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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Casey K. v. State, Dept. of Health & Social Services, Office of Children's Services (10/23/2013) sp-6837

Casey K. v. State, Dept. of Health & Social Services, Office of Children's Services (10/23/2013) sp-6837, 311 P3d 637

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

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

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

                                                                                   

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



                   THE SUPREME COURT OF THE STATE OF ALASKA  



CASEY K.,                                            )  

                                                     )        Supreme Court No. S-14985  

                  Appellant,                         )  

                                                     )        Superior Court No. 3PA-10-00190 CN  

         v.                                          )  

                                                     )        O P I N I O N  

STATE OF ALASKA,                                     )  

DEPARTMENT OF HEALTH &                               )        No. 6837 - October 23, 2013  

SOCIAL SERVICES, OFFICE OF                           )  

CHILDREN'S SERVICES,                                 )  

                                                     )  

                  Appellee.                          )  

                                                     )  



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

                  Judicial District, Palmer, Eric Smith, Judge.   



                  Appearances:  Janella Combs Kamai, Johnson & Combs, PC,  

                                                                                   

                  Kodiak,  for  Appellant.    Laura  Fox,  Assistant  Attorney  

                  General,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                                                      

                  General, Juneau, for Appellee.   



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

                                                        

                  Bolger, Justices.  



                  STOWERS, Justice.  



I.       INTRODUCTION  



                  A mother appeals the termination of her parental rights to her child.  She  

                                                                    



challenges the superior court's rulings that:  (1) the child was a child in need of aid under  


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AS 47.10.011; (2) she failed to remedy the conduct that placed the child in need of aid;  



(3)  the  Office  of  Children's  Services  (OCS)  made  reasonable  efforts  to  reunify  the  



                                                                                                                                                           1  

                                                                                                            

family;  and  (4)  termination  of  her  parental  rights  was  in  the  child's  best  interests. 



                            

Because all of the superior court's rulings are supported by the record, we affirm the  



court's decision to terminate the mother's parental rights.  



II.         FACTS AND PROCEEDINGS  



                                               2  

                        Cheyenne C.  was born to Casey K. and Cash C. in May 2005.  Cash was  



                                                           

violent  toward  Casey;  at  least  once  during  their  relationship  he  was  convicted  of  



violating a domestic violence protective order.  Casey and Cash initially tried to raise  



                                                                

Cheyenne together, but they split up in 2009 or 2010 and began sharing custody of  



                                                                                                              

Cheyenne on an informal, unscheduled basis.  Neither parent established a stable home,  



and Cheyenne moved frequently among temporary living situations.  



                                                                                                                          

                        On  September  9,  2010,  OCS  received  a  report  of  concern  involving  



                                                                                                                                    

"[a]llegations of parental substance abuse and neglect" of Cheyenne, but the report was  



                                                                                                            

screened out because the family could not be located.  Less than two weeks later, OCS  



                                                                                           

received another report that was similar in nature.  This time, OCS was able to locate the  



family and opened an investigation.  



                        OCS social worker Cathy Gray conducted interviews with Cheyenne, Cash,  



and Casey as part of OCS's investigation.  Gray reported that Cheyenne "stated her  



                                                                        

mother smokes [marijuana] in front of her."  Casey admitted to occasionally smoking  



marijuana but denied ever using in front of her daughter.  Gray requested that Cash,  



Casey,  and  Casey's  boyfriend  (with  whom  she  was  living  at  the  time)  complete  



            1           Although the superior court's decision also terminated the father's parental     



rights, he did not appeal; thus we address only the termination of the mother's parental         

rights.  



            2           Pseudonyms are used for the family to protect their privacy.  



                                                                           -2-                                                                          6837  


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urinalysis (UA) tests, but none of them complied.  OCS continued to receive reports that  



both parents were using drugs and that Cheyenne lacked a stable living situation.  



                                                                                                            

                    In November 2010 Cash was arrested while Cheyenne was with him.  The  



                                                                  

arresting officer contacted Casey's mother, Brenda, and one of Cash's friends dropped  



                                                                                                   

Cheyenne off at Brenda's house.  Brenda tried to locate Casey but was unable to do so,  



and OCS was notified of Cash's arrest.  Rather than take immediate legal custody of  



                                                              

Cheyenne, OCS worked out a safety plan with Casey whereby Cheyenne would remain  



                                                                            

in Brenda's care and Casey would submit UA test results to verify her sobriety.  Casey  



                                                                       

underwent four of the scheduled UAs:  the first two did not produce a sample; the third  



tested positive for THC; and the fourth tested negative for all substances.  



                    OCS took legal custody of Cheyenne on December 10, 2010, and Cheyenne  



                                  

remained in Brenda's care.  At a contested probable cause hearing  OCS explained why  



                                                                                

it had concluded that Cheyenne was a child in need of aid.  OCS stated it was concerned  



                                                                                                       

about  Casey's  and  Cash's  drug  use,  their  lack  of  stable  housing,  Casey's  ongoing  



relationships  with  alleged  drug  dealers  and  perpetrators  of  domestic  violence,  and  



                                                                                

Cheyenne's possible exposure to domestic violence.  OCS also asserted that Cheyenne  



                                                                                                            

had missed eight days of school by the third week of September while in Cash's and  



                                                                                           

Casey's care, though it was unclear whether the missed days occurred when Cheyenne  



was with Cash or with Casey.  



