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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Steve H. v. State of Alaska, DHSS, OCS (6/14/2019) sp-7374

Steve H. v. State of Alaska, DHSS, OCS (6/14/2019) sp-7374

        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 



STEVE H.,                                        ) 

                                                 )   Supreme Court No. S-17133 

                       Appellant,                ) 

                                                 )   Superior Court No. 3AN-15-00319 CN 

        v.                                       ) 

                                                 )   O P I N I O N 

STATE OF ALASKA, DEPARTMENT                      ) 

OF HEALTH & SOCIAL SERVICES,                     ) 

OFFICE OF CHILDREN 'S SERVICES,                  ) 

                                                 )   No. 7374 - June  14, 2019 

                       Appellee.                 ) 

                                                 ) 



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

               Judicial District, Anchorage, Eric A. Aarseth, Judge. 



               Appearances:  J. Adam Bartlett, Anchorage, 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. 



               CARNEY, Justice. 



I.      INTRODUCTION 



               A  father  appeals  the  superior  court's  decision  terminating  his  parental 



rights.  He argues that the superior court clearly erred in finding that he abandoned his 



son under the  Child  in Need  of Aid  (CINA)  statutes.   He  also  argues that there was 



insufficient evidence to support termination, claiming that the record does not support 


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

the superior court's findings that returning his son to his care would risk emotional or 



physical harm and that termination was in his son's best interests.  Because the superior 



court did not clearly err in making these findings, we affirm the superior court's decision. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                                                                          1                   2 

                Steve H. and Lucy A. are the parents of Donald,  an Indian child  born in 



April  2013.    By  the  time  Donald  was  born,  Steve  and  Lucy  were  no  longer  in  a 



relationship and Steve no longer lived in Anchorage.  Donald lived with Lucy until the 



Office of Children's Services (OCS) assumed emergency custody of him due to alcohol- 



related neglect shortly after he was born.  Although Steve knew that Lucy had substance 



abuse problems, he  left  Donald  in her  care.  When  OCS took  emergency  custody  of 



Donald in June 2013, Steve was "unreachable."  Donald was placed in a foster home.  



                OCS developed an initial case plan for the family.  Steve was directed to 



maintain  housing,  have  consistent  contact  with  Donald,  and  participate  in  parenting 



classes.    OCS  returned  Donald  to  Lucy  in  September  2014  because  she  had  made 



significant progress in her case plan and was actively participating in substance abuse 



treatment.  But Lucy relapsed after about 8 months.  



                In May 2015 OCS received reports that Lucy was drinking while caring for 



Donald, and that Donald was "dirty, hungry[,] and upset."  When OCS contacted Lucy 



about  the reports, her  speech was  slurred, her  eyes were  dilated,  and  she  smelled  of 



alcohol.  Lucy informed the OCS caseworker that she had been drinking but that she was 



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



        2       Indian Child Welfare Act, 25 U.S.C.    1903(4) (2012) (defining "Indian 



child"  to mean  "any unmarried person who  is under  age  eighteen  and  is  either  (a)  a 

member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the 

biological child of a member of an Indian tribe"). 



                                                  -2-                                               7374 


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

sobering up.  She later admitted that she had used cocaine as well.  OCS took emergency 



custody of Donald for the second time.   



               By this time Steve had returned to Anchorage.  Steve acknowledged to OCS 



that he knew Lucy had been  drinking, but  said that he had not informed  OCS  or the 



police because he did not know where she and Donald were.  The day after removing 



Donald from Lucy, OCS held a team decision meeting.  Both parents participated, but 



neither  agreed to allow Donald to be placed with the  other.   OCS was not willing to 



return Donald to Lucy, and wanted to assess the safety of Steve's home before deciding 



whether to place Donald there.  In the meantime Donald was placed with his previous 



foster parent.   



               OCS concluded that  Steve's home was not suitable for Donald.   Steve's 



housemate had a history of involvement with OCS and Steve had a history of substance 



abuse.  Because of this history, OCS asked both Steve and his housemate to submit to 



drug  testing.    Although  he  initially  agreed,  Steve  changed  his  mind  and  refused  to 



provide  a  urine  sample.    Because  this  raised  concerns  that  Steve  might  be  abusing 



substances, OCS suggested a hair follicle sample instead of urinalysis (UA).  Steve again 



refused, this time stating that he could not provide a hair sample because of his religion.  



Without  a test result to rule  out  substance  abuse, OCS was unable to  determine that 



Steve's home was a safe environment for Donald.   



