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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Duke S. v. State, Dept. of Health & Social Services, Office of Children's Services (11/16/2018) sp-7317

Duke S. v. State, Dept. of Health & Social Services, Office of Children's Services (11/16/2018) sp-7317

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                         

DUKE  S.,                                                         )  

                                                                  )     Supreme Court No. S-16932  



                                 Appellant,                       )  

                                                                  )     Superior  Court  No.  3AN-14-00311  CN  

           v.                                                     )  


                                                                  )     O P I N I O N  


STATE OF ALASKA,                                                  )  



DEPARTMENT OF HEALTH &                                            )     No. 7317 - November  16, 2018  


SOCIAL SERVICES, OFFICE OF                                        )  


CHILDREN'S SERVICES,                                              )  


                                 Appellee.                        )  




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


                      Judicial District, Anchorage, Gregory Miller, Judge.  


                      Appearances:                Olena   Kalytiak   Davis,   Anchorage,   for  


                      Appellant.           David  T.  Jones,  Assistant  Attorney  General,  


                      Anchorage,and JahnaLindemuth,Attorney General,Juneau,  


                      for Appellee. Paul F. McDermott, Assistant PublicAdvocate,  


                      and Chad Holt, Public Advocate, Anchorage, for Guardian  


                      Ad Litem.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      MAASSEN, Justice.  

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


                    The superior court terminated a father's parental rights to his son, finding  


that the child was in need of aid because of abandonment, neglect, and the father's  


incarceration and that the Office of Children's Services (OCS) had satisfied its statutory  


obligation to make reasonable efforts to reunify parent and child. The father appeals the  


termination decision, arguing that these findings are unsupported by the evidence.  


                    We agree with the father. The record shows that he initiated efforts to visit  


the child, who was already in OCS custody, as soon as he learned  of  his  possible  


paternity; that during the father's subsequent incarceration he had visitation as often as  


OCS was able to provide it; and that OCS never created a case plan to direct the father's  


efforts toward reunification.  We conclude that it was clear error to find that the child  


was in need of aid and that OCS made reasonable efforts toward reunification, and we  


therefore reverse the termination decision.  




          A.        Background  

                    Duke S. and Evangeline G. had an "on and off" relationship for nearly a  


decade and are the parents of Darrence G., born in April 2014.1                                 OCS's concerns about  


Darrence began before he was born: a hospital social worker contacted OCS in January  


2014 when Evangeline, then pregnant, tested positive for cocaine and THC. On the day  


Darrence was born, Evangeline, against medical advice, took him from the hospital after  


refusing any laboratory work on herself or the baby. But the hospital tested the umbilical  


cord  blood  and  found  it  positive  for  cocaine  and  THC.                               These  test  results,  and  


Evangeline's  failure  to  return  for  scheduled  pediatric  appointments,  prompted  the  


hospital to contact OCS.  


          1         We  use  pseudonyms  to  protect  the  privacy  of  the  parties.  

                                                              -2-                                                            7317  

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


                    Evangeline resisted OCS's efforts to investigate its concerns, but OCS  


prepared a series of safety plans that required, among other things, that Evangeline  

submit to random urinalysis (UA) testing.  She failed to cooperate during her first UA  


appointment and missed the next two months of appointments. She did, however, bring  


Darrence in for a hair follicle test in June, which was positive for methamphetamine.  


                    After receiving the test results, OCS attempted to take emergency custody  


of Darrence. But Evangeline refused to disclose the child's whereabouts despite a search  


warrant, a court order, and a writ of assistance. It was about ten days later that the police  


found Darrence and arrested Evangeline on charges of custodial interference.   OCS  


authorized both a UA and a hair follicle test on the child, getting positive results for a  


variety of illegal substances.  


                    OCS developed a case plan for Evangeline, but she failed to follow it.  In  


September she was sentenced on a theft charge and served time in prison and a halfway  


house; she was released in early December 2014.  


                    Duke had been unaware of Evangeline's pregnancy until that September.  


He found out about Darrence's existence after seeing Evangeline on television and  


talking with her mother. At the time, Duke was a single father and the primary caregiver  


for four of his eight children, three of whom had been born prematurely and had special  


needs.   In September, "trying to get involved immediately," Duke went to the OCS  


office, announced that he could be Darrence's father, and asked for paternity testing. He  


later testified that he sat in OCS's lobby with his daughter for three or four hours before  


he left, "went to the child support office," and "ask[ed] for a DNA test" there. OCS later  


sent Duke the paternity paperwork.  


                    Before taking the paternity test, Duke met with Evangeline to "talk[] about  


the child" and the ongoing OCS proceedings.  When Evangeline showed him pictures  


of  Darrence,  Duke  felt  immediately  that  "[t]his  is  one  of  my  children."                                     He  and  

                                                               -3-                                                         7317

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


Evangeline  went  to  the  Bureau  of  Vital  Statistics  and  "created  [Darrence's]  birth  


certificate together . . . [b]ecause [Duke] knew that [Darrence] was [his] son."  