                    Brenda also testified that Cheyenne was exhibiting troubling behaviors.  For  



                                                                                     

example, soon after Cheyenne moved in with her, Brenda discovered that Cheyenne kept  



          

a bag under her bed with a change of clothes, stuffed animals, and food.  Cheyenne  



                             

referred to this bag as her "getaway bag" and explained to Brenda that she kept it in case  



                                                                        

she had to leave quickly, because when she was with Cash or Casey she sometimes had  



to leave places in the middle of the night and never knew whether she would return.  



                                                              -3-                                                        6837
  


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Brenda also noted that Cheyenne was hoarding items, such as half-eaten candies and  



scraps of paper.  



                    The superior court found that probable cause existed to believe Cheyenne  



                         

was  a  child  in  need  of  aid  under  AS  47.10.011(8)(b)(ii)  (domestic  violence)  and  



                                                                                               3  

AS 47.10.011(9) (neglect) and granted OCS temporary custody.   Cheyenne stayed in  



Brenda's care, where she has remained ever since.  



                                                                         

                    In January 2011 OCS established a case plan requiring Casey to complete  



                                                    

random UAs twice a week, obtain a substance abuse assessment and follow treatment  



recommendations,               enroll     in     a    domestic        violence        program         and     follow       all  



                                                                                                                         

recommendations, visit Cheyenne regularly, and maintain safe and stable housing.  OCS  



                                                            

agreed to pay for UA testing, substance abuse assessments, all necessary referrals, and  



transportation costs.  



                                                                         

                    OCS case worker Brooke Antonich, who was assigned to the case in March  



2011, did not have contact information for Casey and "pretty much just didn't know  



                                                         

where she was or how to get a hold of her."  In May 2011 Casey visited the OCS office  



                                                                                                       

and left a note with a phone number, but Casey did not answer when Antonich tried to  



                                                                                                        

call, and the voice mailbox was full.  Casey visited the office again the following month  



and left another note with a different phone number, and Antonich was able to make  



contact after leaving several messages.  



                                                                                                                       

                    Casey was incarcerated on criminal impersonation charges for just over a  



week in June and July 2011.  Soon after her release she met with Antonich to discuss her  



        

case  plan  for  the  first  time.    After  the  meeting  Casey  set  up  an  appointment  for  a  



                                                                                                            

substance abuse evaluation with a treatment program, but OCS failed to timely submit  



          3         The  superior  court  also  found  probable  cause  under  AS  47.10.011(10)  



(substance abuse), but this finding pertained only to Cash.  



                                                             -4-                                                           6837  


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

required collateral information to the assessor.  Lacking the collateral information, the  



assessor relied exclusively on Casey's self-reporting during the evaluation and concluded  



that Casey did not need any substance abuse treatment.  OCS sent the required collateral  

                                                                                        



information  about  three  weeks  after  the  July  21,  2011  evaluation,  but  an  updated  



evaluation was not available until March 2012, due in part to OCS's delay.  



                                                                     

                   As part of Casey's case plan OCS arranged for Casey to visit Cheyenne at  



Brenda's house at least twice a week.  Casey's visits were sporadic:  a visitation log  



                                                                                                         

revealed that Casey was late or failed to show up for nearly two-thirds of the visits from  



                                                                                                               

September to November 2011, and Brenda testified this was typical behavior for Casey.  



Casey also failed to show up to two meetings with Antonich in October and November,  



                                                                                       

and Antonich rarely knew where Casey was living.  Casey's participation in the random  



                                                              

UA testing program was equally minimal: Antonich testified that Casey only completed  



two or three UAs during OCS's involvement in the case over the span of two years even  



though random UA testing was always part of her case plan.  



                   Casey was convicted of eluding a peace officer and incarcerated for over  



                                                                          

a month during December 2011 and January 2012.  Casey made efforts to adhere to her  



case plan while incarcerated, completing a parenting class offered by the corrections  



                                                                 

system.    However,  Brenda  did  not  bring  Cheyenne  to  see  Casey  while  she  was  



incarcerated  because  of  a  mental  health  provider's  recommendation  and  earlier  



                          

discussions with Cash and Casey in which they all agreed that Cheyenne would never  



visit either parent in jail.  



                   After  her  release  Casey  started  attending  domestic  violence  education  



                                                                                       

classes, and Antonich noted "an improvement" in Casey's progress as her visits with  



                                                      

Cheyenne became more consistent.  Casey met with Antonich to discuss her case plan  



again in March 2012, and Antonich updated the case plan.  Casey informed Antonich  



that she had yet to secure an apartment for herself, but she was staying with her father  



                                                            -5-                                                      6837
  


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

and intended to move into her own apartment soon.  Antonich never heard anything  



                                                                          

further about the apartment, however, and she was unable to locate Casey at her father's  



                                                                                      

house or elsewhere.  Casey spoke with Antonich again in April, but she was unable to  



provide Antonich with her contact information.  Antonich also expressed concern that  



although  Casey  had  nearly  completed  the  domestic  violence  education  classes,  she  



                                                                                             

continued to associate with past partners who had been accused of committing domestic  



violence.  



                    Casey  was  again  arrested  and  incarcerated  in  April  2012,  this  time  for  



                                                                                                            

attempting to falsify a UA by using a device containing another person's urine.  Casey  



was  convicted  of  tampering  with  physical  evidence  and  sentenced  to  two  years'  



imprisonment,  with  one  year  suspended.    Casey  was  housed  in  segregation  in  the  



correctional facility because she allegedly attempted to escape from a pre-trial detention  



               

facility.     As  a  result,  Casey  was  unable  to  take  advantage  of  the  substance  abuse,  



domestic   violence,   anger   management,   and   parenting   programs   offered   by   the  



                                               

corrections system.  According to her probation officer, Casey was also "written up . . .  



