Shep W. v. State, S-18273

CourtSupreme Court of Alaska (US)
PartiesSHEP W., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
Docket NumberS-18273
Decision Date31 August 2022

SHEP W., Appellant,
v.

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

No. S-18273

Supreme Court of Alaska

August 31, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court of the State of Alaska, Third Judicial District Superior Court Nos. 3PA-19-00050/ 00051 CN, Palmer, John C. Cagle, Judge.

Claire De Witte, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for Appellant.

Laura Fox, Senior Assistant Attorney General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellee.

Before: Winfree, Chief Justice, Maassen, Borghesan, and Henderson, Justices. [Carney, Justice, not participating.]

MEMORANDUM OPINION AND JUDGMENT [*]

I. INTRODUCTION

A father moved back to Alaska after five years without contact with his children. The Office of Children's Services (OCS) had recently intervened in the children's lives because of reports that the mother was failing to supervise them and was

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abusing substances. The father took custody of the children under a safety plan for a short time, but the plan was unsuccessful and OCS placed the children in foster care. OCS created a case plan for the father, referred him to services, offered him visitation, and tried to stay in touch with him. But the father made no progress on his case plan and did not keep in touch with OCS. After about a year OCS petitioned to terminate the father's parental rights. The superior court granted the petition and the father appeals, contending that OCS did not make reasonable efforts to reunify him with his children. Because OCS's efforts were reasonable under the circumstances, we affirm the termination of the father's parental rights.

II. FACTS AND PROCEEDINGS

A. Facts

Shep and Lacey are the parents of twelve-year-old Bailey and nine-year-old Brooke.[1] OCS received a report in February 2019 that Lacey was using drugs while caring for the children, failing to supervise them, and exposing them to domestic violence between herself and another person. Shep moved back to Alaska around this time. He told OCS he had not seen or spoken to the children in five years.

OCS held a team decision meeting after receiving the report and decided that Shep should care for his children under a safety plan with Lacey's help. But the safety plan was unsuccessful; according to OCS, it failed because Shep moved residences such that OCS could not inspect his home, changed his phone number so he could not be contacted, and refused drug testing. Brooke was scheduled for hair follicle drug tests in April 2019, apparently while in Shep's care, but she did not attend those appointments.

OCS filed a non-emergency petition for adjudication and temporary custody

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of both children in May 2019 after the safety plan failed; the children were nine and six years old at the time. The superior court found provisional probable cause and granted OCS temporary custody of both children. OCS then placed the children in a licensed foster home. It also assisted the foster parents by setting up Medicaid and providing clothing vouchers for the children. Both children were enrolled in counseling to work through their emotional challenges.

OCS obtained a hair follicle drug test for Brooke, who tested positive for methamphetamine, indicating exposure within approximately the past 90 days. Shep refused to take a hair follicle test himself, later telling the assigned caseworker that Brooke's positive result made him "look bad." OCS referred Shep to additional drug tests as the case progressed, but he missed all of them.

OCS created case plans for each parent at the end of May 2019. Both parents signed their case plans, indicating that they read and understood them. Activities listed on Shep's case plan included completing an integrated mental health and substance abuse assessment, filling out releases of information, taking random drug tests, participating in a parenting course, engaging in visitation with his children, finding a stable job, participating in social activities with his sober supports like friends and family, meeting with the assigned caseworker no less than once per month, and updating OCS with any changes in his contact information. Lacey's case plan was functionally identical. OCS made referrals to the identified services, held administrative case reviews every six months, and conducted multiple case plan evaluations. While OCS attempted to contact and meet with Shep regarding his case plan, he was often unresponsive, and he made little to no progress on any of his case plan activities. He also regularly missed court hearings, and on multiple occasions his attorney was unable to take a position on his behalf.

OCS offered both parents visitation with the children. Early on Lacey

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attended her visits with some consistency, though her attendance became inconsistent as the case progressed. Shep's visitation was never consistent. He repeatedly failed to attend the visitation supervisor's mandatory orientation for parents. Later in the case Shep participated in some video and phone visits supervised by the foster family, but his attendance was "sporadic and mostly consisted] of no-shows." Shep never explained his inconsistent attendance. According to the children's foster mother, Shep's last contact with the children was in November 2020.

During this time period the matter was assigned to a new caseworker. The foster mother testified that the new caseworker visited the foster home "religiously, monthly" and was "the best case worker [she] ever had." The caseworker tried to get in touch with Shep by texting him, calling him, and sending letters to his last known addresses.

At one point, in April 2021, Shep called into a court hearing and provided the caseworker a new phone number. Using that number the caseworker contacted him and scheduled a face-to-face meeting. She offered Shep a cab voucher, but he declined and assured her he would be able to attend. However, Shep never showed up, and she was unable to reach him again.

OCS tried to get a physical address from Shep throughout the case, but he consistently declined to provide one. And once the caseworker learned that Shep had been charged with violent crimes in August 2021, the caseworker no longer felt comfortable meeting at his home. She explained that she would have offered Shep cab vouchers to meet at the OCS office, but she could not reach him.

B. Proceedings

In September 2020 OCS filed a petition to terminate Shep's and Lacey's

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parental rights because of abandonment, domestic violence, and substance abuse.[2] That month Shep attended a court hearing and stated that he intended to contest termination. The court scheduled trial for March 2021.

As the trial date approached, OCS moved for a continuance because it had trouble locating both parents to serve the petition. Shep attended the next hearing, in April 2021, and acknowledged service via email. But OCS still could not locate Lacey. The court scheduled trial for August 2021 and allowed OCS to serve Lacey by publication.

Trial began as scheduled, with the parties participating telephonically. Shep was present, but Lacey was not. When the court asked whether the parties were ready to proceed, Shep's attorney explained she had learned that Shep was scheduled for surgery later that day. The court then inquired directly with Shep about details; Shep told the court he learned about the surgery earlier that day and he was scheduled to have it a couple of hours later. The court decided to begin trial and take evidence until he needed to leave.

OCS began its presentation by calling the assigned caseworker. About an hour into the caseworker's testimony, Shep abruptly left the hearing. The court allowed Shep's attorney two opportunities to get in touch with him, but she was unable to do so. His attorney agreed that OCS could proceed with its presentation. After the caseworker finished testifying, OCS presented evidence from the children's foster mother, admitted documentary evidence, and rested its case. The court then ordered Shep's attorney to retrieve all records related to Shep's purported surgery. The caseworker asked whether Shep's attorney could provide his updated contact information; Shep's attorney explained that she needed his authorization, but she anticipated "being able to provide

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at least a phone number."

When the court convened telephonically for the continued trial date in October 2021, Shep was not present. Shep's...

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