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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Charles S. v. State of Alaska, DHSS, OCS, Marian V. v. State of Alaska, DHSS, OCS (6/14/2019) sp-7379

Charles S. v. State of Alaska, DHSS, OCS, Marian V. v. State of Alaska, DHSS, OCS (6/14/2019) sp-7379

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

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

                                                                                                                          

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

                                                                                                                            

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



CHARLES  S.  and  MARIAN  V.,                                         )  

                                                                      )     Supreme  Court  Nos.  S-17128/17135  

                                 Appellants,                          )     (Consolidated)  

                                                                      )  

                                                                                                                                           

           v.                                                         )     Superior Court Nos. 3VA-15-00001/  

                                                                                                           

                                                                      )     00002/00003 CN (Consolidated)  

                                        

STATE OF ALASKA, DEPARTMENT                                           )
  

                                             

OF HEALTH & SOCIAL SERVICES,                                          )                          

                                                                            O P I N I O N
  

                                                                            

                                                

OFFICE OF CHILDREN'S SERVICES,   )
  

                                                                      )                                        

                                                                            No. 7379 - June 14, 2019  

                                 Appellee.                            )  

                                                                      )  



                                                                                                                

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

                                                                                                                     

                      Judicial District, Valdez, Daniel Schally, Judge pro tem.  



                                                                                                                   

                      Appearances:   Carolyn  Perkins,  Salt Lake City, Utah,  for  

                                                                                                             

                      Appellant  Charles  S.                  Kelly  R.  Taylor,  Assistant  Public  

                                                                                                      

                      Defender, and Quinlan Steiner, Public Defender, Anchorage,  

                                                                                                         

                      for Appellant Marian  V.   Kimberly D.  Rodgers, Assistant  

                                                                                                       

                      Attorney  General,  Anchorage,  and  Kevin  G.  Clarkson,  

                                                                                                             

                      Attorney  General,  Juneau,  for  Appellee.                            Anita  L.  Alves,  

                                                                                                            

                      Assistant  Public  Advocate,   and  James   Stinson,  Public  

                                                                                         

                      Advocate, Anchorage, for Guardian Ad Litem.  



                                                                                                         

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

                                            

                      and Carney, Justices.  



                                            

                      STOWERS, Justice.  


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

I.        INTRODUCTION
  



                                                                                                                            

                    In 2015 the Office of Children's Services (OCS) took custody of three  



                                                                                                                                     

children due to the father's substance abuse issues and the mother's mental health issues.  



                                                                                                                             

Both parents failed to make any meaningful progress on their case plans in the first year  



                                                                                                                    

of OCS's custody. But after moving to Washington in 2016, the parents made significant  



                                                                                                                  

progress and actively engaged in a variety of services.  At the time of the termination  



                                                                                                                               

trial the father had been sober for two years, but OCS still had concerns regarding the  



                                                                                                                      

mother's ability to manage her mental health and the parents' ability to safely co-parent  



                                                                                                                               

all of their children at the same time.  In June 2018 the superior court terminated the  



                                                                                                                            

parents' rights to their three children. The parents appeal, arguing that the superior court  



                                                                                                                                     

erred by finding they failed to remedy the conduct that made their children in need of aid.  



                                               

They also argue that the court erred by finding that termination of their parental rights  



                                                                                                                            

was in their children's best interests. And the father independently argues the court erred  



                                                                                                                        

by finding that OCS made reasonable efforts to reunite him with his children.  



                                                                                                                                

                    We conclude that the superior  court's finding  that  the father failed  to  



                                                                                                                               

remedy his conduct is clearly erroneous.  We therefore reverse the termination of his  



                                                                                                                               

parental rights.   Because our resolution of the father's parental rights may alter the  



                                                                                                                              

superior  court's  best  interests  analysis  with  regard  to  the  mother,  we  vacate  the  



                                                                                                                 

termination of the mother's parental rights and remand this case for further proceedings  



                                             

consistent with this opinion.  



                                                               -2-                                                         7379
  


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

II.         FACTS AND PROCEEDINGS        



            A.           Facts  



                         CharlesS. and Marian V. aretheparents of Sierra, Chase, and Thomas, who                                                          



                                                                                                                           1  

were ages seven, three, and one at the time of the termination trial.                                                                                      

                                                                                                                               Marian is also the  



                                                                                                                                                             

mother of Maya (age nine at trial); although Charles is not Maya's biological father, he  



                                                                                                                     2  

                                                                                                                                                      

has raised her since she was an infant and she calls him "dad."                                                          Only the three oldest  

                                                                                                                                3  They have been  

                                                                                                                                                        

children - Maya, Sierra, and Chase - are the subjects of this appeal. 



in OCS custody since January 2015.  

                                                          



                         1.          Events leading to OCS custody  

                                                                                    



                         Neither  parent  disputes  that  OCS's  intervention  was  necessary  due  to  

                                                                                                                                                             



Charles's substanceabuseissues and Marian's mentalhealthissues. Charles began using  

                                                                                                                                                       



methamphetamine                       as      a     teenager           and        continued             using,         as      well        as      selling,  

                                                                                                                                                 



methamphetamine into his mid-30s.  Marian has been diagnosed with anxiety, attention  

                                                                                                                                                 



deficit hyperactivity disorder, depression, post-traumatic stress disorder, and reactive  

                                                                                                                                                  



attachment disorder.  Many of these issues are related to Marian's own experiences in  

                                                                                        



the foster care system and the physical and sexual abuse she suffered as an adolescent.  

                                                                                                                                                                  



Marian has taken a variety of prescription medications throughout her life. She struggles  

                                                                                                                                                 



to regulate her emotional responses, and when overwhelmed she sometimes experiences  

                                                                                                                                           



"meltdowns" or "tantrums."  

                                



             1           We use pseudonyms to protect the family's privacy.                                



            2  

                                                                                                                                                 

                         Theparental rights ofMaya's biological father wereterminated inFebruary  

                                                             

2018 and are not at issue in this appeal.  



            3            Thomas was born during the proceedings in this case and has resided with  

                                                                                                                                                         

his parents since birth; Charles's and Marian's parental rights to Thomas are not at issue.  

                                                                                                                                                                  



                                                                              -3-                                                                      7379
  


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

                                                                            Charles and Marian were living in Valdez when OCS took custody of                                                                                                                                                                                                                                                                                                                                               



Maya, Sierra, and Chase.                                                                                                                               From 2010 to 2014, OCS received ten reports related to                                                                                                                                                                                                                                                                               



neglect and parental substance abuse and created three out-of-home safety plans for the                                                                                                                                                                                                                                                                                                                                                                                                 



 family.  In December 2014 Marian admitted herself to the Alaska Psychiatric Institute   



 (API) because she felt overwhelmed and was concerned she might be a danger to herself.                                                                                                                                                                                                                                                                                                                                                                                                                     



While she was in protective custody at API, OCS received a report of neglect and safety                                                                                                                                                                                                                                                                                                                                                                                 



 concerns related to Charles's care of the children.                                                                                                                                                                                                                                       OCS removed the children from the                                                                                                                                                            



home and assumed emergency custody in January 2015, filing an emergency petition to                                                                                                                                                                                                                                                                                                                                                                                                           



 adjudicate the children as in need of aid.                                                                                                                                                                                                 In May 2015 the parents stipulated that the                                                                                                                                                                                                



 children were in need of aid due to Charles's substance abuse and Marian's mental                                                                                                                                                                                                                                                                                                                                                                               



health.   



                                                                            2.                                    OCS custody in 2015 - family remains in Valdez                                                                                                                                                                                                                  



                                                                            OCS developed the first case plan for the family in April 2015.                                                                                                                                                                                                                                                                                                                             OCS  



 directed both parents to address their substance abuse issues, develop parenting skills to                                                                                                                                                                                                                                                                                                                                                                                                    



meet   their  children's developmental needs, and maintain contact with the children.                                                                                                                                                                                                                                                                                                                                                                                                                       



 Charles completed a mental health and substance abuse assessment in May 2015 and was                                                                                                                                                                                                                                                                                                                                                                                               



recommended for inpatient treatment.                                                                                                                                                                                            But he did not attend inpatient treatment or                                                                                                                                                                                                               



 engage in any other treatment until almost a year later, in part because there were no                                                                                                                                                                                                                                                                                                                                                                                                   



residential treatment centers in Valdez.                                                                                                                                                                                          He completed a few urinalysis tests that were                                                                                                                                                                                              



positivefor                                                      marijuanaand                                                                     eventually stoppedattending                                                                                                                                       his scheduledtests. Charles                                                                                                                                 later  



reported that during this time he was using methamphetamine almost every day. Charles                                                                                                                                                                                                                                                                                                                                                                        



 completed a six-week parenting course in 2015 and attended weekly visits with the                                                                                                                                                                                                                                                                                                                                                                                                    



 children, but OCS reported that he did not consistently demonstrate adequate parenting                                                                                                                                                                                                                                                                                                                                                            



 skills during these visits.                                                                              



                                                                            Marian was referred to a mental health and substance abuse assessment in                                                                                                                                                                                                                                                                                                                                          



January, but she did not complete the assessment until June.                                                                                                                                                                                                                                                                                       She spent six weeks in jail                                                                                                          



                                                                                                                                                                                                                                              -4-                                                                                                                                                                                                                              7379
  


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

in spring 2015 after a fight with Charles led her to significantly damage his truck.  

                                                                                                                                             



Marian  engaged  in  individual  therapy  and  completed  urinalysis  tests  intermittently  

                                                                                                                     



throughout 2015. She also participated in the same parenting course as Charles, but she  

                                                                                                                                      



only completed a few of the classes before the family moved away from Valdez. Marian  

                                                                                                                                



also attended the weekly visits with the children, and while OCS reported positive  

                                                                                                                              



interactions, it also noted issues with Marian's ability to regulate her emotions.  

                                                                                                                



                     3.         OCS custody in 2016 - family moves to Washington                       



                     In March 2016 OCS placed the three children with Charles's father and  

                                                                                                                                      



stepmother in Washington.  Charles and Marian also moved to Washington to be closer  

                                                                                                                                  



to their children and to be better able to work on their case plan requirements.  Charles  

                                                                                                                               



completed a one-month inpatient treatment program in May and an intensive outpatient  

                                                                                                                            



program in September.  He testified at the termination trial that he had been sober since  

                                                                                                                                   



moving to Washington - two years by the time of the trial - and OCS confirmed that  

                                                                                                                                      



he had not had a positive urinalysis test result since completing treatment.  When asked  

                                                                                                                                   



about his sobriety, Charles stated that he wants to be there for his children, he wants  

                                                                                                                                  



them to see their father be successful, and he wants them to be successful - "I know that  

                                                                                                                                      



my kids need a sober father."  

                                    



                     Marian also progressed after moving to Washington. In July 2016 she gave  

                                                                                                                                    



birth to Thomas, and because of the open case with OCS, Child Protective Services  

                                                                                                                              



(CPS) in Washington initially monitored the parents' ability to care for Thomas. Marian  

                                                                                                                                 



participated in a three-month program that provided weekly at-home parenting classes,  

                                                                                                                                



as well as weekly visits by a caseworker and a public health nurse.   When Marian  

                                                                                                                                



became  pregnant  with  Thomas,  she  reportedly  stopped  taking  all  prescription  

                                                                                                                       



medications.             While  she  did  not  consult  a  doctor  prior  to  stopping  use  of  her  

                                                                                                                                     



prescriptions, she testified that she has since discussed the decision with her therapist.  

                                                                                                                            



                                                                   -5-                                                             7379
  


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

                                           Although visitation with the                                                              children was inconsistent when thefamily first                                                                                         



moved to Washington, it became more regular after Charles completed his inpatient                                                                                                                                                                          



treatment. Charles and Marian initially lived with Charles's mother, and she supervised                                                                                                                                                               



overnight weekend visits with the children.                                                                                                   Charles's mother testified that these visits                                                                             



were "wonderful," that the children were "extremely happy," that Charles and Marian                                                                                                                                     



co-parented well as a team, and that she did not have any safety concerns.                                                                                                                                                                          But due in                    



                                                                                                                                                                                    4  

                                                                                                                                                                                        OCSterminated thechildren's  

parttothe parents being allowed unsupervised visitation,                                                                                                                                                                                                



placement in Washington, and in April 2017 moved the children to a non-relative foster  

                                                                                                                                                                                                                                                                      



home in Valdez.  Charles and Marian remained in Washington.  

                                                                                                                                                                    



                                           4.	                   OCS  custody  in  2017  - children  return  to  Alaska,  parents  

                                                                                                                                                                                                                                                                                           

                                                                 remain in Washington  

                                                                                                    



                                           Charles's and Marian's engagement in services increased in 2017. In May  

                                                                                                                                                                                                                                                                          



OCS  issued  a  new  case  plan  for  the  family,  noting  that  Marian  had  demonstrated  

                                                                                                                                                                                                                                           



"tremendousgrowth"in her parentalresilienceandhad learned about parenting and child  

                                                                                                                                                                                                                                                                         



development through "extensive parenting education."  Her goals were to stabilize her  

                                                                                                                                                                                                                                                                              



mental health by engaging in therapy, to improve her parenting knowledge by engaging  

                                                                                                                                                                                                                                                          



in parenting education, and to maintain contact with OCS about case planning. OCS also  

                                                                                                                                                                                                                                                                            



noted in the case plan that Charles "engages appropriately with the children" but that he  

                                                                                                                                                                                                                                                                                 



"has not demonstrated knowledge of basic or developmental needs."  His goals were to  

                                                                                                                                                                                                                                                                                  



                      4  

                                           Charles'smother testified thatinDecember 2016 shepermittedCharles                                                                                                                                                                and  

Marian to have an unsupervised visit at their new apartment.                                                                                                                                                   She testified that she                                       

thought Charles's brother, who was present during the visit, had been approved as a                                                                                                                                                                                                 

supervisor by OCS.                                                OCS testified that there was an unsupervised visit in March 2017;                                                                                                                                  

this visit appears to have been the primary trigger for the children's removal.                                                                                                                                              



                                           We also note that after the children were removed, Maya told her foster                                                                                                                                                   

parents that Charles's stepmother threatened her, made her take care of her siblings, and                                                                                                                                                                                    

used corporal punishment.                                                                  Maya and Sierra both reported that they were scared of                                                                                                                               

Charles's stepmother and never wanted to see her again.                                                                                                            



                                                                                                                                        -6-	                                                                                                                            7379
  


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

                                                                                                                                

identify  triggers to  his substance abuse by  engaging  in counseling,  to  improve  his  



                                                                                                                             

parenting knowledge through parenting education, and to maintain contact with OCS  



                                                                                                                                  

about case planning.  OCS stopped requiring the parents to complete urinalysis tests at  



                                                                                                

this time because their results had been consistently negative.  



                                                                                                                            

                    Marian completed a parenting psychological assessment in January 2017;  



                                                                                                                           

the psychologist recommended she engage in therapy, take parenting classes, and review  



                                                                                                                                   

her medications.  She engaged in services at Comprehensive Life Resources (CLR), a  



                                                                                                                       

community mental health facility, and began seeing an individual therapist.  Marian's  



                                                                                                                             

individual therapy focused on identifying triggers and developing coping skills to more  



                                                                                                                         

effectivelymanageheremotionalresponses, including usingdialectical behaviortherapy,  



                                                                                                                   

relaxation techniques, and practicing mindfulness.  Marian testified at the termination  



                                                                                                                        

trial that she had gone nearly two years without a "meltdown."  Her therapist testified  



                                                                                                                  

that Marian had "really decreased her emotional anxiety as regards to being overstressed  



                                                                                                                             

and overtired," that "her level of speech and connectedness in therapy sessions ha[d]  



                                                                                                                               

increased," and that "if she can put that to work, show some good strengths to her  



                                               

children, she could be a good mom."  



                                                                                                                           

                    Beginning in August 2017, the CLR therapist also provided weekly family  



                                                                                                                                

therapy and parenting classes to Charles and Marian.  The therapist testified that the  



                                                                                                                             

couple's  relationship  had  improved  through  counseling:                                 "[Charles]  has  been  very  



                                                                                                        

supportive of [Marian]. . . . I've never heard a mean word between them. . . . and they  



                                                                                                                               

say that this time has made them grow closer."  The therapist additionally testified that  



                                                                                                                                

during parenting classes both parents "are very attentive and the other members of the  



                                                                                                                                

group love them.  And they were happy to be there and happy to learn, glad to have the  



                                                                                                                                

services. . . . I've appreciated working with them and seeing them grow." And while the  



                                                                                                                               

therapist never observed Charles and Marian parenting all four children, she testified that  



                                             

"this mom and dad put forth effort."  



                                                                -7-                                                         7379
  


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

                                                                                                                             

                    In  addition  to  the  family  therapy  and  parenting  classes,  Charles  also  



                                                                                                         

enrolled  in  CLR's  substance  abuse  program,  attending  Narcotics  Anonymous-type  



                                                                                                                         

meetings once every few weeks and seeing an individual therapist once a month. Charles  



                                                                                                                         

completed a substance abuse assessment in November 2017, which included a finding  



                                                                                                                            

that  he  was  "in  the  action  stage  of  change"  and  that  no  treatment  services  were  



recommended.  