                                                                                    

for various incidents" of misconduct while incarcerated.  At the time of the termination  



                                                                                         

trial, Casey was still incarcerated and housed in segregation, and the escape allegations  



were still under investigation.  



                   Although Cheyenne did not visit Casey at the jail, Casey saw her daughter  



when she was released on a temporary furlough to attend a family funeral in July.  That  



                                                                                         

visit went well, and Casey was very attentive to Cheyenne.  Casey also wrote letters to  



                                    

Cheyenne  from  prison  and  spoke  to  her  by  phone  on  one  occasion.    But  phone  



                                                                              

communication had to be arranged by OCS because Casey was housed in segregation,  



and it is unclear whether Casey requested OCS to arrange for additional phone visitation.  



                                                                                                                

                   The superior court held a termination trial in November 2012, nearly two  



years after OCS took legal custody of Cheyenne.  Antonich testified that it would be in  



                                                             -6-                                                       6837
  


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

Cheyenne's  best  interests  to  be  freed  for  adoption  by  her  grandparents.    Antonich  



expressed concern that it would take at least six to eight months after Casey's release  



from prison before Casey and Cheyenne could be reunified, and she did not think it was  



appropriate "to delay [Cheyenne's] permanency any longer."  



                                                                                                 

                    Casey testified to why her parental rights should not be terminated.  Casey  



                                            

stated that she expected to be released in December, at which time she intended to move  



                                                                

in with her family, go back to work, obtain a college degree, and follow her case plan so  



                                                                                                 

she could regain custody.  When asked whether her parental rights should be terminated,  



                                                               

Casey responded, "I know that I wasn't as serious as I should have been before, and I -  



it's my own fault for not doing all of it like I should have.  But I believe I deserve  



                                                                                           

another chance, at least another six months to get everything done."  Casey also stated  



she believed it would take her no more than six months to achieve stability.  



                                                                                                           

                    Brenda testified that Cheyenne knew her and her husband as her primary  



                                                                                                                     

caregivers, and she agreed that it would not be in Cheyenne's best interests to "stay in  



limbo" by putting the termination decision off for another year or so while Casey and  



Cash worked on their case plans.  Brenda acknowledged that the termination decision  



                                                                                             

was "really, really hard" and stated that she fully intended to encourage Cheyenne to  



maintain relationships with her birth parents.  



                              

                    At the conclusion of the termination trial Superior Court Judge Eric Smith  



                                                                           

issued oral findings, which were followed the next month by a written order terminating  



Casey's parental rights.  The superior court found by clear and convincing evidence that  



Cheyenne was a child in need of aid pursuant to AS 47.10.011(1) (abandonment), (9)  

                                                       4   The court found that Casey had done "very little  

                                                                                                   

(neglect), and (10) (substance abuse).  



          4         The superior court also found Cheyenne to be a child in need of aid under  

                                                                 

AS 47.10.011(2) (incarceration), but this finding pertained only to Cash.  



                                                             -7-                                                           6837  


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

                                                      

on her case plan"; that "there was ample and credible testimony of neglect of [Cheyenne]  



                                                                                                                            

while she was living with her folks due to the drug use and the lifestyles that were  



                                                                                                                    

induced by the drug use, as well as the fact that both parents have been . . . unavailable  



                         

to [Cheyenne] because they were incarcerated due to their drug use"; and that Casey had  



an "ongoing substance abuse addiction."  



                                                     

                     The superior court also found by clear and convincing evidence that Casey  



                                                                                                         

had not "remedied the conduct or conditions in the home that put the child at substantial  



risk  of  harm,"  and  that  OCS  "made  timely  and  reasonable  efforts  as  required  by  



                                                                                                                            

AS 47.10.086 to effectuate reunification between the parents and the child . . . ."  Finally,  



                                                                            

the superior court found by a preponderance of the evidence that termination of Casey's  



parental rights was in Cheyenne's best interests.  



                      Casey appeals from the termination order.  



III.       STANDARD OF REVIEW  



                     In  a  child  in  need  of  aid  (CINA)  termination  proceeding  we  review  a  

                                                                           5  Factual findings "are clearly erroneous  

superior court's factual findings for clear error. 



if review of the entire record leaves us with a definite and firm conviction that a mistake  

                                                                                      

has been made."6  "Conflicting evidence is generally insufficient to overturn the superior  

                                                                     



court, and we will not reweigh evidence when the record provides clear support for the  

                                                                                  

superior court's ruling."7  "Whether a child is in need of aid and whether the parent failed  

                                                                                         



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



Servs., 254 P.3d 1095, 1103 (Alaska 2011).  



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



Servs., 290 P.3d 421, 427-28 (Alaska 2012) (internal quotation marks omitted).  



           7         Id. (quoting Maisy W. v. State, Dep't of Health & Soc. Servs., Office of  

                                                               

Children's  Servs.,  175  P.3d  1263,  1267  (Alaska  2008))  (internal  quotation  marks  

                                                                                                                     (continued...)  



