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J.H. v State Dept of Health & Social Services (08/31/2001) sp-5462
J.H. v State Dept of Health & Social Services (08/31/2001) sp-5462
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
J.H., )
) Supreme Court No. S-09471
Appellant, )
) Superior Court No.
v. ) 3AN-96-343A CP
)
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, ) O P I N I O N
)
Appellee. ) [No. 5462 - August 31, 2001]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John R. Lohff, Judge, pro tem.
Appearances: Frank J. Bettine, Anchorage, for
Appellant. Lisa B. Nelson, Assistant Attorney General, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
James H. Parker, Assistant Public Advocate, and Brant McGee, Public
Advocate, Anchorage, for Guardian ad Litem.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
BRYNER, Justice.
I. INTRODUCTION
Jane Hart's parental rights to her three-year-old
daughter, Jenny, were terminated by the superior court. [Fn. 1]
This case presents the questions whether the Department of Health
and Social Services (the department) was estopped from petitioning
for termination of Jane's parental rights and whether the trial
court's factual findings supporting termination are clearly
erroneous. Because the court's findings are not clearly erroneous
and the evidence does not warrant estoppel and because applying
estoppel against the state would in any event violate the public
interests served by the termination statute, AS 47.10.088(d), we
affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Jane Hart's daughter Jenny was born prematurely and
tested positive for cocaine on July 26, 1996. Jane did not know
who Jenny's father was. [Fn. 2] The department thus immediately
took emergency custody of Jenny and placed her in a foster home,
where she has continued to live throughout this litigation.
By the time Jenny was born, Jane had a long history of
abusing drugs, becoming involved with abusive men, and neglecting
her children. She had begun drinking alcohol at age fourteen and
had become addicted to cocaine by age eighteen. Jane had
repeatedly participated in drug treatment and returned to using.
Three of the four sons Jane bore before giving birth to Jenny were
born cocaine-exposed and Jane was not parenting any of her children
when Jenny was born. Jane's two oldest sons were raised by their
paternal grandmother who became their guardian. Jane's two
youngest sons were adopted by other people. Two of the three
fathers of Jane's sons were physically abusive to her.
The department petitioned to adjudicate Jenny as a child
in need of aid. Jane stipulated that the department's petition was
supported by probable cause and that Jenny could remain in the
department's temporary custody pending resolution of the petition.
The department immediately began providing supportive services to
Jane and arranged an appointment for Jane at a drug treatment
facility. Jane nevertheless persisted in her pattern of substance
abuse. In August 1996, the month following Jenny's birth, Jane was
arrested for felony possession of cocaine. She eventually pleaded
no contest to misconduct involving a controlled substance, was
sentenced to jail, and remained in a correctional setting until the
summer of 1997. While in state custody, Jane received substance
abuse treatment and anger management classes; the department also
arranged for her to begin periodic visitation with Jenny.
While Jane was in custody she stipulated that Jenny was
a child in need of aid. Upon Jane's release from custody, the
department adopted a case plan that called for her to be reunited
with Jenny by Jenny's second birthday, in July 1998. Jane was
required to continue with substance abuse treatment and comply with
several other conditions during that time. The case plan expressly
provided that if she failed to comply and could not be safely
reunited with Jenny by July 1998, the department would cease its
reunification efforts and seek permanent placement in an adoptive
home.
Soon after Jane's release from state custody -- by
September 1997 -- the department implemented the plan by referring
Jane to several support services for continued substance abuse
treatment, acquisition of parenting skills, and working through
issues related to past victimization and sexual abuse. In October
1997 the superior court issued a disposition order formally
approving the department's case plan and directing Jane to comply
with its requirements.
By November 1997 Jane was pregnant by her boyfriend, Don
Denver, who she had met when they were both inmates at Glenwood
Correctional Center. Denver had a criminal record and abused
alcohol. In November 1997 Denver told the department that Jane
used crack cocaine. Jane admitted to her probation officer that
she had used cocaine. The probation officer gave Jane the choice
of returning to jail or entering a residential substance abuse
program. Jane opted for rehabilitation and entered the Dena A. Coy
residential treatment center for pregnant women in December 1997.
