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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Amy M. v. State, Dept. of Health & Social Services, Office of Children's Services (9/6/2013) sp-6820

Amy M. v. State, Dept. of Health & Social Services, Office of Children's Services (9/6/2013) sp-6820

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                      

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                   THE SUPREME COURT OF THE STATE OF ALASKA  



AMY M.,                                                )  

                                                       )        Supreme Court No. S-14948  

                           Appellant,                  )  

                                                       )        Superior Court No. 3AN-12-00028 CN  

         v.                                            )  

                                                       )  

STATE OF ALASKA,                                       )        O P I N I O N  

                                  

DEPARTMENT OF HEALTH &                                 )  

SOCIAL SERVICES, OFFICE OF                             )  

CHILDREN'S SERVICES,                                   )        No. 6820 - September 6, 2013  

                                                       )
  

                           Appellee.                   )
  

                                                       )
  



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

                                                                

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



                  Appearances:      Olena   Kalytiak   Davis,   Anchorage,   for  

                  Appellant.    Megan  R.  Webb,  Assistant  Attorney  General,  

                  Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                  Juneau, for Appellee.  



                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                    

                  Bolger, Justices.   



                  BOLGER,  Justice.  



I.       INTRODUCTION  



                  A young mother had four children who tested positive for cocaine at birth.  

                                                       



After her fourth child was born, the Office of Children's Services (OCS) took custody  

                                                                



of the child and placed him with his maternal grandmother.   Based on the mother's  

                                                                                       


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

                                                               

history of untreated substance abuse, OCS filed a petition for termination of the mother's  



parental rights three months after the child was born.  After trial, the superior court  



                                                                          

concluded that:  (1) the mother's substance abuse placed her child in need of aid; (2) the  



                                                                                                 

mother failed to remedy the conditions that placed her child in need of aid within a  



reasonable time; (3) OCS had made reasonable efforts to reunify the family; and (4)  



                                                                                 

termination was in the best interests of the child.  The mother appeals, arguing that she  



                                                                                                              

was not given a reasonable time to remedy her substance abuse issues, that OCS did not  



exercise reasonable efforts over the short period prior to termination, and that termination  



                                                                                                 

eight months after birth was not in her child's best interests.  We affirm the decision of  



                                                                                               

the superior court because it properly considered the mother's history with OCS, her  



conduct after the child's birth, and the best interests of the child.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                  1  

                                                                                           

                    Kadin M.  was born  in  February 2012 to Amy M. and Sherman B.  This  



appeal concerns the termination of Amy's parental rights after a termination trial was  



held when Kadin was eight months old.  



                    1.       Background  



                                                           

                    Amy has a long history of substance abuse.   She began drinking and using  



crack cocaine at age 16.  Amy has four children; Sherman is the father of her three  



youngest children.  All four children tested positive for cocaine at birth.  



                    Amy  had  her  first  child,  Talia,  at  age  17.    After  Talia  was  born,  Amy  



                                                                                                                    

participated in a substance abuse program through Dena A. Coy for six weeks.  But she  



left before completing the program and began using crack cocaine again.  Amy's mother  



          1  

                                                                                                     

                    Pseudonyms have been used throughout this opinion to protect the identity  

of the parties.  



                                                              -2-                                                          6820  


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

Vallerie began to care for Talia when she was nine months old.  Vallerie took Talia to  

                            



her father, and Talia now lives in South Carolina with him.  



                                                                                

                    In  September  2007,  Amy  gave  birth  to  Georgina,  her  first  child  with  



                                                                                 

Sherman.   When Georgina was about one year old, Sherman took her to a relative's  

                          2   Georgina ended up living with another relative in New York who has  

home out of state.                                         

cared for her since she was fifteen months old.3  



                    Darcy  was  born  cocaine  and  marijuana  positive  in  March  2009.    OCS  



                                                                            

assumed emergency custody of Darcy and placed her with Vallerie.  While Amy was in  



       

the hospital, an OCS caseworker offered to refer her to a substance abuse treatment  



                                                                                           

program.  But after Amy was discharged she had no contact with OCS until September,  



                                                                    

when OCS discussed a case plan with her.  This initial case plan required her to:  (1)  



                                                                                                               

have an updated substance abuse assessment and follow recommendations for treatment;  



(2) abstain from using alcohol or drugs; (3) complete a mental health evaluation and  



                                                                                                                   4  

follow the recommendations; and (4) complete an anger management class.   In April  



2010, Amy attended an orientation session at a substance abuse treatment program but  

                                                                      



she did not complete the substance abuse assessment necessary to be admitted.  OCS  

                                                       



again lost contact with Amy.  