                    In October OCSplaced Darrence with Siri M. Evangeline knew Siri before  


OCS took custody, and it was at her request that, after OCS took custody, Siri got an  


emergency foster care license so she could be considered as a placement for Darrence.  


Darrence remained in Siri's care throughout the underlying proceedings.  


                    In  early  November  Duke  went  to  OCS's  offices  and  completed  the  


paternity testing.  Two weeks later, the test results confirmed he was Darrence's father.  


                    By this time OCS had received at least two protective services reports  


involving Duke and his other children, in October and November 2014, and OCS was  


conducting a safety assessment of his home. As of January 2015, OCS had received five  


protective services reports concerning Duke and three of his children, had "had at least  


five to ten conversations" with Duke about them, and was still gathering information  


about Duke's family.   The protective services reports involved possible educational  


neglect, medical neglect, Duke's angry outbursts with school staff, and one child's  


behavior in school.  While the reports were never substantiated and OCS did not have  


any CINA cases involving Duke's other children, OCS put off deciding whether to place  


Darrence in Duke's care.  


                    Dukeasked OCSfor visitation with Darrencefor Thanksgiving 2014. OCS  


denied his request, apparently because of the outstanding protective services reports.  


Duke met Darrence for the first time in December, when he accompanied Evangeline to  


one of her scheduled visits at OCS's offices.  


                    The adjudication trial for Darrence was initially set for December 2, 2014,  


but the court granted a brief continuance at Evangeline's request.  Duke appeared in  


courtthatday;heacknowledged receiving OCS's amended petition for adjudication, said  

                                                               -4-                                                         7317

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

he intended to participate in the proceedings, declined representation, and said he was                                                                                                                                  

prepared to go forward.                                                    

                     B.                  The Adjudication Trial                                      

                                         The adjudication trial occurred over six days between December 2014 and                                                                                                                                               

February 2015. Both Evangeline and Duke represented themselves. Duke attended only                                                                                                                                                                          

four days of the trial, showing up late each time; he concedes that he "took a back seat"                                                                                                                                                                 

role during this proceeding.                                                         2  


                                         OCS's evidenceat theadjudication trialmostly concerned Evangeline. She  


called Duke as a witness, however, and he testified that OCS had ignored his overtures,  


that  Darrence's  caseworker  failed  to  contact  him  after  confirming  his  paternity  or  


establish a visitation plan despite promising to work on it, and that he believed OCS had  


no intention of reunifying him with his son.  


                                         The superior court found by clear and convincing evidence that Darrence  


was a child in need of aid due to abandonment, physical harm, neglect, and substance  



abuse.                   The court also found that OCS had made reasonable but unsuccessful efforts to  


prevent Darrence's removal from the family home.  Though stating that OCS's efforts  


had been unsuccessful "through no fault of OCS but rather through [Evangeline's] and  


 [Duke's] actions and inactions," the court made no specific findings about Duke; its  


findings focused on the conduct of Evangeline.  

                     2                   When the court asked Duke whether he had questions for OCS's second                                                                                                                                        

witness, Duke replied that he was "just listening for now" and agreed to let the court                                                                                                                                                                   

know if he wanted to ask questions.                                                                            He ultimately declined the court's offer to present                                                                                 

his own evidence.                                        

                     3                   AS 47.10.011(1), (6), (9), and (10).  


                                                                                                                                 -5-                                                                                                                      7317

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


          C.        The Period Between Adjudication And Termination  


                    Over the next few months, Duke was able to visit with Darrence several  


times.  While only one visitation was "sanctioned and coordinated via OCS," Duke had  

at least two others in December and January, when he accompanied Evangeline to her  


scheduled visits at OCS's offices. In February 2015 Duke asked Siri if he could have an  


in-home visit, but Siri told him he would "have to coordinate that with [OCS]."  


                    In April 2015 Duke was arrested on charges of first-degree sexual assault  


stemming from a 2011 accusation by the sister of his deceased fiancée.   OCS took  


custody of the four children who were then living with him.  Unable to make bail, Duke  


remained incarcerated until after his trial in April 2018, when he was acquitted.  


                    In March 2016 Darrence received a neurodevelopmental evaluation which  


indicated that he was autistic; delayed in his verbal, social, and fine motor skills; and  


needed "a stable, able, attentive, long-term home environment."  It is uncontested that  


Darrence had significant needs and that his foster mother Siri and her family provided  


him with more than adequate care during his placement with them.  

                    After his arrest Duke asked OCS to place Darrence and the four children  


in his household with his sister, Natalya S., who at the time was a licensed foster care  


provider.  OCS denied the request as to Duke's other four children but did not address  


it as to Darrence until over a year later, when it denied the request on the same ground:  


that Natalya first needed to "demonstrate that she could meet [Darrence's] specialized  


needs by attending his weekly therapy sessions."  Natalya apparently did not follow up.  