Because of Jane's relapse, the department reevaluated her
case plan and considered petitioning for termination of her
parental rights to Jenny. Jenny's guardian ad litem had previously
advocated termination of Jane's parental rights and was agreeable
to the department doing so. But the department opted not to seek
immediate termination, and Jane remained in treatment at the
Dena A. Coy center, received visitation with Jenny there, and
continued to receive various therapeutic services that the
department arranged to facilitate eventual reunification.
In April 1998, while Jane was still in residential
treatment at Dena A. Coy, she gave birth to her daughter, Carrie.
Within about two months, Jane completed the residential phase of
the program and moved into her own residence with assistance
arranged by the department. She worked with Catholic Social
Services Beyond Shelter to enter subsidized housing, established
her own household, and kept physical custody of Carrie. Beyond
Shelter assisted Jane in finding employment and arranged day care
so that Jane could work. Jane continued in aftercare with the Dena
A. Coy program, attended Alcoholics Anonymous meetings, had weekly
counseling with a therapist, and received home-based instruction in
parenting and time and stress management through Anchorage Center
for Families. Jane continued her relationship with Carrie's
father, Don Denver.
In June 1998, shortly before Jane's annual review
hearing, the department convened a meeting to review her case plan.
The department adopted a new case plan, which listed concurrent
goals for Jenny. The plan called for Jenny's reunification with
Jane by December 1998; it assumed that Jane would continue to make
progress toward reunification and would complete the Dena A. Coy
aftercare substance abuse program by December as scheduled.
Alternatively, the new concurrent plan provided for adoption by
Jenny's foster mother if reunification did not succeed. Jane
refused to sign the new case plan.
In keeping with the new case plan's listing of
termination as a concurrent goal, the social worker assigned to
Jane's case, Nancy Mattson, filed a termination worksheet with the
attorney general, indicating the department's intent to terminate;
but the department took no formal action toward termination at that
time. Jane continued to have home visits with Jenny and to receive
supportive services aimed at preparing her for Jenny's return.
At the annual review in July 1998, the superior court
formally approved the department's concurrent case plan and set
December 31, 1998, as the tentative date for Jenny's reunification
with Jane. Jane's counsel requested that she be allowed additional
visitation with Jenny. In light of the newly established target
date for reunification and Jane's request for increased visitation,
the department arranged for the Anchorage Center for Families to
perform an evaluation of Jenny's relationship with Jane and of the
effects that reunification might have on Jane and Jenny.
In late August or early September 1998, Phil Kaufman
replaced Mattson as the social worker assigned to Jane's case.
Kaufman allowed Jane increased visitation with Jenny but told Jane
that he had reservations about the plan to return Jenny to Jane in
December and doubted that reunification could occur before March
1999. Kaufman stated that he believed that Jane would need to
maintain sobriety on her own for at least three months after she
completed aftercare at Dena A. Coy.
These events roughly coincided with the effective date of
a newly adopted version of Alaska's CINA statutes, which required
the department -- subject to certain exceptions that we will
discuss later -- to petition for termination of parental rights in
all pending CINA cases involving children who had spent fifteen of
the most recent twenty-two months in foster care. Jenny had spent
more than twenty-two months in continuous foster care. In
September 1998 Kaufman prepared a new case plan listing adoption as
the department's sole goal for Jenny.
Shortly after Kaufman wrote the new case plan, Lori
Varick, a doctoral candidate in clinical psychology and counselor
with the Anchorage Center for Families, submitted a written report
assessing Jane's capacity to attach with Jenny and form maternal
bonds. Varick noted Jane's progress in therapy and reported that
Jane appeared to have the ability to bond with her daughter; but
she also mentioned that Jane's history pointed to a high risk of
relapsing. [Fn. 3]
Unhappy with the prospect of delaying Jane's
reunification until March 1999 and with Kafuman's newly written
case plan, Jane's attorney filed a superior court motion requesting
a formal placement review hearing.
