature has found that "children under six years of age 

suffer tremendously when their bonding processes are interrupted."37                   We have often 



noted that "young children require permanency and stability or risk long-term harm."38 



We have also stated 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."39  At the time of the termination trial, Darcy was almost three years old.  Darcy 



was placed in Vallerie's care almost immediately after her birth, and has lived with her 



ever   since.   Vallerie   is   fully   able   to   support   and   care   for   Darcy. Evidence   at   trial 



demonstrated that Vallerie and Darcy have a close bond and the superior court found that 



there would be great harm to Darcy if this bond were broken. 



                The superior court acknowledged that in some cases it might be in the best 



interests of the child to break a bond with a foster parent in order to place the child with 



a biological parent, but explained that this is not such a case.           We agree. 



        36      Kent V. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 



233 P.3d 597, 601 (Alaska 2010) (quoting A.B. v. State, Dep't of Health & Soc. Servs. , 

7 P.3d 946, 954 (Alaska 2000)). 



        37      Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 



Servs., 79 P.3d 50, 56 (Alaska 2003) (citing AS 47.05.065(5)); see also Rick P. v. State , 

Office of Children's Servs., 109 P.3d 950, 958 (Alaska 2005). 



        38      Debbie G. v. State, Dep't of Health & Soc. Servs., Office of Children's 



Servs., 132 P.3d 1168, 1171 n.5 (Alaska 2006) (quoting Stanley B. v. State, Div. of 

Family   & Youth   Servs. ,   93   P.3d   403,   408   (Alaska   2004))   (internal   quotation   marks 

omitted). 



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



(citations omitted). 



                                                  -25-                                             6739
 


----------------------- Page 26-----------------------

                Sherman's assertions that he is committed to having Darcy live with him 



and that he has made adequate arrangements for her care lack support in the record. 



Sherman has been unable to consistently demonstrate appropriate parenting skills and 



has   resisted   OCS's   efforts   to   assist   him   with   Darcy. Sherman   has   been   unable   to 



demonstrate any financial stability.  Further, as discussed by OCS and Cook Inlet staff, 



Sherman's conduct - failing to visit Darcy regularly, leaving the state without notice, 



allowing a known substance abuser to be present during unsupervised visits - indicates 



that he does not always have Darcy's best interests in mind, and lacks an understanding 



of how his actions impact Darcy. 



                 On these facts, the superior court found that it would be at least a year 



before temporary placement with Sherman could even be considered.   While the child's 



positive    current   placement     with   her  grandmother      is  not  determinative    of  whether 



termination is in the child's best interests, in this case it is relevant because of Darcy's 



age and the strength of the bond with Vallerie.  Given the potential harm from severing 



the bond with the only caretaker she has ever known, there is adequate support in the 



record   that   it   is   in   Darcy's   best   interests   to   remain   in   Vallerie's   care   permanently. 



Therefore, the superior court did not err in concluding that termination was in the best 



interests of the child. 



V.      CONCLUSION 



                We AFFIRM the superior court's termination of Sherman's parental rights. 



                                                  -26-                                            6739
 

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC