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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sherman B. v. State, Dept. of Health & Social Services, Office of Children's Services (10/11/2013) sp-6833

Sherman B. v. State, Dept. of Health & Social Services, Office of Children's Services (10/11/2013) sp-6833, 310 P3d 943

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

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

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

         corrections@appellate.courts.state.ak.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



SHERMAN B.,                                         )  

                                                    )        Supreme Court No. S-14957  

                          Appellant,                )  

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

                                                                                        

                 v.                                 )  

                                                    )        O P I N I O N  

STATE OF ALASKA,                                    )  

DEPARTMENT OF HEALTH                                )        No. 6833 - October 11, 2013  

AND 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:  Glenda  J.  Kerry,  Law  Office  of  Glenda  J.  

                                                              

                 Kerry,   Girdwood,   for   Appellant.      Julia   B.   Bockmon,  

                 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, Winfree, Stowers, Maassen and  

                                                                    

                 Bolger,  Justices.  



                 MAASSEN, Justice.  


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

I.       INTRODUCTION  



                                                                                                        

                   The subject of this appeal is the termination of Sherman B.'s parental rights  



                            1  

to his son Kadin M.   The Office of Children's Services (OCS) took Kadin into custody  



soon after his birth because he and his mother, Amy M., both tested positive for cocaine,  



                                                                                              

and because of concerns about both parents' ability to care for  the child.  OCS had  



                                                                    

already been involved with Sherman for several years because of concerns with his other  



                                         

three children. The superior court terminated both Sherman's and Amy's parental rights  



                                          

to Kadin in October 2012.   Sherman appeals, contesting the court's findings that he  



                                                                    

abandoned Kadin, that he failed to remedy the conduct that caused Kadin to be a child  



                                                                                 

in  need  of  aid,  that  OCS  made  reasonable  efforts  to  reunify  the  family,  and  that  



termination of his parental rights is in Kadin's best interests.  We affirm.  



II.       FACTS AND PROCEEDINGS  



         A.        OCS's Involvement With Sherman's Parenting Of His Other Children  



                                                                                                               

                   Sherman and Amy had an on-and-off relationship for a number of years.  



Their daughter Georgina was born cocaine-positive in 2007.  OCS became involved with  



the family as a result and created a parenting plan, which required, among other things,  

                                                                         



that  Sherman  not  leave  Georgina  alone  with  Amy.    Sherman  appears  to  have  been  



Georgina's  primary  caregiver  initially,  as  Amy  was  often  using  drugs.    But  when  



Georgina was somewhere between eight and fourteen months old, Sherman left her in  



Atlanta with relatives, who eventually moved her to New York to live with Sherman's  

                                                                                   



aunt.  Sherman did not visit Georgina between December 2008 and March 2011, and  



their contact was limited to phone calls.  



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



                                                           -2-                                                         6833  


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

                    Amy gave birth to another child, Darcy, in 2009.  Although Amy told  



Sherman she was pregnant and that he might be the father, he was uninvolved during the  

                                                                                            



pregnancy and was working  in Whittier when Darcy was born.  When Darcy tested  

                                              



positive  for  cocaine,  OCS  took  custody  of  her  and  placed  her  with  Amy's  mother.  

                                                   



Sherman became involved in Darcy's life only after OCS facilitated a paternity test that  

                                                                                       



confirmed he was her father.  He visited her on a weekly basis, but his relationship with  

                      



her remained somewhat distant, and he voiced his preference that she live with his aunt  

                                                                                             



and Georgina in New York.  



                    In 2010 Sherman had another child, Khloe, with a different woman.  OCS  

                                                                                                              



immediately opened a child-in-need-of-aid (CINA) case for Khloe and placed her with  

                                   



foster parents.  



                    OCS identified a number of concerns with Sherman's parenting of both  

                                                                                       



Darcy and Khloe, including his ability to maintain housing and to provide financial  



support through either employment or public assistance.  OCS had reservations as well  

                                   



about his ability to understand child development sufficiently to act as a responsible  

                                                                                                          



parent.  Also of concern to OCS was the fact that he had been arrested twice, in 2009 and  

                                                                              



2010, on drug-related charges, though neither arrest resulted in a conviction.  



                    Sherman  completed  a  parenting  class  at  Fathers  Insync  in  July  2010.  



During  the  fall  of  2010  OCS  started  unsupervised  visits  with  Darcy  and  Khloe  in  



Sherman's   home   and   was   considering   reunification.      Sherman   was   showing  



improvement.  A Team Decision Meeting was planned for March 2011 to discuss a trial  

                                                                                                           



home visit with Darcy.  But the situation changed in mid-March after Sherman's aunt in  

                         



New York filed for custody of Georgina, and Sherman traveled to New York, where a  

         



court hearing had been scheduled to consider his aunt's petition.   Sherman appeared  

                                                                                                      



unannounced at his aunt's home and over her objections took Georgina away, though  

                          



                                                               -3-                                                         6833
  


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

Georgina had not seen him for several years and did not recognize him.  He returned  



Georgina two days later pursuant to a court order.  



                    Sherman was in New York for about five weeks, and during that time he  



lost his housing in Anchorage.  While he was gone, OCS discovered that he had been  

                                                                     



allowing  Khloe's  mother,  who  had  untreated  substance  abuse  issues,  to  attend  the  



unsupervised  visits  with  Khloe  and  Darcy.    OCS  accordingly  switched  back  to  

                     



supervised visits once Sherman returned to Alaska.  The visits did not go well.  OCS  

                                                 



caseworker Leslie Johnston later testified that Khloe would cry and scream throughout  



the visits and Sherman would not accept any help in dealing with her distress.  Sherman  

                                                                                                                 



partly blamed the OCS workers, who he claimed aggravated the situation by yelling at  

                                                 



him to make Khloe stop crying.  



                    Sherman went back to New York in August 2011 for Georgina's custody  

                                                                                                   



trial.     The  New  York  court  found  that  Sherman  had  "demonstrated  a  complete  

           



insensitivity" to Georgina's needs by forcibly removing her from his aunt's home after  



not  having  seen  the  child  for  years.    The  court  concluded  that  Sherman's  behavior  

                                                                                                 



"demonstrated such incredibly poor parental judgment as to have the court question his  

                                                      



fitness to be responsible for any child."  The New York court granted sole legal and  

                                                                                                          



physical custody of Georgina to Sherman's aunt.  



                   Around the time that Sherman made this second trip to New York, OCS  

                                                                                 



moved  visitation  with  Darcy  and  Khloe  to  Cook  Inlet  Tribal  Council  at  Sherman's  



request.  But visitation with Khloe continued to be difficult in the new setting.  During  

                                                                                        



one visit, according to the visitation supervisor's paraphrase of Sherman's remarks,  



Sherman thought that an inconsolable Khloe "just needs to cry until she breaks" and "just  

                                                                                                 



needs  to  be  broke."    In  the  fall  of  2011  the  superior  court  ordered  that  Sherman's  



                                                             -4-                                                       6833
  


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

visitation  with  Khloe  be  halted  until  he  took  a  psychological  assessment.    Sherman  



refused to take the assessment and as a result had no further visitation with Khloe.  



                    Darcy's and Khloe's cases both ended in the termination of Sherman's  



parental rights.  The superior court terminated Sherman's rights to Darcy on January 6,  

                                                                                                



2012,  and we affirmed that decision on appeal.2  

                                                                           Sherman's appeal of the termination  



in Khloe's case is pending.  



          B.        Kadin  



                    Sherman and Amy's son Kadin was born on February 4, 2012, shortly after  

                                                                                                       



the termination of Sherman's parental rights to Darcy.  Kadin tested positive for cocaine  

       



at birth, later experiencing some adverse physical effects from this exposure.  OCS took  

                                                                                                                    



emergency custody of Kadin at the hospital.  Sherman objected to this; he asserted that  

                                   



he should be allowed to take Kadin home as he had Georgina, who had also been born  

                                                                    



cocaine-positive.    Sherman  and  Johnston,  the  social  worker,  later  described  their  



interactions at the hospital as contentious; at one point Johnston called security and  

                                          



Sherman called the police. OCS placed Kadin with Amy's mother, who was already  

                                                                                           



caring for Darcy.  



                    On February 28, about three weeks after Kadin's  birth, OCS moved in  

                                                                                                 



superior court for a determination that it did not need to make reasonable efforts towards  

                               



Kadin's reunification with Sherman, as generally mandated by AS 47.10.086(a).  OCS  

                                                            



relied on AS 47.10.086(c)(8), which excuses "reasonable efforts"  

                                                                                                     



                    if the court has found by clear and convincing evidence that  

                                      

                    the parental rights of the parent have been terminated with  

                                                           

                    respect to another child because of child abuse or neglect, the  

                                                                        

                    parent has not remedied the conditions or conduct that led to  

                                     



          2         Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                     

Servs., 290 P.3d 421 (Alaska 2012).  



                                                              -5-                                                            6833  


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

                    the   termination   of   parental   rights,   and   the   parent   has  

                    demonstrated an inability to protect the child from substantial  

                                                                         

                    harm or the risk of substantial harm.   



OCS contended that Sherman had not remedied his conduct "[i]n the short time since  



[Darcy's] trial" and that "his disinterest in [day-to-day parenting] means that he lacks an  



ability to perceive and appropriately respond to the emotional needs of a child, which  



would cause [Kadin] substantial harm."  



                    The court did not rule on OCS's motion immediately, and OCS eventually  

                                                                                                          



withdrew  it.    In  the  meantime,  OCS  proceeded  with  case  planning.    Johnston  later  

                



testified that both Sherman and Amy refused to discuss case planning with her during  

                                                                                                          



their initial meeting in March 2012.  Amy did state, however, that she intended to go to  

                                                                                                        



New  York  to  get  Georgina,  a  plan  that  Sherman  favored.    According  to  Johnston,  



Sherman "didn't seem to understand or care that his aunt was granted sole legal custody  

                                                                                                              



of [Georgina], and it is in her best interest to remain . . . [in] the only home that she  

                        



knows."    Case  plans  from  March  and  April  2012  called  for  Sherman  to  engage  in  

                                                            



visitation with Kadin, maintain housing and employment, provide OCS with information  

                                  



about his housing and employment, work on his understanding of child development,  



take a psychological assessment, and attend monthly case planning meetings.  



                    On  May  10,  2012,  OCS  petitioned  for  the  termination  of  Sherman's  



parental rights to Kadin, arguing that Sherman had caused Kadin to be a child in need  

                                                                                         



of aid through neglect and abandonment. On the same day, OCS also moved for an order  

                                                              



requiring Sherman to undergo a psychological evaluation. OCS's primary rationale was  

                                                                                                  



that, given OCS's difficulties in working with Sherman and his past inability to change  

                                             



his behaviors, "[a] psychological evaluation is the best chance of determining what, if  



any, services could possibly help [Sherman] retain custody of [Kadin]."  In June 2012  



the  superior  court  granted  the  motion,  finding  that  Sherman's  mental  state  was  in  

                                                                                                                      



                                                              -6-                                                        6833
  


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

controversy and that there was good cause for a psychological evaluation.  Sherman  



refused to comply.  



                    Sherman did participate in visitation twice a week at OCS from the time  



Kadin  was  born  until  June  or  July  2012.    He  then  left  for  Kenai  or  King  Salmon,  

                                                      



informing OCS that he was going to work in the seafood industry during fishing season  

                                         



and  would  travel  back  to  Anchorage  for  weekly  visitation.3  

                                                                                               He  did  not  return  to  



Anchorage for about a month, at which time OCS changed the regular visitation schedule  



to once a week.  



                   The termination trial was held in October 2012.  Sherman and Amy were  

                                                                                 



both represented by counsel.  After hearing the evidence the superior court terminated  

                                            



both Amy's and Sherman's rights, finding that Amy placed Kadin in need of aid due to  

                                                               



her cocaine use during pregnancy and that Sherman placed Kadin in need of aid due to  

                                                                                                    



abandonment. Sherman appeals the court's findings that (1) he caused Kadin to be a  

                                                                                               



child in need of aid; (2) he failed to remedy the conduct or conditions that placed Kadin  

                                   



in need of aid; (3) OCS provided reasonable reunification efforts; and (4) termination  

                                                                                                  



was in Kadin's best interests.4  



          3        Johnston expressed some doubt as to whether Sherman actually went out  



of town during this period, testifying that she saw him in the OCS lobby after he had  

canceled a visit and said he was going to Kenai.  



          4        We recently decided Amy's appeal from the same order.                              Amy M. v. State,  



Dep't of Health & Soc. Servs., Office of Children's Servs.                        , ___ P.3d ___, Op. No. 6820,  

2013 WL 4768382 (Alaska, Sept. 6, 2013).  



                                                             -7-                                                      6833
  


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

III.      STANDARD OF REVIEW  



                                                                       5  

                    Whether a child           is in     need   of aid,                                     

                                                                          whether a parent has remedied  the  



                                                                    6 

conditions that placed the child in need of aid,  and whether termination is in a child's 



                  7 

best interests  are factual determinations.  We review factual findings in child-in-need-of- 

aid cases for clear error.8  "Findings of fact are clearly erroneous if a review of the entire  



record in the light most favorable to the prevailing party below leaves us with a definite  

                                                                                             

and firm conviction that a mistake has been made."9  

                                                                              "Generally, conflicting evidence  



is insufficient to overturn the superior court's decision, and we will not reweigh evidence  

                                                                                                 

when  the  record  provides  clear  support  for  the  superior  court's  ruling."10  

                                                                                                                   We  give  



deference  to  the  superior  court's  credibility  assessments,  especially  when  such  



          5        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)).  



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



Servs., 254 P.3d 1095, 1103-04 (Alaska 2011) (quoting Barbara P. v. State, Dep't of  

Health & Soc. Servs., Office of Children's Servs. , 234 P.3d 1245, 1253 (Alaska 2010)).  

                                 



          7  

                                                                              

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

291 P.3d 957, 962 (Alaska 2013) (citing Pravat P. , 249 P.3d at 270).  



          8        Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's  



Servs., 289 P.3d 924, 930 (Alaska 2012) (citing Christina J., 254 P.3d at 1103).  



          9  

                                                      

                   Pravat P., 249 P.3d at 269-70 (quoting Dale H. v. State, Dep't of Health  

                                                                           

& Soc. Servs., Office of Children's Servs., 235 P.3d 203, 209-10 (Alaska 2010)) (internal  

quotation marks omitted).  



          10       Hannah B. , 289 P.3d at 930 (citing Maisy W. v. State, Dep't of Health &  



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



                                                             -8-                                                       6833
  


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

                                                                 11  

assessments  are  based  on  oral  testimony.                          Whether  OCS  has  made  reasonable  



reunification efforts is a mixed question of law and fact.12  "Whether the superior court's  

                                                           



factual findings satisfy applicable child in need of aid (CINA) statutes and rules is a  



question of law that we review de novo."13  

                                                                 



IV.       DISCUSSION  



          A.       Legal Framework  



                                                                                                                            14  

                                                                                         

                   To terminate parental rights, the superior court must make four findings. 



First, the court must find by clear and convincing evidence that the child "has been  



subjected to conduct or conditions described in AS 47.10.011" and is thus in need of  



      15  

aid.                                                                                                       

         Second, the court must find by clear and convincing evidence that the parent has  



                                                                                                              

failed to remedy the conduct and conditions in a timely manner such that the child would  



                                                                                           16  

                                                                                                

be at risk of physical or mental injury if returned to the parent.                             Third, the court must  



                                                          

find by clear and convincing evidence that OCS has made reasonable efforts, pursuant  



          11       Id. (citing Pravat P., 249 P.3d at 274).  



          12       Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's     



Servs., 290 P.3d 421, 428 (Alaska 2012).  



          13       M.W. v.      State, Dep't of Health & Soc. Servs.,  20 P.3d 1141, 1143 (Alaska  



2001).  



          14        CINA Rule 18(c); AS 47.10.080(c)(3).  



          15       AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).  



          16        CINA Rule 18(c)(1)(A)(i)-(ii).  



                                                             -9-                                                       6833
  


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

                                                                       17  

                                                                             

to  AS  47.10.086,  in  support  of  reunification.                         Fourth,  the  court  must  find  by  a  



preponderance of the evidence that termination is in the child's best interests.18  



                                                                            

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

                    In Need Of Aid.  



                    Sherman contests the superior court's finding that he caused Kadin to be  



                                                                 19  

                                                                     

a child in need of aid through abandonment.                          "We have articulated a two-part test for  



reviewing cases of abandonment: (1) [t]here must be  parental conduct evidencing a  



                                

willful disregard for parental obligations, leading to (2) the destruction of the parent- 



child relationship."20  This test is objective, focusing on the parent's demonstrated actions  



rather than subjective intent.21  

                                              Abandonment may also be found if the parent, without  



                                                             

justifiable cause, "failed to participate in a suitable plan or program designed to reunite  



          17	       AS 47.10.088(a)(3); CINA Rule 18(c)(2).  



          18	       AS 47.10.088(c); CINA Rule 18(c)(2)(A).  



          19        Sherman also argues that "[w]hen both parents are available, the State must  



prove that each parent is unfit before it may interfere with the family."  But we have held  

                                                                                     

that  an  initial  determination  of  CINA  status  may  be  "based  on  the  acts  of  just  one  

                                                                                                  

parent." Jeff A.C., Jr. v. State , 117 P.3d 697, 703 (Alaska 2005).  And a parent's conduct  

                                             

that  is  found  to  have  placed  the  child  in  need  of  aid  for  purposes  of  termination  

                                                                                           

proceedings  need  not  be  the  same  conduct  that  originally  caused  the  State  to  seek  

custody.  Id.   Here, the superior court properly focused on Sherman's abandonment  

despite the fact that Amy's drug use was a primary factor prompting State intervention.  

                                                       



          20        Sean B. v. State, Dep't of Health  & Social Servs., Office of Children's  



                                                              

Servs., 251 P.3d 330, 335 (Alaska 2011) (alteration in the original) (quoting Rick P. v.  

                                                   

State, Office of Children's Servs., 109 P.3d 950, 957 (Alaska 2005)) (internal quotation  

marks omitted).  



          21        Id. at 335-36 (quoting Jeff A.C., Jr. , 117 P.3d at 704).  



                                                             -10-	                                                      6833
  


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

                                              22  

the parent . . . with the child."                 The superior court in this case found that Sherman  



abandoned Kadin both under the general, two-part test and by failing to participate in his  

                                                 



case plan.  



                    We  first  considered  what  is  meant  by  the  statutory  phrase  "failed  to  



participate"  in  a  case  plan  in  A.B.  v.  State .23  

                                                                          "While  [AS  47.10.103(a)]  does  not  



necessarily require a parent to follow his or her reunification plan to the letter, it does  

                                                                                                        

require more than minimal participation."24  

                                                                   The record in this case supports a finding  



                                                                                

that Sherman failed to  comply with several important aspects of his case plan, including  



                                                                                                             

undergoing  a  psychological  assessment,  providing  verification  of  his  housing  and  



employment, and gaining an understanding of Kadin's developmental needs and abilities.  



                    OCS arranged for Sherman to undergo a psychological evaluation with the  

                                                                                



purpose of learning how to better educate him about being a responsible parent, given  



its  history  with  him  and  its  past  inability  to  effect  his  reunification  with  his  other  

                                                                                                           



children.  Sherman refused to undergo the evaluation, even after the court ordered that  

                                                                                  



he do so.  Sherman admits this failure on appeal, though he argues that he had a right to  

                                                                                                   



refuse and that he justly suspected that the ordered evaluation was "nothing but a fishing  

                                                               



expedition because he had already proved that he was safe with the children."  But the  

                                                                                                                      



record amply supports OCS's concerns and its need for better communication with him;  

                                                                      



it also amply supports the superior court's conclusion that Sherman's refusal to undergo  



the evaluation even when ordered to do so was objective evidence of an unjustified  

                                                                                                        



failure to participate in the case plan.  



