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


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

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moira M. v. State, Dept. of Health & Social Services, Office of Children's Services (3/18/2016) sp-7088

Moira M. v. State, Dept. of Health & Social Services, Office of Children's Services (3/18/2016) sp-7088

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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                                       



MOIRA  M.,                                                       )  

                                                                 )          Supreme  Court  No.  S-15952  

                                Appellant,                       )  

                                                                                                                                      

                                                                 )          Superior Court No. 3PA-13-00106 CN  

           v.                                                    )  

                                                                                                

                                                                 )          O P I N I O N  

                     

STATE OF ALASKA,                                                 )  

                                                     

DEPARTMENT OF HEALTH &                                                                                           

                                                                 )         No. 7088 - March 18, 2016  

                                                     

SOCIAL SERVICES, OFFICE OF                                       )  

                          

CHILDREN'S SERVICES,                                             )  

                                                                 )  

                                Appellee.                        )  

                                                                 )  



                                                                                                               

                                                  

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

                                                                                          

                      Judicial District, Palmer, Vanessa White, Judge.  



                                                                                                                 

                      Appearances: Rachel Cella, Assistant Public Defender, and  

                                                                                                                        

                      Quinlan Steiner, Public Defender, Anchorage, for Appellant.  

                                                                                                    

                      Kathryn R. Vogel, Assistant Attorney General, Anchorage,  

                                                                                                                 

                      and  Craig  W.  Richards,  Attorney  General,  Juneau,  for  

                                                                                                           

                      Appellee. Rachel Levitt, Assistant Public Advocate, Palmer,  

                                                                                                        

                      and Richard Allen, Public Advocate, Anchorage, Guardian  

                             

                      Ad Litem.  



                                                                                                           

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

                                                                         

                      Justices. [Winfree, Justice, not participating.]  



                                         

                      BOLGER, Justice.  


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

I.        INTRODUCTION
  



                    The superior court terminated a mother's parental rights based on evidence  

                                                                                                                    



that she failed to remedy her substance abuse and the danger this conduct posed to her  

                                                                                                                            



child.  On appeal the mother first argues that the superior court erred when, prior to the  

                                                                                                                            



termination trial, it denied her request for a visitation review hearing.  She also argues  

                                                                                            



that,  at  the  termination  trial,  the  superior  court  erroneously  reduced  the  Office  of  

                                                                                                                             



Children's Services's (OCS) burden to make reasonable reunification efforts after she  

                                                                                                                            



moved out of state.              But the  record  and  our  case law support the superior  court's  

                                                                                                                      



decisions.        The  superior  court  denied  the  visitation  review  hearing  because  OCS  

                                                                                                                         



responded to the mother's motion for a hearing by issuing a family contact plan that  

                                                                                                                   



appeared to fully address her concerns.   And the superior court's analysis of OCS's  

                                                                                                                       



efforts properly considered the specific facts of her case.  Accordingly we affirm the  

                                                                                                                            



superior court's decision to terminate parental rights.  

                                                                      



II.       FACTS AND PROCEEDINGS  

                                 



          A.        Facts  

                    Abel, born in September 2012, is the son of Moira and Sam.1                                   Sam died  

                                                                                                                          



when Abel was three months old.  After Sam's death, Moira and Abel moved to Alaska  

                                                                                                                       



with Moira's boyfriend, Jarvis.  

                                     



                    In the early morning hours of August 29, 2013, Palmer police officer James  

                                                                                                                        



Gipson noticed Moira walking alone along the road.  After Moira declined Gipson's  

                                                                                                     



offer of a ride, Gipson continued driving until he noticed a car parked in a gravel lot.  

                                                                                                                                  



Gipson approached the car, discovered it was unlocked, and found an unattended infant  

                                                                                                                        



in the back seat.  While Gipson was waiting for backup assistance, Moira entered the lot  

                                                                                                                             



          1         We  use  pseudonyms  throughout  to  protect  the  family's  privacy.  



                                                              -2-                                                           7088  


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

and identified the car as belonging to her and the infant as her child.                                                                              Gipson noticed   



signs of impairment in Moira's behavior and notified another officer to contact Moira                                                                                     



while Gipson remained with the infant.                                                 Moira was taken into custody, and while in                                                  



custody she admitted to using cannabis, asserted that she had used methamphetamine for                                                                                            

                                                               2 and admitted that she had driven with Abel after using  

the first time the night before,                                                                                                                                



these drugs. Moira was ultimately charged with endangering the welfare of a child in the  

                                                                                                                                                                                 



first degree, driving on a suspended license, driving under the influence, and misconduct  

                                                                                                                                                               

involving a controlled substance.3                                        After taking Moira into custody, the police released  

                                                                                                                                                                      



Abel into the custody of Jarvis's mother.  

                                                                                        



                            Based on this incident, the police sent OCS a protective services report  

                                                                                                                                                                          



regarding Abel, and OCS immediately began an investigation. OCS was initially unable  

                                                                                                                                                                          



to locate Moira or Abel for several days.   Upon finding them, OCS took Abel into  

                                                                                                                                                                               



emergency custody, and the superior court granted OCS temporary custody.  Because  

                                                                                                                                                                     



Moira did not want Abel placed with relatives outside of Alaska, Abel was placed in a  

                                                                                                                                                                                



foster home with a non-relative.  OCS immediately began offering services to Moira:  

                                                                                                                                                                                         



it scheduled urinalyses (UAs) and hair follicle tests for controlled substances for both  

                                                                                                                                                                              



Moira and Abel, arranged  visitation, and offered to provide transportation to these  

                                                                                                                                                                            



services.  Though Moira missed her first visit with Abel, she did meet with an OCS  

                                                                                                                                                                             



caseworker and submitted to UAs.  The UAs came back positive for marijuana once in  

                                                                                                                                                                                   



September 2013 and twice in October 2013.  

                                                                                               



              2             During             the        termination                  trial       Moira            asserted             that        she         first       tried  



methamphetamine while in high school.                                                  



              3             Moira ultimately pleaded guilty to endangering the welfare of a child and  

                                                                                                                                                                                

driving  under  the  influence.                                     The  charges  for  misconduct  involving  a  controlled  

                                                                                                                                                                 

substance and driving with a suspended license were dismissed.  

                                                                                                                                          



                                                                                         -3-                                                                                 7088
  


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

                                                                                                                             

                    OCS also referred Moira to the Akeela Assessment Center where she took  



                                                                                                                         

a substance abuse assessment in September 2013. Moira reported that she had a history  



                                                                                                                     

of using alcohol, marijuana, hallucinogens, amphetamines, and opiates.  The substance  



                                                                                                                                 

abuse assessment concluded that Moira "exhibited a maladaptive behavioral pattern of  



                                                                                         

dependence for cannabis, leading to clinically significant impairment or distress," and  



                                                                         

recommended outpatient services and ongoing UAs.  



                                                                                                                                

                    In October 2013 Moira was admitted to the Akeela Family Program, an  



                                                                                                                                  

outpatient counseling program.  About one month later, OCS and Moira developed a  



                                                                                                              

case plan that required Moira to comply with the recommendations of her substance  



                                                                                                                           

abuse assessment, submit to UA testing, participate in a psychological evaluation, attend  



                                                                                                                                     

parenting classes, and follow the visitation plan developed by Alaska Family Services.  



                                                                                                                         

Moira participated in theAkeelaFamily Programuntil January 2014. During this period,  



                                                  

she attended regular counseling sessions at Akeela, complied with regular UA testing,  



                                                                                                                         

took  parenting  classes,  and  took  a  behavioral  health  assessment  at  Mat-Su  Health  



                                                                                                                          

Services.   Moira also consistently  visited Abel, generally multiple times per week,  



                                                                                                                     

through March 2014.   During these visits Moira exhibited many positive parenting  



                                                                                                                      

attributes and few negative attributes, and she was able to meet many of the assigned  



                          

parenting goals.  



                                                                                                                             

                    Despite  Moira's  initial  progress  toward  her  case  plan  goals,  she  also  



                                                                                                                               

struggled.   She admitted to using spice during this time, and she tested positive for  



                                                                                                                               

opiates   in   November   2013   and   for   both   methamphetamine   and   opiates   in  



                                                                                                                             

December 2013. As a result, her recommended drug treatment gradually increased from  



                                                                                                                                 

outpatient services to residential care.  But after late December 2013, Moira failed to  



                                                                                                                              

return to treatment at Akeela, and the next month she was discharged after reporting that  



                                                                                                      

she would seek outpatient treatment with Alaska Family Services.  



                                                               -4-                                                         7088
  


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

                                              Moira also began failing to maintain regular visitation with Abel. In spring                                                                                                                                                          



2014 she began attending fewer visits with him.                                                                                                                       Because Moira did not inform Alaska                                                                        



Family Services about her absences ahead of time, it periodically had to stop and re-start                                                                                                                                                                                       



visitations. OCS also struggled to maintain contact with Moira, despite attempts to visit                                                                                                                                                                                                  



Moira's   residence,   calls   to   different   phone   numbers,   and   visits   to   her   boyfriend's  



residence.   



                                              Moira's problems with law enforcement also continued.                                                                                                                                           As a result of her                              



August 2013 arrest, Moira was sentenced to 15 days in jail with three years probation                                                                                                                                                                                   



and was ordered to participate in the Alcohol Safety Action Program as a probation                                                                                                                                                                                  



condition.   But she failed to complete that program, and the State accordingly moved to                                                                                                                                                                                                          



revoke her probation. In June 2014 she was arrested for shoplifting. The next month she                                                                                                                                                                                                       



was arrested on an outstanding warrant for violating her probation conditions; at that                                                                                                                                                                                                      



time, she reportedly admitted that she used heroin daily.                                                                                                                                              In December 2014 she was                                                            



                                                                                                         4  

indicted for heroin possession.                                                                               



                       B.                     Proceedings  



                                              In January 2014 the superior court adjudicated Abel a child in need of aid,  

                                                                                                                                                                                                                                                                                             



and in March 2014, after an uncontested disposition hearing, the court committed Abel  