                                                                   -8-                                                             6837
  


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

to remedy the 'conduct or the conditions that placed the child at substantial risk' of harm  

                                                                      



                                                                         8  

are  factual  findings  reviewed  for  clear  error."     Whether  OCS  has  made  reasonable  

                                                       



                                                                                          9  

reunification efforts is a mixed question of law and fact.   Best interests findings are  



                                                              10  

                                                                                 

factual findings reviewed for clear error.                       Whether the superior court's factual findings  



                                                             

satisfy the CINA statutes is a question of law that we review de novo, adopting the rule  

of law that is most persuasive in light of precedent, reason, and policy.11  



IV.       DISCUSSION  



                     In order to terminate parental rights under AS 47.10.088, a superior court  

                                                                    



must find by clear and convincing evidence that:  (1) a child is in need of aid under at  

                                                                                                                    



least one of the subsections listed in AS 47.10.011; (2) the parent has not remedied the  



                                                                                                    

conduct or conditions that caused the child to be in need of aid or that returning the child  



                                                                                    

to the parent would put the child at substantial risk of physical or mental injury; and (3)  



                                                                                                           

OCS has made reasonable efforts to provide family support services to the child and to  



                 12  

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



          7(...continued)  



omitted).  



          8         Id. (quoting Pravat P. v. State, Dep't of Health & Soc. Servs., Office of   



Children's Servs., 249 P.3d 264, 270 (Alaska 2011)).  



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

                                                                                                        

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



          10        Id.  



          11        J.S. v. State, 50 P.3d 388, 391 (Alaska 2002).  



          12         AS 47.10.088(a).  



                                                                 -9-                                                          6837
  


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

termination is in the child's best interests.13  



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

                      Child In Need Of Aid.  



                                                                                                                                

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



                                                                               

and convincing evidence that a child is in need of aid under at least one subsection of  



                        14 

AS 47.10.011.               Alaska Statute 47.10.011(10) provides that the superior court may find  



                                 

a child is in need of aid if "the parent, guardian, or custodian's ability to parent has been  



                                                                                                                  

substantially impaired by the addictive or habitual use of an intoxicant, and the addictive  



                          

or habitual use of the intoxicant has resulted in a substantial risk of harm to the child."  



We have explained that the substantial-risk-of-harm requirement is satisfied where a  



parent's   addictions   are   "at   least   partially   responsible   for   his   current   and   past  



incarcerations,  and  .  .  .  his  frequent  and  prolonged  absences  while  incarcerated  



           13	        AS 47.10.088(c); CINA Rule 18(c)(3).  



           14         AS 47.10.088(a).  Casey does not appeal the superior court's finding that       



Cheyenne was a child in need of aid under AS 47.10.011(9) (neglect) or (10) (substance     

abuse);  she  appeals  only  the  court's  finding  that  she  abandoned  Cheyenne  under  

AS 47.10.011(1).  But only one statutory basis is required for a CINA finding.  See G.C.  

                                                                                                                 

v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 651  

                                                                        

(Alaska 2003) (affirming superior court's finding that child was in need of aid under  

                                                                                                                        

AS 47.10.011(1) and declining to review the court's findings under AS 47.10.011(2) or  

(9) or AS 25.23.180(c)(3), "since one statutory basis is sufficient for finding a child to  

                                                                                                                              

be  in  need  of  aid  in  a  termination  proceeding").    Casey  has  therefore  waived  any  

challenge to the superior court's finding that Cheyenne was a child in need of aid.  See  

                                                                                                     

Alyssa  B.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Div.  of  Family  &  Youth  Servs. ,  

                                                                                                                      

 165 P.3d 605, 618 (Alaska 2007) ("Because either finding [that child was in need of aid]  

                                                                                                       

alone would support the termination order and because Alyssa does not challenge the  

court's finding of abandonment, her challenge to the mental illness finding has no impact  

                                                                                                                        

on the outcome of the case.").  Nevertheless, we address the merits of   the superior  

                                                                                                                       

court's  substance-abuse  finding  because  it  informs  our  analysis  of  whether  Casey  

remedied  her  conduct  within  a  reasonable  time  and  whether  OCS  made  reasonable  

                                                                                 

efforts to reunify Casey with Cheyenne.  



                                                                   -10-	                                                            6837
  


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

substantially impair his ability to parent."15  



                    Here, there was abundant evidence in the record of Casey's substance abuse  



                                                                                           

problems.  Casey repeatedly failed to participate in the UA testing program required by  



       

her case plan; Antonich testified that Casey only completed two or three UAs during  



OCS's nearly two-year involvement in the case even though random UA testing was  



                                           16  

                                                                                                                

always part of her case plan.                  These missed UAs counted against Casey as failed UAs.  



Moreover, as late as several months before the termination trial, Casey attempted to  



falsify a UA.  Casey's substance abuse directly resulted in her current incarceration,  



                                                        

which itself prevented Casey from having in-person contact with her daughter.  The  



               

superior court did not clearly err in finding that Cheyenne was a child in need of aid  



                                                                                                                    

under AS 47.10.011(10) and, as we explained above, Casey does not contest this finding  



on appeal.  



                    Because we affirm the superior court's finding that Casey's substance abuse  



issues placed her child in need of aid under AS 47.10.011(10), we need not consider  



                                             

whether the superior court's findings that Cheyenne was a child in need of aid under the  

other subsections of AS 47.10.011 were clearly erroneous.17  



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



270 P.3d 767, 777 (Alaska 2012) (quoting Stanley B. v. State, DFYS                                      , 93 P.3d 403, 407  

(Alaska 2004)) (internal quotation marks omitted).  



