Alyse B. v. State, S-18297

CourtSupreme Court of Alaska (US)
PartiesALYSE B. (Mother), Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
Docket NumberS-18297
Decision Date30 November 2022

ALYSE B. (Mother), Appellant,
v.

STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

No. S-18297

Supreme Court of Alaska

November 30, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court of the State of Alaska No. 3AN-19-00490 CN, Third Judicial District, Anchorage, Peter Ramgren, Judge.

Megan M. Rowe, Alaska Legal Drafting, Anchorage, for Appellant.

Kevin A. Higgins, Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellee.

Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.

MEMORANDUM OPINION AND JUDGMENT [*]

I. INTRODUCTION

After a mother was incarcerated for violating conditions of her probation, the Office of Children's Services (OCS) took custody of her month-old daughter. The mother was in punitive segregation for much of the subsequent child in need of aid (CINA) proceedings, and she was expelled from classes to which OCS referred her.

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After her release the mother completed a substance abuse assessment and had some visitation with her daughter, but after an in-person visit was cancelled she stopped communicating with OCS. The superior court terminated her parental rights following a trial at which she did not appear.

The mother now appeals, arguing that the superior court erred by finding that OCS made reasonable efforts to reunify the family, that the superior court erred by finding she failed to remedy the conditions that placed her daughter at risk of harm, and that she was denied effective assistance of counsel. We see no error and therefore affirm the termination order.

II. FACTS AND PROCEEDINGS

A. Background

Alyse B.,[1] whose parental rights are at issue in this appeal, is the daughter of a woman whose own parental rights were terminated in 2015[2] As we described in our opinion in that case, Alyse was subjected to extreme physical abuse and torture by her father before OCS took custody of her at age 14;[3] OCS also suspected that Alyse had been sex trafficked by her mother. In January 2018, when Alyse was 18, the federal government charged her with conspiring to produce and possess child pornography because of her alleged involvement in the sex trafficking of her younger sister. Alyse was placed on ankle monitoring and home detention; her conditions of release included requirements that she abstain from substance use, participate in drug testing, have no contact with minors, including her biological sisters, and live apart from her biological

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mother.

Alyse became pregnant with her daughter, Octavia, later that year. When Alyse was approximately three months pregnant she was shot in the stomach by the child's father, Trace. Both mother and child survived, and the baby was born in July 2019. A month later Alyse was arrested for violating conditions of her probation, including testing positive for cocaine, marijuana, and alcohol and residing with her mother and sister.

B. OCS Involvement

OCS took emergency custody of Octavia "due to [Alyse's] substance use ...[,] charges of child pornography," and the fact that both Alyse and Trace were now incarcerated. OCS took Octavia for a medical screening, which showed cocaine exposure, then placed her in a foster home.

The first OCS caseworker assigned to the case spoke with the OCS liaison at Hiland Correctional Center, where Alyse was incarcerated, about the services that were available, then recommended that Alyse obtain a substance abuse assessment and attend parenting and anger management classes. The caseworker testified that he spoke with Alyse a number of times and sent her pictures of Octavia but was informed by the OCS liaison that Alyse was not permitted to have contact with Octavia because of the nature of the federal charges pending against her.

A second OCS caseworker, assigned to the case in September 2019, also testified that she spoke with Alyse regularly and sent her pictures of Octavia. She created Alyse's first case plan in October. It recommended that Alyse complete a substance abuse assessment and follow its recommendations; complete a mental health assessment and follow its recommendations; submit to urinalysis; complete a sexual risk assessment and follow its recommendations; attend individual counseling; attend parenting, anger management, healthy relationships, and domestic violence classes; find

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and maintain employment and housing; and maintain contact with Octavia. The caseworker testified that she discussed this case plan with Alyse and sent her a copy.

The caseworker testified that for a time Alyse was "good at reaching out ... and maintaining contact" with OCS and attending classes, but that the OCS liaison at Hiland reported that after the onset of the pandemic in early 2020, Alyse was placed in punitive segregation because of behavioral issues, and lost access to the classes. The caseworker continued to communicate with Alyse and updated the case plan in March 2020, though the recommendations remained the same as before. The record reflects that OCS prepared additional case plans in September 2020, March 2021, and May 2021.

