Sally C. v. State, Dep't of Health & Soc. Servs.
| Docket Number | S-18472,S-18491,1982 |
| Decision Date | 09 August 2023 |
| Parties | SALLY C., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. PAUL B., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. |
| Court | Alaska Supreme Court |
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court No. 3KO-19-00042CN of the State of Alaska, Third Judicial District, Kodiak, Stephen B. Wallace Judge.
Michael L. Barber, Barber Legal Services, Boston Massachusetts, for Sally C. Monique Eniero, Anchorage, for Paul B.
David A. Wilkinson, Senior Assistant Attorney General, Anchorage and Treg R. Taylor, Attorney General, Juneau, for State of Alaska.
Before: Maassen, Chief Justice, Carney, Borghesan, and Pate, Justices.
The Office of Children's Services (OCS) removed an Indian child from his parents' custody in 2018. Over the next four years, a series of OCS workers provided case planning, remedial services, and visitation; the parents engaged inconsistently. In March 2022 the superior court terminated parental rights. The superior court determined the child was in need of aid based on five different statutory grounds: abandonment, neglect, substance abuse, substantial risk of physical harm, and exposure to domestic violence. The court concluded OCS made active efforts to provide the parents with remedial services designed to reunify the family, but that those efforts were unsuccessful.
Both parents appeal the superior court's determination. They challenge each of the grounds for the superior court's child in need of aid findings and argue that OCS did not make active efforts. Each parent also raises separate due process arguments related to the trial, claiming the superior court violated their rights.
We affirm the superior court's decision to terminate parental rights.
Felix is the child of Sally and Paul;[1] he is an Indian child.[2] Following Sally's June 2018 arrest for a domestic violence incident, OCS filed an emergency child in need of aid (CINA) petition and removed then-20-month-old Felix from his parents' care.
After removing Felix from his parents' custody, OCS initially placed Felix in a foster home, then returned him to Sally pursuant to a safety plan. OCS removed Felix again in November 2018 following an incident in which Sally left him unattended in a trailer. OCS subsequently placed Felix with a foster home. He has since remained in out-of-home placement.
The initial OCS caseworker stated that Paul was oppositional and uncooperative with OCS. OCS documented that Paul skipped numerous urinalyses scheduled during June and July of 2018. Paul attended counseling, but after an incident between the parents and clinician, the clinic refused to see Paul again. The initial caseworker referred Paul to a counseling center for an assessment, but Paul showed up too inebriated to participate. According to the initial caseworker, Paul was evasive, essentially making it impossible to complete assessments. The initial caseworker stated both parents were sporadic in taking drug tests. But the initial caseworker testified that Paul's attitude changed as the case progressed. He stated Paul became more "cooperative" in late 2019. And he stated Sally initially was generally "cooperative," although she would sometimes not follow through on tasks in the case plan.
The initial caseworker created separate case plans with each parent. He created a case plan with Sally in December 2018 and another in November 2019. Sally's case plans outlined several goals and recommendations: Sally would attend parenting classes, abstain from harmful substances, complete drug testing, learn to manage her emotions, and see her clinician at the Kodiak Area Native Association (KANA) for counseling. The 2018 plan stated that OCS would contact KANA to coordinate training, "[c]heck into" a family-focused service provider, call KANA "to find out about" parenting classes, and schedule random urinalyses. OCS's "next steps" in the 2019 plan included sending referrals "as needed."
The initial caseworker created a case plan for Paul in October 2019. The plan required Paul to complete an integrated assessment and a neuropsychological assessment, look for therapy, submit to drug testing, maintain stable employment, and participate in visitation with Felix. The plan stated OCS would make referrals for the assessments and drug testing.
The initial caseworker testified to the efforts he made for both parents. He made referrals for integrated assessments and drug testing. The initial caseworker testified he "would call and make appointments for [the parents] and then call them and let them know when the appointments were," and "follow up" afterward to find out what the parents needed. Most of the initial caseworker's efforts were directed towards Paul: he referred Paul to parenting classes but they "didn't click"; he believed an anger management or batterer's intervention course was offered to Paul, but could not recall whether domestic violence counseling was offered to either parent; he continued to offer Paul random drug testing; and he took Paul to get a driver's license so he could secure employment. The initial caseworker explained he spent more time talking to Paul than any of his other clients.
In December 2019 Sally moved to Anchorage. She did not inform OCS or provide OCS with new contact information. During her absence Sally had little contact with Felix. The initial caseworker testified that Sally did not see Felix for six months.
Sally returned from Anchorage in March 2020. OCS was informed in March that she tested positive for methamphetamine. From June to August 2020, a second OCS caseworker was assigned to the case. The second caseworker traveled to the family's community three times and met with Paul in person one time. The second caseworker found communication with Paul difficult because of his aggression. The second caseworker also created a new case plan for Sally in August, although the case plan was incomplete and did not include "next steps" for either OCS or Sally. The case plan required Sally to comply with drug testing, complete an integrated assessment, secure employment, secure independent housing, and participate in parenting education and other services. The case plan only required OCS to make referrals. Later in August, OCS also created a second case plan for Paul. But as in Sally's case plan, the "next steps" sections for both Paul and OCS were blank. The only action required of OCS was to make referrals and request funding.
In August a third caseworker was briefly assigned to Paul's and Sally's cases. The third caseworker spoke with Paul once and a case plan was signed by a different caseworker. The third caseworker testified she attempted to contact Sally and that Sally arrived at the OCS office and appeared to be under the influence of an intoxicant. Sally refused to sign the case plan until she talked with her attorney.
Later in August a fourth OCS worker was assigned to the parents' cases. The fourth caseworker testified she "case-planned with the parents" and "made referrals." It appears the fourth caseworker did not update the case plans at any time during the remainder of 2020 or 2021, even after the superior court directed OCS to do so. The fourth caseworker testified the parents were "sporadic" in their participation and lacked "follow-through and engagement in their case plan."
The day after an October 2020 in-person visit between the parents and Felix, OCS's ICWA specialist for the Southcentral region - who regularly conducted home visits, including to Felix's foster home - went to Paul's address unannounced. According to the ICWA specialist, Sally was present, the house was in disarray, and there appeared to be used drug paraphernalia - aluminum foil and a burnt spoon with a white substance on it. Around the same time, Sally completed a substance abuse assessment and reported extensive drug use.
The fourth caseworker testified that in 2021, OCS made new drug testing referrals. Paul did not participate. Sally consistently no-showed for drug testing in early 2021. In February the fourth caseworker completed an evaluation of Sally's case plan and noted that no progress had been made on her goals due to lack of participation, failure to engage in drug testing, and sporadic visitation. In July the fourth caseworker referred Sally for a family violence risk assessment and for services recommendations. According to the fourth caseworker the assessor made several recommendations for additional services, and Sally failed to meaningfully follow up. In August Sally took one urinalysis which was positive only for marijuana.
In August the local women's center helped Sally move to Anchorage in order to secure a safer living situation closer to services. OCS referred Sally for drug testing in Anchorage. The fourth caseworker worked with Sally to get an identification photograph and send it to the drug testing facility. The fourth caseworker attempted to contact Sally to set up a meeting, but Sally left an incomplete voicemail and then did not respond to return calls. Sally never attended drug testing in Anchorage. In December Sally moved back to her community. She completed another substance abuse assessment in January 2022 that recommended intensive outpatient treatment.
Through October 2019 Paul had regular, supervised visitation with Felix. The initial caseworker testified Paul seemed "really...
To continue reading
Request your trial