          22        AS 47.10.013(a)(4).  



          23        7 P.3d 946, 951 (Alaska 2000).  



          24        Id.  



                                                             -11-                                                           6833  


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

                                                                                        

                    With regard to other requirements of the case plan, Sherman contends that  



                                         

the superior court clearly erred in finding that he "refuse[d] to show [OCS] how he  



                                                                                                             

earned money or where he lived."  Johnston testified at the evidentiary hearing that it  



                                    

was important for OCS to know about Sherman's sources of income because they needed  



to formulate a plan for him to take care of Kadin and because OCS was concerned that  



Sherman might be supporting himself by dealing drugs.  Johnston testified that Sherman  



had  not  shown  any  proof  of  income  after  Kadin's  birth  despite  his  claims  that  he  



sometimes worked in the fishing industry and that he owned a seafood business.  The  

                                  



superior court methodically but with little success asked Sherman to describe his recent  

                                                                           



employment history.  Sherman testified that he had held a few temporary jobs shortly  



before and after Kadin was born, that he had set up a seafood business, and that he was  



currently getting help with food, clothes, and rent from a housing assistance program.  



He testified that he had not filed a tax return since before 2001 but could not explain why  

                                                   



not.    His  testimony  about  his  earnings  overall  was  confused,  inconsistent,  and  



contradictory and supported Johnston's testimony that he was less than forthcoming.  



Giving the required deference to the superior court's determinations of credibility,25  

                                                                                                                             we  



                                                                               

cannot say that the court clearly erred in finding that Sherman failed to participate in the  



case plan by refusing to inform the State about his sources of income.  



                                                                                                                      

                    The  same  is  true  of  Sherman's  housing.    He  contends  in  part  that  the  



                                                              

superior court inappropriately focused on its quality.  The governing statute provides that  



                                                                                     

"the 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, lacks adequate housing, or exhibits a lifestyle that is different  



          25        See Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                     

Servs.,  289 P.3d 924, 930 (Alaska 2012) (citing Pravat P. v. State, Dep't of Health &  

                                                                                          

Soc. Servs., Office of Children's Servs., 249 P.3d 264, 274 (Alaska 2011)).  



                                                             -12-                                                            6833  


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

                                               

from  the  generally  accepted  lifestyle  standard  of  the  community  where  the  family  



          26  

lives."                                                                  

              But the superior court here focused not on the quality of the housing but on  



Sherman's secretiveness about it, a matter which was of significant concern to OCS.   



                     At the time of Kadin's birth, Sherman was living in a rooming house, but  

                                                                                                         



he soon moved someplace else.  He testified that he asked Johnston to conduct home  

      



visits at both locations but she refused to do so.  Johnston conceded at trial that Sherman  

                                          



asked her to conduct a home visit at the rooming house, but she testified that when she  

                                                                                                     



was available to do it he was no longer receptive.  She testified that he refused to reveal  

                                                                               



the address where he lived next, and that she was eventually unable to make any further  

                                                                             



inquiry into his housing situation because he stopped coming to case planning meetings.  

                                       



It  may  be  that  some  of  the  resistance  OCS  encountered  was  due  to  communication  

                         



difficulties.    But  once  more  giving  the  required  deference  to  the  superior  court's  

                                                                                 



determinations of credibility,27 we cannot say that the court clearly erred in finding that  



                                                                 

Sherman failed to participate in the case plan by refusing to give OCS the information  



it needed about his housing.  



                                                                          

                     Sherman also contests the court's finding that he "exhibited no significant  



                                                                             

understanding of [Kadin's] developmental needs or abilities," which marked a failure to  



                                                                                                 

meet one of the important goals of his April 2012 case plan.  Sherman argues that the  



                                                          

examples cited by the superior court - his belief that Kadin could hold his head up and  



                                                                                                                        

recognize  faces  at  five  days  old  and  his  misidentification  of  Darcy's  age  in  a  



                                       

photograph - "do  not involve the type of weighty justification needed to support a  



          26         AS 47.10.019.  



          27         See Hannah B., 289 P.3d at 930 ("We defer to a superior court's credibility        



determinations, particularly when they are based on oral testimony." (citing                                           Pravat P.,  

249 P.3d at 274)).  



                                                                -13-                                                               6833  


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

                                                      

finding that one has abandoned his child."  We agree that these instances alone would  



                       

be insufficient to justify such a finding, but the court specifically cited them as examples  



        

of a wider problem.  And it is unnecessary for us to decide whether the court erred in  



                   

making this finding.  Even disregarding Sherman's failure to make progress on the child  



                                                                   

development issue, there is no clear error in the superior court's finding that Sherman  



                                                                                                            

failed, without justification, to participate in his case plan by refusing to take the court- 



ordered psychological evaluation and refusing to disclose information about his income  



and housing.28  

                       



