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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sam M. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (6/7/2019) sp-7372

Sam M. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (6/7/2019) sp-7372

        Notice:   This op inion  is subj ect  to correction bef ore p ublication  in  the PA CIFI C REPORTER.  

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

        303 K Street, Anchorage, Alaska 99501, p hone  (907)  264-0608, f ax  (907)  264-0878, email 

        corrections@akcourts.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



SAM M.,                                            ) 

                                                   )   Supreme Court No. S-17130 

                        Appellant,                ) 

                                                   )   Superior Court No. 3AN-16-00433 CN 

        v.                                         ) 

                                                   )   O P I N I O N 

STATE OF ALASKA, DEPARTMENT                       ) 

OF HEALTH & SOCIAL SERVICES,                      )    No. 7372 - June 7, 2019 

OFFICE OF CHILDREN 'S SERVICES    ) 

                                                    ) 

                        Appellee.                 ) 

                                                   ) 



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

                Judicial District, Anchorage, Mark Rindner, Judge.   



                Appearances:    Michael  Horowitz,  Law  Office  of  Michael 

                Horowitz, Kingsley, Michigan, for Appellant.  Erik Fossum, 

                Assistant  Attorney   General,  Anchorage,   and  Kevin   G. 

                Clarkson, Attorney General, Juneau, for Appellee.   



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

                and Carney, Justices. 



                STOWERS, Justice. 



I.      INTRODUCTION 



                This case involves the termination of a father's parental rights to his only 



daughter.   The  father had not been  a  substantial part  of his  daughter's  life when the 



Office of Children's Services (OCS) took custody of her from her mother.  The father 



was  coping  with  his  own  mental  health,  substance  abuse,  and  post-traumatic  stress 


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

disorder (PTSD) issues when this case began and was receiving services to address those 



issues.  OCS facilitated some visitation between the father and the daughter, encouraged 



the father to continue participating in the services he was already receiving, and added 



parenting classes to the regimen.  By all accounts, the father was making progress.  But 



while the case was ongoing, OCS received a report that the father had sent nude photos 



of his genitals to a minor female.  OCS referred the father for a sex offender assessment 



and his history of other sexual misconduct came to light.  Upon receiving the assessing 



psychologist's conclusions that the father was a risk to his daughter's safety, OCS moved 



forward with terminating his parental rights.  The superior court terminated the father's 



rights after a two-day trial.  He appeals, arguing only that OCS failed to make active 



efforts.  Because the record demonstrates OCS made active efforts to reunify the father 



and  his  daughter,  we  affirm  the  superior  court's  termination  of  the  father's  parental 



rights.       



II.     FACTS AND PROCEEDINGS 



        A.      Background 



                                                                                   1 

                Sam M. and Julia J. are the biological parents of Lane J.   Lane is an Indian 



child as defined by the Indian Child Welfare Act (ICWA) based on Julia's affiliation 



                                              2 

with the Native Village of Kluti-Kaah.   Julia relinquished her parental rights to Lane and 



her  two  other  children  prior  to  the  termination  trial.   This  appeal  only  involves  the 



termination of Sam's parental rights to his daughter Lane. 



                Julia conceived in January 2010 after a single sexual encounter with Sam.  



Sam was unaware  that he had  a  daughter until  she was  over  a  year  old.   After  Sam 



learned about his daughter, he was able to see her every few months until she was three 



        1       Pseudonyms are used to protect the family members' privacy. 



        2       25 U.S.C.   1903(4) (2018). 



                                                   -2-                                                7372 


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

years old.  At this point  Sam and his father, with whom he lived at the time, filed for 



custody of Lane because Julia's stepmother informed Sam that Julia was taking drugs.  



Directly after Sam filed for custody, Julia left Alaska with the children and relocated to 



Washington for approximately three years.  The custody case lapsed, and Sam did not 



see his daughter again until 2016, after Julia returned to Alaska. 



