Charlotte L. v. State, Department of Health & Social Services, 122618 AKSC, S-17032

Docket Nº:S-17032
Party Name:CHARLOTTE L., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
Attorney:Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Shelley J. White, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
Judge Panel:Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.
Case Date:December 26, 2018
Court:Supreme Court of Alaska
 
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CHARLOTTE L., Appellant,

v.

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

No. S-17032

Supreme Court of Alaska

December 26, 2018

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court Nos. 4BE-15-00019/ 00020/00041 CN of the State of Alaska, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge.

Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

Shelley J. White, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.

MEMORANDUM OPINION AND JUDGMENT [*]

I. INTRODUCTION

A mother appeals a superior court ruling approving the Office of Children's Services' (OCS) removal of her three children from foster care with their paternal grandparents. She first challenges the court's finding that she failed to show by clear and convincing evidence that the removal was contrary to the children's best interests. We conclude that the superior court's finding was not clearly erroneous. She also contends - although she did not make this argument to the superior court - that the court failed to make additional findings arguably required by the Indian Child Welfare Act1 (ICWA). We conclude that, in the context of this case, the superior court did not err. We therefore affirm its decision.

II. FACTS AND PROCEEDINGS

A. Family History And Involvement With OCS

Charlotte L. and Jack F.2 are parents to three Indian children within the meaning of ICWA.3 Until recently the entire family resided in Tuntutuliak. OCS's history with the children dates to 2004, generally involving reports of neglect and physical abuse accompanied by the parents' intoxication.

In 2015 OCS filed petitions to adjudicate the parents' then-four children as in need of aid and remove them from Charlotte and Jack's custody after one of the children was found wandering the Anchorage airport; Jack was located nearby, heavily intoxicated and unable to care for the child. OCS filed an emergency petition in Anchorage for the child it had taken into emergency custody at the airport.[4] OCS filed a non-emergency petition in Bethel for custody of the other children in Tuntutuliak.5 The superior court later adjudicated all of the children as in need of aid and placed them in OCS's legal custody, 6 but ordered them returned to their parents' physical custody under OCS's supervision on a number of conditions, including that the parents not consume alcohol or have it present in their home.7

Charlotte and Jack's oldest daughter drowned a week later during a boating trip; Charlotte and Jack were intoxicated during the incident. OCS then petitioned for removal of the three remaining children, and the superior court approved the removal. Eventually the children were placed with their paternal grandparents in Tuntutuliak.8

OCS's permanency plan for the children was to reunify them with their parents. After a December 2017 review hearing, the superior court ordered that the plan remain reunification, but the court extended OCS's legal custody until February 2018. The December order included a finding that OCS had made "active efforts" toward reunification but that neither Charlotte nor Jack had made progress toward this goal.9 The order also included a finding, stipulated to by the parents, that their continued custody would be "likely to result in serious emotional or physical damage to the child[ren]."[10]

On February 22, 2018, the superior court reaffirmed its findings from the December order and extended OCS custody until June. Neither Charlotte nor Jack at that time contested the custody extension or the underlying findings. The written order was circulated on February 27.

B. Removal Of The Children From Their Paternal Grandparents' Home In Tuntutuliak And Transfer To Bethel For Placement With Their Maternal Grandmother And Aunt

Meanwhile, on February 20 a state trooper received a tip that Charlotte and Jack were present with the children in the grandparents' home and that Jack was intoxicated and wielding a shotgun. The trooper called the grandparents' home and spoke to Jack's brother, who said that Jack was in the home with the children and that Jack had threatened Charlotte with a shotgun. Another trooper then was scheduled to fly to the village and check on the home.

On February 26 a Bethel OCS worker received a call from a Tuntutuliak coworker reporting that Charlotte and Jack were living with the children in the grandparents' home and that the children might need removed. The Bethel OCS worker decided to travel to the home to investigate, and she called the state troopers for an escort because of Jack's status as a "high threat" client. During the call she learned of the reported shotgun incident and the trooper's scheduled visit. On February 27 the OCS...

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