          2         Sherman B. v. State, Dep't of Health & Soc. Servs.                         , 290 P.3d 421, 423 n.2  



(Alaska 2012).  



          3         A New York court granted the relative sole legal and physical custody of  

                                                                                       

Georgina after Sherman attempted to forcibly remove her from the home when she was  

three years old.  See id. at 426.  

                                



          4  

                                                                                          

                    Subsequent case plans added requirements to complete parenting classes,  

establish a safe home and a means of support, and contact the caseworker monthly to  

provide an address and progress updates.  



                                                               -3-                                                         6820
  


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

                    In  December  2010,  Amy  was  arrested.    While  incarcerated  at  Hiland  



Mountain Correctional Center, Amy participated in a substance abuse assessment.  Amy  

                                                                                                          



admitted that she had been using "a $50 piece [of crack cocaine] daily" for the past six  

                                                                        



months.  The substance abuse assessment recommended long-term residential treatment,  

                                              



and Amy began a residential treatment program while she was incarcerated.  Amy did  

                                                                                           



well in residential treatment, but she was released before completing the program.  Amy  

                                                               



again dropped out of contact with OCS and resumed using crack cocaine.  



                                                                                         

                     OCS filed a petition to terminate Sherman's and Amy's parental rights to  

                                    5  A termination trial was held in January 2012 before Superior  

Darcy in October 2011.    



Court Judge William F. Morse.  On the first day of trial, Amy's attorney presented a  



                                                                      6  

signed relinquishment of her  parental rights.   The trial court terminated Sherman's  

                                               



parental rights, and this court affirmed the termination judgment in Sherman B. v. State,  

                                              

Department of Health & Social Services.7  



                    2.         Kadin  



                    Kadin was born in February 2012, one month after the termination trial  



regarding Darcy.  After Kadin's birth, the hospital notified OCS that he was born cocaine  

                                                                                                                  



positive.  At the hospital, OCS spoke with Amy about her substance abuse issues and her  

                                                                                  



                                          8                                                                                        9  

relationship with Sherman.   Amy admitted to using cocaine during her pregnancy.  



          5         Sherman B., 290 P.3d 427.  



          6         Id.  



          7         Id. at 434.  



          8          OCS had concerns about her relationship stemming from Amy's previous       



report that Sherman gave her cocaine during her previous pregnancies.  



          9         As a result of his exposure to cocaine in utero Kadin has displayed some  



                                                                                                                (continued...)  



                                                                -4-                                                         6820
  


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

OCS  assumed  emergency  custody  of  Kadin  and  placed  him  with  his  grandmother,  



Vallerie.  



                                                  

                   After OCS assumed custody, Amy's OCS caseworker, Leslie Johnston,  



                                                                 

scheduled a team decision-making meeting.  Amy did not attend the meeting, but Amy  



and Sherman began family visits with Kadin twice a week at OCS, and Amy reported  



that she also visited Kadin at her mother's house.  



                                                                                

                   Sherman and Amy were evicted from their residence in mid-February, and  



                                                                                                       

Johnston had difficulty contacting Amy.  Johnston was able to schedule a case planning  



                                   

meeting  with  Amy  by  attending  a  family  visit  at  OCS.    At  the  meeting,  Johnston  



discussed Amy's drug use and her need for treatment.  Based on the 2011 substance  



          

abuse assessment from Hiland Mountain, Johnston recommended that Amy enter long- 



                                                                                              

term residential treatment.  But Amy stated that she only needed outpatient treatment.  



Amy told Johnston that she planned to go to New York to get Georgina and that she  



                                                                  

could attend outpatient treatment there.  Amy refused to sign a release of information to  



enable Johnston to complete referrals for treatment.  



                   Johnston developed a case plan which required Amy to: (1) complete an  



                                                                                                      

updated substance abuse assessment and follow the recommendations; (2) refrain from  



substance  abuse  and  illegal  activity;  and  (3)  sign  a  release  of  information  to  allow  



Johnston  to  complete  referrals  on  her  behalf.    Johnston  scheduled  two  meetings  to  



                                                                        10  

discuss the case plan, but Amy did not show up.                             In June, Amy stopped attending  



family visits, and OCS lost contact with her.  



