D.A.M. v. State, S-18241

CourtSupreme Court of Alaska (US)
PartiesD.A.M., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
Docket NumberS-18241
Decision Date31 August 2022

D.A.M., Appellant,
v.

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

No. S-18241

Supreme Court of Alaska

August 31, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court No. 1SI-20-00004 CN of the State of Alaska, First Judicial District, Sitka, Amy Mead, Judge.

Julia Bedell, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Appellant.

Katherine H. Lybrand, 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

A father appeals the termination of his parental rights, arguing the superior court erred by finding that he had abandoned his child and that the Office of Children's Services (OCS) made active efforts to reunify his family. We conclude the superior

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court did not err and affirm its termination order.

II. BACKGROUND

D.A.M. and K.J. are the parents of nine-year-old K.M.,[1] who is an "Indian child"[2] as defined by the Indian Child Welfare Act (ICWA).[3] OCS first became involved with K.M. in Sitka in 2012 after the newborn suffered withdrawal symptoms from his mother's drug use, but OCS had previously contacted K.J. and D.A.M. about their older children.[4] D.A.M. was in a relationship with K.J. at the time and raising K.M. with K.J. OCS created a safety plan with the parents and opened an in-home services case. Because of K.J.'s severe and continued drug use, D.A.M. took over care of their son in 2013. Although OCS received positive reports about D.A.M.'s parenting, it continued to have concerns about his drug use.

In 2016 OCS created an out-of-home safety plan for K.M. with an aunt in Juneau. When that arrangement failed, OCS filed a petition for temporary custody, which was granted. OCS placed K.M. with the aunt. Without the parents' participation OCS created case plans for each of them, identifying substance abuse and parenting concerns. When OCS was able to contact D.A.M., it offered him assistance scheduling

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mental health and substance abuse assessments, drug testing, bus passes to get to appointments, and monthly trips from Sitka to Juneau to visit K.M. D.A.M. did not participate in any of the services OCS offered, but he obtained a substance abuse assessment on his own, which diagnosed him with severe opioid use disorder. D.A.M. completed treatment in 2017, but he was discharged from the aftercare group for bragging about his continued alcohol and marijuana use.

After neither parent made progress on substance abuse issues, both D.A.M. and K.J. agreed to appoint D.A.M.'s mother as K.M.'s guardian in 2017. OCS then closed the case. But the guardianship was terminated in 2019 after D.A.M.'s mother began abusing substances and leaving K.M. with other people, including with D.A.M. for two months in early 2018. OCS reopened the case, but closed it again after K.M.'s aunt was appointed co-guardian and resumed caring for him in Juneau. OCS reopened the case in late 2019 when the aunt requested to be removed as guardian.

OCS concluded that it was not safe to return K.M. to his parents because both were still abusing substances and D.A.M. had not participated in any scheduled visitation, was homeless, and was often unreachable. In November 2019 K.M. was placed with foster parents in Sitka, who are distant relatives. OCS continued to attempt to provide services to the family including case plans, visitation, referrals and assistance with treatment and transportation, coordination with K.M.'s Tribe,[5] and efforts to maintain contact with both K.J. and D.A.M.

OCS made numerous attempts to contact D.A.M. to engage him in case planning and reunification efforts. Caseworkers testified that they tried various phone numbers from which D.A.M. had previously called, sent letters to last known addresses

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in Sitka and Juneau, and asked the Tribe, K.J., the foster family, and others to provide D.A.M.'s contact information to OCS and to encourage D.A.M. to contact OCS caseworkers if anyone heard from him. OCS also assigned a secondary caseworker to arrange monthly visits between K.M. and D.A.M. Caseworkers were unable to contact D.A.M. and he did not try to contact them. D.A.M. did not otherwise try to arrange scheduled or informal visits; his only in-person contact with K.M., besides occasional chance meetings in the community, were an unannounced visit to the foster home and attending one of K.M.'s football games in 2020.

In November 2020 OCS petitioned to terminate K.J. and D.A.M.'s parental rights. A combined adjudication and termination trial was held May 18 and 19, 2021. OCS presented testimony from three caseworkers, K.M.'s aunt, his foster mother, D.A.M., and an expert witness on child welfare and family reunification. D.A.M. did not call any witnesses.

