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

                                                                                                                             

           corrections@akcourts.us.  



                       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-----------------------

I.        INTRODUCTION  



                    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.  

                                                                     



II.       FACTS AND PROCEEDINGS  

                                 



          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  



                    3  

                                                                                                                                                                                                                                                                    

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  



home.  



                                                                                                                  

                    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                                    



                                                                                                                                                                                               5  

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

                                                                                                                                                                                                   and "[w]hether  



                                                                                                                                                                                                                              6  

                                                                                                                                                                                                                                  We  

 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  



                                                                                                                                                                                                                                 9  

                                                                                                                                                                                                              

 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                                                



                                                                                              10  

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.                                                                                            

incarceration,                      

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  

                                                                                                                                           Duke  



                                                                                                                                              

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-----------------------

                                                                                                                                                                                                                                                                                                                    17  

 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                                                                                                                                                                                                                                               



                                    19  

 services.                                   



                                                       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-----------------------

                                                                                                                                                         22  

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).  

                                 



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----------------------- 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                                                             

so."26  



                                                                                                                                             

                       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-----------------------

    28  

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



                                                                                                                    29  

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                                      



                                                                                                  32  

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  



Darrence.  



                                                                                                                                     

                       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  



prison.  



                                                                                                                                           

                       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  



           32  

                              

                       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  

 incarcerated.                                                                        



                                       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                                                                                                                              



                                                                            34  

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  



                                                                         35  

                                                                                                                                                                                                                                            

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  

                                                                                                                                                              

children."41  



                         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  

                                                                                                                                                      



reunification.  



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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