          9        (...continued)  



developmental problems including delayed mobility skills and muscle stiffness.  



          10       According to Johnston, she again attempted to schedule these meetings by   



attending family visits.  



                                                            -5-                                                        6820  


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

                   In August 2012, Amy turned herself in for a probation violation and was  



again incarcerated at Hiland Mountain.  While incarcerated, Amy participated in GED  

                                                                                         



classes, a parenting class, and weekly Narcotics Anonymous (NA) meetings.  When  



                                                                                        

Johnston found out Amy was incarcerated, she left messages for Amy's probation officer  



to schedule a substance abuse assessment, but the probation officer did not return her  



calls.  



                                                                                     

                   Amy was released from Hiland Mountain in October.  She moved in with  



her sister and began to visit Kadin.  Amy began working as a cleaner, attending GED  



classes,  and  going  to  NA  meetings.    Amy  also  made  an  appointment  to  meet  with  



Johnston on October 23, 2012 - the day before the trial for termination of Amy's  



parental rights to Kadin.  



          B.       Proceedings  



                                                                                            

                   In May 2012, OCS filed a petition for termination of Amy's parental rights  



                                                                          

to Kadin.  A termination trial was held on October 24 and 25, again before Judge Morse.  



                                                    

At trial, Amy testified that she was committed to sobriety and that she was willing to do  



whatever it took to gain custody of Kadin.  



                                                                                          

                   Johnston testified that OCS had decided to move quickly on the termination  



                            

of Amy's parental rights based on Amy's history and because the court had just held the  



trial regarding Darcy.  OCS presented testimony regarding Amy's conduct since Kadin's  



                      

birth  and  her  history  with  OCS.    OCS  also  submitted  the  findings  and  judgment  



terminating  Sherman's  parental  rights  to  Darcy.    OCS  argued  that  termination  was  



                                               

warranted  because  of  Amy's  history  of  substance  abuse,  her  lack  of  case-plan  



                                                                                      

participation,  and  the  length  of  time  that  it  would  take  her  to  complete  treatment.  



                                                                                                         

                   Following the trial, the superior court terminated Amy's parental rights.  



Amy now appeals.   



                                                             -6-                                                       6820
  


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

III.      STANDARD OF REVIEW  



                                               

                    Whether a parent has remedied the conduct or conditions that placed the  



child in need of aid and whether termination is in the best interests of the  child are  



                        11                                                                  12 

                                                                                                                     

findings of fact.            We review these findings for clear error.                          "Findings of fact are  



                                                                         

clearly erroneous if a review of the entire record in the light most favorable to the party  



                                                                                                     

prevailing below leaves us with a  definite and firm conviction that a mistake has been  



           13  

made."         



                                                                                                                 

                    Whether OCS made reasonable efforts to reunify the family is a mixed  

question of fact and law; we review the legal portion of this question de novo.14  



IV.       DISCUSSION  



                    Amy appeals the superior court's findings that:  (1) she failed to remedy the  



conditions that placed Kadin in need of aid within a reasonable period of time; (2) OCS  



made reasonable efforts to reunify her family over a reasonable period of time; and (3)  



termination was in Kadin's best interests.  She does not appeal the superior court's  



finding that her substance abuse placed Kadin in need of aid.  



          11        Pravatt  P.  v.  State,  Dep't  of   Health   &   Soc.  Servs. ,  249  P.3d  264,  273  



(Alaska 2011) (citing Barbara P. v. State Dep't of Health & Soc. Servs.                                 , 234 P.3d 1245,  

1253 (Alaska 2010)) (remedied conduct);                        Dashiell R. v. State, Dep't of Health & Soc.  

Servs., 222 P.3d 841, 850 (Alaska 2009) (citing Frank E. v. State, Dep't of Health & Soc.   

Servs.,  77 P.3d 715, 717 (Alaska 2003)) (best interests).  



          12  

                                   

                    Maisy W. v. State ex rel. Dep't of Health & Soc. Servs. ,175 P.3d 1263, 1267  

(Alaska 2008) (citing Brynna B. v. State, Dep't of Health & Soc. Servs. , 88 P.3d 527, 529  

(Alaska 2004)).  