                    We also cannot say that the superior court clearly erred in finding that  



Sherman abandoned Kadin under the general, two-part test.  Sherman's failure to take  



the actions necessary to improve his chances of success in his relationship with Kadin  



                                                                                

constitutes  (1) "parental conduct evidencing a willful disregard for parental obligations,  



                                                                                            29  

                                                      

leading to (2) the destruction of the parent-child relationship."                               This is especially true  



given past events.  Sherman's rights to Darcy had been terminated just months before for  



reasons very much like those at issue here; yet Sherman was unable to show that he was  



          28        Sherman also argues that the record provides no support for the superior  



court's conclusion that his visits with Kadin were "rather superficial."   He correctly  

                                                                                                              

points out that Johnston testified that his behavior with Kadin during visitation was  

"fine."  Yet we find persuasive OCS's argument that the court found the visits to be  

                                

superficial because of Sherman's failure to make other changes in his life that would  

increase his contact with Kadin and lead to reunification.  



                    In addition, Sherman contends that "the court inappropriately used [his]  

hostility to OCS to determine that he was not fit to parent."  But the court's finding was  

                                                                        

properly focused on Sherman's relationship with Kadin; the court found that Sherman's  

                               

hostility to OCS was not an excuse for his failure to be more involved with the child.  



          29  

                                                                               

                    Sean B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  

                                                                                

251 P.3d 330, 335 (Alaska 2011) (quoting Rick P. v. State, Office of Children's Servs. ,  

109 P.3d 950, 957 (Alaska 2005)) (internal quotation marks omitted).  



                                                             -14-                                                        6833
  


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

seriously interested in addressing the reasons for that termination and working toward  



a better result this time.  



          C.	      The Superior Court Did Not Err In Finding That Sherman Failed To  

                   Remedy The Conditions That Placed Kadin In Need Of Aid.  



                    Sherman challenges the superior court's finding that he did not remedy the  

                                                                                                 



conditions that placed Kadin in need of aid.  Before terminating parental rights, the court  



must  find  by  clear  and  convincing  evidence  that  the  parent  "has  failed,  within  a  

                                                                                                                  



reasonable time, to remedy the conduct or conditions in the home 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."30  

                                                                        In determining whether a parent has  



                                                                                                               

remedied the relevant conduct or conditions, the court may consider the best interests of  



              31	                                                                                                         32 

the child.        A failure to comply with a case plan may constitute a failure to remedy.  



                    Sherman argues that he met all the requirements of his case plan except for  

                                                                      



the psychological evaluation, which, he contends, OCS failed to show was really needed.  

                                                                         



However,  OCS  presented  reasonable  justifications  for  the  evaluation,   including  

                                                                                              



Sherman's troublesome conduct with Georgina in New York, the difficulty that social  



service providers had in trying to work with him, and the fact that he was barred from  

                                                                                                   



visitation with Khloe until an evaluation was completed.  Furthermore, as discussed in  

                                             



Section IV.B. above, the superior court did not err in finding that Sherman failed to  

                                 



comply with other aspects of his case plan, namely informing OCS about his housing and  

                                                              



          30       AS 47.10.088(a)(2)(B); see also CINA Rule 1.8(c)(1)(A)(i)-(iii).  



          31       AS 47.10.088(b).  



          32       See Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's  



Servs., 175 P.3d 1263, 1268 (Alaska 2008).  



                                                            -15-	                                                      6833
  


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

employment situation.  The court's conclusion that Sherman failed to remedy the conduct  



that led to the finding of abandonment is not clearly erroneous.  



           D.	         The  Superior  Court  Did  Not  Err  In  Finding  That  OCS  Made  

                       Reasonable Reunification Efforts.  



                                                                              

                       Sherman challenges the superior court's finding that OCS made reasonable  



efforts to reunify him and Kadin.  In order to facilitate reunification, OCS must "make  



timely, reasonable  efforts to provide family support services to the child and to the  



parents . . . that are designed to . . . enable the safe return of the child to the family home,  



when appropriate, if the child is in an out-of-home placement."33  

                                                                                                                 OCS must identify  



relevant support services that may aid the parent in remedying the relevant conduct or  



                                                                                                                   34  

conditions and must actively help the parent to obtain those services.                                                           

                                                                                                                       OCS may fulfill  



                                                                                                

this obligation "by setting out the types of services that a parent should avail . . . herself  



of  in  a  manner  that  allows  the  parent  to  utilize  the  services."35  

                                                                                                                   "[OCS]  has  some  



discretion both in determining what efforts to pursue and when to pursue them."36  



                                                                                                       

                       On appeal, Sherman emphasizes the fact that it was just three weeks after  



                                                           

Kadin's birth that OCS asked for a determination that no reasonable efforts were needed,  



                                                                                                                            

and that OCS filed for termination when Kadin was just three months old. He argues that  



           33	        AS 47.10.086(a).  



           34	        Id .  



           35          Tara U. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                              ,  



239 P.3d 701, 705 (Alaska 2010) (quoting                                  Frank E. v. State, Dep't of Health & Soc.  

Servs.,  Div.  of  Family  &  Youth  Servs.,  77   P.3d  715,  720  (Alaska  2003))  (internal  

quotation marks omitted).  