                                                                                                                                                                                                                                                                                        



to OCS custody.  OCS updated Moira's case plan in July 2014.  Noting that Moira had  

                                                                                                                                                                                                                                                                                            



made only initial progress, the updated plan recommended that Moira:  (1) "complete a  

                                                                                                                                                                                                                                                                                                     



substance abuse assessment and follow all recommendations"; (2) "participate  in  a  

                                                                                                                                                                                                                                                                                         



psychological evaluation and . . . follow all recommendations"; (3) "follow the family  



contact plan for supervision of visits with [Alaska Family Services] and for telephonic  

                                                                                                                                                                                                                                                                     



and face to face visits supervised by the foster parent," and (4) "develop appropriate  

                                                                                                                                                                                                                                                                 



                       4                      During  the  termination  trial,  Moira  admitted  to  using  heroin  "[a]  couple  



times  in  Alaska"  and  asserted  that  her  use  ended  around  August  2014.    



                                                                                                                                                -5-                                                                                                                                                    7088  


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

parenting behaviors through parenting classes and . . . demonstrate these techniques                                                                                                                                                                                                                                     



while at visitations."                                                                  OCS also recommended changing Abel's permanency goal from                                                                                                                                                                                                  



reunification to adoption. Moiraopposed                                                                                                                                  thepermanency                                                      goal change, asserting that she  



had scheduled a psychological evaluation and                                                                                                                                                               planned to participate in an updated                                                                                     



 substance abuse assessment with Akeela.                                                                                                                                     



                                                       After her case plan was updated,Moiraagain began following                                                                                                                                                                                                 through with  



her case plan goals.                                                              In August 2014 she participated in a psychological evaluation with                                                                                                                                                                                                 



Dr. Michael Rose and a substance abuse assessment at Akeela Assessment Center.                                                                                                                                                                                                                                                                       The  



 substanceabuseassessment found that Moirawasdependentonamphetamines,cannabis,                                                                                                                                                                                                                                                   



nicotine,   and   alcohol.     Given   Moira's   recent   and   regular   use,   the   assessment  



recommended detoxification as well as medium-                                                                                                                                                          or long-term residential treatment. The                                                                                                         



psychological evaluation diagnosed Moira with perpetrating child neglect, struggling                                                                                                                                                                                                                                        



with   cannabis   dependence   and  methamphetamine   abuse   (both   in   remission),   and  



exhibiting possible borderline personality.                                                                                                                                           The evaluation recommended that Moira                                                                                                                 



abstain from using substances, engage in psychotherapy and substance abuse treatment,                                                                                                                                                                                                                                         



demonstrate fiscal responsibility, and pursue parenting education.                                                                                                                                                                                                                 



                                                        By the time Moira                                                         began to follow                                                  through with her case plan, however, the                                                                                                                



 superior court had already approved adoption as Abel's permanency goal, finding that                                                                                                                                                                                                                                                                  



Moira had not made substantial progress toward her case plan goals and that it would be                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                          5       In September 2014 OCS  

contrary to Abel's best interests to return him to her custody.                                                                                                                                                                                                                                                                                   



notified Moira that it planned to relocate Abel to Washington to live with Kayla, Abel's  

                                                                                                                                                                                                                                                                                                                                           



paternal  grandmother.                                                                                    Moira  initially  objected  to  this  decision  and  requested  a  

                                                                                                                                                                                                                                                                                                                                                               



placement review hearing.  

                                                                            



                            5                           Moira  did  not  request  a  contested  hearing.   



                                                                                                                                                                              -6-                                                                                                                                                                  7088  


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

                                                       The superior court held the placement review hearing in October 2014.                                                                                                                                                                                                                                             



 Shortly before the hearing, OCS assigned caseworker Lynette Anselm to Abel's case,                                                                                                                                                                                                                                                             



and she was able to meet with Moira and Kayla at the hearing.                                                                                                                                                                                                           At the hearing, Moira                                               



changed her position and agreed that placing Abel with Kayla in Washington would                                                                                                                                                                                                                                                          



 serve his best interests.                                                                           She also testified that she was looking into substance abuse                                                                                                                                                                           



treatment in Washington so that she could be closer to him.                                                                                                                                                                                             



                                                        Shortly after the placement review hearing, Abel moved to Washington to                                                                                                                                                                                                                              



live with Kayla.                                                       OCS and Moira continued to communicate, but the extent of their                                                                                                                                                                                                           



communication is unclear.                                                                                      Moira also had telephonic contact with Abel after his move,                                                                                                                                                                 



but the extent of this contact is also not clear from the record.                                                                                                                                                                                          In December 2014, a few                                                                



months after Abel's move, OCS petitioned to terminate Moira's parental rights.                                                                                                                                                                                                                                                             



                                                       In January 2015 Moira moved to Oregon to live with her family.                                                                                                                                                                                                                   At the   



time, she had open criminal cases in Alaska, and by the time of the termination trial in                                                                                                                                                                                                                                                                     



April 2015, multiple bench warrants had issued for her arrest.                                                                                                                                                                                                    Once in Oregon, Moira                                                     



applied to the ARC Center, a nearby substance abuse treatment facility, and was put on                                                                                                                                                                                                                                                                     



the   wait   list   for   an   inpatient   program.     ARC   offered   Moira   temporary   outpatient  



treatment, but Moira initially declined.  And while on the wait list, Moira did not look                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                        6          But she did  

for   work   because employment was not readily                                                                                                                                                            available in                                          the   area.                                                                          



participate in Alcoholics Anonymous and Narcotics Anonymous once or twice a week.  