          13  

                                       

                    Barbara P. , 234 P.3d at 1253 (quoting Brynna B. , 88 P.3d at 529) (internal  

quotation marks omitted).  



          14  

                                   

                    Sherman B. v. State, Dep't of Health & Soc. Servs., 290 P.3d 421, 428  

                                                                                                           

(Alaska 2012) (citing Christina J. v. State, Dep't of Health & Soc. Servs., 254 P.3d 1095,  

1104 (Alaska 2011)).   



                                                              -7-                                                        6820
  


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

          A.	        The Superior Court Did Not Clearly Err In Finding That Amy Failed  

                                                                                                           

                     To Remedy Her Conduct In A Reasonable Time.  



                     In order to terminate parental rights the superior court must find by clear  

                                                                                                                   



and convincing evidence that the parent has "failed, within a reasonable time, to remedy  

                                                                                              



the conduct or conditions . . . that place the child in substantial risk so that returning the  

                                                                    



child  to  the  parent  would  place  the  child  at  substantial  risk  of  physical  or  mental  

                                                                                                                       

injury."15  A reasonable time is statutorily defined as "a period of time that serves the best  

                                                                             



interests  of  the  child,  taking  in[to]  account  the  affected  child's  age,  emotional  and  

development  needs,  and  ability  to  form  and  maintain  lasting  attachments."16                                               In  



determining whether a parent has remedied his or her conduct in a reasonable time, the  

                                                                              

superior court "may consider any fact relating to the best interests of the child."17  



                     The superior court found that Amy's substance abuse had placed Kadin in  

                                                                                                                          



need of aid because he tested positive for cocaine at birth.  To support its conclusion that  

                                                                                                           



Amy had not remedied her substance abuse within a reasonable time, the superior court  

                                                                                                            



          15         AS 47.10.088(a)(2).
  



          16         AS 47.10.990(28).
  



          17         AS 47.10.088(b).  This statute also enumerates the following factors for the
       



court's consideration:  



                     (1)  the likelihood of returning the child to the parent within  

                     a reasonable time based on the child's age or needs;  

  

                     (2) the amount of effort by the parent to remedy the conduct . . . ;  

  

                     (3) the harm caused to the child;  

  

                     (4) the likelihood that the harmful conduct will continue; and  

  

                     (5) the history of conduct by or conditions created by the parent.  



                                                                 -8-	                                                         6820
  


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

relied on Amy's lengthy history of substance abuse, her need for long-term residential              



treatment, her failure to seek treatment, and her refusal to sign releases that would allow   



OCS to contact treatment programs.  The superior court found that Amy's "claim that she                                     



is now motivated to stay clean and has a sufficient support network of friends and family   



to   accomplish  that  goal  [was]  not  credible."    The  court  commented  that  even  if  it  



"delay[ed] termination for six or twelve months to see how [Amy] did with treatment,   



the amount of time it would take her to receive treatment and show that she was not   



likely to relapse is far too long to be reasonable."  



                         Amy argues that the superior court erred in considering its findings from  



                                                                                                                  

the previous termination trial concerning Sherman's parental rights to Darcy.  She argues  



                                                                                                                  

that the evidence against Sherman presented at the previous termination trial cannot be  



used  to  terminate  her  parental  rights.                                      But  a  party  waives  an  objection  to  the  

                                                                                                     18   Amy's attorney did not object  

consideration of evidence by failing to object at trial.     



when OCS submitted the previous termination order concerning Sherman's parental  



rights to Darcy as an exhibit.  And, when the superior court asked the parties if they had  

                                                                                                                



any objection to him reviewing his oral findings from the previous termination, Amy's  

                                                                            



attorney responded,"No."  Amy waived this argument by failing to object at trial.   



                                              

                         Amy also argues that without considering the evidence presented at the  



previous termination trial, there was insufficient evidence to support the superior court's  



                              

conclusion that she failed to remedy her conduct within a reasonable time.  We disagree.  



Amy  is  correct  that  the  superior  court's  findings  at  the  previous  trial  regarding  her  



parental  conduct  were  somewhat  limited.    Amy's  conduct  was  not  the  focus  of  the  



                                                                                                                                

previous trial because she relinquished her parental rights to Darcy.  But in this case, the  



             18          See Alaska R. Evid. 103(a)(1); In Re C.L.T. , 597 P.2d 518, 522 (Alaska  



 1979) ("Failure to object to alleged error at the trial level may preclude raising the point  

on appeal.").  