               Throughout the summer of 2015 OCS had difficulty contacting and staying 



in touch with Steve.  Steve later advised OCS that this was because he had been in a car 



accident, which left him "basically out of commission" and recovering from injuries for 



a long time.  After months without any contact, a new OCS caseworker was finally able 



to  meet  with  Steve  in  September  2015.    The  caseworker  assessed  his  home,  and 



determined the home was suitable for Donald despite Steve's unwillingness to participate 



in a drug test.  A trial placement began in October 2015.   



                                              -3-                                           7374 


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

               It lasted less than a month.  A few weeks after placing Donald with Steve, 



OCS learned that the other children living in the home with Steve and his housemate had 



tested positive for cocaine.  OCS removed all the children, including Donald, from the 



home, but also tried to create a short-term safety plan that would allow Donald to stay 



with Steve.  OCS again asked Steve to participate in drug testing as part of this safety 



plan.    Steve  again  refused  to  participate,  even  after  OCS  offered  to  provide  him 



transportation when he said he had no way of getting to the appointments.  Steve instead 



told OCS "to just go ahead and have [Donald] moved from the home."   



               Steve finally provided a UA in November 2015, which tested negative for 



illegal substances.  But he failed to show up for any of the other  12 UA appointments 



scheduled between November 2015 and March 2016 that OCS required before it would 



consider returning Donald to him.  Steve and his housemate then left Anchorage again, 



blaming OCS's removal of Donald and the other children for causing them to lose their 



housing.   Steve  informed  OCS  that his move was  only  temporary, but he ultimately 



remained on the Kenai Peninsula for the maj ority of 2016 because he found employment.  



               In  the  first  several  months  of  2016  while  Steve  lived  on  the  Kenai 



Peninsula, OCS's contact with him was limited.  The caseworker testified that after Steve 



moved, "he fell out of contact" with OCS.  By August the case was reassigned to a third 



caseworker who also had difficulty contacting Steve.  Because it was not in contact with 



Steve, OCS updated his case plan without his participation in September.  The new case 



plan required  Steve to  contact  OCS  every  other week, meet  in person with the  OCS 



caseworker monthly, regularly communicate and visit with Donald, and participate in 



either a random UA program or hair follicle testing.   



               The caseworker testified that because Steve had advised that he would not 



participate in a hair follicle test for religious reasons, OCS requested that he provide 30 



days of clean UAs in lieu of the hair follicle test.  But Steve provided only 12 clean UAs, 



                                             -4-                                          7374 


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

claiming his work schedule prevented him from making the random UA appointments.  



A  total  of  55  UAs  were  scheduled  for  him between November  2015  and  December 



       3 

2016.   



                Steve  occasionally  visited  Donald  during  this  time,  but  the  visits  were 



sporadic.  OCS worked with Steve to accommodate his schedule, changing the location 



and time of the visits, but he still missed visits.  



                Steve made little progress maintaining communication with OCS in 2017.  



Steve testified that he had to travel because  of  deaths  in his  family, yet provided no 



timelines for these absences.  He testified that he had to leave Alaska to manage both his 



mother's and grandmother's affairs after their deaths.  But the OCS caseworker stated 



that Steve never told her when he was leaving and never provided contact information 



while he was gone.   



                By  the  time  of  the  termination  trial  in  early  2018,  Steve  was  living  in 



Whittier.  OCS continued struggling to maintain communication with him because he did 



not  provide  updated  contact  information  or  a  current  address.    At  trial  the  OCS 



caseworker testified that she last spoke with Steve in December 2017 to schedule a visit 



with  Donald.   She  stated  that  Steve  visited  Donald  once between  the  trial  dates, but 



missed two other scheduled visits.  She also testified that before they spoke in December, 



it had been roughly six months since she had any contact with Steve.   



        B.      Proceedings 



                OCS petitioned to terminate Steve's and Lucy's parental rights in February 



2017.    Trial  was  held  over  three  days  in  January  and  February  2018.    Three  OCS 



caseworkers and an expert witness testified for OCS.  Steve testified on his own behalf; 



he presented no other witnesses.   



        3       The other 43 scheduled UAs were marked as "no show."  



                                                   -5-                                               7374 


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

                 At the end of trial, the superior court found Donald to be a child in need of 



aid under AS  47.10.011(10)  (parental  substance  abuse)  due to  Lucy's  conduct.   The 



superior  court  found  Donald  to  be  a  child  in  need  of  aid  under  AS  47.10.011(1) 



(abandonment) with respect to  Steve.   It  found that  Steve had  abandoned  Donald  as 



                                    4                                                                      5 

defined by AS 47.10.013(a),  which constitutes abandonment under AS 47.10.011(1).   