Alyse was released from custody in April 2021. The caseworker continued to communicate with Alyse and made referrals to various organizations for substance abuse help and case management services, healthy relationships and parenting classes, and a substance abuse assessment. Alyse attended the substance abuse assessment but did not engage in any of the recommended treatment. Between April and June she had several videoconference visits and one in-person visit with Octavia. In July OCS agreed to allow her and her sisters to visit Octavia on the child's second birthday, but Alyse's federal probation officer did not approve the contact and the visit was cancelled.[4]

The caseworker testified that despite continuing to reach out and send Alyse photos, she last heard from Alyse on July 26,2021. The caseworker stayed in touch with Alyse's probation officer, who reported that he had also been unable to contact her but had learned she had tested positive for marijuana "a couple of times" and was asked to

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leave her new j ob after ten days, in part because of her employer's concerns that she was engaged in sex work again.

C. Proceedings

1. Preliminary proceedings

An emergency probable cause hearing was first held in August 2019. The court determined that Octavia was a child in need of aid and stated its intent to appoint an attorney to represent Alyse. The Office of Public Advocacy (OPA) contracted with attorney Paul Tony to represent her.

Tony asked for continuances repeatedly throughout the case's early stages on grounds that he had not had the opportunity to speak with his client. After he failed to appear at two consecutive hearings, the court scheduled a representation hearing. Tony did not appear at that hearing either, and the court ordered OPA to provide Alyse with a different attorney. In March Olivia Mackin assumed the representation.

The court held a permanency hearing in August 2021. Mackin noted the cancellation of Alyse's second in-person visit with Octavia based on the probation officer's failure to approve it, and she requested leave to file an objection to the cancellation. The court gave the parties ten days to file any objections, but it does not appear that any were filed.

2. Termination trial

A termination trial was held in late September 2021. Alyse was not present, and OCS had not been able to reach her for several months. OCS called Octavia's two caseworkers to testify.

In closing argument OCS contended that it had "immediately engaged in case-planning services for [Alyse]" and its case plans "were reasonably outlined" with "no real surprises as to what was being required of [Alyse]." It argued that Alyse's engagement with OCS's recommendations was "thwarted and complicated by her

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continued placement in segregation and being kicked out of programs offered to her by the Department of Corrections [(DOC)]." It argued that after Alyse was released, she was given one "last chance to work on a reunification plan" but "appeared to abandon attempts to reunify with [Octavia]." Octavia's guardian ad litem agreed with OCS's position.

Mackin emphasized that Alyse was in custody for the majority of the case, and "[w]hen she got out, she was doing well and... was very much looking forward to her second in-person visit with [Octavia]." As evidence of OCS's lack of reasonable efforts to reunify the family, Mackin pointed to the cancellation of Alyse's second in-person visit with her daughter and OCS's subsequent failure to advocate for more visitation.

3. Order terminating Alyse's parental rights

At the close of the evidence the court placed its decision on the record, following up with a later written order. The court found that Octavia remained a child in need of aid pursuant to both AS 47.10.011(1) (abandonment) based on Alyse's failure to engage in her case plan and AS 47.10.011(10) (substance abuse) based on Octavia's positive test for cocaine at birth and Alyse's failure to "achieve[] lasting sobriety." The court found clear and convincing evidence that Alyse had failed to remedy the conduct or conditions that placed Octavia at risk of harm. The court acknowledged that it was difficult for Alyse "to fully engage and address the issues that OCS is asking [a] person to address" while incarcerated, but it found that she "show[ed] a conscious and willful disregard of parental responsibilities toward the child by failing to participate" in the services to which she was referred. The court found that OCS made reasonable efforts to reunite Alyse and Octavia based on the services OCS offered both while Alyse was incarcerated and after her release. Finally, based on Octavia's need for permanency and the unlikelihood of...

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