Jacoby C. v. State
| Decision Date | 20 April 2022 |
| Docket Number | S-18147 |
| Court | Alaska Supreme Court |
| Parties | JACOBY C., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. |
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court No. 3AN-18-00456 CN of the State of Alaska, Third Judicial District, Anchorage, Jennifer Henderson, Judge.
Claire F. DeWitte, Assistant Public Defender, and Samantha Cherot Public Defender, Anchorage, for Appellant. Kimberly D Rodgers, Assistant Attorney
General, Anchorage, and Treg R. Taylor, Attorney General Juneau, for Appellee.
Before: Winfree, Chief Justice, Maassen, Carney, and Borghesan, Justices. [Henderson, Justice, not participating.]
A father appeals the termination of his parental rights, arguing that the Office of Children's Services (OCS) failed to make active efforts to reunify him with his child as required by the Indian Child Welfare Act (ICWA). In particular, he argues that OCS's efforts in the second half of the case did not cure its failure to make active efforts in the first half of the case. Because the superior court did not err when it found that OCS had made active efforts overall, we affirm the termination of parental rights.
Jacoby and Bria are the parents of four-year-old Julien.[1] Julien is an "Indian child"[2] as defined by ICWA.[3] OCS took custody of Julien in September 2018 after receiving reports of domestic violence, parental neglect, and substance abuse. OCS placed Julien in a foster home with his older brother.[4]
The assigned caseworker created a case plan for both parents in October 2018. After an initial meeting with both parents, the caseworker was unable to contact Jacoby until April 2019. The plan required each of them to obtain a substance abuse assessment and follow the assessment's recommendations, submit to random urinalyses and hair follicle testing, participate in parenting classes, and work with a peer navigator. The caseworker made referrals for substance abuse assessments, hair follicle testing, and urinalyses and arranged for family visitation. The caseworker was frequently unable to reach Jacoby, and Jacoby did not initially follow up on the referrals for hair follicle testing or urinalyses. Jacoby did not visit Julien regularly.
Between September 2018 and February 2019, Jacoby was charged with various criminal offenses. He was in jail from December 2018 until June 2019 and again in August and September 2019 for violating his conditions of release.
During Jacoby's first period of incarceration, the caseworker met with him twice and Jacoby completed a substance abuse assessment through the Department of Corrections. The assessor diagnosed him with severe opioid and amphetamine use disorders in early remission and recommended that he participate in a high-intensity residential treatment program. After Jacoby's release, the caseworker met with him to update the case plan and referred him for intake appointments with substance abuse and parenting programs, both of which he completed. Jacoby engaged sporadically in substance abuse treatment but relapsed frequently.
The caseworker documented little more than providing referrals for Jacoby. There were seven months during which the caseworker did not document any efforts toward Jacoby.
The caseworker documented some efforts toward Bria, who was more engaged with her case plan than Jacoby. The caseworker arranged family visits, including some unsupervised visits between Bria and Julien. OCS also contacted Julien's tribe and several relatives to try to find a suitable permanent placement.
In March 2020 the case was transferred to a second caseworker. The caseworker attempted to contact Jacoby beginning in March but was only able to arrange a meeting in July, and otherwise was often unable to reach him. When the caseworker was able to reach him, Jacoby reported that he continued to abuse substances but also said he wanted to re-engage with his case plan. The caseworker monitored Jacoby's compliance with the case plan, discussed Jacoby's goals with him and suggested options tailored to those goals (such as employment services and different options for treatment for heroin and methamphetamine use), offered Jacoby bus passes that he refused, and arranged for urinalyses. In a September 2020 meeting, Jacoby stated that he did not need further assistance from OCS. Jacoby stopped visiting Julien altogether in late 2020.
Jacoby was incarcerated again in December 2020 and was in and out of custody through May 2021. The caseworker was able to reach Jacoby by phone at the jail and just after his release in May 2021.