                                                                                                                      

                    Despite the parents' progress at CLR, OCS continued to note struggles  



                                                                                                                               

during the parents' visitation with the children.  After the children were moved to the  



                                                                                                                             

Valdez foster home, OCS flew the parents to Valdez each month for visitation.  In May  



                                                                                                                              

2017 OCS provided intermittent supervision during the visits, and in June the visit was  



                                                                                                                       

unsupervised.   But due to concerns with the June visit, visitation with the children  



                                                                                                                               

transitioned to full supervision. Specifically, OCS had concerns that the parents did not  



                                                                                                                              

provide sufficient meals for the children; that the children were returned very dirty; that  



                                                                                                                           

Chase had a small candy in his mouth that OCS thought was a choking hazard, a bruise  



                                                                                                                                  

on his face, and very bad diaper rash; and that the parents transported the children in a  



                                                                                                                         

car lacking sufficient seats and seatbelts. Visitation from July 2017 forward was limited  



                                                                                                                              

to monthly supervised visits for one or two days for about two hours at a time.  The  



                                                                      

parents also had weekly phone calls with the children.  



                                                                                                                   

                    OCS'sconcernscontinuedwithsupervisedvisitation. TheOCScaseworker  



                                                                                                                                

who monitored the visits noted that Marian struggled to divide her attention among all  



                                                                                                                      

four children and to adequately supervise them; she would fixate on the craft activities  



                                                                                                                              

she had prepared and struggled to adapt when the children became disinterested; she  



                                                                                                                              

would snap at the children if they acted out or things did not go exactly as planned; and  



                                                                                                                              

she  would  often  shut  down  and  mentally  disengage  by  the  end  of  the  visits.                                      The  



                                                                                                                         

caseworker testified that the visits were generally better when both parents were present  



                                                                                                                              

but that Marian's issues still existed; Marian would sometimes snap at Charles, and  



                                                               -8-                                                         7379
  


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

                                                                                                                           

Charles would often fail to support Marian. The caseworker met with the parents before  



                                                                                                                                      

visits to discuss what to work on, expectations, and strategies to prepare for the visits.  



                                                                                                                                

After visits, Marian would typically email the caseworker asking for feedback, and the  



                                                                                                                               

caseworker would provide her a list of issues to work on.  Marian would then share this  



                                                                                                                    

feedback with her therapist, and they would work on ways to improve during counseling  



sessions.  



                                                                                                                                 

                    In  December  2017  the  children  were  moved  to  a  new foster  home  in  



                                                                                                                                 

Wasilla, and subsequent visits were supervised by Alaska Family Services instead of  



                                                                                                                                

OCS.  The supervisor for the first three visits noted no concerns and reported that the  



                                                                                                                               

parents did "wonderfully" and did not require intervention or support; she requested that  



                                                                                                                   

the visits transition from moderate to intermittent supervision.  But after supervising  



                                                                                                                         

additional visits, the supervisor informed OCS that there was more evidence to support  



                                                                                         

its decision to keep visitation at the moderate supervision level.  



                                                                                                                       

                    TheOCS caseworker testified that "overall, the visits are a mix ofpositives.  



                                                                                                                       

The parents have shining moments, you know, where [Marian] is praising the children,  



                                                                               

and complimenting the artwork, or complimenting the kind words that they're using."  



                                                                                                                        

But thecaseworker explained there also are struggles, including "the disconnect between  



                                                                                                                                

the two parents and in their parenting - the snapping at each other, the snapping at the  



                                                                                

children, especially for [Marian].  And then almost across the board, we see this point  



                                                                        

where [Marian] isn't able to tolerate the visits anymore."  



                                                                         

                    5.         The children's issues and challenges  



                                                                                                                      

                    Throughout their time in OCS custody Maya, Sierra, and Chase displayed  



                                                                                                                                

a variety of developmental and behavioral issues. Maya was described as parentified and  



                                                                                                                   

preoccupied with watching over the other children.  She also had difficulty establishing  



                                                                                                                         

appropriate social boundaries; in particular, she had developed an interest in teenage  



                                                                                                                         

boys and would try to touch, follow, and flirt with them. Sierra was described as defiant;  



                                                                -9-                                                         7379
  


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

 she would push boundaries, act out, and require a lot of redirection.                                                                                                                                                                                                                                                                                                                           In 2017 she began                                                       



to wet herself before and after visits and phone calls with her parents.                                                                                                                                                                                                                                                                                                                                                                   Sierra also   



required an Individualized Education Program at school and speech therapy. Chase had                                                                                                                                                                                                                                                                                                                                                                                                    



issues with impulse control and physical aggression, especially with younger children,                                                                                                                                                                                                                                                                                                                                                                   



including Thomas, and Chase would hurt himself when he was upset.  Chase also had                                                                                             



 developmental delays related to his language and social skills.                                                                                                                                                                                                                                                                



                                                                            The children's foster mother from April to December 2017 testified that                                                                                                                                                                                                                                                                                                                                   



parenting the three children "was absolutely exhausting . . . [t]hey were very high                                                                                                                                                                                                                                                                                                                                                                                             



maintenance," and that it was "just more than [the foster parents] could physically                                                                                                                                                                                                                                                                                                                                                            



handle." She described having to constantly supervise the children "[a]ll the time." She                                                                                                                                                                                                                                                                                                                                                                                             



 also testified that the children had night terrors that correlated with visits with their                                                                                                                                                                                                                                                                                                                                                                                      



parents, though the night terrors subsided over time. The OCS caseworker testified that                                                                                                                                                                                                                                                                                                                                                                                                



 "when you put all three of the children together, it can be chaos if there is not firm                                                                                                                                                                                                                                                                                                                                                                                           



 structure for them, parents who follow through, parents who are able to set boundaries."                                                                                                                                                                                                                                                                                                                                          



But she emphasized that this also meant "not snapping at them or triggering their mental                                                                                                                                                                                                                                                                                                                                                                              



health issues, and being able to be sensitive and firm at the same time, which is a fine                                                                                                                                                                                                                                                                                                                                                                                             



balance. And each of the children have different needs that kind of need different styles                                                                                                                                                                                                                                                                                                                                                                                  



 of parenting, so that flexibility really comes in."                                                                                                                                                                                                        



                                                                             6.                                   Events prior to termination                                                                   



                                                                            In August 2017 Charles and Marian requested that OCS submit their case                                                                                                                                                                                                                                                                                                                                 



to CPS in Washington to conduct a home study under the Interstate Compact on the                                                                                                                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                     5              Charles had returned home early from commercial  

Placement of Children (ICPC).                                                                                                                                                                                                                                                                                                                                                                                                          



 fishing so that the study could be completed, but OCS delayed initiating the ICPC  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



                                      5                                     See AS 47.70.010.   The OCS caseworker testified that a positive ICPC  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                           

home study would be required before the children could be returned to their parents.  

                                                                                                                                                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                           -10-                                                                                                                                                                                                                                  7379  


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

                                                                                                                     

process until late January 2018. In an internal email in August 2017, an OCS supervisor  



             

stated:  



                                                                                                          

                    I really think we have what we need to move forward with  

                                                                                                          

                    termination without asking [Washington] to do a study. And,  

                                                                                                

                    honestly, I think asking them to do a study could potentially  

                                                                                                        

                    hurt our  case because whoever  goes out to do  that study  

                                                                                                             

                    won't have all the information we have . . . . We could end up  

                                                                                                             

                    with an approved placement study that we disagree with.  



        

The ICPC process eventually moved forward, however, and in February 2018 a home  



                                                                                                                            

study was conducted.  The Washington CPS worker who conducted the home study  



                                                                                                                                

noted no concerning conditions and described the home as small but organized by the  



                                                                

parents in a way to provide space for the children.  



                                                                                                                         

                    In connection with the ICPC process, Charles and Marian took a number  



                                                                                                                              

of steps to prepare for reunification with their children. Charles's mother described how  



                                                                                                                                

the parents had baby-proofed the apartment and set up the bedrooms with bunk beds for  



                                                                                                                                

the girls and a toddler bed for Chase, and they had toys, bikes, and crafts ready for the  



                                                                                                                                  

children.  Marian had a sticker chart set up in the home, which she planned to use to  



                                                                                                                              

reward and incentivize good behavior.  Charles and Marian had also obtained a new  



                                                                                   

vehicle with seven seatbelts to safely transport all the children.  



                                                                                                                                  

                    Charles changed jobs so that he would no longer have to leave home to  



                                                                                                                       

work as a fisherman and could instead be available to support Marian and the children.  