               In August 2016 OCS responded to a report that Julia was neglecting Lane 



and  her  two  other  children  and  using  methamphetamine.    Julia  admitted  to  using 



methamphetamine,  and  OCS took  emergency  custody  of the  children.   OCS  filed  an 



emergency petition to adjudicate the children as children in need of aid (CINA) under 



AS 47.10.011(6) (risk of physical harm), (9) (neglect), and (10) (substance abuse).  At 



the  time  OCS  filed  its  emergency  CINA  petition,  Julia  was  homeless  and  OCS  had 



trouble getting contact information for Sam.  The children were all placed with foster 



parents.  Lane and her younger brother were placed with their maternal aunt, where they 



have remained since OCS took custody.  Julia's stepmother contacted Sam on Facebook 



after OCS took custody of the kids and advised him that Julia and Lane had moved back 



to Alaska.  



               Lane is currently eight years old.  She has been diagnosed with autism and 



may suffer from other disabilities.  According to Lane's guardian ad litem, "[Lane] is a 



sweet,   somewhat   shy   little   girl,  who   experiences   a  number   of   delays   in  her 



development."    Lane  has  an  individualized  education  plan  at  school  and  "has  made 



progress  .  .  . with  support  from her  aunt" who is  "an  excellent  advocate  for  [Lane]."  



Lane's aunt stated that she and her husband were interested in adopting Lane and her 



little brother. 



               Prior  to  any  contact  with  OCS,  Sam  was  already  taking  advantage  of  



services at Dena'ina Wellness Center in Kenai; he was attending PTSD support group 



meetings and seeing a behavioral health counselor to help with substance abuse issues 



                                               -3-                                            7372 


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

and depression.  Sam suffered from PTSD in part because he was sexually assaulted by 



a stranger when he was six.  Early in 2016 Sam attempted suicide and was hospitalized 



at the Alaska Psychiatric Institute (API).  According to API records, Sam had a history 



of suicide attempts and self-harming.  Sam also had a history of seizures that caused him 



to lose a number of j obs.  Sam's parents are divorced, and he has lived off and on with 



each of them.  His father has provided him with financial support.  At the time of the 



termination trial he was mostly living with his mother. 



        B.      Sam's Contact With OCS 



                Sam's first contact with OCS was sometime between August and October 



2016 with Hannah Gorman, the first of three caseworkers assigned to his case.  Gorman 



was only on the case for about a month before she left OCS.  During that time she spoke 



with Sam briefly about visiting with Lane.  She was not interested in placing Lane with 



                                                                                  3 

him because he was living with his mother, a convicted sex offender;  Gorman also had 



concerns about Sam's treatment needs and Lane's desire to avoid contact with him at the 



time.  When Gorman left the case, Sam was set up with a case manager and counselor 



at the Dena'ina Wellness Center. 



                In October the case was reassigned to OCS caseworker Chery  Schaffan.  



She contacted Sam to schedule monthly meetings at OCS.  She also sought to meet with 



him to  develop  a  case plan.   Schaffan testified that  Sam  disclosed mental health  and 



substance abuse issues, a history of sexual abuse as a child, and a seizure disorder that 



affected his being able to maintain employment or drive.  Sam reported not having been 



actively involved in Lane's life and not having  seen her for the past couple  of years. 



        3       Sam's mother was convicted of a sex offense involving a minor and is a 



registered sex offender.   Sam's OCS caseworker worried that this "would potentially 

hinder  [Sam's]  ability  to  himself  receive  treatment  and be  in  a  healthy  environment 

where he could be able to one day parent his child." 



                                                  -4-                                               7372 


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

Schaffan arranged face-to-face contact between Sam and Lane.  She described several 



visits  that  she  supervised,  and  at  each  she  characterized  Sam  as  having  difficulty 



engaging with Lane.  Schaffan explained that visits ideally would have happened weekly, 



but because Sam lived in Soldotna and did not drive, transportation to Anchorage was 



             4 

a problem;  they tried to accomplish monthly visits instead.  Schaffan stated that she saw 



improvement in the interactions between Sam and Lane throughout her time on the case.  



Sam disclosed his lack of prior experience parenting a child, specifically a child with 



special  needs,  and  Schaffan  spoke  with  him  about  taking  parenting  classes  at  the 



Dena'ina Wellness Center where he was already receiving other services.    