The mother of Duke's eldest son took him to her home out of state, and OCS placed the  


other two boys with their maternal grandmother and placed Duke's daughter in a foster  



                    During Duke's incarceration he had perhaps five visits with Darrence,  


spread out from August 2016 to September 2017.  Siri also made efforts to maintain  

                                                              -6-                                                        7317

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

 familial bonds between Darrence and Duke's other children.                                                                                                                                                                                                                                                                                                                    She informed OCS of her                                                                                                                   

 efforts but did not know what became of the information.                                                                                                                                                                                                                                                                                                       

                                                                                 A new OCS caseworker took over Darrence's case in August 2016. Asked                                                                                                                                                                                                                                                                                                                                               

 about her efforts to work with Duke, she testified that she "communicated with [OCS's]                                                                                                                                                                                                                                                                                                                                                                                                   

 family contact team to ensure that he was getting his quarterly visits with [Darrence]";                                                                                                                                                                                                                                                                                                                                                                      

 sent Duke "some correspondence regarding [Darrence]'s needs," including a medical                                                                                                                                                                                                                                                                                                                                                                                                 

 consent form for the anesthesia required for a "special hearing test"; and "had one in-                                                                                                                                                                                                                                                                                                                                                                                                                                   

person meeting . . . at the Anchorage jail" on February 3, 2017, when she brought                                                                                                                                                                                                                                                                                                                                                                                                         

Darrence for a visit.                                                                                                               She testified that during                                                                                                                                              the visit she and Duke talked about                                                                                                                                                          

Darrence and the services Darrence was getting but "didn't really talk a whole lot about"                                                                                                                                                                                                                                                                                                                                                                                                           

Duke's case plan or its objectives.                                                                                                                                                                            She testified that quarterly visits were all OCS could                                                                                                                                                                                                                                      

 offer incarcerated parents "based on the staff we have" and that an incarcerated parent's                                                                                                                                                                                                                                                                                                                                                                                                  

 frequent moves between correctional facilities "could be                                                                                                                                                                                                                                                                                       a barrier to getting [visitation]."                                                                             

 She testified that OCS attempted quarterly visits for Duke with Darrence and that she                                                                                                                                                                                                                                                                                                                                                                                                                                 

 "believe[d] [Duke had] been receiving [visits] quarterly"; however, she could personally                                                                                                                                                                                                                                                                                                                                                                                    

 identify only two visitation dates and conceded that she did not "have concrete proof"                                                                                                                                                                                                                                       

that quarterly visits otherwise occurred.                                                                                                                                                                                                           Duke denied that he received quarterly visits.                                                                                                                                                                                                                                              

                                                                                 The record contains no case plan addressing Duke's potential reunification                                                                                                                                                                                                                                                                                                    

                                                                                          4           The caseworker testified about her concerns with Duke's parenting and  

with Darrence.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

what would be in Duke's case plan if he had one. She testified that she and Duke "would  


need to case plan together" and that she "would definitely recommend on his case plan  


that [Duke] cooperate with a psychological assessment," "that he engage fully with  


                                         4                                       While questioning the caseworker, Duke referred to a case plan pertaining                                                                                                                                                                                                                                                                                                                     

to three of his other children and said, "[T]his is the same information on the document                                                                                                                                                                                                                                                                                                                                                                                        

 for [Darrence]."                                                                                  The record does not disclose what document he was referring to; OCS                                                                                                                                                                                                                                                                                                                                        

 does not contend there was a case plan focused on reunifying him with Darrence.                                                                                                                                                                                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                               -7-                                                                                                                                                                                                                                              7317

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


[Darrence's] services," and  that he have "a  parent  coach."                                    When  Duke asked  the  


caseworker whether she thought he was "ready, willing, and able to . . . do the case plan  


and reunite with [his] son," she replied, "That is something I haven't had the opportunity  


to assess, because you've been incarcerated the duration that I've had this case."  


                    During Duke's incarceration, and on his own volition, he completed an  


InsideOut Dad parenting class, took classes on using computers and building a business,  


was  trained  and  certified  as  a  forklift  operator,  and  participated  in  a  Christian  


correspondence program that he testified met his spiritual, mental, and psychological  


needs.  He testified that he was about to start the "criminal attitude program" and would  


take "every other program that they have [that is available] to me" before his release.  


                    OCS filed a petition to terminate Duke's parental rights to Darrence in June  


2017, and a trial was held over two days in December 2017.  The trial involved only  


Duke's rights, not Evangeline's, because OCS anticipated that she would consent to an  


adoption.  Duke was transported to the courthouse and attended both days of the trial,  


representing himself.   OCS called two witnesses, Siri and the OCS caseworker then  


assigned to Darrence.  Duke was the sole witness for himself.  