                                                                                                                        

Marian prepared a list of local service providers that she intended to enroll the children  



                                                                                                                               

with upon their return, including therapists, doctors, dentists, and schools, and she also  



                                                                                                                       

identified community activities in which the family could engage.  Marian's therapist  



                                                                                                                         

testified that CLRhas achildren'sprogramthat offers individual therapy,family therapy,  



                                                                                                                               

case management, school assistance, home support, and peer support, and that CLR was  



                                                           

ready to have a team form around the family.  



                                                               -11-                                                         7379
  


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

          B.        Proceedings  



                                                           

                     1.        The termination trial  



                                                                                                                              

                    OCS petitioned to terminate Charles's and Marian's parental rights in June  



                                                                                                                              

2016.  Because OCS initially held the petition in abeyance, and the superior court later  



                                                                                                                            

granted a continuance, the termination trial did not take place until 2018. The trial began  



                                                                                                                             

in February 2018 and took place over seven days through April 2018. The superior court  



                                                                                                                                

heard testimony fromthe parents, their therapist at CLR, Marian's former foster aunt, the  



                                                                                                                            

children's  foster  mother  in  2017,  a  developmental  specialist,  the  current  OCS  



                                                                                     

caseworker, Charles's sister and mother, and Marian's sister.  



                                                                                                                        

                    The OCS caseworker testified at length regarding issues with the family's  



                                                                                                                     

visitation and concerns about the parents' ability to effectively meet their children's  



                                                                                                                          

needs.  Although the caseworker agreed that the parents had engaged in all of OCS's  



                                                                                                                               

recommended services, and that participating in services is important, she testified that  



                                                                                                                             

"the part that we really measure is that behavioral change, is being able to show the skills  



                                                                                                                      

that they've learned consistently with their children. And that's the part that's missing."  



                                                                                                                          

She testified that OCS's remaining safety concerns regarding Marian were "her mental  



                                                                                                                                

health  and  her  ability  to  manage her  emotions,  and  specifically  as it relates to  the  



                                                                                                                                

children . . . . So being able to be flexible in her parenting, being able to support the  



                                                                                                                                

children's needs and putting them above her own, and supporting their mental health and  



                                                                                                                              

ensuring their safety."  She testified that since beginning to work with Marian in July  



                                                                                                                               

2017 she had not seen an improvement in Marian's ability to control her emotions.  The  



                                                                                                                           

caseworker testified that OCS's remaining concerns regarding Charles were "his ability  



                                                                                                                         

to put his children's needs first, . . .  recognizing that there's a concern . . . with regards  



                                                                                                               

to [Marian], . . . and being able to recognize safety threats in the children's environment."  



                                                                                                                         

                    Marian's foster aunt has known Marian since she was a child and testified  



                                                                                                                    

regarding her history with the family.  Marian's foster aunt was the family's emergency  



                                                               -12-                                                         7379
  


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

                                                                                                                            

contact when they lived in Valdez, and she frequently took care of the children when  



                                                                                                                      

Marian experienced crises or meltdowns.  The foster aunt described similar parenting  



                                                                                                                                

issues as the OCS caseworker - that Marian had an agenda for her visits with the  



                                                                                                                                

children, was not flexible, and did not adjust well to spontaneity; that she would get  



                                                                                                                                

distracted and need time to regroup if the visits were longer than two hours; and that the  



                                                                                                                            

parents would need to be reminded to perform basic parenting duties. Marian had asked  



                                                                                                                              

her foster aunt to write a letter of support for this case, but she declined. The foster aunt  



                                                                                                                                

believed that Marian would not be able to parent successfully and that returning the  



                                                                                                                               

children would set Marian up for failure because she did not believe that Marian had  



                                            

overcome her mental health issues.  



                                                                                                                          

                    Charles'ssister, his mother,and Marian's sister each testifiedto her support  



                                                                                                                               

of Charles and Marian.  Each family member lives within 15 minutes of the parents, and  



                                                                                                                          

each testified to their ability to support the family when needed.   The three family  



                                                                                                                                

members also testified to Charles's and Marian's parenting abilities. Charles's sister has  



                                                                                                                                      

two children - ages 8 and 11 - that Charles and Marian took care of during the week.  



                                                                                                                               

Her son is autistic and required a strict daily routine; she testified that her son never had  



                                                                                                                               

a meltdown while Charles and Marian were caring for him.   She also testified that  



                                                                                                                                      

Charles and Marian successfully cared for her two children and Thomas at the same time.  



                                                                                                                            

Marian's sister discussed the change she had seen in Marian over the last year: "It seems  



                                                                                                                              

like she's got more tools available to her and that . . . she's using those tools to help  



                                                                                                                             

herself be the best version  of herself."                       Charles's mother  and  Marian's  sister  both  



                                                                                                    

indicated interest in potentially being an ICPC placement for the children.  



                                                                                                                              

                    Charles and Marian both testified at length.  A particular frustration they  



                                                                                                                     

conveyed was that OCS had not provided sufficient information about their children's  



                                                                                                                                      

special needs, making it difficult during visits to show that they could meet those needs.  



                                                                                                                              

Charles also expressed that because they only saw the children once a month it was hard  



                                                               -13-                                                         7379
  


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

                                                                                                                                      

for  them to  effectively  practice what they  were  learning  in  their  parenting  classes.  



                                                                                                                               

Marian testified that her ability to manage her emotions had improved and that she was  



                                                                                                                              

better able to support her children's needs.  Overall both parents communicated their  



                                                                                                           

love for their children and their desire to provide a supportive family environment.  



                                                                                                                                  

                    At the termination trial's conclusion , the superior court made a number of  



                                                                                                                             

oral observations but deferred making any findings until its written order.  The court  



                                                                                                                       

noted that the parents had made significant effort and that it no longer had concerns  



                                                                                                                            

regarding  Charles's substance  abuse.                       But the court noted  stronger  concerns about  



                                                                                                                      

Marian's mental health issues and whether those issues had been sufficiently remedied.  



                                                                                                                                  

The court also conveyed concern that the children were in seven different placements in  



                                                                                                                                   

three years:  "[T]heir various foibles and issues that they have are to a greater or to a  



                                                    

lesser extent attributable to those placements."  



                                                                                      

                    2.         The superior court's termination order  



                                                                                                                             

                    The superior court issued its termination order in June 2018.  The court  



                                                                                                                     

found that Maya, Sierra, and Chase were children in need of aid under AS 47.10.011  



                                                                                                                             

subsections (10) (substance abuse) and (11) (mental illness), and that there was some  



                                                                                                                       

evidence to support findings under subsections (8) (risk of mental injury due to domestic  



                                                                                                                               

violence) and (9) (neglect).   The court also found that Charles and Marian had not,  



                                                                                                                                  

within a reasonable time, remedied the conduct or conditions that placed the children at  



                                                                                                                             

substantial risk of harm and that returning the children to the parents would place them  



                                                                                                                           

at substantial risk of physical or mental injury.  The court noted that this was the closest  



                                                                                                                     

factor in this case, but that despite the parents' significant efforts, they had not "exhibited  



                                                                                                                                  

an ability to implement the necessary skills so that the children can be safely returned to  



         

their care."  



                                                                                                                           

                    The court also found that OCS made reasonable efforts to provide family  



                                                                                                                            

support services designed to enable the children to be safely returned to the home. These  



                                                               -14-                                                         7379
  


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

efforts   included   case   planning   and   providing   family   contact,   parenting   classes,  



evaluations, urinalysis testing, and counseling.                                                                                           And finally, the court found that it was                                                                



in the children's best interests to terminate parental rights as the children had been in                                                                                                                                                                



OCS custody for three years and needed permanency and stability.                                                                                                                                       



                                       Both parents appeal the court's finding that they had not remedied the                                                                                                                                        



conduct that caused their children to be in need of aid and its finding that terminating                                                                                                                                    



parental rights was in their children's best interests.                                                                                                      Charles also appeals the court's                                             



finding that OCS made reasonable efforts to reunify him with his children.                                                                                                                        



III.                STANDARD OF REVIEW                                     



                                       Whether parents failed to remedy their conduct and whether termination                                                                                                                



                                                                                                                                                                                     6  

was in the children's best interests are both factual findings.                                                                                                                                                                                      

                                                                                                                                                                                            In child in need of aid  



                                                                                                                                                                                                                            7  

                                                                                                                                                                                                                                 "Findings  

(CINA) cases, we review the superior court's factual findings for clear error. 