The superior court further found that OCS had made active efforts, and had shown "by 



more than  a preponderance"  of the  evidence that  it was  in Donald's best interests to 



terminate  the  parental  rights  of  both  parents.    Lastly,  the  superior  court  found  that 



returning Donald to either parent would risk substantial mental and physical harm.  The 



court therefore terminated the parental rights of both parents.  

                 Steve now appeals.6 



III.    STANDARD OF REVIEW 



                 Whether a parent abandoned his or her child is a factual finding that we 



                            7 

review  for  clear  error.   Whether  "a parent's  continued  custody  of  a  child will likely 



result  in  the  child  suffering  serious  emotional  or  physical  damage"  and  whether 



terminating parental rights is in a child's best interests are also factual findings reviewed 



        4        The  court  found that  Steve:   (1)  left Donald with  someone  else without 



providing for him or communicating with him for three months; (2) made only minimal 

efforts to support or communicate with Donald; (3) failed to regularly visit with Donald 

for at least six months; (4) failed to participate in a plan to reunite him with Donald; and 

(5) was unwilling to provide care, support, or supervise Donald.  AS 47.10.013(a)(1)-(4), 

(8). 



        5        Duke S. v. State, Dep 't of  Health & Soc. Servs., Off ice of  Children 's Servs., 



433 P.3d  1127,  1132 (Alaska 2018). 



        6        Lucy is not involved in this appeal. 



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



Servs., 310 P.3d 943, 949 (Alaska 2013). 



                                                    -6-                                                 7374 


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

                  8 

for clear error.   "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 conviction that a mistake has been made."9 



IV.     DISCUSSION 



        A.      The  Superior  Court  Did  Not  Clearly  Err  By  Finding  That  Steve 

                Abandoned Donald. 



                Alaska  Statute 47.10.011(1) states that a court may find a child to be in 



need  of  aid  if  it  finds  by  a  preponderance  of  the  evidence  that  "a  parent  .  .  .  has 



abandoned the child as described in AS 47.10.013."  Alaska Statute 47.10.013(a), in turn, 

"provides specific examples of conduct that will be considered abandonment."10  When 



done "without justifiable cause," such actions or omissions by a parent constitute proof 

of abandonment sufficient to support adjudicating a child in need of aid.11 



                The    superior   court   relied   on     several   of   the   examples   listed   in 



AS 47.10.013(a) to find that Steve abandoned his son.  We recently affirmed that, based 



upon this statute, 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 



        8       Thea G. v. State, Dep 't of  Health & Soc. Servs., Off ice of  Children 's Servs., 



291 P.3d 957, 962 (Alaska 2013). 



        9       Sherman B., 3 10 P.3d at 949 (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)). 



        10      Duke S., 433 P.3d at 1 132 (quoting G.C. v. State, Dep 't of  Health & Soc. 



Servs., Off ice of  Children 's Servs., 67 P.3d 648, 651 (Alaska 2003)). 



        11      AS 47.10.013(a); see also Trevor M. v. State, Dep 't of  Health & Soc. Servs., 



Off ice  of   Children 's  Servs.,  368  P.3d  607,  610  (Alaska  2016)  ("[T]he  various  ways 

abandonment can be shown under AS 47.10.013(a) are listed disjunctively, and a single 

adequately supported finding is therefore enough to establish that [the child] was a child 

in need of aid.");  Duke S., 433 P.3d at 1 132; Dale H. v. State, Dep 't of  Health & Soc. 

Servs., Off ice of  Children 's Servs., 235 P.3d 203, 2 10 (Alaska 2010). 