                    The court placed its decision on the record at the close of trial, finding that  


OCS had met its burden of proof for terminating Duke's parental rights to Darrence. The  


court found that OCS "met its burden . . . by clear and convincing evidence that the child  


has been subjected to conditions or conduct described in each of the three subsections  


alleged by the state, AS 47.10.011(1), (2), and (9)":  abandonment, incarceration, and  


neglect.  The court found by clear and convincing evidence that Duke had not remedied  


the conduct or conditions that placed Darrence at risk: the court found this element was  


"easily met by the fact that you're in jail, have been for a long time, and that you haven't  


taken those steps to provide for the child or to protect the child and that the child's very  


much at risk."   The court found by clear and convincing evidence that OCS made  

                                                                -8-                                                         7317

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

 "reasonable efforts trying to get [Duke] involved in a plan and visitation" but that its                                                                                                                                            

 "various efforts were met with less than adequate participation by [Duke] to engage in                                                                                                                                                

 the plan or program and to take those steps to reunite." Finally, the court found that OCS                                                                                                                                    

 had "proven by a preponderance of the evidence that termination of parental rights is in                                                                                                                                              

 the   best   interests   of   the   child"   because   of   Darrence's   needs   for   special   care   and  

 permanency. The court signed a written order the same day summarizing its conclusions                                                                                                                      

 of law based on the factual findings made on the record.                                                                                                   

                                     Duke appeals.   

 III.	             STANDARDS OF REVIEW                                    


                                     Whether a child is in need of aid is a factual determination,                                                                                                             

                                                                                                                                                                                                   and "[w]hether  



 OCS has made reasonable reunification efforts is a mixed question of law and fact." 

                                                                                                                                                7  and "[w]e apply our independent  



 review factual findings in CINA cases for clear error, 

judgment to questions of law."8 


                                                                                         "Whether the superior court's factual findings satisfy  



 applicable [CINA] statutes and rules is a question of law that we review de novo." 

 IV.	              DISCUSSION  


                   A.	               The Finding That Darrence Was A Child In Need Of Aid  


                                     Is Clearly Erroneous.  


                                     Before terminating parental rights, the superior court must "find by clear  

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

 Servs., 310 P.3d 943, 948-49 (Alaska 2013).                                                             

                   6                 Id.  at  949.  

                   7                 Id.  

                   8                 Hooper v. Hooper, 188 P.3d 681, 685 (Alaska 2008).  


                   9                 Sherman  B.,  310  P.3d  at  949  (quoting  M.W.  v.  State,  Dep't  of  Health  & Soc.  

 Servs., Office of Children's Servs., 20 P.3d 1141, 1143 (Alaska 2001)).  


                                                                                                                   -9-	                                                                                                        7317

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

and convincing evidence that the child 'has been subjected to conduct or conditions                                                


described in AS 47.10.011' and is thus in need of aid."                                                                                        

                                                                                                  The superior court found that  

                                                                                                                                   11   Duke's  



Darrence  was  a  child  in  need  of  aid  on  three  grounds:                                            abandonment, 

                        12                        13    A  finding  of  CINA  status  under  just  one  statutory  

                            and  neglect.                                                                                            


subsection is enough to support termination.14                                   But we conclude that the evidence does  


not support CINA status under any one of the three on which the superior court relied.  


                       1.         Abandonment  

                       Abandonment will support a CINA finding if "a parent . . . has abandoned  


the child as described in AS 47.10.013, and the other parent is absent or has committed  


conduct or created conditions that cause the child to be a child in need of aid."15  



does not dispute that Evengeline was absent.  Our focus, therefore, is on whether it was  


clear error to find that Duke "abandoned the child as described in AS 47.10.013."  


                       A "court may find abandonment of a child if a parent . . . has shown a  


conscious disregard of parental responsibilities toward the child by failing to provide  


reasonablesupport, maintain regular contact, or providenormal supervision, considering  

                                                                                   16   "The statute also provides specific  


the child's age and need for care by an adult." 

            10         Id.  (quoting  AS  47.10.088(a)(1);  CINA  Rule   18(c)(1)(A)).  

            11         AS  47.10.011(1).  

            12         AS  47.10.011(2).  

            13         AS  47.10.011(9).  

            14         Casey   K.   v.   State,  Dep't   of   Health   &   Soc.   Servs.,   Office   of   Children's  

Servs.,  311  P.3d  637,  643  (Alaska  2013).  

            15         AS  47.10.011(1).  

            16         AS  47.10.013(a).  

                                                                       -10-                                                                 7317

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


 examples of conduct that will be considered abandonment."                                                                                                                                                                                                                                                                   Here, the superior court                                                                           

relied on AS 47.10.013(a)(2), (3), and (4), which provide that abandonment includes                                                                                                                                                                                                                                                                                                                           

"instances when the parent . . . , without justifiable cause,"                                                                                                                                                                                                        

                                                                     (2)                      has                        made                                 only                             minimal                                              efforts                                     to                  support                                          and  

                                                                     communicate with the child; (3) failed for a period of at least                                                                                                                                                                                                                           

                                                                     six months to maintain regular visitation with the child; [or]                                                                                                                                                                                                                                

                                                                     (4)  failed to participate in a suitable plan or programdesigned                                                                                                                                                                                                    

                                                                    to reunite the parent or guardian with the child[.]                                                                                                                                                                  

We conclude that the evidence does not support an abandonment finding under any of                                                                                                                                                                                                                                                              

these illustrations.   

