Edna L. v. State, Department of Health & Social Services, 122420 AKSC, S-17485

Docket Nº:S-17485, S-17505
Opinion Judge:MAASSEN, JUSTICE
Party Name:EDNA L., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. JOHN L., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
Attorney:Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, for Appellant Edna L. J. Adam Bartlett, Anchorage, for Appellant John L. Kimberly D. Rodgers, Assistant Attorney General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.
Judge Panel:Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices. STOWERS, Justice, with whom CARNEY, Justice, joins, concurring.
Case Date:December 24, 2020
Court:Supreme Court of Alaska

EDNA L., Appellant,

v.

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

JOHN L., Appellant,

v.

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

Nos. S-17485, S-17505

Supreme Court of Alaska

December 24, 2020

Appeal from the Superior Court of the State of Alaska, Nos. 3PA-18-00059/ 3PA-18-00089 CN Third Judicial District, Palmer, Vanessa White, Judge.

Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, for Appellant Edna L.

J. Adam Bartlett, Anchorage, for Appellant John L. Kimberly D. Rodgers, Assistant Attorney General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.

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

OPINION

MAASSEN, JUSTICE

I.

INTRODUCTION

A mother and father appeal the termination of their parental rights after proceedings in the Palmer Families with Infants and Toddlers Court (FIT Court). They argue that their rights were violated when the FIT Court's "rigid, non-fact driven," 12-month timeline governed the progression of the Child in Need of Aid (CINA) cases of their two children. We conclude that it was error to adhere to the FIT Court's preset timeline rather than making an individualized assessment of whether the parents had a reasonable time to remedy based on the facts of their children's cases, as required by statute. We further conclude that the parents did not knowingly and voluntarily waive that statutory requirement.

II.

FACTS AND PROCEEDINGS

Edna and John L.1 are married and have a daughter, Ann; Edna also had a son, Chris, from a previous marriage to Charles F.2 In early March 2018 the Office of Children's Services (OCS) took custody of six-year-old Chris after Edna and John were seen using drugs in Chris's presence. In late April OCS took custody of Ann shortly after her birth. Both children tested positive for drug exposure, and Chris was behind in school and in need of significant dental work. The children were placed with a foster family.

Edna and John had long struggled with substance abuse, and both received behavioral health assessments that recommended intensive outpatient or residential treatment. Early in their children's CINA cases both parents failed to follow through with their OCS case plans and continued using drugs. They missed scheduled urinalysis appointments, court hearings, and family team meetings.

A. The FIT Court Overview

The FIT Court is a therapeutic court in Palmer. Based on similar courts in other jurisdictions, its stated "primary goals are to achieve permanency within twelve months and to reunify young children with their families of origin." Families in pending CINA cases involving children under three years old are eligible to participate.

The FIT Court team consists of the FIT Court judge and project coordinator, "ICWA specialist, "[3] and representatives of various State entities: OCS, the Department of Law, the Public Defender Agency, and the Office of Public Advocacy. When an eligible family expresses interest in the court, the FIT Court team votes on whether to accept the case; the judge makes the final decision. Cases accepted into the FIT Court are assigned to the FIT Court judge.

Families are allowed to leave FIT Court until there is an adjudication that the child is in need of aid; at that point "the participants will no longer have the ability to opt-out of the therapeutic court." To ensure they understand this and other unique aspects of FIT Court, participants are given an opt-in form to sign, acknowledging that they "understand and agree to the program requirements." The form requires participants to initial a set of statements acknowledging that they "understand the goal of FIT Court is for the minor(s) to reach permanency in 12 months. Permanency means case closure through reunification, adoption, or guardianship"; they "understand FIT Court has an alternative hearing schedule, which includes monthly court hearings and a permanency hearing at 6 months"; and they "understand that [their] case will not return to regular Child in Need of Aid (CINA) proceedings. It is not possible to opt-out post adjudication. This is different from other therapeutic courts."