                                                                                                                                                                                                                                                  

are clearly erroneous if review of the entire record leaves us with 'a definite and firm  



                                                                                                                                  8  

                                                                                                                               

conviction that a mistake has been made.' "                                                                                                                                                                                        

                                                                                                                                         But "[c]onflicting evidence is generally  



                                                                                                                                                                                                                                                      

insufficient to overturn the superior court, and we will not reweigh evidence when the  



                                                                                                                                                                                   9  

                                                                                                                                                            

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

                                                                                                                                                                                        We have noted that "the  



                                                                                                                                                                                                                                                         

deference accorded to a superior court's factual findings is particularly appropriate in  



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



Servs., 290 P.3d 421, 428 (Alaska 2012).                                                              



                    7                  Id. at 427.  

                                                        



                    8                  Id. at 427-28 (quoting Barbara P. v. State, Dep't of Health & Soc. Servs.,  

                                                                                                                                                                                                                                           

Office of Children's Servs., 234 P.3d 1245, 1253 (Alaska 2010)).  

                                                                                                                                                                           



                    9                  Maisy W. v. State ex rel. Dep't of Health &Soc. Servs., Office of Children's  

                                                                                                                                                                                                                                

Servs., 175 P.3d 1263, 1267 (Alaska 2008).  

                                                                                                              



                                                                                                                          -15-                                                                                                                  7379
  


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

                        10  

close cases."                "We bear in mind at all times that terminating parental rights is a drastic                                             



                   11  

measure." 



IV.	        DISCUSSION  



                                                                                                                                                            

            A.	          The Superior Court Clearly Erred By Finding That Charles Failed To  

                                                                                                       

                         Remedy His Conduct In A Reasonable Time.  



                                                                                                                                                          

                         To terminate parental rights, the superior court must find by clear and  



                                                                                                                                                        

convincing evidence that the parent has not remedied, within a reasonable period of time,  



                                                                                                                12  

                                                                                                                                                              

the conduct that placed the child at substantial risk of harm.                                                        A "reasonable time" is  



                                                                                                                                                     

statutorily defined as "a period of time that serves the best interests of the child, taking  



                                                                                                                                                             

in account the affected child's age, emotional and developmental needs, and ability to  

                                                                                   13        In   "making   a   [failure-to-remedy]  

                                                                                                                           

form   and   maintain   lasting   attachments." 



determination . . . the court may consider any fact relating to the best interests of the  

                                                                                                                                                           

child."14  

                   



                                                                                                                              

                         Charles argues that because he fulfilled all of his case plan requirements,  



                                                                                                                                                

engaged in all recommended services, and stopped abusing substances, he has remedied  



                                                                                                                                                     

his conduct.  OCS responds that completing a case plan does not guarantee that a parent  



                                                                                                                                            

has remedied his conduct and that there was ample evidence presented at the termination  



                                                                                                                                           

trial to show that the parents could not safely care for their children.  OCS additionally  



             10	         Barbara P.           , 234 P.3d at 1260.         



             11  

                         Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's                                          

                                                                                                                                                     

Servs., 254 P.3d 1095, 1104 (Alaska 2011) (quoting Martin N. v. State, Dep't of Health  

& Soc. Servs., Div. of Family & Youth Servs.                                       , 79 P.3d 50, 53 (Alaska 2003)).               



             12  

                         AS 47.10.088(a)(2)(B).  

                                 



             13          AS 47.10.990(30).  

                                 



             14  

                         AS 47.10.088(b).  

                                 



                                                                             -16-	                                                                     7379
  


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

argues that because the failure-to-remedy finding was a close factor, we should accord                                                                                     

substantial deference to the superior court's factual findings.                                                                   15  



                                                                                                                                   

                             1.            Charles remedied his substance abuse issues.  



                                                                                                                                                                                 

                             We  have  previously  observed  that  completing  a  case  plan  "does  not  



                                                                                                                                                                          

guarantee a finding that [the parent] has remedied [his] conduct.  The question instead  



                                                                                                                                                                                  

is whether [the parent] had remedied the problems that placed [his] children at risk and  



                                                                                                                                                                                       16  

                                                                                                                                                                                           

gained the necessary skills so that the children could be safely returned to [his] care." 



Charles originally placed his children at risk through his substance abuse.  Although he  

                                                                                                                                                                                    



did not engage in treatment until over a year after his children were taken into OCS  

                                                                                                                                                                               



custody, by the time of the termination trial Charles had successfully completed inpatient  

                                                                                                                                                                       



and outpatient substance abuse treatment programs, OCS no longer required him to  

                                                                                                                                                                                     



complete urinalysis testing, and he had remained sober for two years.   But despite  

                                                                                                                                                                         



Charles's progress and two years of sobriety, the superior court found that because he  

                                                                                                                                                                  



"used meth for over two decades it would be highly speculative to predict ongoing, long- 

                                                                                                                                                                               



term sobriety for him."  

                                      



                             OCS points to Sherry R. v. State, Department of Health & Social Services,  

                                                                                                                                                                       

Division of Family &Youth Services17 to support its position that Charles's two years of  

                                                                                                                                                                                     



sobriety, after decades of abuse, was insufficient to demonstrate that he remedied his  

                                                                                                                                                                                   



substance abuse problem.  In Sherry R. we upheld the termination of parental rights  

                                                                                                                                                                                     



               15            See Barbara P.                   , 234 P.3d at 1260.         



               16           Id.  (citing   V.S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family &                                                                           



 Youth Servs.              , 45 P.3d 1198, 1208 (Alaska 2002) ("Compliance with treatment plans does                                                                            

not guarantee that parental rights will not be terminated because it cannot guarantee that  

                                                                                                                                                                                  

adequate parenting skills will be acquired from the treatment regimen.")).                                                          



               17            74 P.3d 896 (Alaska 2003).  

                                                                          



                                                                                        -17-                                                                                  7379
  


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

                                                                                                                                        18  

based on the mother's failure to remedy even though she had been sober for one year.                                                         



                                                                                                                             

But the mother had also attempted seven treatment programs, had a history of relapsing,  



                                                                                                                19  

                                                                                                                    

and it was "unclear the degree to which she accept[ed] her problem." 



                                                                                                                                           

                      Charles's case is distinct.  He has been sober twice as long as the mother in  



                                                                                                                                     

Sherry R., and during this case he only attempted treatment once and has remained sober  

                                                                                     20   Charles has also acknowledged  

                                                                                                                      

since; he does not have a history of repeated relapse. 



his  issues,  appears  to  understand  the  need  to  stay  sober,  and  has  demonstrated  his  

                                                                                                                                        



commitment to sobriety. "The superior court is entitled to rely on a parent's documented  

                                                                                                                          



                                                                                        21  

history of conduct as a predictor of future behavior,"                                      but other factors may also be  

                                                                                                                                          



relevant to consider. Here, OCS stopped requiringCharles to takeurinalysis tests because  

                                                                                                                                 



of his demonstrated sobriety, and in his last substance abuse evaluation, no treatment  

                                                                                                                              



                                              22  

services were recommended.                         Although Charles could have pursued treatment sooner,  

                                                                                                                                  



two years  of  sobriety  with no  relapse  is  significant.  And  while  sobriety  alone  may  not  



           18        Id.  at  902-03.  



           19        Id.  at  898,  902.  



           20         We  note  that  prior  to   OCS's  intervention  in  this   case   Charles   attempted  



treatment  one  or  two  times,  when  he  was  much  younger.  



           21  

                      Sherry  R.,  74  P3d  at  903.  



           22  

                      Cf.   Christopher   C.   v.   State,   Dep't   of  Health   &   Soc.   Servs.,   Office   of  

Children's  Servs.,  303  P.3d  465,  475-76  (Alaska  2013)  (upholding  finding  that  mother  

failed   to   remedy   conduct   when   she   had   been   sober   eight   months   but   had   history   of  

repeated failed  treatment attempts  and  unrebutted expert witness testified  that mother  was  

"still   in   need   of   additional   and   lengthy   substance   abuse   treatment,   a   need   that   [the  

mother] does not acknowledge"); Christina J. v. State, Dep't of Health & Soc. Servs.,  

                                                                                                                                 

               

Office of Children's Servs., 254 P.3d 1095, 1105 (Alaska 2011) (upholding finding that  

                                                                                                                                      

mother failed to remedy conduct when she had been sober 34 days but "failed to pursue  

                                                                                                                                  

several opportunities for recommended treatment and was determined to be at high risk  

                                                                                                                                      

of relapse").  