          16        OCS indicated in the initial emergency petition that Casey submitted to four  



                 

UAs: one tested clean, one tested positive for THC, and two did not produce a sufficient  

                                                                                                               

sample.  It is unclear whether Antonich's statement about the number of UAs Casey  

                                                                                                  

completed took into account only those UAs Casey completed after her case plan was  

                                                                               

created or whether Antonich did not include those UAs that did not produce a sample.  

                                                                           

Either way, the record demonstrates that Casey's participation in the random UA testing  

program was minimal.  



          17  

                            

                    See G.C., 67 P.3d at 651.  



                                                               -11-                                                         6837
  


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

          B.	      The  Superior  Court  Did  Not  Err  In  Finding  That  Casey  Did  Not  

                   Remedy Her Substance Abuse Issues In  A  Reasonable Amount Of  

                                                                                        

                   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  

                                            

                                                                                               18    In  making  this  

the  conduct  that  placed  the  child  at  substantial  risk  of  harm.                                  



determination, the court may consider "any fact relating to 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 the  

                                                                             



conduct or the conditions in the home; (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  

                               19   "The superior court is entitled to rely on a parent's documented  

created by the parent.                                          

history of conduct as a predictor of future behavior."20  



                   In finding there was clear and convincing evidence that Casey had not  



remedied the conduct or conditions in the home that put Cheyenne at substantial risk of  

                                                    



harm, the superior court cited Casey's failure to complete substance abuse treatment, her  

                                                                                                 



failure to comply with her probation program, and her lack of "concrete plans" following  

                                                                  



her  release  from  prison.    Casey  argues  she  made  "substantial  progress"  toward  



                                                                                         

remedying her conduct and, but for OCS's failure to provide the collateral information  



                                                         

for her substance abuse evaluation, she would have done so within a reasonable amount  



of time.  Casey acknowledges that she initially struggled to follow her case plan, but  



          18       AS 47.10.088(a)(2); Sherman B. v. State, Dep't of Health & Soc. Servs.,  



Office of Children's Servs., 290 P.3d 421, 431 (Alaska 2012).  



          19       AS 47.10.088(b).  



          20       Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  



Servs., 74 P.3d 896, 903 (Alaska 2003).  



                                                           -12-	                                                     6837
  


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

argues  that  "[o]nce  she  engaged"  she  "moved  forward  with  all  aspects  of  her  case  



                                                                        

plan[]."  OCS responds that even if OCS were at fault for some delay, Casey still had a  



                                                                                    

reasonable opportunity to remedy her conduct.   OCS contends that "[w]ere it not for  



Casey's seven-month failure to engage, sporadic contacts with OCS, continued pattern  



                                        

of poor decision-making, and commission of criminal acts leading to incarceration and  



                                                                                                                

segregation, she would have had ample time to complete substance abuse treatment and  



demonstrate sobriety within the two years preceding the termination trial."  



                                                                                                                        

                    Casey exaggerates the extent to which she complied with her case plan.  As  



                                                                                          

described above, Casey made no efforts to participate in her case plan or remedy her  



                                                              

conduct for the first seven months after OCS took custody of Cheyenne, and Antonich  



                     

testified that she was unable to get in contact with Casey for a four-month period when  



                                                                                          

she was first assigned to the case.  Casey completed only two to four UAs during the  



entire  period  of  OCS's  involvement  even  though  random  UA  testing  was  always  



                                                                                                     

required  by  her  case  plan.    All  of  her  missed  or  incomplete  UAs  were  properly  



                                      

considered failed UAs. And although Casey's progress improved in early 2012, she was  



                                                    

again incarcerated in April 2012, this time for conduct directly related to her substance  



                                                                      

addictions: Casey attempted to falsify her UA test result by substituting another person's  



urine for her own.  At the time of the termination trial, Casey was still incarcerated,  



housed in segregation, and had an unknown release date.  



                    Casey  properly  notes  that  OCS's  failure  to  timely  provide  required  



collateral  information  to  the  substance  abuse  treatment  assessor  prevented  her  from  



                                                                                                      

receiving an accurate substance abuse evaluation for eight months. Although this failure  



                                        

may  have  made  it  more  difficult  for  Casey  to  receive  immediate  treatment  for  her  



substance abuse issues, it did not preclude her from remedying her substance abuse  



                                              

problems within a reasonable time.  Cheyenne had been in OCS's custody for nearly two  



                                                                                                    

years  at  the  time  of  the  parental  rights  termination  trial,  and  yet  Casey  remained  



                                                               -13-                                                         6837
  


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

                             

incarcerated  with  an unknown release date.  Moreover, Casey received the accurate  



                                                                                     

substance abuse evaluation in March 2012, yet she was incarcerated for tampering with  

a UA device a month later.21  



                    The  record  suggests  that  although  Casey  made  some  progress  toward  



                                                                                             

remedying her conduct for a two-month period in the spring of 2012, her overall efforts  



                                                                                                          

over the nearly two-year period of OCS's involvement were minimal and sporadic.  The  



superior court did not clearly err in finding that Casey failed to remedy her conduct in  



a reasonable time.  



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

                    Reasonable Efforts To Reunify Casey With Cheyenne.  