                                                                                                                                                                                                                                                                                                                                                                         



                                                       After her move Moira attempted to call Abel through Kayla, but Kayla did  

                                                                                                                                                                                                                                                                                                                                                        



not allow her to speak to him, telling her that OCS had cut off visitation.  During this  

                                                                                                                                                                                                                                                                                                                                                     



time OCS was trying to locate Moira, and Anselm, the OCS caseworker, believed that  

                                                                                                                                                                                                                     



Moira was incarcerated in Alaska. According to Anselm, Moira did not tell OCS that she  

                                                                                                                                                                                                                                                                                                                                                        



                            6  

                                                                                                                                                                                                                                                                                                                                               

                                                       Moira explained that she occasionally worked for her grandparents to cover  

                                                                                                                                                                                                                                                                                                                                                                         

rent, but she did not ask them for additional work because she was focused on treatment.  



                                                                                                                                                                             -7-                                                                                                                                                                 7088  


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

planned to move to Oregon, and Anselm was not aware of Moira's plans until after she                                                                                                                                                        



moved.   After Kayla denied Moira contact with Abel, Moira's attorney contacted OCS                                                                                                                                                    



in mid-January for clarification but heard no response and thus contacted OCS again in                                                                                                                                                         



mid-February.  At a pretrial hearing in late January, Moira's attorney also noted that                                                                                                                                                    



Moira was living in Oregon and raised the issue of visitation. Anselm testified that these                                                                                                                                             



communications marked the first time she knew for certain that Moira was residing in                                                                                                   



Oregon.   



                                      Because she was unable to discuss visitation with OCS,                                                                                                                  Moira filed a                      

                                                                                                                                                                                                      7      She asked the  

motion in mid-February 2015 requesting a visitation review hearing.                                                                                                                                                                         



court to review whether OCS was complying with its obligation to provide her with  

                                                                                                                                                                                                                                        

reasonable visitation8 and to require OCS to prove by clear and convincing evidence that  

                                                                                                                                                                                                                                           

                                                                                                                   9  Moira claimed that she had not had in-person  

visitation was not in Abel's best interests.                                                                                                                                                                               

                                                                                           



or  phone  contact  with  Abel  since  December  2014  and  that  OCS  had  not  directly  

                                                                                                                                                                                                                              



responded to her requests for visitation.  Moira asserted that, in effect, OCS had denied  

                                                                                                                                                                                                                                  



visitation with Abel.  

                                                            



                                      In response, OCS established a family contact plan. The plan provided for  

                                                                                                                                                                                                                                             



Kayla to call Moira three days per week and for the calls to last up to five minutes.  It  

                                                                                                                                                                                                                                                



also provided for supervised visitation between Moira and Abel once a week set up by  

                                                                                                                                                                                                                                              



Washington Child Protective Services.   OCS thereby opposed Moira's motion for a  

                                                                                                                                                                                                                                                 



                   7                  See  CINA Rule 19.1(a) ("At any time in a proceeding, a parent . . . who has                                                                                                                          



been denied visitation . . . may move the court for a review hearing at which [OCS] must                                                                                                                                                

show by clear and convincing evidence that visits are not in the child's best interests.").                                                                                                                         



                   8                  SeeAS 47.10.080(p) ("If a child is removed fromtheparentalhome, [OCS]  

                                                                                                                                                                                                                                   

shall provide reasonable visitation between the child and the child's parents . . . .").  

                                                                                                                                                                                                                                              



                   9                  See  CINA  Rule  19.1(a)  (requiring  OCS  to  demonstrate  by  clear  and  

                                                                                                                                                                                                                                         

convincing evidence that "visits are not in the child's best interests").  

                                                                                                                                                                                                       



                                                                                                                       -8-                                                                                                             7088
  


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

                                                                                                                              

hearing and rejected Moira's "assertion that visitation has been denied." The court then  



                                                                                                                                   

denied Moira's motion "because OCS ha[d] established a family contact plan," but it  



                                                                                                                              

noted that OCS should be prepared to address the apparent delay in establishing this plan  



                                     

at the termination trial.  



                                                                                                                     

                    The  termination  trial  was  held  in  April  2015.                                Moira,  testifying  



                                                                                                                          

telephonically, explained that since she moved to Oregon she had limited phone access,  



                                                                                                                               

but she had been leaving a message with Kayla when she wanted to talk with Abel.  She  



                                                                                                      

described her contact with Abel at the time of the trial as follows:  



                                                                                                     

                    I get to talk to him as much as I can . . . get a hold of [Kayla]  

                                                                                                            

                    or [she can] get a hold of me because my phone situation has  

                                                                                                           

                    been hard because I've just not been working[,] and I've still  

                                                                                                 

                    been trying to get into my treatments and joining [Narcotics  

                                                                                                              

                    Anonymous]groups, and[AlcoholicsAnonymous]groups as  

                                            

                    much as I can.  