                                                                               -9-                                                                             6820  


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

                                                                         

superior  court  did  not  rely  solely  on  its  findings  in  the  previous  termination  trial.  



                                                                                      

Instead, it considered Amy's conduct  as a whole, both before and after Kadin's birth.  



We have recognized that a parent's history is relevant to whether a parent has remedied  



                      

her  conduct  in  a  reasonable  time  and  whether  OCS  has  made  reasonable  efforts  to  

reunify the family.19  



                      Amy also asserts that she was not given a reasonable time to remedy her  



                                                                                                               

conduct because OCS filed the petition for termination only three months after Kadin's  

birth.  However, in Barbara P. v. State, Department of Health & Social Services ,20 we 



                                                                                                               

affirmed a termination judgment in a case where the petition was filed one month after  



                                                                                                    

a child's birth.  We upheld the superior court's finding that the parent had not remedied  



                                                                                                

her substance abuse issues in a reasonable time based on her history of substance abuse  



and  relapses,  the  questionable  degree  to  which  she  accepted  her  substance  abuse  

problems, and the superior court's credibility findings.21  



                      Here, the superior court relied on similar facts to support the conclusion that  



                                                                                                         

Amy would not remedy her conduct within a reasonable time.  The court heard evidence  



regarding Amy's history of substance abuse, her failed attempts at treatment, and her  



                                                                          

inability to parent her other children. Amy's problems with substance abuse had spanned  



                                                                                      

almost 10 years.  Amy had entered treatment twice, but failed to complete it.  Amy's case  



           19         See Sherry R. v. State, Dep't of Health & Soc. Servs.,   74 P.3d 896, 903  



(Alaska 2003) ("The superior court is entitled to rely on a parent's documented history                          

of conduct as a predictor of future behavior.");                              Erica A. v. State, Dep't of Health & Soc.     

Servs.,  66 P.3d 1, 8 (Alaska 2003) (explaining that "the court was entitled to consider the                 

division's extensive history of efforts and [the parent's] consistent lack of success at   

addressing problems").  



           20         234 P.3d at 1251-52.  



           21         Id. at 1260-61.  



                                                                     -10-                                                               6820
  


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

plans showed little progress over the three years of her involvement with OCS.  And over  



                                                                         

those three years, there were significant periods when Amy failed to stay in contact with  



OCS.  



                                                                                            

                    After Kadin was born, Amy indicated that she wanted treatment, but she  



                                                                                          

refused to enter long-term residential treatment, she did not complete a substance abuse  



assessment, and she would not sign a release of information to enable OCS to set up  



                                                                     

treatment.  Despite her history, Amy testified that she did not need long-term treatment.  



                                                                        

The superior court properly considered Amy's conduct in the eight months after Kadin  



                                      

was born in conjunction with her long history of substance abuse.  The court found that  



                                                                                                                 

Amy  needed  long-term  treatment  to  address  her  substance  abuse  and  that  Amy's  



assertion that she would stay sober was not credible.  These findings are supported by  



                                                                                                     22  

the record, and we therefore defer to the superior court's judgment.                                      



                    Amy  also  points  to  AS  47.10.088(d),  which  requires  OCS  to  file  a  



                                                      

termination petition if the child has been out of the parent's custody for 15 of the last 22  



                                               

months.  She argues that this statute establishes that 22 months is a more reasonable  



                                                                                                          

period to allow her to remedy her conduct.  We previously rejected this argument in  



                                                                                          23 

                                                                                               There, we explained that  

Christina J. v. State, Department of Health & Social Services. 



a reasonable time is not defined "as a specific number of months or by reference to  



                                                                                                                        24 

                                                                                                                            The  

parents' needs, but as 'a period of time that serves the best interests of the child.' " 



          22        See Hannah B. v. State, Dep't of Health & Soc. Servs.                            ,  289 P.3d 924, 930  



(Alaska 2012) ("We defer to a superior court's credibility determinations, particularly   

when they are based on oral testimony.") (citing Pravat P. v. State, Dep't of Health &   

Soc. Servs., 249 P.3d 264, 274 (Alaska 2011)).  