                                                 

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



                                                                                                    

efforts to reunify her with Cheyenne, arguing there is insufficient evidence in the record  



                                                                                                                  

to support this finding.  Before terminating parental rights, the court must find by clear  



and convincing evidence that OCS has made reasonable efforts to effectuate reunification  



                                                   22  

between the parent and the child.                       Alaska Statute 47.10.086 requires OCS to "make  



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

                                                                                                                     



parents or guardian of the child that are designed to prevent out-of-home placement of  

                                                                                             



the child or to enable the safe return of the child to the family home, when appropriate,  

                                                             

if the child is in an out-of-home placement."23  As part of these "reasonable efforts," OCS  

                                                                                                                 



must identify, "actively offer," and refer the parent to family support services that will  

                                                                                    



          21        We also note that the treatment assessor's initial assessment of Casey was                   



based exclusively on information which Casey provided. Thus, to the extent the provider         

erroneously concluded that Casey did not need treatment, this error was presumably  

caused by Casey's own misstatements in her self-reporting.  



          22        AS 47.10.088(a)(3).  



          23        AS 47.10.086(a).  



                                                               -14-	                                                        6837
  


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

                                                                                       

assist him or her in remedying the conduct or conditions in the home that made the child  



                                    24                                                              25 

a  child  in  need  of  aid.              OCS  must  also  document  its  actions.                        When  making  



determinations  under  AS  47.10.086,  "the  primary  consideration  is  the  child's  best  

interests."26  



                                                                                                                             27  

                                                               

                                                                                           

                    "The efforts that OCS makes must be reasonable but need not be perfect." 



               

We have recognized that OCS maintains "some discretion in determining what efforts  

to pursue and whether the timing is reasonable."28  Additionally, "[a] parent's willingness  



                                                                                                                         29  

to participate in services is relevant to the scope of the efforts OCS must provide."                                        



                                                                 

                    The superior court found that OCS's efforts included the development of  



an initial safety plan; the development of case plans; referrals for UAs and substance  



abuse assessments; provision of funds for UAs and assessments; the establishment of an  



                                                                    

"open and liberal" visitation schedule; and the provision of programs by the Department  



                                                                                                         

of Corrections (DOC) while Casey was incarcerated.  The court further found that OCS  



                                                                                                          

"provided extensive services for the child and there was ongoing contact between [OCS]  



                                                                         

and the parents including phone calls, attempted phone calls to return the parents' calls  



          24       Id.  



          25       Id.  



          26        AS 47.10.086(f).  



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



2008).  



          28  

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

251 P.3d 330, 338 (Alaska 2011) (citing Jeff A.C., Jr. v. State ,  117 P.3d 697,  706 (Alaska  

2005)).  



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



Servs., 290 P.3d 421, 432 (Alaska 2012) (quoting Sean B.,  251 P.3d at                                     338) (internal  

quotation marks omitted).  



                                                             -15-                                                       6837
  


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

                                                                                                                          

and a variety of meetings to address the status of the case and the needs of the parents  



                                                              

and child."  Based on this evidence, the superior court concluded that there was "clear  



                                                              

and convincing evidence that [OCS] made timely and reasonable efforts as required by  



AS 47.10.086 to effectuate reunification between the parents and the child . . . ."  



                      As discussed above and as Casey stresses in her appellate brief, OCS's  



                                          

efforts were not perfect: OCS failed to timely provide the required collateral information  



                                                                                     

for her substance abuse evaluation (OCS's delay was three weeks).  This three-week  



oversight  resulted  in  Casey  having  to  wait  for  eight  months  to  receive  an  accurate  



                                                                                      

substance abuse evaluation.  But the reasonableness of OCS's efforts must be viewed "in  

light of the entire history of services" provided,30 and we have repeatedly held that a brief  



lapse  in  OCS's  provision  of  services  does  not  foreclose  a  finding  that  OCS  made  



                                                                 31  

                                                                                                                            

reasonable efforts toward reunification.                             Thus, OCS's delay in providing the collateral  



                      

information  to the substance abuse evaluators did not in itself render OCS's efforts  



                                                                                                                       

unreasonable.  And given OCS's other efforts throughout the history of services, which  



                                                       

included the creation of a safety plan, the creation of a case plan and at least one update  



of  that  case  plan,  the  provision  of  liberal  visitation  with  Cheyenne,  a  mental  health  



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



Servs., 66 P.3d 1, 7 (Alaska 2003).  



           31         See  Roland  L.  v.  State,  Office  of  Children's  Servs.,  206  P.3d  453,  456  

                                            

(Alaska 2009) (holding that even under the higher "active efforts" burden required in  

                                                                                                                 

Indian Child Welfare Act (ICWA) cases, the fact that OCS failed to make efforts during  

                                                                                         

three of the 26 months it was involved in the case was not determinative); Jon S. v. State,  

                                       

Dep't of Health & Soc. Servs., Office of Children's Servs. , 212 P.3d 756, 765 (Alaska  

2009) (holding that OCS made "active efforts" as required by ICWA, even where OCS's  

                                                                              

efforts temporarily declined when father was incarcerated).  



                                                                     -16-                                                               6837
  


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

                                      32  

                                                                                              

assessment for Cheyenne,                 frequent attempts to contact Casey, referrals for services, the  



                                                

provision of funds, and DOC's provision of services while Casey was incarcerated, the  



superior court did not err in concluding that OCS made the requisite "reasonable efforts."  



                                                                                                 

                    Casey also argues that OCS "did not identify and provide any services  



                       

while [Casey] was incarcerated."  Casey asserts that OCS's "failure to work with the  



correctional facility falls far beneath the appropriate standards that are expected of the  



Department to meet its burden in preventing the ultimate break up of a family."  