                                                                                                                                      

Dr. Rose testified as an expert witness based on his psychological examination of Moira.  



                                                                                                                                 

He asserted that unless Moira engaged in treatment, any child living with her would be  



                                                                                                                     

at risk of harm.  Finally, Anselm testified about her interactions with Moira and noted  



                                                                                                

her difficulty communicating with Moira throughout the case.  



                                                                                                                               

                    At the close of the termination trial, the superior court issued oral and  



                                                                                                                                   

written findings terminating Moira's parental rights.  The court found that Abel was a  



                                                                                                                       

child in need of aid because of Moira's substance abuse.   Noting Moira's relapses,  



                                                                                                                  

decision to decline outpatient treatment, token participation in Alcoholics Anonymous  



                                                                                                                             

andNarcotics Anonymous,decision to fleeAlaska, failureto maintain contact with OCS,  



                                                                                                                               

and failure to maintain consistent contact with Abel, the court determined that Moira had  



                                                                                                                               

failed to remedy the conduct that put Abel at substantial risk of harm.  The court also  



                                                                                                                                      

found that OCS made reasonable efforts to promote reunification throughout the case.  



                                                                                   

And it found Moira not credible and determined that OCS's reasonable efforts burden  



                                                                -9-                                                         7088
  


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

was  necessarily  reduced  after  Moira  left  Alaska  and  failed  to  provide  reliable  contact  



information.    Finally   the   court found   that   returning   Abel   to   Moira's   care   would   be  



contrary  to  his  best  interests.   



                       Moira  appeals  the  termination  of  her  parental  rights  to  Abel.   



III.	       STANDARD  OF  REVIEW  



                       We  review  a  trial  court's  decision  to  deny  a  review  hearing  for  abuse  of  



                  10  

discretion.                                                                                                                                       

                        "A  trial  court  abuses  its  discretion  only  if  its  decision  arises  from  an  



                                                                                                                              11  

                                                                                                     

improper motive or is arbitrary, capricious, or manifestly unreasonable." 



                       "Whether  factual  findings  satisfy  the  requirements  of  the  applicable  child  



                                                                                                                     12  

in  need  of  aid  .  .  .  statute  is  a  question  of  law  that  we  review  de  novo,"                              adopting  the  rule  



                                                                                                               13  

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



IV.	        DISCUSSION  



            A.	        The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Denying  Moira's  

                       Request  For  A  Visitation  Review  Hearing.  



                       In   her   motion   for   a   visitation   review   hearing,   Moira   argued   that   OCS  



violated  her  right  to  reasonable  visitation  under  AS  47.10.084(c)  and  AS  47.10.080(p).   



She  noted  her  attempts  to  contact  OCS  and  restart  visitation,  and  she  asserted  that  OCS's  



failure to respond to her inquiries constituted a de facto denial of visitation with Abel.  



            10         Lara S. v. State, Dep't of Heath & Soc. Servs., Office of Children's Servs.                                                   ,  



209 P.3d 120, 124 (Alaska 2009).                             



            11	        Id. at 124-25.  

                                                



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

                                                                                                                                   

Servs., 353 P.3d 831, 837 (Alaska 2015) (citing Ralph H. v. State, Dep't of Health &Soc.  

                                                                                                                                               

Servs., Office of Children's Servs., 246 P.3d 916, 920 (Alaska 2011)).  

                                                                                                             



            13         Susan M. v. Paul H., 362 P.3d 460, 463 (Alaska 2015) (quoting Rockstad  

                                                                                                                                      

v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005)).  

                                                                        



                                                                       -10-	                                                                 7088
  


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

                                                                                                          

Moira concluded that she was entitled to a review hearing under AS 47.10.080(p) and  



                                

CINA Rule 19.1(a).  



                                                                                                                                

                    The right to reasonable visitation for parents whose parental rights have not  



                                                                                                                               

been terminated originates from AS 47.10.084(c), which provides:  "When there has  



                                                                                                                             

been transfer of legal custody . . . and parental rights have not been terminated by court  



                                                                                                                            

decree, the parents shall have residual rights and responsibilities.  These residual rights  



                                                                                                                

and responsibilities of the parent include . . . the right and responsibility of reasonable  



                                                                                                  

visitation . . . ."   Alaska Statute 47.10.080(p) explains what constitutes  reasonable  



visitation:  



                                                                                                                 

                    When determining what constitutes reasonable visitation . . . ,  

                                                                                                          

                     [OCS]   shall   consider   the   nature   and   quality   of   the  

                                                                                                      

                    relationship that existed between the child and the family  

                                                                                                             

                    member before the child was committed to the custody of  

                                                                                                              

                     [OCS]. . . . [OCS] may deny visitation to the parents . . . if  

                                                                                                             

                    there is clear and convincing evidence that visits are not in  

                                                                                                              

                    the  child's  best  interests.  If  [OCS]  denies  visitation  to  a  

                                                                                                            

                    parent  . . . , [OCS] shall inform the parent . . . of a reason for  

                                                                                                      

                    the denial and of the parent's . . . right to request a review  

                                                                                                      

                    hearing as an interested person.  A parent . . . who is denied  

                                                                                                                 

                    visitation may request a review hearing. (Emphases added.)  