                                                   -7-                                               7374 


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

reasonable support, maintain regular contact, or provide normal supervision, considering 

the child's age and need for care by an adult."12  Steve's argument that the court was also 



required to find that his conduct satisfied the two-part common-law test we have applied 

in other abandonment cases13 misunderstands termination of parental rights.  Because 



termination of parental rights is based on statute, a court must find that a parent's conduct 

satisfies the statutory criteria before it can order termination.14  A common-law test, by 



definition, is not based  on  statute,  so we therefore  apply the  statutory rule governing 

abandonment.15 



               The superior court based its conclusion that Steve abandoned Donald under 



AS  47.10.013(a)  primarily  on  two  facts:    Steve's  prolonged  absences  and  failure  to 



regularly visit or communicate with Donald; and his failure to meaningfully participate 



in OCS's case plan, which required him to submit to drug tests, regularly visit Donald, 



and maintain communication with OCS.  These findings were supported by the evidence 



and were not clearly erroneous.  But Steve now argues that his actions, even if true, were 



justified.  He argues that drug testing was unnecessary, and also that he was prevented 



from participating because of his religion and work schedule.  He also argues that he 



failed  to  regularly  visit  or  communicate  with  Donald  because  of  his  "hectic  work 



        12     Duke S., 433 P.3d at 1132 (omission in original) (quoting AS 47.10.013(a)). 



        13     See Sherman B., 310 P.3d at 949-50 ("We have articulated a two-part test 



for reviewing cases of abandonment:  (1)  [t]here must be parental conduct evidencing 

a willful disregard for parental obligations, leading to (2) the destruction of the parent- 

child relationship." (alteration in original) (quoting Sean B. v. State, Dep 't of  Health & 

Soc. Servs., Off ice of  Children 's Servs., 251 P.3d 330, 335 (Alaska 2011))). 



        14     See AS 47.10.088. 



        15     See AS 47.10.011(1); AS 47.10.013(a). 



                                              -8-                                          7374 


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

schedule"  and  deaths  in  the  family  that required him  to be  out  of  state  for  extended 



periods.  



                Steve claims that drug testing was unnecessary because he "did not have 



a drug problem," he never tested positive for illegal substances, and any allegations of 



substance abuse "were retaliatory in nature."  But the superior court found that requiring 



Steve to participate in drug testing was reasonable.  It concluded that evidence of Steve's 



history of substance abuse, combined with Steve's and his housemate's initial agreement 



and subsequent refusal to submit to drug testing to determine whether their home was 



suitable for Donald, rightfully raised concerns with OCS about potential drug use.  In 



addition,  the  fact  that  the  other  children  in  Steve's  home  tested  positive  for  illegal 



substances  provided  a  basis  to  request  that  the  adults  submit  to  testing  for  those 



substances.  Steve and his housemate's continued refusal to participate in drug testing 



and Steve's invitation to OCS to take Donald into its custody further supported OCS's 



requirement for testing to rule out any abuse of substances by Steve.  These facts support 



the court's finding that it was reasonable for OCS to require Steve to participate in either 



a hair follicle test or provide 30 days of clean UAs; that finding is not clearly erroneous. 



                Steve also argues that his religion and work schedule prevented him from 



participating  in  drug  testing.    But  Steve  provided  no  evidence,  other  than  his  own 



conclusory testimony, to either support the contention about his religion or corroborate 



his work schedule.  And OCS offered evidence to the contrary:  After Donald was first 



removed  from  Steve's  custody  due to  concerns  about illegal  substances in his home, 



Steve claimed he was unable to get transportation to the testing facility.  But when OCS 



offered to provide transportation, he refused.  To simplify the process, OCS offered a 



hair follicle test in lieu of UAs but he refused this because of his religion.  In an effort 



to accommodate his religious obj ection, OCS asked Steve to provide 30 days of clean 



UAs, but he failed to do so.  Neither at the times OCS made its requests nor at trial did 



                                                -9-                                             7374 


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

Steve ever provide any document or witness to corroborate either his work schedule or 



to support his contention that he was forbidden from providing a hair sample for testing 



for  religious  reasons.    Based  on  these  facts,  the  superior  court  did  not  clearly  err  in 



finding that Steve's failure to participate in his case plan was not justified.   



                 Steve  also  argues  that  the  superior  court  erred by  considering  his  long 



absences and failure to visit or communicate with Donald because they were due to his 



work schedule and travel for deaths in the family.  He claims that many of his absences 



were caused by events that only happen "once in a person's life."  But again, aside from 



his own testimony, Steve provided no evidence of his actual schedule or that it prevented 



him from attending his visits with Donald.  And an OCS caseworker testified that even 



though  she  asked  Steve  to  inform  her  if  and  when  he  would  be  gone,  Steve  never 



provided any information to OCS with his whereabouts or contact information during 



these absences.  And although his absences due to deaths in the family may account for 



some missed visits, they do not excuse his failure to maintain contact with Donald or 



OCS.  As OCS points out, "not a single one of these departures indicates why  [Steve] 



would be unable to communicate with Donald.  They also do not provide any answer for 



why he could not maintain regular and consistent visitation with Donald even when he 



was available."  It was not clear error for the superior court to find that Steve's failure 



to meaningfully maintain contact or communication with Donald and OCS was "without 



                      16 

justifiable cause."       