The first caseworker testified about OCS's long involvement with the parents beginning with their older children. The caseworker testified about the various services OCS had provided to K.J. since 2010. The caseworker also detailed the services D.A.M. received when he was caring for K.M., including referrals for behavioral health assistance, bus passes, basic supplies such as diapers and clothing, and assistance contacting in-home early learning program services. She testified that whenever possible, OCS worked to keep the family together by offering in-home safety planning or out-of-home safety planning during periods of guardianship or OCS custody, which included meeting with the parents to discuss expectations and offering drug testing, supervised visitation, and connections to social and tribal services.

The caseworker testified that when OCS reopened K.M.'s case in 2019 after his aunt asked to terminate the guardianship, OCS was unable to reestablish contact with D.A.M. She testified that she attempted to reach D.A.M. in various ways: asking the

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police department, the Tribe, the foster parents, and K.J. if they had contact information and asking them to let D.A.M. know that OCS was looking for him if they encountered him; checking to see if D.A.M. was incarcerated or had any scheduled court dates; and sending letters to D.A.M.'s last known addresses in Juneau and in Sitka. The caseworker testified that OCS was not sure whether D.A.M. was staying in Sitka or moving back and forth between Sitka and Juneau as he had done previously. The caseworker testified that D.A.M. could have reached OCS in many ways, including visiting the Sitka OCS office in person, which remained an option even during the COVID lockdown.

Another caseworker also testified about his efforts to contact D.A.M. during this time and that he was unable to identify a mailing address, find a Facebook profile, or get D.A.M.'s contact information from other members of the family. The caseworker testified that K.M. and his guardians and foster parents reported D.A.M. only "sporadically" called during the guardianship or OCS custody periods, and he would occasionally run into K.M. in the community.

The secondary caseworker testified that she had not been able to create a visitation plan for D.A.M. because she could not reach him. K.M.'s aunt and his foster mother each testified that D.A.M. rarely visited K.M. and described difficulty reaching D.A.M.

D.A.M. acknowledged he was difficult to contact because he did not have a permanent number or a permanent address and that he knew OCS was looking for him but he did not contact OCS. D.A.M. testified that he had previous arguments and "misunderstandings" with OCS when he contacted them directly, so he preferred to communicate only through his lawyer.

D.A.M. also acknowledged that he did not regularly visit K.M. He testified that contact was difficult because he did not have a reliable phone, he moved often, he did not know the foster parents' number or their address, and he believed the OCS office

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was closed during the pandemic. D.A.M. testified that he was "not sure" if his lack of consistent visits affected K.M. and that he did not believe the instability in K.M.'s life had an impact on the child's wellbeing. D.A.M. testified that he had not tried to find housing or employment but that he would do so once OCS returned K.M. to him.

The expert witness testified that K.M. faced a "serious risk of physical or emotional harm if returned" to his parents due to their substance abuse and D.A.M.'s failure to maintain consistent and reliable contact with K.M. She testified that both factors could result in K.M. feeling instability and having difficulty forming healthy attachments. The expert testified that D.A.M.'s "lack of emphasis on making sure that he is involved with his son despite his resource issues" indicated he had not remedied OCS's safety concerns.

The court concluded that OCS had proven the required elements to terminate both parents' rights to K.M.[6] The court found that there was clear and convincing evidence K.M. was a child in need of aid due to abandonment[7] and parental

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substance abuse.[8]

The court found that D.AM.'s behavior constituted abandonment under three separate statutory subsections[9]: D.AM, had not "provided any support or consistently maintained contact with K.M. for well over six months" or indeed "ever maintained regular visitation while K.M. has been in the State's custody"[10]; moreover, he "failed to engage in any efforts towards securing visitation . . . through OCS" or in "meaningful case planning."[11] The court found that, despite having positive interactions with K.M., D.A.M. acted more like "a favored . . . uncle" rather than developing "the kind of parent/child relationship expected under the law." And the court found that D.AM, did not "acknowledge[] the negative effect this has had on [K.M.]."

The court found...

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