                    When  a  parent  is  incarcerated,  DOC  rather  than  OCS  has  the  primary  



                                                     33  

                                                                                      

responsibility of providing services.                   Although a parent's incarceration does not relieve  



                                                                                                                   34  

                                                                                                                       In the  

OCS of its duty to make reasonable efforts, it affects the scope of that duty. 



context of an ICWA case where OCS bears the higher burden of making "active efforts"  



to promote reunification, we have held:  



                                     

                    A parent's incarceration significantly affects the scope of the  

                                                                     

                    active efforts that the State must make to satisfy the statutory  

                    requirement.         While       neither      incarceration         nor     doubtful  

                    prospects for rehabilitation will relieve the State of its duty  

                    .   .  .   to    make       active     remedial        efforts,     the     practical  

                          

                    circumstances  surrounding  a  parent's  incarceration  -  the  

                    difficulty  of  providing  resources  to  inmates  generally,  the  



          32        Casey notes that OCS "only obtained one mental health evaluation" of   



Cheyenne and argues that "[n]o other assessments or evaluations were completed to  

show that any contact between mother and child should be restricted[.]"  But Casey does  

                                                                                                                 

not provide any grounds why more than one evaluation was needed.  Moreover, OCS  

                                                                                     

never attempted to restrict contact between Casey and Cheyenne; the case plan provided  

                                                   

for liberal visitation.  



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



Servs., 79 P.3d 50, 56 (Alaska 2003).  



          34  

                                          

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

Servs., 234 P.3d 1245, 1262 (Alaska 2010).  



                                                             -17-                                                        6837
  


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

                                                                                 

                     unavailability   of   specific   resources,   and   the   length   of  

                     incarceration - may have a direct bearing on what active  

                                                                 [35] 

                     remedial efforts are possible.  



                                                       

                     Contrary  to  Casey's  argument,  OCS  did  identify  and  make  available  



services while Casey was incarcerated.  Casey completed a parenting program offered  



                                                                                                          

by DOC when she was first incarcerated, but she was unable to take advantage of this  



                                                                                          

or  other  programs  during  her  most  recent  incarceration  because  she  was  housed  in  



                                                                      36  

                                                                          Thus, the "practical circumstances" of  

segregation due to her alleged escape attempt. 



                                                                                                                                  37  

                                                                                             

Casey's situation had a "direct bearing" on the services OCS and DOC could offer her. 



                                    

Cheyenne did not visit Casey while she was incarcerated, but this lack of visitation was  



                 

again due to the parties' consensus that it would be unhealthy for Cheyenne to visit the  



jail.  And although OCS only arranged one phone call between Casey and Cheyenne  



while Casey was housed in segregation, the parties disputed whether Casey requested  



increased phone contact.  



                                                                                                

                     Finally, Casey's own lack of participation in the services offered by OCS  



supports  the  superior  court's  finding  that  OCS  made  reasonable  efforts  toward  



                     38  

                                                                                        

reunification.           As described above, Casey consistently failed to follow her case plan  



          35        A.A. v. State, Dep't of Family & Youth Servs.                        , 982 P.2d 256, 261 (Alaska  



 1999) (internal quotation marks and alterations omitted); see Barbara P., 234 P.3d at   

 1262 (applying A.A. to CINA "reasonable efforts" determination).  



          36  

                                                                                                                    

                     Cf. Martin N., 79 P.3d at 56 (rejecting parent's argument that OCS failed  

                                                                  

to make reasonable efforts, where parent's "maximum security status - which resulted  

          

from [his] own actions while in prison - precluded him from taking further classes"  

offered by the prison).  



          37         See A.A., 982 P.2d at 261.  



          38  

                                          

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

Servs., 290 P.3d 421, 432 (Alaska 2012); Erica A. v. State, Dep't of Health & Soc.
  

                                                                                                                (continued...)
  



                                                               -18-                                                         6837
  


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

throughout the duration of OCS's involvement.  Given the entire history of the services  

                                                                          



offered by OCS and Casey's general lack of participation, we hold that the superior court  

                                                         



did not clearly err in concluding that OCS made reasonable efforts to reunify Casey with  

                                                                                                      



Cheyenne.  



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

                     Casey's Parental Rights Was In Cheyenne's Best Interests.  



                     Before parental rights may be terminated, the superior court must find by  

                                                                                                                   

a preponderance of the evidence that termination is in the child's best interests.39                                              In  

                                                                                       



making this determination, the superior court may  consider the same factors it may  

                                                                                  



consider to determine whether a parent remedied her conduct within a reasonable time,  

                                                              



                        40  

set forth above.            The court also may consider the presence or lack of favorable present  

                                                                                                

placements.41  



                     The superior court ruled that terminating Casey's parental rights would be  

                                                                  



in Cheyenne's best interests.  The court found that Cheyenne needed permanency, which  



Casey was unable to provide to her; that there was no evidence that Casey was going to  

                                                                                                                   



change her behavior, and "without change, the best predictor of future behavior is past  

                                         



behavior"; that once released, it would take Casey up to two years to prove her sobriety  

                                 



and  stability;  and  that  it  was  not  in  Cheyenne's  best  interests  "to  give  [Casey]  an  

                                                                                                            



unlimited amount of time to remedy the harm [she] pose[d]" to Cheyenne.  



                                                                               

                     Casey argues that "[c]onsidering the bond between mother and child, the  



          38(...continued)  



Servs., Div. of Family & Youth Servs., 66 P.3d 1, 8 (Alaska 2003).  