                 For these reasons, the superior court did not clearly err in finding that Steve 



abandoned Donald. 



        16       AS 47.10.013(a). 



                                                   -10-                                               7374 


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

       B.      The  Superior  Court  Did  Not  Err  By  Finding  That  There  Was 

               Sufficient Evidence To Terminate Steve's Parental Rights. 



               1.     Risk of Harm 



               To terminate parental rights to an Indian child, the superior court must find 



"by  evidence  beyond  a  reasonable  doubt,  including  testimony  of  qualified  expert 



witnesses, that the continued custody of the child by the parent . . . is likely to result in 

serious emotional or physical damage to the child."17  This finding "requires proof that 



the parent's conduct is unlikely to change and will likely cause serious harm to the child 

in the future."18  "Although the court must focus on risk of future harm rather than past 



injury, past failures may predict future conduct."19 



               In  arguing  that  the  superior  court  erred  by  finding  that  his  continued 



custody would pose a substantial risk of physical harm to Donald,  Steve relies on the 



mistaken premise that he did not abandon Donald and that it was only Lucy's conduct 



that  led  OCS  to  take  custody.    He  also  wrongly  contends  that  the  superior  court 



improperly relied on his "hectic schedule over the last few years."  He lastly seems to 



argue that the court improperly considered the fact that he placed Donald in Lucy's care, 



despite knowing she abused substances, "[b]ecause OCS also believed that Lucy was a 



responsible caregiver."  But the superior court did not clearly err by finding that Steve 



abandoned Donald.  Likewise, the superior court did not clearly err by finding that Steve 



had not remedied his harmful conduct.  It was therefore not error for the superior court 



       17      25 U.S.C.  1912(f); CINA Rule 18(c)(4); see also AS 47.10.088(a)(2)(B). 



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



400 P.3d 99, 108 (Alaska 2017) (quoting Thea G. v. State, Dep 't of  Health & Soc. Servs., 

Off ice of  Children 's Servs., 291 P.3d 957, 964 (Alaska 2013)). 



       19      Jon S. v. State, Dep 't of  Health & Soc. Servs., Off ice of  Children 's Servs., 



2 12 P.3d 756, 767 (Alaska 2009). 



                                              -11-                                          7374 


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

to conclude that returning Donald to Steve posed a substantial risk of mental or physical 



harm to Donald. 



                First, there is evidence that OCS gave Steve roughly four years to remedy 



his behavior before it pursued termination of parental rights and that he did not remedy 



this conduct.  The OCS caseworker actively tried to coordinate times for Steve to visit 



Donald   that   accommodated   his   work   schedule,   but   Steve   continued   to   miss 



appointments.  There is evidence that Steve failed to provide updates on his travel plans 



and contact information.  Steve testified that he called and left messages with the OCS 



caseworker advising her of his travel plans yet claims she never returned his calls.  But 



it  is  for  the  trial  court,  not  this  court,  to  weigh  the  evidence  and  determine  witness 

credibility.20 



                It is undisputed that Steve failed to communicate in any meaningful way 



with OCS or Donald throughout the pendency of the CINA case.  Steve claims this was 



because of his work schedule and deaths in the family, but, as discussed above, these 



excuses could only account for his whereabouts and possibly some missed visits; they 



do not explain why he was unable to maintain communication or contact with his son for 



significant periods of time. 



                The superior court found that based on his harmful conduct throughout the 



pendency of the CINA case, Steve was unlikely to stop his harmful behavior.  The court 



found that this behavior of "stop in, play a little while, disappear again simply [was] not 



adequate to parent" because it meant that he could not "properly feed, supervise, educate, 



provide medical care, [or] provide emotional care to the child" and created the same risk 



as Lucy's substance abuse.   



        20      Dara S. v. State, Dep 't of  Health & Soc. Servs., Off ice of  Children 's Servs., 



426 P.3d 975, 989 (Alaska 2018). 



                                                 -12-                                             7374 


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

               We  find no merit in  Steve's  argument that the  superior  court  abused its 



discretion by improperly relying on the fact that he left Donald in Lucy's care, despite 



knowing she abused substances.  He claims the court should not have considered this fact 



because OCS also thought Lucy was a reliable caretaker.  But OCS only placed Donald 



back in Lucy's care after she made significant progress in her case plan.  When Lucy 



relapsed, OCS immediately took custody of Donald.  In contrast, when Donald was born, 



Steve  knew  that  Lucy  abused  substances  yet  chose  to  leave  him  in  her  care.  



