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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Caitlyn E. v. State, Dept. of Health & Social Services, Office of Children's Services (6/16/2017) sp-7181
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 firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA CAITLYN E., ) ) Supreme Court No. S-16306 Appellant, ) ) Superior Court Nos. 4BE-13-00001/ v. ) 00002 CN ) STATE OF ALASKA, ) O P I N I O N DEPARTMENT OF HEALTH & ) SOCIAL SERVICES, OFFICE OF ) No. 7181 - June 16, 2017 CHILDREN'S SERVICES, ) ) Appellee. ) _______________________________ ) Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge. Appearances: William T. Montgomery, Assistant Public Advocate, Bethel, and Richard Allen, Public Advocate, Anchorage, for Appellant. Joanne M. Grace, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee. Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices. BOLGER, Justice. I. INTRODUCTION The superior court terminated a mother's parental rights to two of her Indian children. She now appeals, contesting the qualification of the ICWA-required ----------------------- Page 2----------------------- expert witness and the finding that OCS made active efforts to prevent the breakup of the Indian family. Because the superior court's decision to qualify the expert witness was not an abuse of discretion, and because the superior court's active efforts finding was not erroneous, we affirm the termination of the mother's parental rights. II. FACTS AND PROCEEDINGS Caitlyn E., a Yupik woman, lives in Bethel and is the mother of Maggie and Bridget, ages nine and six at trial, who are Indian children within the meaning of the Indian Child Welfare Act (ICWA) based on their affiliation with the Orutsararmiut Native Council (the Tribe). 1 Caitlyn has struggled with abuse of both legal and illegal drugs since a young age. She regularly sought narcotics for back pain, and Maggie tested positive for cocaine and marijuana when she was born. The Office of Children's Services (OCS) received other reports of harm; at a doctor's visit when the girls were toddlers, they reportedly had multiple impetigo sores on their bodies and had to be cleaned by the doctor, and Caitlyn smelled like marijuana. Caitlyn was also reported to have been violent toward both her daughters, kicking Maggie and giving her a bloody nose, and, while drunk, swinging Bridget around "like a rag doll." OCS took emergency custody of Maggie and Bridget in January 2013 after receiving reports that Caitlyn exposed Maggie to marijuana and, while intoxicated, took Maggie from the safety of Caitlyn's mother's home and allowed her to be driven by a drunk driver. The children were placed with Caitlyn's mother, Sarah, who qualified as 1 See 25 U.S.C. § 1903(4) (2012). We use pseudonyms to protect the privacy of the parties. The father relinquished his rights before trial. -2- 7181 ----------------------- Page 3----------------------- 2 a preferred placement under ICWA. In the ensuing months, OCS worked extensively with Sarah, helping get the family into better housing and obtain fuel oil and funding for additional food. Caitlyn initially participated in the case, but disengaged before long. She apparently dropped out of contact with both OCS and her attorney until August 2013, when she renewed her interest in parenting after initially consenting to allow Sarah to adopt the children but later withdrawing that consent. During the spring of 2013, Caitlyn was also diagnosed with active tuberculosis for which she refused treatment. Although Caitlyn reengaged in services in August and later obtained a substance abuse assessment, she was unable to start treatment due to her tuberculosis; no treatment center would accept her while she had active tuberculosis. In June 2014, a few days after finishing her tuberculosis medication, Caitlyn entered treatment at Phillips Ayagnirvik Treatment Center (PATC) in Bethel, but she was discharged after less than two weeks for possession of marijuana and unprescribed pills. PATC then recommended a higher level of care, but instead Caitlyn proceeded to, in her own words, "drink for three months straight." In November 2014 Caitlyn began treatment at Women and Children's Center for Inner Healing in Fairbanks. OCS completed her application, provided transportation for her, and sent Bridget to join her within 30 days as required by the program. OCS also made arrangements for Maggie to visit. Because Caitlyn initially did well at Women and Children's Center, OCS decided to hold a termination petition in abeyance in January 2015. But Caitlyn was discharged in March for throwing a frozen water bottle at a staff