                 In April 2017  Sam's counselor reported to OCS that  Sam had disclosed 



                                                                                5 

sending  and  receiving  nude photos  with  a  16-year-old  female.     After  receiving  this 



report, Schaffan referred Sam for a psychological evaluation, a sex offender assessment, 



and a parenting assessment with Dr. Paul Turner, a clinical psychologist.  Schaffan stated 



that she had phone conversations with Sam arranging, explaining, and getting his consent 



for the assessment, and that OCS paid for the assessment.   



                 Dr.  Turner  evaluated  Sam  in  August  and  September  2017.    He  also 



reviewed various records and discovered Sam's history of inappropriate sexual behavior, 



which included four incidents in addition to the April 2017 incident.  He reviewed an 



Alaska Department of Public Safety incident report from October 2013, when Sam was 



23 years old, which recorded that Sam reported having sex with a minor. The minor was 



interviewed  and  denied  any  sexual  contact.  He reviewed  a  superior  court judgment, 



indicating that Sam pleaded guilty to sexual assault in the fourth degree after allegations 



that  Sam  had  "inappropriate  sexual  behavior  towards  his  sister."    Dr.  Turner  also 



        4        Schaffan offered to fly Sam to Anchorage once every three months. 



        5        Sam was 27 years old at the time of this incident. 



                                                    -5-                                                 7372 


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

reviewed  API  records  from  2016  indicating  that  Sam  had  engaged  in  inappropriate 



sexual behavior while  at  API.    The  API record  stated:   "This patient  did have  some 



difficulty with inappropriate statements with females and as a consequence a ten-foot 



boundary  had  to  be  placed  on  him."    Dr.  Turner  testified  that  he  was  aware  of  an 



additional incident that occurred when Sam was 18 and still in high school, in which he 



sent a picture of his genitals to a 17-year-old classmate and was charged with misuse of 



a cell phone.   



               Schaffan testified that she discussed Sam's pattern of inappropriate sexual 



behavior with him and that his response was "a lot of minimizing . . . and he would refer 



me to his attorney."  In response to a question about whether she ever considered placing 



Lane with Sam, Schaffan explained that Sam's father had been considered as a placement 



at  a  team  decision meeting  following  a  positive  home  study,  but  after  receiving  the 



reports of Sam's inappropriate sexual behavior, these plans were abandoned.  Schaffan 



stated that OCS needed to address whether Sam's sexualized behavior would be a safety 



concern if Lane was placed in his care. 



               A  third  OCS  caseworker,  Michelle  Fanning,  was  assigned  the  case  in 



October 2017.  It appears Fanning received a verbal report from Dr. Turner regarding his 



conclusions  and  filed  a  petition  to  terminate  Sam's  parental  rights  on  October  30.  



Fanning received Dr. Turner's written report in November, but did not share the report 



with Sam.  Fanning instead spoke with Sam about the report and recommended that he 



follow its recommendations.  Fanning referred Sam to his attorney rather than answer 



specific  questions  about how  long he needed to work  on the recommendations.   She 



testified that based on the report from Dr. Turner, Sam should have been referred for sex 



offender treatment, but that she did not make that referral.  Fanning pointed to three visits 



she supervised between Sam and Lane from December 2017 to February 2018.  Fanning 



characterized the visits as awkward and noninteractive. 



                                               -6-                                           7372 


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

        C.     Dr. Turner's Testimony And The Superior Court's Ruling 



               A termination trial was held over two days in April and May of 2018.  OCS 



called Dr. Turner to testify at trial.  Dr. Turner related  Sam's history of inappropriate 



sexual behavior and testified that his "findings were that [Sam]'s risk to his daughter . . . 



[is] at least moderate, because of his unusual sexual behavior, corroborated since 2013, 



and his complete denial of any involvement, sexual offending, except for one admission 



on one obj ective test."  He explained:  



               [Sam  had]  engaged  in  inappropriate  sexual  behavior  as 

               recently as 2017.  He denied any responsibility or guilt with 

               his assault conviction, reduced to a misdemeanor.  And I felt 

               in  this  context  that  OCS  had  identified  his  daughter  as 

               autistic,   so   she's   a  vulnerable  child,   so  there's   safety 

               concerns.  I felt that his sexual risks were incompatible with 

               the child protection requirements for his daughter's safety. 