                                                                     From the time Duke learned of his possible paternity to the time he was                                                                                                                                                                                                                                                                                          

incarcerated, he showed his willingness to care for Darrence (though OCS's concern                                                                                                                                                                                                                                                                                                                              

 about the protective services reports apparently prevented Darrence's placement with                                                                                                                                                                                                                                                                                     

him). Duke voluntarily came forward as the potential father, sought out paternity testing,                                                                                                                                                                                                                                                                                                                            

 and helped Evangeline amend Darrence's birth certificate to show his paternity even                                                                                                                                                                                                                                                                                                                                             

before   genetic   testing   had   confirmed  it.     He   sought   visitation   with   Darrence,  

 accompanied Evangeline to OCS so he could meet Darrence, and asked Siri for in-home                                                                                                                                                                                                                                                                                                                            

visitation.   He attended the adjudication trial.                                                                                                                                                                                        

                                                                     Once Duke was incarcerated, his direct interaction with Darrence was                                                                                                                                                                                                                                                                                           

necessarily limited.                                                                                 But OCS never alleged that he failed to provide reasonable support                                                                                                                                                                                                                                             

during that time.                                                                          And OCS asserted that it provided all the visitation its resources                                                                                                                                                                                                                                           

 allowed, thus conceding that Duke did not "fail[] for a period of at least six months to   

                                                                                                                                                                                                                    18  Duke asserted that while in prison he "never  

maintain regular visitation with the child."                                                                                                                                                                                                                                                                                                                                                                             

                                   17                                G.C.  v.  State,  Dep't  of  Health  & Soc.  Servs.,  Div.  of  Family  & Youth  Servs.,  

 67  P.3d  648,  651  (Alaska  2003)  (citing  AS  47.10.013(a)(1)-(8)).  

                                   18                               AS  47.10.013(a)(3).  

                                                                                                                                                                                                                    -11-                                                                                                                                                                                                          7317

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

 forgot about [his] kids" and sent them letters and pictures through OCS; OCS did not                                                                                                                                                                                                                                                             

 dispute this.                                     

                                                      As its "main" justification for the abandonment finding, the superior court                                                                                                                                                                                                          

 identified Duke's failure to "participate in a suitable plan or program designed to reunite                                                                                                                                                                                                                                        

the parent . . . with the child." It specifically found that "OCS's various efforts were met                                                                                                                                                                                                                                                     

with less than adequate participation by [Duke] to engage in the plan or program and to                                                                                                                                                                                                                                                                 

take those steps to reunite."                                                                                        But the record contains no case plan addressing Duke's                                                                                                                                                      

potential for reunification with Darrence, and OCS's caseworker appeared to concede                                                                                                                                                                                                                                           

 at trial that one did not exist.  This was a significant lapse.  By statute, OCS's "duty to                                                                                                                                                                                                                                                            

make reasonable efforts . . . includes the duty to . . . identify family support services that                                                                                                                                                                                                                                                  

will assist the parent . . . in remedying the conduct or conditions in the home that made                                                                                                                                                                                                                                                

the child a child in need of aid" and "actively offer . . . and refer the parent" to those                                                                                                                                                                                                                                               



                                                       In Frank E. v. State, Department of Health & Social Services, Division of  


Family & Youth Services, as here, the father was incarcerated during a significant part  


 of the State's involvement with his children;20  the State did create a case plan, but it  


 involved  treatment  and  classes  "that  could  only  be  taken  after  his  release  from  


 incarceration," which was scheduled to occur after the termination trial.21                                                                                                                                                                                                                                We held that  


 "the state's failure to identify and offer programs to [the father] before the planned  


termination would generally violate the state's duty under AS 47.10.086," but "the  


 failure was harmless in this case because the superior court continued the . . . termination  


                            19                        AS 47.10.086(a)(1), (2).                                                             

                           20                          77 P.3d 715, 716 (Alaska 2003).                                                                          

                           21                         Id.  

                                                                                                                                                                        -12-                                                                                                                                                                7317

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


trial specifically to allow [the father] an opportunity to complete his case plan."                                                                          In  

other cases, when preparation of a case plan was unreasonably delayed, we have still                                                                        

affirmed reasonableefforts                         determinations madeon thebasis of OCS's involvement with                                                

                                              23   But we have never excused OCS's failure to create any case  

the family in its entirety.                                                                                                                                

plan at all.24  


                         Here the evidenceis undisputedthatOCSdid not create a relevant case plan  


for Duke, did not engage him in case planning, and during the 17 months before the  


termination trial met with him in  person only once, when there was no significant  


discussion of a case plan or its possible objectives. We cannot affirm a finding that Duke  


failed to participate in a case plan that did not exist on paper and was not even explained  


to him in theory.  The superior court's abandonment findings are clearly erroneous and  


cannot form the basis for a determination that Darrence was a child in need of aid.  


