Mona J. v. State, Dep't of Health & Soc. Servs., S-18049

CourtSupreme Court of Alaska (US)
Writing for the CourtMAASSEN, JUSTICE.
PartiesMONA J., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
Decision Date10 June 2022
Docket NumberS-18049

MONA J., Appellant,
v.

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

No. S-18049

Supreme Court of Alaska

June 10, 2022


Appeal from the Superior Court of the State of Alaska No. 4BE-17-00064 CN, Fourth Judicial District, Bethel, Nathaniel Peters, Judge.

Rachel E. Cella, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Appellant.

Kimberly D. Rodgers and David A. Wilkinson, Assistant Attorneys General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellee.

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

OPINION

MAASSEN, JUSTICE.

I. INTRODUCTION

The superior court terminated a mother's parental rights to her two children. Because the children are Indian children as defined by the Indian Child Welfare Act

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(ICWA), the Office of Children's Services (OCS) was required to make active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the family before the mother's rights could be terminated. The superior court found clear and convincing evidence that OCS satisfied this requirement, although OCS's efforts were ultimately unsuccessful.

The mother appeals, challenging only the active efforts finding. She asks us to overturn precedent allowing courts to consider a parent's noncooperation and the resulting futility of OCS's actions when determining whether OCS satisfied the active efforts standard. She argues in the alternative that even under existing law the superior court's active efforts finding was erroneous. We agree with the mother that the court erred by stating that active efforts "are dependent on [the mother's] willingness to engage"; the active efforts inquiry depends primarily on OCS's efforts, not the parent's reaction to those efforts. We take this opportunity to clarify the extent to which a parent's noncooperation is relevant to the active efforts analysis. And although we disagree in part with the superior court's approach in this case, we independently conclude that OCS's efforts satisfy the active efforts standard, and we therefore affirm the termination order.

II. FACTS AND PROCEEDINGS

A. Background And Initial Contact With OCS

Mona is the mother of Anders (born in 2013) and Vera (born in 2015), [1] who are "Indian children" as defined by ICWA.[2] Mona is no longer in a relationship

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with the children's father, Jared, who voluntarily relinquished his parental rights at the termination trial.

OCS first became involved with Mona's family in December 2016, after she repeatedly asked a nonprofit family support center to help her with her children. In January 2017 Mona met with an OCS worker at an Anchorage domestic violence shelter. She explained that she lacked reliable family support in Anchorage, was taking medication for depression and anxiety, and was feeling overwhelmed. Anders had been behaving aggressively, which Mona attributed to his exposure to domestic violence, and Vera had begun copying his misbehavior. OCS offered Mona resources, including a bus pass to help her get to appointments, but Mona declined the offer.

Mona sought OCS's help again the next day, seeking a temporary alternative caregiver for her children. OCS contacted Mona's tribe and the children's paternal grandmother, Ruth, who lived in Bethel, and planned for the children to go to Bethel to temporarily live with Ruth. Before the flight, however, Mona contacted OCS and said she would keep the children with her in Anchorage instead. OCS attempted to contact Mona a few more times that month, but she did not return its calls.

B. Mona's Initial Assessment

OCS next met with Mona in June 2017 at a Bethel shelter; Mona had just left her village because of a lack of support there. She told the OCS caseworker that she had been using tramadol, a synthetic opioid, for about two years due to stress and had last used it a few days before. The caseworker later testified that during the encounter Mona's children were unruly and "not really listening to [Mona]," and Vera had a bruise

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near one eye. Six days later Mona returned a call from the caseworker and, according to the caseworker's later testimony, "didn't feel that she was safe right now for the kids." She also told the caseworker she was pregnant.[3]

The caseworker began looking for a temporary caregiver for Anders and Vera; the caseworker left a voicemail for Jared and spoke with Mona's mother, who declined to take the children. The caseworker then talked to Ruth, who agreed to take the children overnight and again while Mona received an integrated assessment to evaluate any substance abuse and behavioral issues.