          39        AS 47.10.088(c); CINA Rule 18(c)(3).  



          40        AS 47.10.088(b).  



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



251 P.3d 330, 339 (Alaska 2011).  



                                                               -19-	                                                         6837
  


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

efforts  made  by  [Casey]  that  were  impeded  by  the  Department[,]  and  the  temporal  



                                                 

proximity of a near completion of [Casey's] case plan, there was insufficient evidence  



              

to show that the best interests of Cheyenne were met with termination of her mother's  



rights."  



                                                                                             

                    Casey correctly asserts there was evidence that she and Cheyenne shared  



                                                           

a bond:  at the probable cause hearing in January 2011, Brenda testified that, before her  



                                                                          

recent troubles, Casey had "always been a good mom," and Brenda also acknowledged  



                                                                                         

at the termination trial that Cheyenne had an attachment to Casey.  But Casey again  



                                                                                                   

mischaracterizes the extent to which she complied with her case plan and the extent to  



                                                    

which  OCS's  failure  to  provide  the  collateral  information  for  her  substance  abuse  



                                                                                                                             

evaluation impeded her progress.  As described above, Casey failed to participate in or  



                                   

even discuss her case plan for the first seven months of OCS's involvement, and her  



                     

participation remained sporadic and minimal for the next six or seven months.  Casey  



complied with some aspects of her case plan for two months in the spring of 2012, but  



                                                                                                               

she was incarcerated soon after.  Casey stated that she thought she would be released in  



                                                                                                                   

December 2012, just a month after the termination trial, and once released it would take  



                                                  

her no more than six months to achieve stability.  But Casey's actual release date was  



                                                                                                               

unknown at the time of the trial because she was facing pending escape charges.  And  



                                                           

Antonich testified that it would take at least six to eight months of stability - including  



"clean UAs, working a case plan, steady employment, housing, safe housing, stable  



housing"  -  before  Cheyenne  and  Casey  could  be  reunified.    Notwithstanding  the  

evidence of Casey's bond with Cheyenne,42 it was appropriate for the superior court to  



emphasize  Cheyenne's  need  for  permanency  and  stability  in  determining  whether  



          42        Brenda also testified that she intended to encourage Cheyenne to maintain  



relationships with her birth parents, indicating that the bond between Cheyenne and  

                                                                                                              

Casey will not necessarily be severed by the termination of Casey's parental rights.  



                                                              -20-                                                             6837  


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

                                                                43  

                                                                                                                             

termination was in her best interests.                              Casey's incarceration, Casey's past behavior, and  



                                                                                      

Antonich's time-frame estimation all supported the court's conclusion that Casey would  



be unable to meet Cheyenne's needs.  



                                                                    

                        Casey also argues there was "limited to no evidence presented concerning  



                                                                                                                        

the harm Cheyenne suffered," and "little history to show any harm" committed by Casey.  



                                                                                                                                     

But there was evidence in the record that Cheyenne was "way behind" in school and in  



                                                                                                                            

danger of being held back a grade "because she had missed so much [school]" while in  



Casey's and Cash's custody; that Cheyenne maintained a "getaway bag" because she was  



                                                               

accustomed to hurriedly having to leave places where she would stay with her parents;  



that Cheyenne exhibited "hoarding behavior"; and that Casey's failure to adhere to the  



visitation schedule upset Cheyenne.  The record thus supported the  superior court's  



finding that Casey had harmed Cheyenne in the past, and this past behavior supported  



                                                                                                     

the court's finding that termination of Casey's parental rights would be in Cheyenne's  



best interests.  



                        Finally, the presence of Brenda as a favorable placement supported the  

superior court's conclusion that termination was in Cheyenne's best interests.44  Antonich  



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



Servs., 234 P.3d 1245, 1263-64 (Alaska 2010) (holding that a superior court "properly                                            

considered the children's need for permanency, a crucial need for young children," in   

evaluating the best interests of the child   in a termination proceeding);                                                        Dashiell R. v.  

State, Dep't of Health & Soc. Servs., Office of Children's Servs.                                                  , 222 P.3d 841, 850-51  

(Alaska 2009) (approving of a superior court's consideration of "the children's need for       

stability and permanency" in evaluating the best interests of the children).  



            44  

                                                                                                     

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

Servs., 290 P.3d 421, 434 (Alaska 2012) ("[T]he fact that a child has bonded with her  

foster parent can be a factor in considering whether it is in the child's best interests to  

                                      

terminate a parent's rights." (quoting Karrie B. ex rel. Reep v. Catherine J. , 181 P.3d  

 177, 185 (Alaska 2008))) (internal quotation marks omitted).  



                                                                          -21-                                                                     6837
  


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

testified that Cheyenne was "thriving" in Brenda's home and that it was OCS's position       



that Cheyenne's long-term goal should be adoption by her grandparents.  Brenda testified  



that Cheyenne viewed her and her husband as her primary caretakers and that she and  



                                                                               

her husband were "100 percent" committed to Cheyenne.  Brenda further stated that she  



and  her husband were able to provide Cheyenne with stability: notwithstanding her  



                                                                                 

earlier problems, Cheyenne was excelling in school at the time of the termination trial,  



                                                                                               

and she had developed a routine with Brenda and her husband.  The superior court did  



not clearly err in concluding that this evidence, together with the evidence of Casey's  



conduct, established that termination was in Cheyenne's best interests.  



V.       CONCLUSION  



                  For the reasons explained above, we AFFIRM the superior court in all  



respects.  



                                                        -22-                                                   6837
  

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