The superior court standing master held the review
hearing in October 1998. The department relied on a variety of
factors to argue that it would be appropriate to proceed toward
termination of Jane's parental rights because Jane would not be
able to provide safe care for Jenny in a time frame that would be
in Jenny's best interest. Kaufman believed that caring for both
Carrie and Jenny would be too much responsibility for Jane and
would increase the likelihood of Jane relapsing. He noted Jane was
already at high risk of relapsing and suggested that Jane would
need to remain sober for some time after completing the Dena A. Coy
aftercare to demonstrate her recovery. Varick's report seemed to
confirm that belief and the strong possibility of relapse. The
department also relied on the new statute that seemed to require
prompt commencement of termination proceedings. The guardian ad
litem supported the department's plan to seek termination of Jane's
parental rights. Jane's counsel argued against the new plan and
urged the master to retain the original goal of reunification by
December 1998.
Upon completion of the review hearing, the standing
master accepted the department's position and issued an order that
approved the new plan and directed the department to file a
petition for termination of Jane's parental rights by November 1,
1998. Jane's counsel evidently did not seek further review of the
master's decision by a superior court judge nor did Jane petition
for review by this court.
The department filed its petition to terminate Jane's
parental rights to Jenny on December 4, 1998. The termination
trial began four months later, in April 1999, and continued
sporadically, with several lengthy breaks, through the summer and
into the fall. [Fn. 4] Throughout the course of these proceedings
Jane received support services to assist her with reunification and
she was allowed to maintain her established schedule of visitation
with Jenny. But as the termination trial progressed, Jane's
progress toward a clean and sober lifestyle began to unravel; by
the time the trial ended, the department had taken emergency action
to remove Carrie from Jane's home, and it was apparent that Jane
had suffered a relapse.
At the close of termination proceedings, the superior
court made findings about Jane's long-standing history of substance
abuse, her established pattern of progress in drug treatment
followed by periods of relapse, and her repeated association with
violent men who participated in drug-related criminal activity.
The court found that Jane would remain at high risk for relapsing,
that she failed to recognize how her conduct affected her children,
and that, given the passage of time since her birth, Jenny would
likely experience severe emotional trauma if she were removed from
her foster home and was unable to form a stable lifestyle and
secure bonds with Jane.
The court went on to find by clear and convincing
evidence that Jenny was a child in need of aid on grounds including
that Jane had subjected other children to neglect and that her
ability to parent had been substantially impaired by her drug
abuse. The court also found that Jane had not remedied the conduct
that caused Jenny to be a child in need of aid within a reasonable
time. Finally, the court found that the department had made
reasonable but unsuccessful efforts to facilitate reunification and
that Jenny's best interests required termination of Jane's parental
rights.
Jane appeals.
III. DISCUSSION
Jane disputes the superior court's factual findings,
arguing that the evidence fails to support the court's findings.
Jane also contends that the department was estopped from
petitioning for termination of her parental rights.
A. Standard of Review
We review the superior court's factual findings for clear
error and will set them aside only if a review of the entire record
leaves us firmly convinced that a mistake has been made. [Fn. 5]
We use our independent judgment to determine whether the department
was estopped from petitioning for termination of Jane's parental
rights and whether the superior court's factual findings satisfy
statutory requirements. [Fn. 6]
B. Jane's Parental Rights Were Properly Terminated.
1. The superior court's factual findings
Alaska law requires courts to make several express
findings before terminating the rights of a parent whose child is
a child in need of aid. [Fn. 7] The court must find by clear and
convincing evidence that the child is a child in need of aid and
that the parent has either failed to remedy the conduct that gave
rise to the original risk causing the child to need aid or has
unreasonably failed to take remedial action in time to prevent
future risk from occurring by returning the child to the parent's
custody; [Fn. 8] it must find by a preponderance of the evidence
that the state made reasonable efforts to prevent out-of-home
placement and to enable the safe return of the child to the
parent's home; [Fn. 9] and it must also find that the child's best
interests require the parent's rights to be terminated. [Fn. 10]
Here, the superior court made the requisite findings, but
Jane contends that the evidence fails to support them. Jane does
not contest the finding that Jenny was a child in need of aid, but
she insists that the superior court erred in finding that the
department made reasonable efforts to reunite the family, that she
had failed to remedy the conduct that placed Jenny in need of aid,
and that termination would serve Jenny's best interests.