member. Sarah later testified that the sudden removal of Caitlyn 2 See 25 U.S.C. § 1915(b) (giving preference to "a member of the Indian child's extended family"). -3- 7181 ----------------------- Page 4----------------------- and Bridget from the facility when Bridget had been sleeping made Bridget become withdrawn and scared. Following Caitlyn's discharge from Women and Children's Center, OCS worked with her to try to get her back into treatment, completing applications to three different facilities on her behalf. Caitlyn agreed to submit to urinalysis tests (UAs) and was given cab vouchers for transportation to her appointments, but she completed no UAs. In September 2015 Caitlyn completed an integrated intake assessment for substance abuse treatment, at which she stated she used drugs on a daily basis and craved heroin. Multiple therapies and inpatient residential treatment were recommended. But the following month, Caitlyn again dropped out of contact with OCS. Her caseworker continued to leave messages for her, but she did not respond until February 2016. During that time Caitlyn had been working on her own - without the knowledge or support of OCS - to get re-accepted to Women and Children's Center and had secured a bed date. Caitlyn filed a motion for a review hearing under Alaska 3 asking the court to order OCS to place Child in Need of Aid (CINA) Rule 19.1(d), Bridget with her at Women and Children's Center within 30 days, as required by the program. The court held a hearing on her motion two weeks before the termination trial. OCS opposed Caitlyn's request, explaining that when Caitlyn had been discharged for misconduct, Bridget was traumatized by being suddenly removed along with her mother. OCS stated it was unwilling to risk the same result a second time. The superior court declined to order OCS to place Bridget at Women and Children's Center. 3 "At any time in a proceeding, the court may review matters not otherwise covered by these rules upon motion of a party or on its own motion." CINA Rule 19.1(d). -4- 7181 ----------------------- Page 5----------------------- Ajoint permanencyhearing and termination ofparental rights trialwas held 4 over four days in February 2016. Five witnesses testified: Caitlyn; Sarah; two OCS caseworkers, Collyn Symmes and Karen Johnson; and ICWA expert Robin Charlie, a Yupik woman with six years of experience doing social services work for the Tribe. The children's guardian ad litem (GAL) and the Tribe also participated. Caitlyn testified that she had been sober for 15 months, and she felt her children were safe around her even when she was drinking as long as a sober person was present. She stated that she smokes marijuana "whenever [she] feel[s] like it" and had done so as recently as the day before trial. Her testimony revealed that she chose not to attend UAs. She blamed OCS for interfering with her recovery by switching caseworkers so frequently and for Bridget's traumatizing removal from Women and Children's Center. Sarah testified that Caitlyn only intermittentlyvisited her daughters, stating that when she visited in a bad mood, she yelled at Sarah in front of the girls and frightened them. Sarah also testified that Bridget was "a changed little girl" who acted "withdrawn"and"scared"following Caitlyn's and Bridget's dischargefromWomenand Children's Center. Sarah further testified that at least two OCS caseworkers had made themselves available to her by phone to help her through verbal confrontations with Caitlyn. The OCS caseworkers testified regarding efforts they made to get services for Caitlyn and her family, and their difficulty reaching her or securing her cooperation. Symmes testified that he helped get the family into better housing and obtain fuel oil and additional funding for food. OCS lost part of Caitlyn's file while Symmes was assigned 4 The proceeding was continued twice, after being originally scheduled for August and then December 2015. -5- 7181 ----------------------- Page 6----------------------- to her case, but he testified that Caitlyn could not have been in treatment during that period because she had active tuberculosis. Johnson testified that, after working with Caitlyn to apply to treatment programs, Caitlyn fell out of contact with OCS in the months leading up to the termination trial. The superior court qualified Charlie as an expert in Yupik child-rearing practices and child protection over Caitlyn's objection that Charlie lacked social work education and substance abuse expertise. Charlie testified that it was her expert opinion that the children would be at risk of harm if returned to Caitlyn's custody because of her substance abuse and verbal