Alina P. v. State, Dep't of Family & Children's Servs.
| Docket Number | S-18702,2006 |
| Decision Date | 24 January 2024 |
| Parties | ALINA P., Appellant, v. STATE OF ALASKA, DEPARTMENT OF FAMILY & CHILDREN'S SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. |
| Court | Alaska Supreme Court |
1
ALINA P., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF FAMILY & CHILDREN'S SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
No. S-18702
No. 2006
Supreme Court of Alaska
January 24, 2024
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Superior Court No. 3AN-21-00533 CN Anchorage, Yvonne Lamoureux, Judge.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, for Appellant.
Kimberly D. Rodgers, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellee.
Before: Carney, Borghesan, and Henderson, Justices.
[Maassen, Chief Justice, and Pate, Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT [*]
I. INTRODUCTION
Alina's son Kendrick was taken into emergency custody by the Office of Children's Services (OCS) shortly after his birth.[1] He tested positive for several
controlled substances and was experiencing symptoms of opiate withdrawal. OCS later petitioned to terminate Alina's parental rights. After trial the superior court terminated Alina's parental rights. Alina appeals, arguing that OCS failed to make reasonable efforts to reunify her with Kendrick. We affirm the termination order.
II. FACTS AND PROCEEDINGS
A. Facts
Kendrick was born to Alina P. and Donald A. in December 2021. His parents were living with Alina's grandmother, Vera, and had done so throughout Alina's pregnancy. Donald had committed domestic violence against both Alina and Vera.[2] In June 2021 Vera obtained a domestic violence protective order (DVPO) against Donald after he assaulted her. The order required him to stay 500 feet away from Vera's home where Alina was also still living. In August Donald violated the DVPO and an arrest warrant was issued, but the DVPO was dissolved in November at Vera's request. Donald was arrested on the warrant in December and released on conditions, including that he not go near Vera's home. Donald nonetheless moved back into Vera's home.
When Alina arrived to the hospital in labor in December, she reported that bruising on her body was from Donald. She told hospital staff that Donald had assaulted her "at least three times" while she was pregnant and that he "puts his hands" on her when he "blacks out."
When Kendrick was born, he experienced symptoms of opiate withdrawal and his umbilical cord tested positive for opiates, amphetamines, and cannabinoids. Alina told a hospital social worker that she used heroin daily during her pregnancy. Hospital staff provided her information for drug treatment, including a suboxone program.
Hospital staff reported their concerns about substance abuse and domestic violence to OCS. An OCS caseworker spoke with Alina at the hospital three days after Kendrick's birth. The caseworker discussed OCS's concerns about ongoing substance abuse and domestic violence. The caseworker explained that it would therefore be "really hard" to create a safety plan so that Kendrick could go home with Alina. The caseworker later testified that a safety plan "cannot be put in place unless [OCS] can fully manage child safety in the home." OCS asked Alina about family members who could care for Kendrick, and Kendrick was placed with Alina's uncle and aunt.[3]
OCS took emergency custody of Kendrick when he was 5 days old. In its petition OCS cited Alina's ongoing use of heroin, Donald's history of domestic violence, and Vera's allowing Donald back into the home as the basis for emergency custody.
The superior court held a hearing on the emergency petition the next day and entered "provisional" findings that Kendrick was in need of aid due to Alina's domestic violence and substance use in the family home.[4] Alina did not attend the hearing. At a continued hearing in January the court entered probable cause findings. Alina again did not attend the hearing. The caseworker scheduled a visit for Kendrick and his parents that both parents attended. Alina did attend a status hearing in February and was appointed counsel.
A second caseworker replaced the initial one in February. Two visits were cancelled due to weather before another was scheduled in late February. Alina did not attend the visit; she later told OCS she had become sick on the way and could not call because she lost her cell phone in the car. Alina and Donald both attended a visit in March.
After being unable to contact Alina, the second caseworker met her in person when Alina came to the OCS building for the March visit. The caseworker confirmed that Alina's contact information was correct. But the caseworker later testified that visitation "just kind of stopped" after March 2022 and that Alina stopped responding to the OCS worker coordinating check-ins for visits. The caseworker was unable to reach Alina again until July, despite making calls and sending emails "every couple weeks, every month."
OCS also scheduled a case planning meeting in March 2022, but Alina did not attend, so the caseworker prepared a case plan for Alina without her and sent the plan to Alina's attorney. The case plan required Alina to: (1) obtain an integrated substance abuse and mental health assessment and follow the assessor's recommendations; (2) participate in weekly urinalysis; (3) take parenting, healthy relationship, and domestic violence classes; and (4) maintain contact with Kendrick and develop a familial bond with him.
Alina did not meet with the second caseworker about her case plan, and the caseworker later testified that, to her knowledge, Alina had not engaged in services to address OCS's safety concerns during that time period. The caseworker stated that Alina visited OCS monthly between February and August 2022 to pick up bus passes but did not speak to anyone regarding Kendrick's case.
A third caseworker took over in September 2022 and remained assigned to the case through the time of trial. At that time neither parent was in contact with OCS, and neither had visited Kendrick since March. During the first hearing that the caseworker attended, the court told Alina to remain on the phone to speak with the caseworker after the hearing. But Alina did not. The caseworker then tried to reach Alina by phone and through other family members without success. The caseworker also searched OCS records and state databases for Alina's contact information.
In November OCS filed a permanency report recommending that Kendrick's permanency goal be changed from reunification to adoption. The report
noted that neither parent had made progress on case plans or behavioral changes and that neither had visited Kendrick since March 2022. The next day OCS filed a petition to terminate Alina's and Donald's parental rights.[5] The petition described OCS's difficulty contacting the parents, their lack of engagement with case plans, and OCS's efforts towards the parents.
Alina was incarcerated from mid-December to early February. There is no evidence that OCS arranged any visits or referred her to any services that were available while she was incarcerated.
In January the caseworker prepared updated case plans without either parent's participation. The caseworker later testified that when she updated Alina's case plan, she had no reason to believe Alina had engaged in any of the needed services. The caseworker reached Alina in February through Vera and scheduled a case planning meeting. But Alina did not show up, so the caseworker again updated the case plan herself. The caseworker scheduled a visit with Kendrick for both parents in March 2023, but Alina did not attend, even though she had confirmed the date and time.
B. Proceedings
A two-day termination trial was held in March 2023. OCS called four witnesses: the three caseworkers and Kendrick's foster mother. Donald called a staff member from the rehabilitation facility where he was staying and testified on his own behalf.[6] Alina testified on her own behalf.
The first caseworker testified that setting up a safety plan with Alina instead of removing Kendrick was not possible because OCS could not "safely manage a child['s] safety if . . . someone is actively using heroin or methamphetamine." The caseworker also noted her concern about domestic violence because "[t]he grandmother
. . . filed a restraining order and then dropped it. So, that is someone that is not being protective .... [Vera] was allowing [Donald] to live there." The caseworker went on to explain that a safety plan would have required ensuring that Donald was not in the home and Alina would need to provide consistent negative drug tests "before we would even...
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