 Dr. Turner opined that Sam "has borderline intellectual functioning with extremely low 



 processing speed, which . . . was a barrier to successful independent parenting," and that 



 Sam "has less than minimally adequate parenting capability capacity."  He explained 



 that  he  recommended  sex  offender  treatment  for  Sam,  and  Sam's  prognosis  for 



 remedying his problems was poor.  Dr. Turner believed "it would take some more years 



 of treatment, plural."  



                Sam testified at the termination trial.  He expressed his desire to parent 



 Lane and to be a part of her life.  In response to a question about how long it would be 



 before Sam felt like he could independently parent Lane, he stated it would be "maybe 



 a year, maybe two years."  He suggested that his father could retain guardianship over 



 Lane during that time. 



                The  superior  court  commended  Sam  for making progress by receiving 



 services from the Dena'ina Wellness Center.  But the court observed that "there's still 



 a lot of work to be done."  The court balanced whether to extend the time for Sam to 



                                                -7-                                            7372 


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

address his problems against Lane's clear need for permanency.  The court questioned 



OCS's failure to refer Sam to sex offender treatment, and OCS responded that by the 



time  OCS  found  out  how  serious  Sam's  sexual  behavior  issue  was  -  when  OCS 



received Dr. Turner's report - it was too late to address the issue. 



              The court, reflecting the guardian ad litem's testimony, summarized the 



history of the case, explaining that Sam and OCS were on the road to reunification and 



possible placement with  Sam's father, but when  Sam's history of sexual misconduct 



came to light the situation became "unrecoverable" given the permanency concerns for 



Lane. 



              At the conclusion of the trial the court made an oral decision to terminate 



Sam's parental rights and then issued a written termination order in June 2018.  The 



court found that Lane was a child in need of aid under AS 47.10.011(11) because Sam 



had "a mental  illness,  emotional  disturbance,  and mental  deficiency  of  a nature  and 



duration that place[d] [Lane] at substantial risk of physical harm or mental injury."  The 



court found by "clear and convincing evidence that  [OCS made] active efforts  .  .  . to 



provide remedial services and rehabilitative programs designed to prevent the breakup 



of this Indian family," and that those efforts were unsuccessful.  The court also found 



that Sam failed to remedy the conduct or conditions that placed Lane at substantial risk 



of harm, that returning Lane to Sam would likely result in serious emotional or physical 



damage to her, and that terminating Sam's parental rights was in Lane's best interests.  



Sam appeals, arguing only that the superior court's active efforts finding was erroneous.  



III.   STANDARDS OF REVIEW 



              "Whether OCS made active efforts to provide remedial and rehabilitative 



services to reunify the  family as required by  ICWA  is  a mixed  question  of  law  and 



                                            -8-                                         7372 


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

        6 

 fact."   "We review the content of the superior court's findings for clear error, but we 



 review de novo whether those findings satisfy the requirements of the CINA rules and 

 ICWA."7  "Findings of fact are clearly erroneous if a review of the entire record in the 



 light most favorable to the prevailing party below leaves [us] with a definite and firm 



                                                      8 

 conviction that a mistake has been made."   "We will not reweigh evidence when the 

 record provides clear support for the superior court's decision."9 



 IV.     OCS MADE ACTIVE EFFORTS TO REUNIFY SAM WITH LANE. 



                  ICWA provides that "[a]ny party  seeking to effect a  .  .  . termination of 



 parental rights to[]  an Indian child under  State law  shall  satisfy the  court that  active 



 efforts  have  been  made  to  provide  remedial  services  and  rehabilitative  programs 



 designed to prevent the breakup of the Indian family and that these efforts have proved 

 unsuccessful."10    OCS  bears  the  burden  to  demonstrate  by  clear  and  convincing 



 evidence that active efforts have been made.11  We conduct "an active efforts inquiry on 



 a case-by-case basis because 'no pat formula' exists for distinguishing between active 

 and  passive  efforts."12    We  look  "  'to  the  state's  involvement  in  its  entirety'  when 



        6       Philip  J. v. State, Dep 't of  Health & Soc. Servs., Off ice of  Children 's Servs., 



314 P.3d 518, 526 (Alaska 2013). 



        7       Id.  



        8       Id. at 526-27 (quoting Pravat P. v. State, Dep 't of  Health & Soc. Servs., 



Off ice of  Children 's Servs., 249 P.3d 264, 269-70 (Alaska 2011)). 