          23        254 P.3d 1095, 1106-07 (Alaska 2011).  



          24        Id. at 1107 (quoting AS 47.10.990(28)).  



                                                              -11-                                                         6820
  


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

legislature has found  that children undergo a critical attachment process before the age  

                                                                                                   

of six, and "suffer tremendously when their bonding processes are interrupted."25  



                                                                                       

                    In Christina J., the superior court relied on its finding that the parent had  



                                                                       

done "virtually nothing" to start changing the behavior that placed her child in need of  



                                                                                              

aid and found that there was a low likelihood of returning the child to her care within a  



                         26  

reasonable time.             Here, in eight months, Amy did not take any concrete steps toward  



obtaining the long-term residential treatment required by her case plan.  She did not even  



                                                                                                 

sign the release forms to allow Johnston to make initial referrals.  Amy's stated intention  



                                            

to  complete  treatment,  her  sobriety  while  incarcerated,  and  her  attendance  at  NA  



meetings were all positive developments, but they were very recent changes.  Despite  



                                                                                                 

these recent changes, the superior court could reasonably find that Amy had failed to  



remedy her conduct within a reasonable time.  



                                                            

                    In sum, the superior court properly considered Amy's history of substance  



                                                                        

abuse, her present conduct, and the amount of time necessary to remedy her substance  



                                                                                           

abuse issues in determining that she had failed to remedy her conduct within a reasonable  



                                                               

time.    We  conclude  that  the  superior  court's  finding  was  not  clearly  erroneous.  



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

                    Reasonable Efforts To Reunite The Family.  



                    In order to terminate parental rights, the State must demonstrate by clear  



and  convincing  evidence  that  it  made  "timely,  reasonable  efforts  to  provide  family  



          25        Martin N. v. State, Dep't of Health & Soc. Servs.                         , 79 P.3d 50, 56 (Alaska  



2003) (explaining that a child's "need for permanency must reasonably limit the length  

of time accorded to [the parent] to remedy his behavior").  



          26	  

                                                                     

                    Christina J., 254 P.3d at 1107.  



                                                              -12-	                                                            6820  


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

                                                                                                         27  

support services to the child and to the parents" to reunite the family.                                     The duty to  



provide reasonable efforts includes the duty to:  



                                                            

                    (1) identify family support services that will assist the parent  

                          

                    . . . 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 identified . . . ; and (3) document the department's  

                    actions that are taken . . . .[28] 



                                                                                                                             29  

                                             

Reunification efforts need not be perfect, only reasonable in light of the circumstances. 



                                                                                                                             30  

                                                                                                           

These circumstances can include a parent's unwillingness to participate in treatment, 

or a parent's incarceration.31  



                                                                 

                    The superior court found that in the years before Kadin's birth OCS tried  



                       

to get Amy to address her substance abuse with no success.  And after Kadin's birth,  



OCS  spoke  to  Amy  "repeatedly  to  get  her  to  obtain  an  updated  [substance  abuse]  



                                                                               

assessment and to begin treatment," but she refused.  The superior court recognized that  



          27        AS 47.10.086(a); AS 47.10.088(a)(3);  see also Barbara P., 234 P.3d at  



1261 (citing AS 47.10.086(a); AS 47.10.088(a)(3); CINA Rule 18(c)(2)(A)).  



          28        AS 47.10.086(a).  



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



2008).  



          30       Id. (citing E.A. v. State, Div. of Family & Youth Servs. , 46 P.3d 986, 991  



(Alaska 2002)).  



          31        T.F.  v. State, Dep't of Health & Soc. Servs., 26 P.3d 1089, 1096 (Alaska  



2001)  (explaining  that  incarceration  significantly  affects  the  scope  of  active  efforts  

required  under  the  Indian  Child  Welfare  Act,  and  that  Department  of  Corrections  

                                                                         

programs can be considered in determining whether  the  state has made active efforts  

                                                                                     

under ICWA);  see also Zander P. v. State, Dep't of Health & Soc. Servs., Office of  

Children's   Servs.,   2007   WL   2745157   at   *5   (Alaska,   Sept.   19,   2007)   (noting  

incarceration significantly affects the scope of reasonable efforts required).  