           36  

                                                                                       

                      Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                  

Servs., 290 P.3d 421, 432 (Alaska 2012) (citing Sean B. v. State, Dep't of Health & Soc.  

Servs., Office of Children's Servs.,  251 P.3d 330, 338 (Alaska 2011)).  



                                                                     -16-	                                                               6833
  


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

                                                             

the timing of these actions, along with the fact that OCS was concurrently completing  



                                                                                    

a home study for a possible adoption by Amy's mother, prove that OCS never considered  



                                  

reunification to be  a  "true goal."  He also argues that the superior court improperly  



placed the burden of reunification on him.  OCS responds that its efforts were reasonable  



given its history with Sherman and his unwillingness to cooperate.  



                    The superior court found this to be a close case, and it observed that the  

                                                                                                           



compressed time frame would have precluded any finding of reasonable efforts if it were  



not for Sherman's recent history with OCS.  The court explained that  



                     [t]he very recent behavior of [Kadin's] parents in regards to  

                                                              

                     [Darcy] gives meaning and context to their behavior towards  

                                                                           

                     [Kadin] during his life so far and is evidence of how they  

                    would likely behave in the near future.  It also informs the  

                    experience of [OCS] and helps define what efforts it must  

                    reasonably make to provide family support services to the  

                    parents.  



It is true that "[t]he reasonableness of the division's efforts . . . must be viewed in light  

                                                                                                              



of the entire history of services that [OCS] had already provided."37  We have previously  



                                

held "that '[OCS's] efforts to prevent breakup of the entire family' may be considered  



                                                                                                                             38  

'in assessing whether that effort was sufficient' with respect to a particular child."                                            



                                                                      

                    Johnston, the OCS caseworker, testified that during Darcy's and Khloe's  



cases OCS provided Sherman with information about public assistance and food stamps  



and that her predecessor at OCS had helped Sherman complete a parenting class by  



                                                                                                    

working  with  the  class  facilitator  after  Sherman  was  almost  discharged  for  non- 



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



Servs., 66 P.3d 1, 7 (Alaska 2003) (citing E.A. v. State, Div. of Family & Youth Servs.                                            ,  

46 P.3d 986, 990 (Alaska 2002)).  



          38        Id. at 8 (quoting E.A., 46 P.3d at 991).  



                                                               -17-                                                             6833  


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

attendance.  OCS had arranged supervised visitation between Sherman and his daughters  



Darcy and Khloe and had made a number of efforts to address difficulties that arose  

                                                     



during those sessions.  First, OCS workers tried to help Sherman deal with Khloe's  

            



distress during visitation, but he was not receptive and would ask them to leave.  Second,  

                                            



OCS  moved  visitation  to  Cook  Inlet  Tribal  Council  at  Sherman's  request.    Third,  



Johnston arranged for Sherman to work with a parenting coach at Alaska Youth and  

                             



Family Network after he asked for additional help with the visits.  But Sherman refused  

                                                                                                        



to take the parenting classes that the program required, claiming that he had already  



learned all he needed to know.  He also refused to engage with a staff member from the  



Father's Journey parenting program who came to speak with him about taking part in a  



fathers' group.  



                    The record supports a finding that OCS continued to make reunification  



efforts after Kadin was born.  OCS provided supervised visitation with Kadin twice a  

                                                                                                    



week until Sherman's summer trip to Kenai or King Salmon in 2012, after which the  



visits decreased to once a week (apparently due to scheduling problems).  Johnston held  

                                                                                           



a case planning meeting in March 2012, scheduled two other planning meetings which  

                                                             



Sherman  did not attend, and attempted to speak with Sherman on the phone.  OCS  

               



provided Sherman with a bus pass every month.  Finally, OCS set up the court-ordered  

                                                                                                   



psychological  evaluation  which  Sherman  refused  to  attend  -  as  he  had  with  the  

                       



evaluation scheduled before Kadin's birth.39  

                                                                    



          39        We note that a court may determine that reasonable efforts are no longer  



required if the court finds that "the parent has . . . failed to comply with a court order to  

                                                                                                             

participate in family support services." AS 47.10.086(c)(3). OCS apparently did not ask  

                                                                                          

the superior court to make such a finding in this case.  



                                                             -18-                                                           6833  


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

                    In evaluating whether OCS has made reasonable efforts, the court should         



"look at . . . the parent's level of cooperation with OCS's efforts."40  

                                                                                                       In E.A. v. State , we  



concluded that while OCS's efforts during the latter part of the case "consisted largely  

                                  



of failed attempts to contact [the mother] or obtain information from her rather than the  

                                                   



provision of services, [the mother's] evasive, combative conduct rendered provision of  

                                                         



services   practically   impossible."41  

                                                            The   mother's   antagonistic   conduct   included  



                                                                                       

withholding contact information, being verbally abusive toward the social worker, and  



failing to complete a substance abuse assessment.42  

                                                                                 The facts are similar here.  The  



evidence supports the superior court's conclusion that Sherman was both confrontational  



and secretive  in  his dealings with OCS.  Johnston testified that Sherman refused to  

                           



discuss case planning with her during the March 2012 meeting; that he failed to come to  

                                                          



the next two planning meetings she scheduled with him; and that when she tried calling  

              



him, their conversations were not productive or he would hang up on her. Johnston  

                                                                                                     



testified that Sherman had been uncooperative with OCS prior to Kadin's case and that  

                     



he had threatened her and other OCS workers.   His lack of candor with regard to his  

                                                                                         



housing and sources of income have already been detailed above and also find support  



in the record.  