                         2.           Neglect  

                         Neglect may be the basis for a CINA finding if "conduct by or conditions  


created by the parent . . . have subjected the child or another child in the same household  


to neglect."25             "[T]he court may find neglect of a child if the parent . . . fails to provide  


the child with adequate food, clothing, shelter, education, medical attention, or other care  


             22          Id.  at 720.   

             23          See Dashiell R. v. State, Dep't of Health &Soc. Servs., Office of Children's  


Servs., 222 P.3d 841, 844-45, 849-50 (Alaska 2009) (case plan not developed until  


almost two years after OCS assumed custody of children).  


             24          The record implies the existence of case plans involving Duke's other  


children; his caseworker's testimony about Duke's need for a psychological assessment  


apparently addressed a requirement of those plans. But reference to those plans appears  


in the trial transcript only through Duke's questions about them when he was cross- 


examining the caseworker; they were not in evidence.  


             25          AS 47.10.011(9).  


                                                                             -13-                                                                        7317

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

and control           necessary   for   the child's physical and                             mental health            and   development,  

though financially able to do so or offered financial or other reasonable means to do                                                             



                       We conclude that the evidence does not support a finding of CINA status  


based on neglect for two reasons.  First, Darrence was in foster care with Siri's family  


fromthe time Duke learned of his existence through trial, and there was therefore no time  


when Duke was responsible for Darrence's care and failed to provide it.  Second, to the  


extent Duke remained responsible for Darrence's support, there was no evidence he was  


financially able to provide more than he did.  


                       Whenachild is committed to OCS's carefollowing an adjudication hearing  


under AS47.10.080(c)(1), "arelationship oflegal custody exists" which "imposes on the  


department  .  .  .  the  responsibility  of  physical  care  and  control  of  the  child,  the  


determination of where and with whom the child shall live, the right and duty to protect,  


nurture, train, and discipline the child, the duty of providing the child with food, shelter,  


education,  and  medical  care,  and  the  right  and  responsibility  to  make  decisions  of  

                                                                            27   The parent's responsibilities at that point  


financial significance concerning the child." 

are the "residual" ones identified in AS 47.10.084(c), which as relevant here include "the  


. . . responsibility of reasonable visitation" and "the responsibility for support."  


                       With regard to visitation, the evidence does not support a finding that Duke  


failed in his responsibility; as described above, he sought visitation as soon as he learned  


of his possible paternity and exercised it in prison as often as OCS was able to provide  


            26         AS 47.10.014.   

            27         AS  47.10.084(a).  

                                                                       -14-                                                                       7317  

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


it.       As for "the responsibility for support," the day-to-day responsibility for Darrence's                                                                   


care was reposed by law in OCS and delegated to Siri.                                                                                                                

                                                                                                                          To the extent Duke remained  


responsible for financial support, he testified that he was "still paying child support while  


in custody," which OCS did not dispute.  Furthermore, OCS had the burden of proving  

                                                                                                                                                      30    The evidence  


that Duke failed to provide support "though financially able to do so." 

at trial showed that Duke was incarcerated and unable to post bail; he testified that he had  


saved up $10,000 toward his bail but "one of [his] third parties . . . ran off with [his]  


money."  In prison he earned 50 cents an hour when he worked, for a total of perhaps  


"18 to $20 a week."  We see no basis in the record for a finding that Duke failed to  


provide support that he was financially able to provide.31  


                             We conclude that it was clear error to find that Duke's neglect caused  


Darrence to be a child in need of aid.  


                             3.            Incarceration  

                             A parent's incarceration may be the basis for a CINA finding if "a parent  


. . . is incarcerated, the other parent is absent or has committed conduct or created  


              28             The OCS caseworker who testified at the termination trial conceded that a                                                                                 

paucity of visitation due to OCS's overstretched resources "may feel like a punishment                                                                          

to the parents" but did not amount to "neglect to the kids, no."                                                                       

              29             AS 47.10.084(a) (setting out OCS's responsibilities to child in its custody  


and its power to delegate them).  


              30             AS 47.10.014 (emphasis added).  


              31             OCS also argues that neglect may be found in Duke's "refus[al] to sign the  


consent forms" necessary for Darrence's tonsillectomy and adenoidectomy "without  


altering them."  According to OCS, Duke signed the consent forms but "crossed off the  


line that stated the doctor is not responsible for anything that might go wrong during  


surgery." The superior court made no findings about this incident, so we need not decide  


whether it would be sufficient by itself to justify a finding of neglect.  