                                                                                                                              

CINA Rule 19.1(a) similarly provides that a parent who has been denied visitation may  



                                                                                                                               

move for a hearing "at which [OCS] must show by clear and convincing evidence that  



                                                 

visits are not in the child's best interests."  



                                                                                                                                

                    On appeal Moira argues that the superior court erred when it denied her  



                                                                                                                

motion  for  a  visitation  review  hearing.                       She  claims  that  the  family  contact  plan  



                                                                                                                                 

established by OCS, which relied on Kayla calling Moira and on Moira traveling to  



                                                                                                                               

Washington to visit Abel, was unreasonable given Moira's limited access to a phone and  



                                                                                                                         

lack of driver's license. Had the court granted her motion for a visitation review hearing,  



                                                                                                                          

she asserts that she would have demonstrated the plan was impractical.  Moira further  



                                                               -11-                                                         7088
  


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

                                                                                                                                  

claims that after denying her motion for a review hearing, the court used her inability to  



                                                                                                                                

follow the plan against her when it terminated her parental rights. She concludes that the  



                                                                                                                               

court's  failure to  grant the hearing  prejudiced her  case at the termination  trial and  



                                                                                              

accordingly asks us to reverse the superior court's decision.  



                                                                                                                          

                    Moira's argument overlooks the fact that, after OCS filed its family contact  



                                                                                                                   

plan, Moira did not file a reply opposing the plan nor did she challenge its inadequacy  



                                                                                                                              

at the termination trial.  Moira's motion for a visitation review hearing, which was filed  



                                                                                                                                  

before OCS established its family contact plan, alleged that OCS had not responded to  



                                                                                                                             

her requests for  visitation and had therefore effectively denied her visitation.   And  



                                                                                                                            

though Moira supported the motion with examples of her correspondence with OCS,  



                                                                                                                            

those exhibits did not show that OCS objected to visitation.   "[B]ecause OCS ha[d]  



                                                                                                                                

established a family contact plan," which appeared to address Moira's concerns, the  



                                       

court denied the motion.  



                                                                                                                               

                    Moira argues that the family contact plan didnotconclusively establish that  



                                                                                                                              

she no longer was suffering a de facto termination of her visitation rights.  Moira also  



                                                                                                                                   

argues that even if OCS's family contact plan established that she did not suffer a  



                                                                                                                  

de facto termination of her visitation rights, there was still an ongoing controversy  



                                                                                                                           

warranting  a  review  hearing,  because  the  superior  court  could  have  given  Moira  



                                                                                       

additional relief by augmenting the family contact plan.  



                                                                                                                        

                    However, when the superior court denied the motion for a review hearing,  



                                                                                                                             

it had no way of knowing that Moira objected to the family contact plan.  The sole issue  



                                                                                                                         

that Moira raised in her motion was a lack of visitation; she requested "a review hearing  



                                                                                                                               

to address the denial of visitation." (Emphasis added.)  The motion did not mention any  



                                                                                                                      

concerns  with  phone  access  or  transportation.                            The  family  contact  plan  provided  



                                                                                                                                

visitation through both phone contact and in-person visits.  It thus granted Moira all the  



                                                      

relief she requested in her motion.  



                                                               -12-                                                         7088
  


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

                                  It is unclear why the superior court would need to hold a hearing to review                                                                                                



the denial of visitation when OCS had already established a visitation plan and permitted                                                                                                             



visitation.   Accordingly it was reasonable for the superior court to conclude that OCS                                                                                                               



had resolved the sole issue before it, lack of visitation, and that the matter no longer fell                                                                                                                         



under CINA Rule 19.1(a), which provides for review hearings when visitation has been                                                                                                                               

denied.   Thus the superior court did not err when it denied Moira's motion.                                                                                                                     14  



                 B.	              The Superior Court Did Not Erroneously Lower OCS's Burden To  

                                                                                                                                                                                                                       

                                  Make Reasonable Efforts.  

                                                                                     



                                  Before  terminating  parental  rights,  a  court  must  find  that  OCS  "has  

                                                                                                                                                                                                                  

complied with the provisions of AS 47.10.086 concerning reasonable efforts."15  Alaska  

                                                                                                                                                                                                             



Statute 47.10.086(a) requires OCS to "make timely, reasonable efforts to provide family  

                                                                                                                                                                                                              



support services to the child and to the parent[] . . . that are designed to . . . enable the  

                                                                                                                                                                                                                       



safe  return  of  the  child  to  the  family  home."  Such  reasonable  efforts  include  

                                                                                                                                                                                                         



"identify[ing] family support services that will assist the parent . . . in remedying the  

                                                                                                                                                                                                                      



conduct or conditions in the home that made the child a child in need  of aid" and  

                                                                                                                                                                                                                                 

"actively offer[ing] . . . and refer[ring] the parent" to such services.16  The statute also  

                                                                                                                                                                                                                    

provides limited exceptions to the requirement that OCS make reasonable efforts.17  

                                                                                                                                                                                                



                 14               Because we resolve  Moira's  appeal  on  these  grounds,  we  do  not  address  the  



constitutional  arguments  regarding  her  right  to  visitation  that  she  also  makes  on  appeal.   