Mona's integrated assessment recommended a six-week residential treatment program, which the caseworker encouraged her to attend. Mona initially agreed to participate but then changed her mind; she told OCS that she and the children would return to the village instead.

C. OCS's Non-Emergency CINA Petition

The caseworker next met with Mona in July after Vera was admitted to the hospital with pneumonia; Anders was living with Jared. OCS filed a non-emergency child-in-need-of-aid (CINA) petition alleging that both children were children in need of aid. The next day, apparently in response to the petition, Mona left an abusive voicemail at OCS, telling the caseworker to leave her and her children alone. The caseworker met with Jared, who told her that Mona now had both children because he and Ruth were frightened of her.

The caseworker met with Mona in late July and texted her a few days later "to see if she needed any assistance"; Mona did not respond.

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D. The Children's Placement With Jared And Ruth

In August 2017 Mona called the caseworker and asked that OCS take the children into its custody. OCS placed both children with Jared, but Ruth assumed most childcare responsibilities. Mona visited fairly regularly, though according to Ruth the children acted out after her visits.

In mid-October OCS created a case plan for Mona, which she signed. The plan called for her to address her substance abuse issues, attend outpatient services, obtain a behavioral health and substance abuse assessment, and complete a parenting class; Mona testified that she completed the parenting class.

In late October Ruth asked OCS to remove Anders and Vera from her care, and OCS filed an amended emergency petition for CINA adjudication and temporary custody. In early November OCS removed the children from Ruth's home and sent them to live with a foster parent.

In December Mona stipulated that Anders and Vera were children in need of aid due to neglect. The stipulation also outlined a visitation schedule: Once the children were returned to Ruth's home, Mona would have daily phone calls and three two-hour visits a week. Mona was also supposed to obtain an integrated assessment; once she completed any recommended treatment program, overnight visits and a trial home visit could begin. But the stipulation recognized that Mona was living with her boyfriend, Earl, a registered sex offender, and provided that any visits would "depend on an appropriate resolution to the problems presented by the presence of a registered sex offender" in her home.[4]

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E. OCS's Further Involvement With Mona

The two children were returned to Ruth's care in late 2017 or early 2018. A second OCS caseworker formalized a family contact plan that allowed Mona to visit the children three times a week. Ruth supervised the visits at first, but she later told Mona to schedule them with OCS. Ruth again asked to have the children removed from her home because of Mona's volatility and the children's misbehavior following her visits. OCS placed the children in another home temporarily.

Anders was returned to Ruth's home after about a month, but Ruth felt she could not safely take care of both children because they fought constantly. Vera was placed with a foster parent, Lily, in another village.

Mona participated in an outpatient substance abuse program early in 2018 and believed she had completed that program, though an OCS caseworker later testified that Mona told her she left early. In the spring of 2018 Mona visited the emergency room after overdosing on tramadol. At a follow-up visit she said she used tramadol because of the stress caused by OCS's removal of her children, and she said she worried that healthcare providers were making it more difficult for her to get her children back.

That summer Vera traveled to South Dakota with Lily. Mona moved for a visitation review hearing, asking the court to grant her unsupervised visits with Anders and allow her to see Vera in South Dakota. The court denied these requests but encouraged OCS to work toward unsupervised visits with Anders and to plan a long visit with Vera upon her return to Alaska.

A third OCS worker created a new case plan in September. The plan required Mona to volunteer for school-related activities, participate in traditional cultural activities with her children, and engage in formal counseling as needed. In April 2019 an OCS worker called Mona to schedule a case-planning meeting and offered her a cab

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voucher. Mona missed the meeting and did not answer a follow-up call; she called back later that day but did not leave a message when no one answered.

In May a fourth case worker assumed responsibility for Mona's case. Mona left this caseworker a message asking for an appointment to create a case plan. The caseworker testified that she scheduled an appointment for later in the month and offered Mona cab fare, but she could not recall whether the meeting occurred.

Lily took Vera to South Dakota again in summer 2019. OCS coordinated a trip for Mona to visit Vera there that summer and provided her with a travel itinerary. In June OCS also gave Mona applications for...

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