     



                                                                   -18-                                                             7379
  


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

 always be sufficient for a parent to demonstrate he has remedied his conduct, Charles was                                                                                                                                                                                                                                                                                                                                                                                                                                     



 also actively engaged in therapy, parenting classes, and visitation with his children.                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 Given these facts, the superior court clearly erred in finding that Charles failed to remedy                                                                                                                                                                                                                                                                                                                                                                                                            



his substance abuse issues.                                                                                                                                           If we were to conclude otherwise, there would be very few,                                                                                                                                                                                                                                                                                            



 if any, scenarios where a parent with past substance abuse issues                                                                                                                                                                                                                                                                                                                                                                          would be able to                                                                            



 demonstrate he had remedied his conduct.                                                                                                                                                                   



                                                                                  2.	                                      The superior court did not make sufficient neglect or                                                                                                                                                                                                                                                                                                        

                                                                                                                           domestic violence findings.                                                                                          



                                                                                  The superior court noted in its termination order that some evidence was                                                                                                                                                                                                                                                                                                                                                                    



presented to support CINA findings as to AS 47.10.011(8) (risk of mental injury due to                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 domestic violence) and (9) (neglect) and that the court "can and does consider all of the                                                                                                                                                                                                                                                                                                                                                                                                                                          



 evidence in the aggregate."                                                                                                                                                  The court then noted that Charles failed to acknowledge                                                                                                                                                                                                            



 OCS's concerns that his stepmother may have abused the children and that Charles failed                                                                                                                                                                                                                                                                                                                                                                                                                            



to acknowledge Marian's inability to parent all four children at once.                                                                                                                                                                                                                                                                                                                                                             The superior court                                                                  



 concluded that his failure to recognize these basic safety concerns called into question his                                                                                                                                                                                                                                                                                                                                                                                                                                        



protective capacities. But it is unclear if the court intended to link this general conclusion                                                                                                                                                                                                                                                                                                                                                                                       



to a finding that the children were in need of aid due to neglect or exposure to domestic                                                                                                                                                                                                                                                                                                                                                                                                      



violence.   There must be a link between the CINA finding and the failure-to-remedy                                                                                                                                                                                                                                                                                                                                                      



                                                 23  

 finding.                                                       



                                         23                                       See  AS 47.10.088(a)(1)-(2).                                                                                                                                                   We note that OCS does not argue on appeal                                                                                                                                                                                               



that the parents failed to remedy conduct related to neglect or domestic violence; OCS                                                                                                                                                                                                                                                                                                                                                                                                                             

 focuses on Charles's substance abuse and Marian's mental health and argues generally                                                                                                                                                                                                                                                                                                                                                                                                   

that   the   parents   had   not   demonstrated   they   could   safely   parent   all   four   children.  

Additionally, the children                                                                                                                                            were never                                                                   adjudicated   in   need of aid                                                                                                                                                due to                                        neglect or   

 domestic violence. When                                                                                                                                    OCSfirst                                                   took custody, the parties stipulated the children were  

 in need of aid because of Charles's substance abuse and Marian's mental health.                                                                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                              -19-	                                                                                                                                                                                                                                                  7379
  


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

                              OCS did not argue at the termination trial that Charles neglected his children                                                                   



                                                                                                                                     24  

by failing to protect them from Marian's mental health issues.                                                                                                                       

                                                                                                                                           And notably, OCS never  



                                                                                                                                                                           

altered the "goals" or "next steps" in Charles's case plan to convey to him that protecting  



                                                                                             

the children from Marian's mental health issues was something that he needed to work  



                                                                                                                                                                                 

on or overcome to regain custody of his children.  Instead, OCS argued that the parents  



                                                                                                                                                                                   

neglected the children based on evidence from 2013 and 2014 - prior to OCS taking  



                                                                                                                                                                                         

custody - that the children had serious dental issues, that the parents' home was not  



                                                                                                                                                                                 

suitable for children, and that the children were frequently absent from or late to school.  



                                                                                                                                                                            

                             At the termination trial's conclusion, the superior court made the following  



                                                                                                                                                      

oral observations about the alleged educational and dental neglect:  



                                                                                                                                                           

                              [I]t seems to me that that stuff was addressed prior to the kids  

                                                                                                                                                               

                              coming into [S]tate's custody. But I would - I think I need to  

                                                                                                                                                     

                              look at that a little further to ensure myself of that. . . . I agree  

                                                                                                                                                                  

                             there - the status of the [parents'] household was not great.  I  

                                                                                                                                                        

                              don't know that it qualifies as neglect. . . . I just don't think  

                                                                                                                                          

                             that [the issues] rise to the level of a clear and convincing  

                                                                                                                                                             

                              finding.  But I'm going to withhold judgment on that one for  

                                                               

                             the moment at least.  



                                                                                                                                                                              

But the court's subsequent termination order simply states that there was some evidence  



                                                                                                                                                                                

to support a neglect finding under AS 47.10.011(9). The court did not make any specific  



                                                                                                                                                                                        

factual findings in its order related to neglect, and significantly, the court did not find  



               24  

                             See,   e.g.,   Neal   M.   v.   State,   Dep't   of   Health   & Soc.                                                       Servs.,   Office   of  

Children's Servs.                      , 214 P.3d 284, 292 (Alaska 2009) (finding "that the superior court                                                                         

correctly concluded that [the mother's] inability or unwillingness to prevent [the father]                                                                                       

from being around the children amounted to neglect");                                                                  Burke P. v. State, Dep't of Health                       

&   Soc.   Servs.,   Office   of   Children's   Servs.,   162   P.3d   1239,   1244   (Alaska   2007)  

(upholding CINA finding where "[t]he record shows that [the father] did not prevent the                                                                                                  

[mother's]   abuse   and   his   lack   of   involvement  as   a   parent   often   exacerbated   [the  

mother's] abusive behavior").             



                                                                                           -20-                                                                                     7379
  


----------------------- Page 21-----------------------

neglect by clear and convincing evidence as required by AS 47.10.088(a)(1) and CINA                                                                                                                                           



Rule 18(c)(1)(A).   



                                     Given the court's hesitation to find the children in need of aid due to neglect                                                                                                        



at   the   termination   trial's   conclusion,   and   the   court's   subsequent   termination   order  



omitting factual findings related to neglect, it is unclear to us whether the court intended                                                                                                                            



to   make a neglect finding.                                                   But even                      if a neglect finding was intended,                                                                 the court's   



termination order does not satisfy the requirements of the CINA statute - stating that                                                                                                                                               



there is "evidence presented to support findings" does not equate to finding neglect by                                                                                                                                                 

                                                                                      25       On the record before us, we agree with the superior  

clear and convincing evidence.                                                                                                                                                                                          



court's oral comments that there is not clear and convincing evidence that the children  

                                                                                                                                                                                                                        

were in need of aid due to neglect.26  

                                                                                                      



                                     We also conclude that even if there was some evidence of educational and  

                                                                                                                                                                                                                                     



dental neglect from 2013 and 2014, OCS did not demonstrate - or even argue - that  

                                                                                                                                                                                                                                     



Charles failed to remedy that neglectful conduct.  At trial OCS noted its concerns with  

                                                                                                                                                                                                                                   



Charles's "protective capacity" and his "ability to recognize safety concerns," but it did  

                                                                                                                                                                                                                                      



not connect those concerns to its neglect argument.  And OCS does not argue on appeal  

                                                                                                                                                                                                                             



that the parents failed to remedy the educational and dental neglect.  There is also no  

                                                                                                                                                                                                                                        



indication that Charles and Marian neglected any of their parental responsibilities after  



OCS took custody of the children; they consented to necessary medical procedures and  

                                                                                                                                                                                                                                     



                  25                See  AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).                                                        



                  26                 "Clear and convincing evidenceis evidence more than a                                                                                              preponderance but   



                                                                                                                                                                                                                                        

less than proof beyond a reasonable doubt." Maisy W. v. State ex rel. Dep't of Health &  

Soc. Servs., Office of Children's Servs.                                                                    , 175 P.3d 1263, 1267 n.10 (Alaska 2008).                                                                                 A  

                                                                                                                                                                                                                                

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 and control  

                                                                                                                                                                                                                                               

necessary for the child's physical and mental health and development."  AS 47.10.014.  



                                                                                                                 -21-                                                                                                          7379
  


----------------------- Page 22-----------------------

                                                                                                                                                                                                                                                                                                                                                               27  

 actively   engaged   in   regular   visitation   with   the   children.                                                                                                                                                                                                                                                                                                     They   also   candidly  



 acknowledged and remedied OCS's safety concerns by acquiring a vehicle that could                                                                                                                                                                                                                                                                                                                                                                                             



transport all four children and preparing their apartment to accommodate the children's                                                                                                                                                                                                                                                                                                                                                                



return.   We conclude that OCS did not present clear and convincing evidence to show,                                                                                                                                                                                                                                                                                                                                                                                         



 and the superior court did not make sufficient findings to document, that the children were                                                                                                                                                                                                                                                                                                                                                                                         



in need of aid due to neglect or that Charles failed to remedy his allegedly neglectful                                                                                                                                                                                                                                                                                                                                                               



 conduct.    