                    It is true that reunification efforts after Kadin's birth took place over a short  

                                                                              



period of time, and that visitation was sometimes reduced partly because of  OCS's  

                                                                                                                     



limitations.  However, "[t]he efforts that OCS makes must be reasonable but need not be  



          40        Tara U., 239 P.3d at 705 (citing Burke P. v. State, Dep't of Health & Soc.  



Servs., Office of Children's Servs., 162 P.3d 1239, 1245 (Alaska 2007)).  



          41        E.A., 46 P.3d at 990.  



          42        Id. at 990 n.12.  



                                                              -19-                                                         6833
  


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

             43  

                                                                                                      

perfect."        OCS provided - or attempted to provide - a number of services to Sherman  



                                                          

over the course of its history with him and tried different tactics to engage with him both  



                                                                                                                  

before and after Kadin's birth.  The superior court did not clearly err in finding that  



OCS's efforts toward reunification were reasonable.44  



                                                                                                         

          E.	       The Superior Court Did Not Err In Finding That Termination  Of  

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



                    Sherman  challenges  the  superior  court's  finding  that  termination  is  in  



                                                                                         

Kadin's best interests.  Under AS 47.10.088(c) and CINA Rule 18(c)(3), before a court  



terminates  parental  rights  it  must  find  by  a  preponderance  of  the  evidence  that  



termination is in the best interests of the child.  It is "proper to consider the children's  



                                                                                                           

bond to their caregivers, their need for permanency and stability, and the potential risk  



                                                                        45 

                                                                            "[A] child's need for permanence and  

to the children if returned to their parent's care." 



                                                      

stability should not be put on hold indefinitely while the child's parents seek to rectify  



                                                                                                 46  

                                                                                                     The record supports  

the circumstances that cause their children to be in need of aid." 



                                                                                  

the superior court's determination that it was unlikely Sherman would be able to rectify  



          43        Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's  



Servs.,  289  P.3d  924,  933  (Alaska  2012)  (quoting  Audrey  H.  v.  State,  Office  of  

Children's Servs., 188 P.3d 668, 678 (Alaska 2008)) (internal quotation marks omitted).  

                                                                                



          44  

                                                                                                               

                    We note that this may have been an appropriate case for the application of  

                                                       

AS 47.10.086(c)(8), which excuses OCS from making further reasonable efforts towards  

                                                                                                       

reunification if an earlier case has demonstrated that the efforts are likely to fail.  OCS  

                                                       

withdrew its request that the statute apply to this case before the trial court could rule on  

it, so this issue is not before us.  



          45        Hannah B , 289 P.3d. at 933 (citing Dashiell R. v. State, Dep't of Health &  



Soc. Servs., Office of Children's Servs., 222 P.3d 841, 850-51 (Alaska 2009)).  



          46  

                                                                                            

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

233 P.3d 597, 603 (Alaska 2010).  



                                                              -20-	                                                        6833
  


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

his behavior in the near future, that Kadin had formed bonds in his new household with             



his grandmother and his sister Darcy, and that his grandmother was meeting his needs  



for permanence and security.  



                     Sherman  contests  several  of  the  court's  specific  findings,  including  its  



conclusion that he has never shown a "real desire to care for a child."  For support, he  



                                                                                                        

points to his care of Georgina during her first nine months and his regular visitation with  



Darcy.  But these actions must be viewed in light of his placement of Georgina with  



relatives in Atlanta and New York and his lack of substantive contact with her thereafter;  



                                                                                                              

his initial preference that Darcy be sent to New York as well; and the difficulties he  



                                                                                                        

experienced with visitation, difficulties that he failed to surmount despite OCS's efforts.  



                                                                                                                      

Given  this  history,  we  cannot  say  that  the  superior  court  erred  in  finding  that  



"[Sherman's] claims to be motivated to care for [Kadin] are not credible."  



                     Sherman also faults the superior court for failing to specify the type of  



                                                                                                 

emotional harm to which Kadin would be exposed if he were in Sherman's care.  But the  



                                                                                              

risk of emotional harm follows logically from the court's other more specific findings  



                             

about Sherman's repeated failure to show consistent interest in his children, growth in  



                                                                                                            

his parenting abilities, and commitment to a case plan.  We see no error in the court's  



conclusion that terminating Sherman's parental rights was in Kadin's best interests.  



V.         CONCLUSION  



                     We AFFIRM the superior court's decision terminating Sherman's parental  



rights to Kadin.  



                                                                  -21-                                                            6833
  

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