abuse. Charlie explained that substance use in front of ----------------------- Page 14----------------------- 29 leaves us with 'a definite and firm conviction that a mistake has been made.' " Caitlyn argues that the superior court erred by finding that OCS made active efforts to prevent the breakup of the Indian family, noting several instances in which OCS either was not providing services to her or "obstructed [her] from getting the services she needed." But Caitlyn's arguments primarily consist of competing inferences, and she ignores both her own unwillingness to participate in services and OCS's efforts toward the entire family. We have stated that "[c]onflicting evidence is generally insufficient to overturn the superior court, and we will not reweigh evidence when the record provides 30 This principle disposes of four of clear support for the superior court's ruling." Caitlyn's arguments. First, Caitlyn argues that OCS failed to make active efforts when (almost a year into the case) it allegedly lost her file for six months. Though testimony did establish that OCS lost part of the file during this time, the superior court's conclusion that this issue did not defeat active efforts was supported by testimony that Caitlyn could not be in treatment during that period because she had active tuberculosis, that no treatment center would accept her until her tuberculosis was addressed, and that OCS was able to get Caitlyn into treatment at PATC "within a matter of days" after she completed her tuberculosis medication. Second, Caitlyn argues that OCS failed to make active efforts when it placed her at PATC even though she needed a higher level of care. But as the superior 29 Sherman B. v. State, Office of Children's Servs., Dep't of Health & Soc. Servs., 290 P.3d 421, 427-28 (Alaska 2012) (quoting Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 234 P.3d 1245, 1253 (Alaska 2010)). 30 Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008) (first citing Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004); then citing D.M. v. State, Div. of Family & Youth Servs ., 995 P.2d 205, 214 (Alaska 2000)). -14- 7181 ----------------------- Page 15----------------------- court noted, a caseworker testified that Caitlyn wanted to stay close to home for treatment; he also testified that starting with the "level of care that is as minimally invasive as possible" is preferable, and OCS tried to offer "the best therapeutic care we could, as close to home as possible." The superior court properly considered Caitlyn's placement at PATC as part of OCS's active efforts. Third, Caitlyn argues that OCS failed to make active efforts when it failed to help her get back into Women and Children's Center, which Charlie, the expert 31 But OCS had determined, and Sarah's witness, had testified would benefit Caitlyn. testimony showed, that Bridget was traumatized by Caitlyn's and Bridget's previous discharge from Women and Children's Center; OCS was therefore reluctant to risk the same result a second time. The superior court could have reasonably credited OCS's position over Caitlyn's.32 Fourth, Caitlyn argues that OCS failed to make active efforts when it assigned her multiple caseworkers over the lifetime of the case. But Caitlyn worked closely with two caseworkers for approximately one year each and was evasive throughout other time periods. It was therefore not error for the court to acknowledge the turnover in this case and nonetheless conclude that OCS made active efforts. 31 Caitlyn also argues that OCS conceded that her application to Women and Children's Center was not lastminuteandthat nevertheless thesuperior courtimproperly characterized her attempt as coming on the eve of trial. However, the court reasonably looked at the lifetime of the case, concluding that Caitlyn "waited simply too long over this three-year period" and citing Caitlyn's periods of lost contact with OCS and failure to submit UAs. See, e.g. , S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs. , 42 P.3d 1119, 1126 (Alaska 2002) (calling "too little, too late" a parent's attempts to get into treatment that would start after the trial). 