Additionally, when Lucy relapsed in 2015 while Donald was in her care, Steve knew she 



abused  alcohol yet purposefully  chose not to  inform  either the police  or  OCS.  Both 



instances show Steve's conscious decision to leave Donald in the care of someone he 



knew to potentially be dangerous and unreliable. 



               Therefore  the  superior  court  did  not  clearly  err  when,  based  upon  the 



evidence, it found that returning Donald to Steve's custody would result in substantial 



risk of harm. 



               2.     Best Interests 



               Before a court may terminate parental rights to an Indian child, it must find 



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

interests of the child."21  Alaska Statute 47.10.088(b) lists several factors that courts may 



consider when  determining whether  terminating  a parent's rights  is  in  a  child's best 



interests, but these factors "are not exclusive and the superior court need not accord a 

particular weight to any given factor."22  "The superior court may [also] consider . . . the 



       21      CINA Rule  18(c)(3); see also AS 47.10.088(c). 



       22      Barbara P. v. State, Dep 't of  Health  & Soc. Servs.,  Off ice of   Children 's 



Servs., 234 P.3d  1245,  1263 (Alaska 2010). 



                                              -13-                                          7374 


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

 need for permanency, and the offending parent's lack of progress."23 



                The superior court found by clear and convincing evidence that "[Steve] 



 failed to remedy the conduct and conditions . . . that place[d] [Donald] at substantial risk 



 of harm" and that terminating his parental rights was "the only option that is available 



 that could have some reasonable success in terms of providing some stability and hope 



 in [Donald's] future."  



                Steve argues that it was in Donald's best interests to give Steve "more time 



 to work with OCS" instead of terminating his parental rights because "the record shows 



 that Donald had a bond with his father, . . . [t]here were not any credible allegations that 



 Steve abused substances . . . [,] [and] Steve had a simple case plan."  But Steve fails to 



 explain why any of these facts render the superior court's best-interests finding clearly 



 erroneous, and ignores the fact that "[t]he superior court may also consider any other 

f acts relating to the best interest of the child,"24 including the harm caused by a parent's 



 absence and unavailability to parent. 



                Moreover,  "although  the  superior  court  did  not  expressly  mention  the 



 factors listed in AS 47.10.088(b), it did make factual findings relevant to several of these 

 factors."25  As discussed above, there was evidence in the record to support the finding 



 that Steve abandoned Donald and was absent and unavailable.  In its oral findings, the 



 superior  court  also  emphasized  that  Donald  had  experienced  years  of  "chaos"  and 



 upheaval throughout his short life, in large part due to Steve's absence.  This is supported 



        23      Chloe  W.  v.  State, Dep 't  of  Health  &  Soc.  Servs.,  Off ice  of   Children 's 



 Servs., 336 P.3d  1258,  1271 (Alaska 2014) (footnotes omitted). 



        24      Id. (emphasis added). 



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



 382 P.3d  1154,  1167 (Alaska 2016). 



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by the evidence that Donald had been placed in foster care three separate times within 



the first four years of his life.  There was also evidence to support the finding that Steve 



had not remedied his harmful conduct and that his harmful conduct would continue.  The 



superior court therefore found that it was in Donald's best interests to terminate Steve's 



parental rights so he could have stability and permanency.  We have consistently held 



that  it  is  appropriate  to  consider  a  child's  need  for  permanency  and  stability  when 

making a best-interests finding.26 



               Accordingly, the superior court did not clearly err in finding that it was in 



Donald's best interests to terminate Steve's parental rights. 



V.      CONCLUSION 



               The superior court did not clearly err by finding that Steve abandoned his 



son or by terminating his parental rights.  We AFFIRM the superior court's decision. 



        26     See id. at 1166; Casey K. v. State, Dep 't of  Health & Soc. Servs., Off ice of 



Children 's Servs., 311 P.3d 637, 648 (Alaska 2013); Hannah B. v. State, Dep 't of  Health 

& Soc. Servs., Off ice of  Children 's Servs., 289 P.3d 924, 933 (Alaska 2012) ("We have 

repeatedly recognized that the best-interests analysis may include the child's need for 

permanency at the time of the termination trial."). 



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