                                                                            Our neglectanalysis                                                                                               is equally applicableto thedomesticviolenceissue, and                                                                                                                                                                                                                                          



we reach the same conclusion. To support a CINA finding under AS 47.10.011(8), OCS                                                                                                                                                                                                                                                                                                                                                                                                   



pointed to Marian's 2015                                                                                                                                     conviction for damaging Charles's truck and the parents'                                                                                                                                                                                                                                           



testimony that when OCS first removed the children Charles and Marian "were struggling                                                                                                                                                                                                                                                                                                                                                                 



in their relationship" and "[t]here was yelling in front of the children."                                                                                                                                                                                                                                                                                                                                      But at the end of                                                                   



the termination trial the superior court stated:                                                                                                                                                                                                                         "I've taken [domestic violence] off the                                                                                                                                                                              



table.   I suppose I could revisit that in further findings, and maybe I'll find something                                                                                                                                                                                                                                                                                                        



when I'm going through stuff that will cause me to revisit that.                                                                                                                                                                                                                                                                                                      I don't think so though,                                                                      



 and that's not my intent."                                                                                                                        As with neglect, any findings the court may have intended to                                                                                                                                                                                                                                                                                      



make in its termination order related to domestic violence are not sufficient to satisfy the                                                                                                                                                                                                                                                                                                                                                                                                    



requirements   of   the   CINA   statute.    On   the   record   before   us,   there   is   not   clear   and  



 convincing evidence to support a CINA finding under subsection (8), nor is there clear                                                                                                                                                                                                                                                                                                                                                



                                      27                                    After OCS takes custody of a child, the parents retain "residual rights and                                                                                                                                                                                                                                                                                                                                



responsibilities" such as the right and responsibility to visit their children, to consent to                                                                                                                                                                                                                                                                                                                                                                                                   

 adoption, and to consent to major medical treatment.  AS 47.10.084(c);                                                                                                                                                                                                                                                                                                                                                    see also Duke   

S.  v. Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                                                                                                                                                                                                                                                           , 433 P.3d 1127, 1134                                                                             

 (Alaska 2018) (concluding that evidence did not support neglect finding when father                                                                                                                                                                                                                                                                                                                                                                                     

immediately sought and exercised right and responsibility to visit child after learning of                                                                                                                                                                                                                                                                                                                                                                                                      

paternity).  



                                                                                                                                                                                                                                           -22-                                                                                                                                                                                                                                  7379
  


----------------------- Page 23-----------------------

 and convincing evidence that the parents failed to remedy any alleged domestic violence                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



 issues.  



                                                                                                             3.                              The termination of Charles's parental rights is reversed                                                                                                                                                                                                                                                                                                                                                                             .  



                                                                                              We conclude that the superior court clearly erred by finding that Charles did                                                                                                                                                                                                                                                                                                                                                                                                                                    



not remedy his substance abuse issues.                                                                                                                                                                                                                                          We also conclude that OCS did not present clear                                                                                                                                                                                                                                                                    



 and convincing evidence to show, and the superior court did not make sufficient findings                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



to  document,   that   Charles   failed   to   remedy   conduct   related   to   neglect   or   domestic  



violence.  Because Charles remedied the conduct that caused his children to be in need                                                                                                                                                                                                                                                                                                                                                           



                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     28  

 of aid, we reverse the termination of his parental rights to Sierra and Chase.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



                                               28                                             Because we conclude that the superior court's failure-to-remedy finding                                                                                                                                                                                                                                                                                                                                                                                                      



with respect to Charles was clearly erroneous, and we reverse the termination of his                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

parental rights, it is not necessary for us to address his additional challenge to the court's                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

reasonable efforts finding and therefore we decline to do so.                                                                                                                                                                                                                                                                                                                                                                              



                                                                                              But we do note a general concern with OCS's delay in initiating the ICPC                                                                                                                                                                                                                                                                                                                                                                                                                  

home study process.                                                                                                                             See  AS 47.70.010. Given the parents' concerns over being able to                                                                                                                                                                                                                                                                                                                                                                                                

meet their case plan requirements if they remained in Valdez, their progress after moving                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

to Washington, the seemingly effective service providers they engaged with at CLR, and                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

their family support network in Washington, it seems that family reunification may have                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

been likelier if the children had remained in or been returned to Washington.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         We are   

 also concerned by the suggestion that OCS delayed the Washington ICPC home study                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

 for tactical litigation reasons and not for the best interests of the children.                                                                                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                                                                   -23-                                                                                                                                                                                                                                                                                        7379
  


----------------------- Page 24-----------------------

                B.	            The Superior Court Did Not Clearly Err By Finding That Marian                                                                                           

                               Failed To Remedy Her Conduct In A Reasonable Time.                                                                          



                               As discussed, to terminate parental rights the superior court must consider                                                                             



"whether [the parent] had remedied the problems that placed her children at risk and                                                                                                              



                                                                                                                                                                                                      29  

gained the necessary skills so that the children could be safely returned to her care."                                                                                                                      



                                                                                                                                                                                  

Marian's children were originally at risk due to her mental health issues.  In explaining  



                                                                                                                                                                                         

its failure-to-remedy finding, the superior court noted that Marian "continues to exhibit,  



                                                                                                                                                                                         

during visitations, an inability to parent all four of her children at once" and that "[t]here  



                                                                                                                                                                                                     

was significant credible testimony that [her] ability to hold it together falls apart in an  



                                                                                                                                                                            

hour or ninety minutes."  The court also noted her long history of mental health issues,  



                                                                                                                                                                            

expressed concern that she is currently unmedicated, and highlighted her "meltdowns"  



                                                                                                                                                                              

that affect her ability to parent her children.  Marian argues on appeal that she satisfied  



                                                                                                                                                                                       

all of the requirements of her OCS case plans, that her mental health issues do not pose  



                                                                                                                                                                                                      

a substantial risk of injury to her children, that the superior court erred by failing to  



                                                                                                                                                                                        

consider her parenting supports in its determination, and that the children's best interests  



                                                                                             

do not support terminating her parental rights.  



                                                                                                                                                                                                  

                               But as discussed, completing a case plan does not guarantee a finding that  

                                                                         30  And while no one appears to dispute that Marian put  

a parent remedied her conduct. 



forward significant effort, it is not clear that she has exhibited an ability to implement the  

                                                                                                                                                                                                    



necessary skills to safely care for her children.  We have previously noted that "[i]t is  

                                                                                                                                                                                                       



entirely possible that there will be some improvement in overcoming mental illness  

                                                                                                                                                                                           



               29              Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's                                                                         



Servs., 234 P.3d 1245, 1260 (Alaska 2010).                                             



               30              Id. (citing V.S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family &  

                                                                                                                                                                                                     

 Youth Servs., 45 P.3d 1198, 1208 (Alaska 2002) ("Compliance with treatment plans does  

                                                                                                                                                                                               

not guarantee that parental rights will not be terminated because it cannot guarantee that  

                                                                                                                                                                                                

adequate parenting skills will be acquired from the treatment regimen.")).  

                                                                                                                                               



                                                                                                -24-	                                                                                        7379
  


----------------------- Page 25-----------------------

without there being sufficient improvement to demonstrate adequate parenting skills."                                                       31  



                                                                                                                                

To terminate her parental rights, OCS needed to prove, by clear and convincing evidence,  



                                                                                                                                            

that her unremedied mental health issues would place the children at "substantial risk of  

                                                                               32  OCS does not argue that the children  

                                                                                                                                  

                                                                        

physical or mental injury" if returned to her care. 



were at risk of mental injury, but asserts that it only needed to establish a risk of one type  

                                                                                                                                         



of injury, and it demonstrated substantial risk of physical injury.   Physical injury is  

                                                                                                                                            



defined  under  the  CINA  statutes  as  "a  physical  pain  or  an  impairment  of  physical  

                                                                                                                                 

condition."33  



                      Whether Marian's unremedied mental health issues createdasubstantialrisk  

                                                                                                                                          



of physical injury to her children was a factual determination, and in "making a [failure- 

                                                                                                                                   



to-remedy] determination . . . the court may consider any fact relating to the best interests  

                                                                                                                                  

of the child."34  As the superior court noted, there was considerable evidence that Marian  

                                                                                                                                    



"shuts down" after extended periods of parenting, and her inattentiveness could result in  

                                                                                                                                             



physical injury to the children.   For example, Chase had significant aggression and  

                                                                                                                                         



impulse issues, particularly toward Thomas and other young children -the foster mother  

                                                                                                                                    



reported that he stabbed Sierra with a chopstick and would push other children down  

                                                                                                                                      



stairs or off playground equipment - and OCS noted instances of Marian's failure to  

                                                                                                                                            



monitor and consistently  discipline Chase in response.   OCS also noted that during  

                                                                                                                                    



visitation Marian lacked awareness of Thomas pulling on power cords, putting things in  

                                                                                                                                             



his mouth, and standing on a chair.   And the children's foster parents described the  

                                                                                                                                          



           31         V.S.B.,  45  P.3d  at   1208.  



           32         CINA  Rule   18(c)(1)(A)(ii).  



           33         AS   11.81.900(b)(48);   AS   47.10.990(28)   ("   '[P]hysical   injury'  has   the  



meaning  given  in  AS   11.81.900(b)").  