                 15               AS  47.10.088(a)(3).  



                 16               AS  47.10.086(a)(1)-(2).  



                 17               AS  47.10.086(b)-(c).  



                                                                                                          -13-	                                                                                                   7088
  


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

                                         When reviewing a superior court's reasonable efforts determination, we                                                                                                                                                 



                                                                                                                                                                                               18  

evaluate OCS's efforts in light of the specific facts of each case.                                                                                                                                                                                           

                                                                                                                                                                                                      We also have held that  



                                                                                                                                                                                                                                                    

a  superior  court  may  determine  at  the  termination  trial  that  the  reasonable  efforts  



                                                                         19  

                                                                                

                                              

requirement is excused. 



                                         Consistent with our case law, the superior court evaluated OCS's efforts in  

                                                                                                                                                                                                                                                                    



light of the specific facts of this case.  The court found:  

                                                                                                                                                                            



                                         Reasonable efforts have been made by [OCS] at all times.  

                                                                                                                                                                                                                                  

                                         Necessarily   those   efforts   were   reduced   when   [Moira]  

                                                                                                                                                                                                     

                                         relocated  and  did  not  have  reliable  contact  information.  

                                                                                                                                                                                         

                                          [OCS] ha[s] to be able to contact her to engage in efforts.  

                                                                                                                                                                                                                                   

                                         But that was [Moira's] choice. She has not been proactive in  

                                                                                                                                                                                                                           

                                         addressing . . . what she says is the reason for her choice,  

                                                                                                                                                                                                          

                                         more significant contact with her son.  

                                                                                                                                                               



                     18                  See, e.g.                  ,   Shirley M. v. State, Dep't of Health & Soc. Servs., Office of                                                                                                                              



 Children's Servs.                                    , 342 P.3d 1233, 1241 (Alaska 2015) ("Reunification efforts need not                                                                                                                                      

be perfect; they need only be reasonable under the circumstances depending upon:                                                                                                                                                                              the  

parent's substance abuse history . . . ; her willingness to participate in treatment; the                                                                                                                                                                      

history of services provided by OCS; and the parent's level of cooperation with OCS's                                                                                                                                                                

efforts. The reasonableness of OCS's efforts may also depend on the parent's expressed                                                                                                                                                     

interest in parenting, withOCS's responsibility for reunification efforts decreasing as the                                                                                                                                                                      

parent's interest decreases." (footnotes omitted));                                                                                                     Sherman B. v. State, Dep't of Health                                                        

& Soc. Servs., Office of Children's Servs.                                                                                    , 290 P.3d 421, 432 (Alaska 2012) ("We have                                                                                  

acknowledged that the State has some discretion both in determining what efforts to                                                                                                                                                                                

pursue and when to pursue them.");                                                                                Sean B. v. State, Dep't of Health & Soc. Servs.,                                                                                  

Office of Children's Servs.                                                      251 P.3d 330, 338 (Alaska 2011) ("A parent's willingness to                                                                                                                        

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



                     19                   Vivian P. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  

                                                                                                                                                                                                                        

Servs., 78 P.3d 703, 709 (Alaska 2003) ("But the fact that [OCS] is precluded from  

                                                                                                                                                                                                                                                          

determining on its own that reasonableefforts areunnecessary under AS 47.10.086(c)(1)  

                                                                                                                                                                                                                          

does not preclude the court from determining after commencement of a termination trial  

                                                                                                                                                                                                                                                             

that the reasonable efforts requirement is excused.").  

                                                                                                                                



                                                                                                                               -14-                                                                                                                       7088
  


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

                                              Moira argues that the statutory scheme requires OCS to make reasonable                                                                                                                            



efforts   unless the superior                                                                  court,   after   notice and                                                        hearing,   decides that the specific                                                       



circumstances obviate the need for reasonable efforts. She asserts that analyzing OCS's                                                                                                                                                                                            



efforts in light of the specific circumstances of each case improperly empowers OCS to                                                                                                                                                                                                             



abdicate its responsibility to make reasonable efforts, in contravention of the statutory  



scheme.     This   approach,   she   explains,   deprives   litigants   of   notice   of   outcome- 



determinative issues and "conflicts with notions of fundamental fairness and notice,"                                                                                                                                                                                         



because this approach allows courts to determine, after the fact, whether OCS had a                                                                                                                                                                                                                  



reduced burden to make reasonable efforts.                                                                                                              



                                              Moira's arguments are not persuasive.                                                                                                      Although the statutory scheme                                                         



recognizes the superior court's role in determining whether OCS may cease making                                                                                                                                                                                               

                                                               20  Moira does not identify a statutory requirement that OCS efforts be  

reasonable efforts,                                                                                                                                                                                                                                                                               



deemed reasonable before a termination trial.  The statute does not require such a pre- 

                                                                                                                                                                                 



trial finding.  