                                                                                        -15-                                                                                  7317

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

conditions that cause the child to be a child in need of aid . . . , and the incarcerated                                      


parent has not made adequate arrangements for the child."                                                                                    

                                                                                                      Duke does not dispute that  


he was incarcerated, nor does he contest the court's finding that Evangeline committed  


conduct or created conditions that caused Darrence to be in need of aid.  Duke contests  


only the finding that while incarcerated he failed to make adequate arrangements for  



                       We agree with Duke that the record does not support that finding. Darrence  


had been placed in the care of Siri, whom Evangeline personally selected to care for him,  


in October 2014, a month before Duke's paternity was confirmed.  She was still caring  


for Darrence at the time of the termination trial and testified that she was "absolutely"  


willing  to  continue  doing  so.                        OCS  had  no  question  about  the  adequacy  of  this  


arrangement:  in closing argument its counsel said that Darrence was "very fortunate to  


have the foster parents that he has who are able to provide him with the day-to-day  


supervision that he needs, who are able to get him to all the appointments that he has to  


go to, to receive all the services that he needs, and who are willing to provide that care  


for  him  long  term."                 In  short,  though  Siri  was  not  Duke's  choice  for  Darrence's  


caregiver, there was no question but that he left Darrence in good care when he went to  



                       It is true, as OCS argues, that Duke's own choice did not work out.  After  


he was arrested in April 2015, Duke asked OCS to place his children with his sister  


Natalya, who was a licensed foster care provider.  The court found that OCS denied the  


request as to Darrence because Natalya had lost her foster care license and also because  


Darrence "just has such extraordinarily high needs." But the determination that Natalya  


could not meet Darrence's special needs was not made until over a year after Duke made  



                       AS 47.10.011(2).  

                                                                      -16-                                                                     7317  

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

his placement request, when the new caseworker took over his file in August 2016. The                                                                                                                                                                                                                                                                                                                                                                                                         

new caseworker denied his request based on an earlier determination that Natalya could                                                                                                                                                                                                                                                                                                                                                                                                

not meet the special needs of the other four children who had been living with Duke at                                                                                                                                                                                                                                                                                                                                                                                                                     

 the time of his arrest - and "pending her ability to demonstrate that she could meet                                                                                                                                                                                                                                                                                                                                                                                                   

  [Darrence's]   specialized   needs   by   attending   his   weekly  therapy   sessions,"   which  

 apparently did not occur.                                                                                                                               According to the caseworker, Natalya lost her foster care                                                                                                                                                                                                                                                                          

 license nearly a year later, in June 2017; the loss of her license played no part in OCS's                                                                                                                                                                                                                                                                                                                                                                                    

 decision to deny Duke's placement request.                                                                                                                                                                                                                      

                                                                              Assuming that Natalya was indeed an inappropriate placement at the time                                                                                                                                                                                                                                                                                                                                        

 of OCS's denial, we still cannot conclude that the evidence supported a finding that Duke                                                                                                                                                                                                                                                                                                                                                                                             

 failed to make "adequate arrangements for the child."                                                                                                                                                                                                                                                                              His request that Darrence be                                                                                                                                       

placed with Natalya, a licensed foster care provider, was pending for over a year before                                                                                                                                                                                                                                                                                                                                                                                        

 OCS denied it.                                                                         There was no evidence that OCS, having finally sent Natalya a denial,                                                                                                                                      

 informed Duke of its action and asked him to provide other names; placement was not                                                                                                                                                                                                                                                                                                                                                                                                               

 among the limited topics OCS's caseworker described raising with Duke while he was                                                                                                                                                                                                                                                                                                                                                                                                            



                                       33                                     The caseworker testified that "we just talked a little bit about [Darrence's]                                                                                                                                                                                                                                                                                 

 services that he was in.                                                                                                              We didn't really talk a whole lot about case plan specific object                                                                                                                                                                                                                                                                          

 or objectives.                                                                      It was more just about [Darrence]."                                                                                                                                                                                  In  Josh L. v. State, Department of                                                                                                                                                             

Health   &   Social   Services,   Office   of   Children's   Services,   the   dissent   noted   that  

 "[a]lthough we do not need to decide the question here, it is difficult to believe that in the                                                                                                                                                                                                                                                                                                                                                                                                      

non-ICWA   context   OCS's   reasonable   efforts   duty   does   not   include   assisting   an  

 incarcerated parent in remedying the lack of an alternative placement for a child when                                                                                                                                 

 the parent provides the names of potential placements."                                                                                                                                                                                                                                                                                      276 P.3d 457, 471 (Alaska                                      

 2012) (Winfree, J., dissenting).  We need not decide the issue here either, but we note  

 that the record is bare of any indication that OCS even informed Duke of the status of his                                                                                                                                                                                                                                                                                                                                                                                                           

 effort to make "adequate arrangements for [the] child," thus prompting him to make                                                                                                                                                                                                                                                                                                                                                                                                  

 another suggestion.                                                                                                

                                                                                                                                                                                                                                                -17-                                                                                                                                                                                                                                       7317

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

                                     We conclude that it was clear error to find that Darrence was a child in need                                                                                                                    

of aid on grounds that Duke, when incarcerated, failed to make adequate arrangements                                                                                                                         

for his care.                         Because we cannot affirm any of the court's three findings supporting                                                                                                         