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

                                                                                             

if this had been Amy's first encounter with OCS, then OCS's efforts may not have been  



                          

reasonable, and the filing of the petition three months after the child's birth may have  



been too hasty.  But, relying on the difficulty OCS had in contacting and engaging Amy  



for  three  years,  the  court  found  clear  and  convincing  evidence  that  the  state  made  



reasonable efforts at reunification.  



                                                                               

                    Amy argues that there was no evidence OCS offered or referred Amy to any  



                                                              

services as required.  Amy alleges that: (1) Johnston only "spoke with Amy a total of  



                                                        

three times in the eight months after Kadin's birth;" (2) Johnston could have met with  



                                                            

Amy at regularly scheduled visitation; (3) Johnston made no referrals; and (4) the case  



plan regarding Kadin was not presented to Amy.  



                                              

                    The record does not support Amy's argument.  The superior court correctly  



                                          

considered the interactions between OCS and Amy over three years - both prior to and  

after Kadin's birth.32  The record shows that OCS repeatedly urged Amy to get substance  



                                                                                                                    

abuse treatment, but Amy was not willing to participate fully in treatment, and she would  



drop out of contact with OCS for months at a time.  



                    When Darcy was born in March 2009, OCS visited Amy in the hospital and  



                                                         

discussed  Amy's  need  to  complete  a  substance  abuse  assessment  and  a  treatment  



program.  After she was discharged from the hospital, OCS lost contact with her.  In  



                                                                      

September 2009, the caseworker discussed a case plan with Amy and referred her to  



                                                                  

treatment. But Amy did not enter treatment because she refused to complete the required  



                                                                                                        

substance abuse assessment.  After a few months, Amy again dropped out of contact with  



          32        Erica A. v. State, Dep't of Health & Soc. Servs.                     , 66 P.3d. 1, 8 (Alaska 2003)  



("We have held that the state's efforts to prevent breakup of the entire family may be  

considered in assessing whether that effort was sufficient with respect to a particular  

                                                                                                                 

child.") (quoting E.A. v. State, 46 P.3d 986, 991 (Alaska 2002)) (internal quotation marks  

                                              

omitted).   



                                                              -14-                                                         6820
  


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

OCS.  After Amy was incarcerated in December 2010, she completed a substance abuse   



assessment and entered a treatment program.   But when Amy was released, she did not  



follow the recommendation that she complete residential treatment.  Instead, she dropped  



out of contact with OCS and began using drugs again.  



                   There was very little contact between Amy and Johnston after Kadin's  



                                                         

birth. At the hospital, after Kadin was born, Johnston again discussed with Amy  her  



                                                                                  

need for treatment.  But then Amy dropped out of contact with OCS.  Because Amy had  



                                                 

not provided contact information to OCS, Johnston went to a family visit to schedule a  



case planning meeting.  At the meeting, Johnston outlined Amy's primary case plan  



                                                                       

requirement - her need for residential substance abuse treatment - but Amy declined.  



                                         

Amy also refused to sign a release of information that was necessary for Johnston to  



                                                                                               

make referrals.  Johnston attempted to schedule two other meetings - again by dropping  



in on Amy's visits with Kadin - but Amy did not show up.  In June 2012, OCS lost  



contact with Amy altogether when she stopped attending visits.  



                                                                                                   

                   The superior court recognized that Johnston's efforts  were not perfect;  



                                                                                                    

there was more that she could have done to stay in contact with Amy.  But the superior  



court's finding that OCS made reasonable efforts was not clearly erroneous based on  



Amy's unwillingness to participate in residential treatment and Amy's failure to maintain  



regular contact with OCS.  



                                                                  

          C.	      The Superior Court's Finding That Termination Was In Kadin's Best  

                   Interests Was Not Clearly Erroneous.  



                   In  order  to  terminate  parental  rights,  the  superior  court  must  find  by  a  

preponderance of the evidence that termination is in the child's best interests.33                                   The  



court is required to consider several statutory factors in determining whether termination  

                                                                           



          33       CINA Rule 18(c)(3).  



                                                           -15-	                                                       6820  


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

is in the best interests of the child, including: (1) the likelihood of returning the child to     



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



effort by the parent to remedy his or her conduct; (3) the harm caused to the child; (4)  



                                                                                                                   

the likelihood that the harmful conduct will continue; and (5) the history of conduct by  

or conditions created by the parent.34  



                       The superior court properly considered the statutory factors and found that  



                                                                                                                     

it was in Kadin's best interests to terminate Amy's parental rights.  The court found that  



                                                                                                  

Amy "remains at a very high risk of continued abuse of cocaine."  Based on her history  



                                                                                                                         

of substance abuse and the most recent substance abuse assessment, the superior court  



found that it would take at least  a  year of residential treatment to overcome Amy's  



                                                               

substance abuse issues and prepare her to care for Kadin.  This amount of time was "far  



too long to be reasonable."  