        9       Id. at 527.  



        10       25 U.S.C.   1912(d) (2018).  



        11       CINA Rule  18(c)(2)(B).  



        12      Philip  J., 314 P.3d at 527 (quoting A.A. v. State, Dep 't of  Family & Youth 



                                                                                           (continued...) 



                                                    -9-                                                 7372 


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

 reviewing  a  finding  of  active  efforts."13    The  recently  adopted  federal  regulation 



 addressing  active  efforts  explains  that  active  efforts  "means  affirmative,  active, 



 thorough, and timely efforts intended primarily to maintain or reunite an Indian child 



                               14 

 with his or her family."         



                  Sam argues that OCS failed to make active efforts.  He acknowledges that 



 OCS made  "several cognizable  efforts" towards reunification,  and that these  efforts 



 were having a positive impact on his ability to parent Lane and develop a bond with 



      15 

 her.     The thrust  of  Sam's  argument  is that his  case was developing positively, but 



 everything changed after Sam disclosed what he characterizes as his "quasi-accidental 



 'sexting'  incident" to his  counselor  and his  counselor reported the  incident to  OCS.  



 Sam  contends  that  OCS  received  the  report  of  him  sending  and  receiving  nude 



 photographs with an underage girl, referred him for a sexual offender assessment with 



 Dr. Turner, and then made no additional efforts towards reunification - instead filing 



 a  termination  petition  almost  directly  after  receiving  Dr.  Turner's  verbal  report. 



                  The  record  reflects  that  OCS  made  significant  active  efforts  toward 



          12      (...continued) 



Servs., 982 P.2d 256, 261 (Alaska  1999)).  



        13       Id.  (quoting  Lucy J.  v.  State,  Dep 't  of   Health  &  Soc.  Servs.,  Off ice  of 



Children 's Servs., 244 P.3d  1099,  1114 (Alaska 2010)).  



        14       25 C.F.R.  23.2 (2019).  



        15       Sam does not allege a deficiency with OCS's initial efforts until his reply 



brief.  In his reply brief,  Sam argues that the efforts OCS made in this case were not 

sufficient even to demonstrate reasonable efforts.  He argues that because he was already 

engaged in mental health and substance abuse counseling services, and OCS simply told 

him to continue receiving services, its claimed efforts in this respect are actually properly 

attributed to him not to OCS.  We will not consider arguments raised for the first time 

in a reply brief.  Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010).  



                                                    -10-                                                 7372 


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

reunifying  Sam  with  Lane.    Sam's  first  contact  with  OCS  was  with  the  initial 



caseworker assigned to the case, Gorman.  They discussed visitation and the services 



Sam was already receiving at the Dena'ina Wellness Center.  After Schaffan took over 



the  case,  she  created  a  case  plan  with  Sam.    The  case  plan  noted  that  Sam  was 



financially dependent on his father and that he self-reported having no knowledge of 



how to parent but was willing to learn.  Sam's case plan goals were to maintain sobriety 



and to develop parenting skills and strategies.  Schaffan referred Sam to continue his 



mental health and substance abuse services at Dena'ina and to begin parenting classes.  



Schaffan  also  facilitated  visits  between  Sam  and  Lane,  and  offered  to  fly  Sam  to 



Anchorage once every three months for visits.   Schaffan contacted  Sam's father and 



facilitated a home study by staff from the Kenai OCS office to determine whether Lane 



could  potentially  be  placed  there.    Schaffan  testified  that  she  saw  improvement  in 



interactions between  Sam  and  Lane  during her time  on the  case.   As  Sam  correctly 



points out in his brief, "[b]y most accounts, [OCS's] efforts, along with [Sam]'s own 



personal efforts, were helping to effect reunification." 