32 We further note that the same facts support the court's decision to decline to order OCS to place Bridget with Caitlyn at Women and Children's Center after Caitlyn moved for a review hearing under CINA Rule 19.1(d). -15- 7181 ----------------------- Page 16----------------------- We also have stated that courts may consider "a parent's demonstrated lack of willingness to participate in treatment" in evaluating the sufficiency of OCS's 33 efforts. Caitlyn argues that OCS failed to make active efforts when it failed to apply to any rehabilitation programs on her behalf and timely update a case plan and family 34 contact plan during the last six months before trial. But an OCS caseworker testified that she filled out three applications with Caitlyn in the OCS office only to have Caitlyn drop out of communication around four months before trial, despite multiple calls and messages. Its inability to contact Caitlyn also prevented OCS from being able to set up a new visitation schedule after Sarah expressed safety concerns about hosting visits around the same time. And in evaluating OCS's efforts, the court properly considered Caitlyn's lack of participation over the course of the case when it emphasized Caitlyn's delay in getting treatment for her tuberculosis, discharge from PATC and Women and Children's Center, failure to submit UAs, and other periods of lack of contact with OCS. Courts may also consider OCS's efforts toward the family as a whole in 35 The superior court noted that during many of the time periods evaluating active efforts. 33 Maisy W. , 175 P.3d at 1268 (quoting N.A. v. State, Div. of Family & Youth Servs., 19 P.3d 597, 603 (Alaska 2001)). 34 Caitlyn also argues that OCS's failure to file an updated permanency report is further evidence of a failure to make active efforts. We accept the superior court's reasoning that OCS's omission "doesn't change [the] findings on the termination" because (1) the parties agreed that the children were still in need of aid and (2) Caitlyn was aware that the termination petition had been filed even as of the previous permanency report. 35 Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1115 (Alaska 2010). See also 2015 BIA Guidelines, supra note 12, at 10,150 (listing "[i]dentifying community resources including housing [and] financial . . . services and actively assisting the Indian child's parents or extended family in (continued...) -16- 7181 ----------------------- Page 17----------------------- in question, OCS was providing services to Sarah, Maggie, and Bridget. For example, during the time period that Caitlyn argues that the lost file constituted a lack of active efforts, OCS was helping get the family into better housing and obtain fuel oil and additional food. Similarly, Sarah testified about the support she received from OCS caseworkers who assisted her with confrontations with Caitlyn, including some during 36 The superior court properly considered OCS's efforts toward the last year of the case. the family as a whole. Caitlyn's remaining argument, that OCS's failure to monitor her progress while she was at Women and Children's Center constitutes a lack of active efforts, is factually unavailing. Her attorney acknowledged that Women and Children's Center is a "long-term inpatient treatment program" which provides group and family therapy, mental health services, and anger management services in addition to substance abuse treatment. As such, it is not clear what additional services OCS could have provided during this time, other than arranging and paying for Caitlyn's travel to and from the 37 Caitlyn further argues that program and arranging for Maggie to visit, which it did. more detailed reports from her stay in this facility should have been included in the record, citing to the 2015 BIA Guidelines for the proposition that "[a]ctive efforts must 35 (...continued) utilizing and accessing those resources" as an example of active efforts); 1979 BIA Guidelines, supra note 13, at 67,592 (efforts "shall also involve and use the available resources of the extended family"). 36 The court did not find credible Caitlyn's testimony that Sarah, not she, instigated these confrontations. 37 Cf. A.M. v. State, 945 P.2d 296, 306 (Alaska 1997) (calling "superfluous" any additional efforts OCS's predecessor could have made while an incarcerated parent was undergoing therapeutic services from the Department of Corrections). -17- 7181 ----------------------- Page 18----------------------- 38 be documented in detail," but it was not error for the superior court to credit OCS caseworkers' sworn testimony about the extent of services provided to Caitlyn and her family without requiring additional documentation. 39 We therefore affirm the superior court's finding that OCS made active efforts to prevent the breakup of the Indian family. IV. CONCLUSION For the reasons explained above, the superior court's decision to terminate Caitlyn's parental rights is AFFIRMED. 38 2015 BIA Guidelines, supra note 12, at 10,156. 39 Cf. Kent K. v. State, Dep't of Health &Soc. Servs., No. S-15708, 2016 WL 483254, at *8 (Alaska Feb. 3, 2016) (construing requirement broadly). -18- 7181
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