                                                                 

                       The superior court also found that Amy had never demonstrated an ability  



                                                                 

to care for a young child. Kadin was strongly bonded to his grandmother, Vallerie, and  



                                           

his sister, Darcy; it was therefore in his best interests to remain with them. Vallerie had  



                                                                                             

been approved to adopt both Darcy and Kadin.  The court noted that due to this family  



placement, Kadin would be able to have a relationship with Amy if Amy overcame her  



substance abuse. 



                                                                                                               

                        Amy argues that she was two months sober at the time of termination and  



                                        

determined to abstain from drugs.  Amy reasons that, because Kadin was placed with  



                                                   

Amy's mother, he would not have been harmed by allowing Amy more time to address  



her substance abuse issues.  And, she argues that she should have received more time  



                                                                                  

because "it is in the best interest of a child . . . to be reunited with his or her biological  



parent."  



            34         AS 47.10.088(b).  



                                                                        -16-                                                                       6820  


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

                                                                                                           

                      But Amy's recent sobriety was not determinative.  Amy had struggled with  



substance  abuse  for  almost  ten  years.    She  had  failed  to  complete  substance  abuse  



treatment twice  and had recently refused to enter residential treatment.  Despite her  



                                                                                                  

history, Amy testified that she did not need residential treatment to remedy her addiction.  



        

The superior court reasonably relied on Amy's long history of substance abuse and  



                                                                                                                    

unsuccessful treatment when it determined that Amy's claim that she was motivated to  



stay clean was not credible.                                    



                                                                                   

                     As we have previously explained, "in a termination trial, the best interests  



                                                                                    35  

                                                                                        We have also recognized that  

of the child, not those of the parent[], are paramount."  



                                                                                                         36  

young  children  have  unique  needs  for  permanency  and  bonding.                                           At  the  time  of  



                                                

termination,  Kadin  was  only  eight  months  old.    He  had  spent  his  entire  life  in  his  



                                                                                  

grandmother's care and had developed a strong bond with his grandmother and his older  

sister.37  



                                                                                                            

                     In contrast, Amy had not maintained consistent contact with Kadin, even  



                                                                                                    

for the short period these proceedings were pending. According to the OCS caseworker  



                                                                                                                       

and  her  most  recent  substance  abuse  assessment,  Amy  needed  at  least  a  year  of  



          35         Kent V. v. State, Dep't of Health & Soc. 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)).   



          36         See Christina J., 254 P.3d at 1107 (citing AS 47.05.065(5)) (noting the  



                                                               

legislature has recognized that  children under six undergo a critical attachment process  

                                                                            

and a failure to bond with adult caregivers during this time can result in lasting emotional  

damage).  



          37  

                                                             

                     See Barbara P., 234 P.3d at 1264 ("[T]he fact that a child has bonded with  

[the] foster parent can [also] be a factor in considering whether it is in the child's best  

                                     

interests to terminate a parent's rights.") (quoting Karrie B. ex rel. Reep v. Catherine J. ,  

181 P.3d 177, 185 (Alaska 2008)) (alteration in original).  



                                                                -17-                                                          6820
  


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

                                                                                                     

residential treatment to adequately address her substance abuse issues. Based on Kadin's  



                      

age, his bond with his grandmother, and his need for permanency, the superior court  



                                                        

could reasonably conclude that Kadin could not be safely returned to his mother within  



a reasonable time.  



                                                                                               

                   In summary, the superior court properly considered Kadin's best interests  



                                                                                                

in light of the amount of time it would take for Amy to address her substance abuse  



issues, and we cannot conclude that these findings were clearly erroneous.  



V.        CONCLUSION  



                   We AFFIRM the superior court's judgment terminating Amy's parental  



rights.  



                                                           -18-                                                      6820
  

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