           34         AS  47.10.088(b).  



                                                                   -25-                                                              7379
  


----------------------- Page 26-----------------------

children as "very high maintenance," stating that it was necessary to constantly supervise                                                                                                                                                                                                 



them.   OCS argues that given these factors, and Marian's inability to maintain her focus                                                                                                                                                                                                                



andemotional                                        stability during visits,                                                      returningthechildren                                                           to Marian's carewould                                                             expose  



them to a substantial risk of physical injury.                                                                                                                    



                                                Although there is conflicting testimony regarding Marian's ability to safely                                                                                                                                                                            



parent her children, the superior court placed great weight on the testimony provided by                                                                                                                                                                                                                            



the OCS caseworker and Marian's foster aunt, and the court does not appear to have                                                                                                                                                                                                                         



accorded much weight to the testimony provided by Charles's sister, his mother, or                                                                                                                                                                                                  



Marian's  sister.     It   is   not   our   role   to   reweigh   the   evidence   or   to   make   credibility  

                                                        35 and our deference "to a superior court's factual findings is particularly  

determinations,                                                                                                                                                                                                                                                                    

appropriate in close cases."36  We acknowledge that this is a close case, and we commend  

                                                                                                                                                                                                                                                                                          



the efforts Marian has made to remedy her conduct and reunify with her children. But our  

                                                                                                                                                                                                                                                                                                                 



review of the record does not leave us with a definite and firm conviction that the superior  

                                                                                                                                                                                                                                                                                                

court made a mistake.37                                                                      The court did not clearly err by finding that Marian failed to  

                                                                                                                                                                                                                                                                                                                     



remedy, within a reasonable time, the conduct that placed her children at substantial risk  

                                                                                                                                                                                                                                                                                                                



of harm.  

          



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



Servs., 289 P.3d 924, 930 (Alaska 2012) ("We defer to a superior court's credibility                                                                                                                                                                                                

determinations, particularly when they are based on oral testimony.");                                                                                                                                                                                     Maisy W. v. State                            

ex rel. Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                                                                                                                        , 175 P.3d 1263, 1267                                        

(Alaska 2008) ("[W]e will not reweigh evidence when the record provides clear support                                                                                                                                                                                                          

for the superior court's ruling.").                                                   



                        36                      Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                                                                                                                                                                                                                                                  

Servs., 234 P.3d 1245, 1260 (Alaska 2010).  

                                                                                                                                       



                        37                      See id. at 1253.  

                                                                                   



                                                                                                                                                      -26-                                                                                                                                              7379
  


----------------------- Page 27-----------------------

             C.	          The        Superior              Court's            Best        Interests   Finding                       Is     Vacated             For  

                         Reconsideration On Remand.                 



                          To terminate a parent's rights, the court must consider the best interests of                                                            



the children and find "by a preponderance of the evidence that termination of parental                                                                  



                                                                                  38  

                                                                                                                                                                 

rights is in the [children's] best interests."                                           While neither the CINA statutes nor the  



                                                                                                                                                      

CINA rules define best interests, we have noted that the best interests analysis "requires  



                                                                                                                                                           

a more comprehensive judgment than does determining whether the parent has timely  



                                                                                               39  

                                                                                                                                                               

remedied  endangering  conduct  or  conditions."                                                        The  superior  court  found  that  



                                                                                                                

terminating Charles's and Marian's parental rights was in their children's best interests  



                                                                                                                                                                

because the children had been out of the home for three years, were struggling, and  



                                                                                                                                                                   

needed permanency and stability.  The court concluded that "[c]ontinuing uncertainty as  



                                                                   

to their fate is quite detrimental to them."  



                                                                                                                                                                 

                         As we have mentioned, the facts of this case are close.  The parents put  



                                                                                                                                                                  

forward considerable effortand madesignificantprogressin remedyingtheir conduct; the  



                                                                                                                                                                 

children are close with their family; and their youngest sibling lives with the parents. We  



                                                                                                                                                                

acknowledge that there are still concerns regarding  Marian's mental health  and  her  



                                                                                                                                                               

parenting  abilities,  and  the  children  are  struggling  as  a  result  of  the  instability  and  



                                                                                                                                                                  

uncertainty in their placements.  "We have repeatedly recognized that a child's need for  



                                                                                                                                                          

permanence and stability should not be put on hold indefinitely while the child's parents  



                                                                                                                                                      40  

                                                                                                                                                            

seek to rectify the circumstances that cause their children to be in need of aid." 



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



             39  

                                                                                                                                                         

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

                                                     

291 P.3d 957, 966 (Alaska 2013).  



             40          Kent V. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,  

                                                                                                                                                         

233 P.3d 597, 603 (Alaska 2010).  

                                                     



                                                                               -27-	                                                                        7379
  


----------------------- Page 28-----------------------

                                                    We do not conclude that the superior court clearly erred by finding that                                                                                                                                                                                                        



termination of Marian's parental rights was in the children's best interests.                                                                                                                                                                                                                        But in light                 



of our reversal of the termination of Charles's parental rights, we vacate the court's best                                                                                                                                                                                                                                         



interests finding with respect to Marian for reconsideration on remand.                                                                                                                                                                                                              Because we are                                     



reversing the termination of Charles's parental rights to Sierra and Chase, it may no                                                                                                                                                                                                                                                    



longer be in the children's best interests to terminate their legal relationship with their                                                                                                                                                                                                                                      



mother, especially if Charles and Marian intend to maintain their relationship and co-                                                                                                                                                                                                                                                



parent their children.                                                               This may be particularly true given that Charles is not Maya's                                                                                                                                                                  



biological or adoptive father - if Marian's parental rights to all three children remain                                                                                                                                                                                                                                



terminated but Charles's parental rights to Sierra and Chase are retained, Maya could                                                                                                                                                                                                                                        



possibly become legally and physically disconnected fromher                                                                                                                                                                                   siblings. Such                                           an outcome  



likely would not be in the best interests of any of the children.                                                                                                                                                                                             Further, the parents'   



youngest child, Thomas, remains in their custody.                                                                                                                                                   Among other factors on remand, the                                                                                                 



 superior court may wish to consider in its best interests finding the advisability of keeping                                                                                                                                                                                                                       



                                                                                    41  

                                                                                                  Accordingly, we vacate the termination of Marian's parental  

the siblings together.                                                                                                                                                                                                                                                                                             



rights and remand for reconsideration of the children's best interests.  

                                                                                                                                                                                                                                          



                                                    Because the termination of Charles's parental rights is reversed and the  

                                                                                                                                                                                                                                                                                                                                       



termination of Marian's parental rights is vacated, OCS must promptly re-engage with  

                                                                                                                                                                                                                                                                                                                                  



Charles and Marian to provide efforts aimed at family reunification, including visitation  

                                                                                                                                                                                                                                                                                                               



with the children.   We are mindful that Maya, Sierra, and Chase have been in OCS  

                                                                                                                                                                                                                                                                                                                                



custody since 2015 and of the importance of achieving permanency for these children.  

                                                                                                                                                                                                                                                                                                                                                        



The superior court and OCS should therefore expedite further proceedings.  

                                                                                                                                                                                                                                                   



                          41  

                                                    See Craig v. McBride                                                               , 639 P.2d 303, 306 (Alaska 1982) (noting in custody                                                                                                                       

context that "maintaining sibling relationships will typically be in the best interests of the                                                                                                                                                                                                                                       

child").  



                                                                                                                                                                 -28-                                                                                                                                                         7379
  


----------------------- Page 29-----------------------

V.                                       CONCLUSION  



                                                                                 We REVERSE the termination of Charles's parental rights to Sierra and                                                                                                                                                                                                                                                                                                                                                                        



Chase, VACATE the termination of Marian's parental rights to Maya, Sierra, and Chase,                                                                                                                                                                                                                                                                                                                                                                                                                       



and REMAND this case for further proceedings consistent with this opinion.                                                                                                                                                                                                                                                                                                                                                         



                                                                                                                                                                                                                                                                                 -29-                                                                                                                                                                                                                            7379
  

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