CINA status, we reverse its decision that Darrence was a child in need of aid.                                                                                                                                                

                   B.	                The Superior Court Clearly Erred In Determining That The State                                                                                                                               

                                     Made Reasonable Efforts To Reunify The Family.                                                                                  

                                      Termination of parental rights is also predicated on a finding, by clear and                                                                                                                       

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

support services designed to prevent out-of-home placement or enable the child's safe                                                                                                                              


return to the family home."                                                                                                                                                                                                  

                                                                                   "By statute, OCS's duties include the duty to: (1) identify  


family support services that will assist the parent in remedying [his or] her conduct; (2)  


actively offer those services to the parent and refer the parent to them; and (3) document  



the department's actions."                                                      "The requirement that OCS offer reunification services 'is  


fulfilled by setting out the types of services that a parent should avail . . . [himself] of in  

                                                                                                                                                               36       Duke contends that OCS's  


a manner that allows the parent to utilize the services.' " 

efforts to reunify him and Darrence were "virtually non-existent."  


                                     Because we are reversing the superior court's finding that Darrence was a  


child in need of aid, we need not review OCS's remedial efforts in detail. But we do note  


the insufficiency of the evidence supporting the superior court's conclusion that OCS  


made "reasonable efforts trying to get [Duke] involved in a plan and visitation."  As  


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

343 P.3d 425, 432 (Alaska 2015).                                             

                   35                Id. (citing AS 47.10.086(a)).  


                   36                Id. (alteration in original) (quoting Audrey H. v. State, Office of Children's  


Servs., 188 P.3d 668, 679 (Alaska 2008)).  


                                                                                                                    -18-	                                                                                                            7317

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

explained above, there                            was  no case plan directed toward reunifying Duke and Darrence;                                                          

that omission itself may be fatal to a reasonable efforts finding.                                                                          37  

                              As for visitation, Duke initiated it in late 2014 and early 2015, and once he  


was incarcerated visitation occurred as often as OCS was able to facilitate it.  We have  


noted that "the scope of OCS's duty to make reasonable efforts is affected by a parent's  


incarceration,"38   and that efforts by the Department of Corrections count toward the  


reasonable efforts expected of OCS.39   But here the caseworker testified at the December  


2017 trial that her work with Duke since she took over his case in August 2016 included  


only (1) inquiring of OCS's "family contact team to ensure that he was getting his  


quarterly visits with [Darrence]," (2) sending Duke "some correspondence regarding  


[Darrence's] needs," and (3)  "one in-person meeting  . .  .  at the Anchorage jail on  


February 3rd" during a visit.  The caseworker also testified about Duke's need for a  


psychological assessment - a requirement of a different case plan - but explained she  


was unaware of any provider who would perform the assessment while Duke was in  


prison. The superior court noted its concerns with this issue, observing that "OCS didn't  


have a very good answer frankly as to why a mental health assessment of [Duke] had not  


been performed," and "[i]f this case turned solely on that, I would find against OCS."  


               37             See Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family &                                                                                        

 Youth Servs.               , 77 P.3d 715, 720 (Alaska 2003) (noting that "failure to identify and offer                                                                              

programs to [the parent] before the planned termination would generally violate the                                                                                                      

state's duty" to make reasonable efforts).                                

               38            Barbara P. v. State, Dep't of Health & Soc. Servs., 234 P.3d 1245, 1262  


(Alaska 2010).  


               39            Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 222 P.3d 841, 849 (Alaska 2009).  


                                                                                            -19-                                                                                     7317

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

                         In  A.M. v. State                we affirmed an active efforts finding when the father                                         

received sex offender treatment in prison and the child protection agency "maintained  

contact with [the father] while he was in treatment, generally encouraged his treatment                                                           

                                                                                                                               40   In Dashiell R. v  

efforts, and assisted him in arranging visitation with his children."                                                                                            

State,  Department  of  Health  &  Social  Services,  Office  of  Children's  Services,  we  


affirmed an active efforts finding when the father received classes and therapy while  


incarcerated, "OCS staff communicated with [the father] during his incarceration," and  


"OCS arranged for written exchanges and telephone visits between [the father] and the  



                         In  this case,  OCS's  efforts  while Duke was imprisoned  - at least as  


revealed by the evidence at trial - were less extensive than those we approved in A.M.  


and  Dashiell  R.                   While  Duke  did  engage  in  parenting,  vocational,  and  religious  


instruction while incarcerated, it was on his own initiative rather than in response to any  


guidance from OCS about what he needed to do to improve his chances of reunification.  


OCS's minimal engagement with Duke, combined with the lack of a relevant case plan,  


convince us it was clear error to find that OCS had made reasonable efforts toward  



V.           CONCLUSION  

                         We REVERSE the termination of Duke's parental rights with respect to his  


son Darrence.  


             40          945  P.2d  296,  306  (Alaska   1997).  

             41          222  P.3d  at  850.  

                                                                              -20-                                                                             7317  

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