The caseworker contacted Bria regularly, updated her case plans and monitored her progress, discussed counseling options, and offered to help with other services. The caseworker often made Bria responsible for setting up her own services. Like Jacoby, Bria in September 2020 "indicated there was not anything else OCS could do to assist her [and] she knew what she needed to do."
The caseworker continued OCS's efforts to find relatives who could provide a home for Julien, explaining the process to some of Jacoby's relatives. In October 2020 OCS filed a petition to terminate both parents' parental rights, alleging that they had failed to remedy the conduct and conditions that had placed Julien at risk. A termination trial was held over two days in June and July 2021.
OCS called the first caseworker's supervisor as a witness because the caseworker was no longer employed by OCS. The supervisor admitted that, based on what was documented in the OCS database, it did not seem that the caseworker made "consistent attempts to reach out to [Jacoby]." She was unable to confirm whether OCS had sent collateral information to substance abuse providers or whether the caseworker provided updated referrals after Jacoby's relapses. On cross-examination she admitted "there were at least seven months" without documented efforts, though she suggested there might have been informal communications, such as text messages, between the caseworker and Jacoby. She also noted there was an email in September 2019 from Jacoby stating he had been trying to reach the first caseworker "for some time" and asking for a call back, but there was no documentation that the caseworker contacted Jacoby at that point.
The supervisor testified that there were "a lot more efforts with [Bria]," who was easier to contact and who engaged with her case plan to some extent. According to the supervisor, the caseworker had tried to ensure quality family visits by "getting creative" and "expanding" opportunities, such as arranging unsupervised visits between Briaand Julien, making plans to switchtoa"family-friendly environment" once initial visitation progressed well, and planning a trial home visit.[5]
The supervisor also testified that the first caseworker had worked with Julien's tribe and had sent letters to 15 relatives to try to find one who could serve as Julien's foster parent. The supervisor admitted on cross-examination that the OCS file indicated that it was not until September 2020 that OCS had followed up on a March 2019 request fromJacoby's sister to place Julien with her; the caseworker acknowledged it was OCS policy to follow up on such a request, conduct background checks, and make a decision within 45 days.
The second caseworker testified about his efforts to meet with and assist Jacoby. The caseworker noted that, when he could not reach Jacoby directly, he would try to go through "collaterals" such as Bria or other family members, or to use alternate methods such as email or different phone numbers, and eventually in early 2021 he contacted shelters and a soup kitchen to try to reach Jacoby. The caseworker claimed that, though he often asked what else Jacoby needed, Jacoby "always knew what he needed to do" and by September 2020 said he did not need any further referrals or support from OCS. The caseworker testified that after the first trial day in June 2021, Jacoby contacted him for information on substance abuse treatment options. The caseworker stated that he "gave [Jacoby] some phone numbers" and that from the case notes it appears the caseworker told Jacoby he could call the providers directly, but "it looks like he didn't want to talk." The caseworker offered more referrals and asked if OCS could do "anything else," but Jacoby indicated that he would follow up later. He then became unreachable.
The caseworker acknowledged that when Jacoby was incarcerated, it was more difficult to meet with him and Jacoby's ability to participate in the case plan was limited. But ultimately, the caseworker opined, Jacoby did not progress on his case plan "because of his lack of contact, his lack of consistency with visitation," and his failure to "engage[] in the services."
The second caseworker also testified he triedto provideservices to Briaand that he continued to look for relatives who could provide a home for Julien. The caseworker stated he had detailed conversations with members of Jacoby's family to explain the foster care licensing process and how to seek a variance if they were denied. He said he tried to encourage Jacoby's mother and sister to follow through with the licensing process but they were each denied due to safety concerns.
Jacoby's solewitness, his mother, testified that bothcaseworkers had failed to explain and facilitate the process for her applying to become Julien's foster parent.
The superior court terminated Jacoby's parental rights finding clear and convincing evidence that Julien was a child in need of aid due to Jacoby's abandonment and substance abuse and that Jacoby had...
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