               But circumstances materially changed in April 2017 when OCS received 



a report from  Sam's counselor that  Sam had  sent pictures of his genitals to a minor.  



OCS referred Sam for a psychological, sex offender, and parenting evaluation with Dr. 



Turner and paid for it.  Dr. Turner concluded that  Sam's "risk to his daughter in the 



sexual dimension is estimated to be at least moderate," or according to his testimony, 



"modest or high."  Dr. Turner stated that Sam's "sexual risks appear to be incompatible 



with the child protection requirements for his daughter's safety at this time."  Dr. Turner 



suggested sex offender treatment for Sam.  By the time OCS learned of Dr. Turner's 



conclusions Lane was seven years old and had been in OCS custody for  14 months. 



               It  appears that  sometime prior to  October 2017  OCS received  a verbal 



report from Dr. Turner regarding his assessment of Sam.  OCS made limited additional 



                                            -11-                                          7372 


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

 efforts toward reunification and instead petitioned to terminate Sam's parental rights in 



 October.    In  its  petition  OCS  explained  that  Dr.  Turner  had  concluded  that  Sam's 



 "prognosis to be able to safely parent a child is poor."  Despite Sam engaging in his case 



 plan, OCS explained in its petition that it remained "concerned with [Sam's] ability to 



 parent  a  special  needs  child  given  his  own  cognitive  limitations  and  mental  health 



 needs." 



                Given the unforeseen and material new information about Sam's history 



 of sexual misconduct, including the very recent sending of pictures of his genitals to a 



 minor girl; the lengthy amount of time it would take for Sam to participate and succeed 



 in sexual offender treatment; and Lane's age and need for permanency, we agree with 



 the superior court that the case was "unrecoverable," and we think it was reasonable for 



 OCS  to  decide  to  immediately  file  a  petition  to  terminate  Sam's  parental  rights. 



                We  have  repeatedly  held  that  courts  are  to  look  to  OCS's  efforts 

 throughout the entire case to determine whether OCS made active efforts.16  Here, Sam 



 was receiving services to address his mental health and substance abuse issues when 



 OCS became involved in the case.  The superior court recognized the progress Sam had 



 made before and after OCS's involvement.  But the court concluded that Sam's desire 



        16     See, e.g., Jon S. v. State, Dep 't of  Health & Soc. Servs., Off ice of  Children 's 



Servs., 2 12 P.3d 756, 765 (Alaska 2009) ("We analyze the state's active efforts based on 

its 'overall handling of the case.' " (quoting Thomas H. v. State, Dep 't of  Health & Soc. 

Servs., Off ice of  Children's Servs.,  184 P.3d 9,  16 (Alaska 2008))); Maisy  W. v. State, 

Dep 't  of  Health  &  Soc.  Servs.,  Off ice  of   Children 's  Servs.,  175  P.3d  1263,  1268-69 

(Alaska 2008) (concluding that even though OCS failed to make active efforts for three 

months, the superior court properly considered its efforts throughout the entire case).  



                                                -12-                                            7372 


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

 for more time to seek treatment for his sexual misconduct issues was outweighed by 

 Lane's need for permanency.17 



                 The record amply supports this conclusion.  We have held that a "child's 



 need  for permanence  and  stability  should  not be put  on  hold  indefinitely  while  the 



 child's parents seek to rectify the circumstances that cause their children to be in need 

 of aid."18  We conclude the superior court did not err in finding that OCS made active 



 efforts.  



 V.      CONCLUSION 



                We AFFIRM the superior court's termination of Sam's parental rights.  



        17      The guardian ad litem and the tribal representative agreed with the court 



that Sam's parental rights should be terminated. 



        18      Sherman B. v. State, Dep 't of Health & Soc. Servs.,  Off ice of   Children 's 



Servs., 310 P.3d 943, 954 (Alaska 2013) (quoting Kent  V. v. State, Dep 't of  Health & 

Soc. Servs., Off ice of  Children 's Servs., 233 P.3d 597, 603 (Alaska 2010)). 



                                                -13-                                             7372 

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