Having committed to this expedited process, FIT Court participants receive increased attention from caseworkers. An assigned team works to support the parents in getting the help and services they need. FIT Court participants work through four phases: (1) "Evaluation of Needs," which takes "approximately three months" and in which "the participant's goal is to engage in services" such as parenting classes, substance abuse assessments, urinalyses, visitation, and therapy; (2) "Putting Plans into Action," "an ongoing phase where the participant is learning and problem solving, building on family strengths, and fully engaged in services"; (3) "Stability," in which the participants are finishing classes, are "fully engaged in services," and, if reunification is still an option, are "ready for reunification"; and (4) "Graduation," at which point "permanency has been achieved and there is no further need for the Court's intervention."

B. Proceedings

1. Ann's probable cause hearing

The superior court held an emergency probable cause hearing for Ann on May 3, 2018.4 The court asked Edna and John to consider participating in FIT Court, explaining the court's "two-fold" mission:

First to serve families with infants and toddlers with much more significant wraparound services for the entire family. So, in your circumstance, given the allegations in the petition, that might include substance abuse treatment, it might include mental health treatment. It almost always includes what we call child-parent psychotherapy ....

[The FIT Court] is a court where we're also trying to make sure that these babies achieve permanency within a year's time.... [0]ne of the primary goals of this program is to promote permanency within one year's time.

And secondarily, the reason for all of these wraparound services is to promote reunification of the child with the parents whenever that can be done safely. So, the focus is on getting the case resolved within a year. And whenever possible, having that.. .resolution be reunification of the child with the family.

The probable cause hearing was continued, and a week later both Edna and John indicated their interest in FIT Court. The court informed them that they would be the seventh family to participate and explained that they would have to work hard on their case plans, be honest, and ask for help when they needed it. In return, the court told them, the FIT Court team would work hard for them and "lift [them] up":

As long as you do your part, I promise you, the team will do their part. And they will be honest with you at all times. This is a tough program, too, because there's no time to waste. If you're admitted into the FIT Court, you have to hit the ground running in terms of working the items on your case plan, because we're going to get [Ann] to permanency with you or without [you] within 12 months of the date she was removed. So, there is no time to waste.

2.

The Fit Court opt-in in Ann's case

The court had an official FIT Court opt-in hearing for Ann's case on May 22, 2018. The court walked through all the items on the "FIT Court opt-in checklist" before making a finding that both of Ann's parents, Edna and John, were "entering into the FIT Court freely, voluntarily, and intelligently, both with the advice of competent counsel." The court explained that "some determinations about permanency" would be made "in about six months' time": "At the six-month mark, if you're not in a home visit or close to a home visit, then the case may convert from one where we're focusing on reunification to where we're focusing on adoption for [Ann]." The court reiterated that "our goal is permanency in 12 months," emphasizing the FIT Court's higher-than-traditional success rate: "and by success I mean reunification and no repeat maltreatment."

Edna's attorney informed the court, "[Edna] knows what she's getting into, and we had a long meeting with the parents last week and discussed some serious expectations of this family. And I think that they are committed to that."

3.

Ann's adjudication as a child in need of aid and the FIT Court opt-in in Chris's case

Ann's adjudication as a child in need of aid occurred on July 13, 2018.5 Both Edna and John stipulated through their attorneys - and the court subsequently found-that Ann was a child in need of aid under AS 47.10.011 (10) because of parental substance abuse.6 Edna's attorney informed the court that Edna intended "to stipulate to adjudication and disposition without admission under subsection ten." The attorney explained, "She understands this is her fish-or-cut-bait moment that she is intending to stay in the FIT Court and work the program."

The court turned to John, whose counsel was not present at the hearing, and asked whether he had also "had a chance to talk to [his attorney] about the fish-or-cut-bait part of. .. adjudication." John responded, "Yes." The court continued: I'm going to spend just a minute making sure that we have a good record and you understand[I]f you weren't in FIT Court, you would have the right to a hearing [on adjudication]. At that hearing, [OCS] would present evidence, and I would make a determination after the evidence was presented and you had a chance to cross-examine the witnesses as to whether or not it was more likely than not that [Ann] was a child in need of aid under the substance abuse section of the Child in Need of...

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