                



                                              Further, Moira's claimthattheapproach unfairly deprives aparent ofnotice  

                                                                                                                                                                                                                                                                                     



about  what  efforts  OCS  might  make  also  lacks  merit.                                                                                                                                                            Waiting  to  review  the  

                                                                                                                                                                                                                                                                                             



reasonableness of OCS efforts until the termination trial does not allow OCS to evade  

                                                                                                                                                                                                                                                                            



its responsibility to provide objectively reasonable efforts. It provides a check to ensure  

                                                                                                                                                                                                                                                                                   



                       20                     AS 47.10.086(b) (providing that the reasonable                                                                                                                   efforts requirement may be                                                         



excused "[i]f the court makes a finding at a [permanency] hearing" that the parent has                                                                                                                                                                   

not sufficiently remedied the conduct or conditions that led to the commencement of                                                                                                                                                                                                               

proceedings);   AS   47.10.086(c)   (providing   that   "[t]he   court   may   determine   that  

reasonable efforts . . . are not required if the court has found by clear and convincing                                                                                                                                                                           

evidence" that one of many enumerated aggravated circumstances exist).                                                                                                                                                                                        



                                                                                                                                              -15-                                                                                                                                       7088
  


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

that OCS met its obligation in light of the specific circumstances of each case.                                                                    Our  



precedents very clearly identify the efforts that parents should expect: reasonable efforts                                                      

under the circumstances.                     21  



                                                                                                                                                

                        Finally, Moira claims that the superior court improperly lowered OCS's  



                                                                                                                                                 

burden to prove reasonable efforts after her move to Oregon. She argues that we should  



                                                                                                                                               

reversethecourt's reasonableefforts finding,becausethecourtblamed Moirafor leaving  



                                                                                                                                              

Alaska when it terminated her parental rights.  She claims the court thereby "diluted  



                                                                                                                                             

OCS's burden, failed to honor the statutory scheme instructing OCS to seek advance  



                                                                                                                                          

permission to suspend efforts, and deprived Moira of adequate notice that her relocation  



                                                                               

would be used against her in this manner."  



                                                                                                                                                              

                        But Moira's argument takes the court's finding out of context; in its oral  



                                                                                                                                                 

findings the court stated: "Reasonable efforts have been made by [OCS] at all times.  



                                                                                                                                                          

Necessarily those efforts were reduced when [Moira] relocated and did not have . . .  



                                                                                                                                                    

reliable contact information." This finding is reasonable based on the testimony of OCS  



                                                                                                                                          

caseworker  Anselm and  Moira  about  the  difficulty  that  Moira  had  with  telephone  



                                                                                                                                               

communication after she moved to Oregon.   Anselm testified that OCS had trouble  



                                                                                                                                              

communicating with Moirathroughout thecase, includingbeforeMoira'smove, because  



                                                                                                                                              

Moira's phone number and address frequently changed and because she did not respond  



                                                                                                                                                

to voicemails and letters.  Moira's move only exacerbated these communication issues:  



                                                                                                                                                      

Anselm explained that Moira did not inform OCS that she was moving to Oregon, and  



                                                                                                                                                      

Anselm did not know her whereabouts for some time.  Anselm further testified that she  



            21  

                                                                                                                                               

                        See, e.g., Shirley M., 342 P.3d at 1241-42; Sherman B., 290 P.3d at 432-33;  

                                                      

Sean B., 251 P.3d at 338-39.  



                                                                          -16-                                                                          7088  


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

                                                                                                                        

had been unsuccessful in directly contacting Moira after she moved to Oregon. Anselm  



                                                                                                                          

also  stated  that  Moira  never  told  her  that  she  had  limited  phone  access  and  never  



                                                           

provided OCS with an email address.  



                                                                                                                            

                    Moira's testimony acknowledged that she had irregular contact with both  



                                                                                                                              

Abel and OCS because of her unreliable access to a telephone.  She explained that she  



                                                                                                                            

was living in a rural area in Oregon, and her mother, the only person in the house with  



                                                                                                                          

a working cell phone, was often out of town.  And she asserted that she could not afford  



                                                                                                                    

her own phone because she had not been working.  Together, Moira's and Anselm's  



                                                                                                                               

testimony support the superior court's finding that OCS made reasonable efforts to  



                                                                                                                              

facilitate reunification given the specific facts of this case. Moira does not challenge the  



                                                                                                                         

superior court's factual findings on this issue; and the court's findings about the efforts  



                                                

OCS made are well supported.  



                                                                                                             

                    Thesuperior court followed our precedentsinanalyzing thereasonableness  



                                                                                                            

of OCS's efforts:  it did not err in determining that a decreased level of communication  



                                                                               

was reasonable given the circumstances of Moira's move.  



V.        CONCLUSION  



                    Because the superior court did not abuse its discretion in denying Moira's  

                                                                                                                       



motion for a placement reviewhearing andproperly appliedour precedents when finding  

                                                                                                                        



that OCS made reasonable efforts, we AFFIRM the superior court's termination of  

                                                                                                                               



Moira's parental rights.  

                           



                                                              -17-                                                        7088
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

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