a. Reasonable efforts to reunite the family
Jane first challenges the court's finding that the
department made reasonable efforts to provide her with support
services that would enable her to be reunited with Jenny. [Fn. 11]
But the record includes abundant support for the superior court's
reasonable efforts finding. The department provided family support
services to Jane throughout Jenny's life and continued to provide
supportive services after the date set forth in the court's
original disposition order, after the department petitioned for
termination, and throughout the lengthy course of Jane's
termination trial. That support included various substance abuse
rehabilitation programs, psychological therapy, assistance
reestablishing a household, and home-based instruction in parenting
and time and stress management.
The department's extensive and protracted efforts could
be found reasonable under any conceivable standard.
b. Unreasonable delay in remedying the conduct
that placed Jenny at risk
The record similarly supports the superior court's
finding that Jane failed to remedy the conduct that placed Jenny in
need of aid within a reasonable time to prevent a substantial risk
of serious emotional harm to Jenny if she were returned to Jane's
custody. [Fn. 12]
By the time Jane's trial concluded, more than three years
had passed since Jenny's birth. Although Jane had struggled to
conquer her longstanding substance abuse problem during this time,
sometimes showing considerable progress, the evidence at trial
suggested that her efforts remained unsuccessful to a significant
degree. Witnesses addressing Jane's most recent conduct testified
that she had resumed drinking; had twice left her youngest
daughter, Carrie, in the care of others without prior arrangement
while she went out drinking; was no longer going to work as
scheduled; and had resumed her relationship with Carrie's father,
Don Denver, who had a history of domestic violence and substance
abuse.
Moreover, expert witnesses qualified to testify about
recovery from long-term substance abuse and relapse risk confirmed
that activities like these are typical behavior for a person
relapsing toward substance abuse. [Fn. 13] And the record leaves
little doubt that a relapse by Jane would have placed Jenny at risk
had she been returned to her mother's home. [Fn. 14] The superior
court was not clearly erroneous in concluding that Jane had failed
to remedy her problem within a reasonable period of time.
c. Best interests
The same evidence of emotional risk to Jenny from an
unstable relationship, combined with the evidence indicating that
Jane was relapsing and remained at high risk of returning to
substance abuse, also supported the superior court's finding that
termination of Jane's parental rights would be in Jenny's best
interests. The court was not clearly erroneous in finding that
Jenny needed permanence and stability and could not afford to wait
any longer for Jane to be ready to provide a maternal relationship.
In summary, then, the superior court's findings
supporting termination of Jane's parental rights were not clearly
erroneous.
2. Estoppel
Jane independently asserts that, even if the superior
court's findings are supported by substantial evidence, the
department should be equitably estopped from terminating her
parental rights. In support of this argument, Jane points to the
department's sudden shift of position toward termination in
September 1998. Jane notes that, two months before, in July 1998,
the department had committed to and the court had approved a
concurrent plan promising to reunify her with Jenny by December if
she continued to make satisfactory progress. Insisting that she
did continue to make satisfactory progress through December and
beyond, Jane complains that the department has shown no adequate
justification for deciding in September to switch the goal to
termination.
In response, the department proposes that its changed
position was reasonable given the totality of the circumstances:
the passage of time from Jenny's birth to September 1998, the
growing uncertainty about whether Jane would be ready to assume
full motherhood duties by December, and the obvious need to avoid
an even longer delay. In the department's view, the changed plan
was particularly appropriate because the amended version of
AS 47.10.088, which took effect on September 14, 1998, required the
department to petition for termination immediately in cases that,
like Jane's, involved a child who had been in foster care for more
than fifteen of the most recent twenty-two months. [Fn. 15] The
department acknowledges that the provision allows exceptions, but
claims that Jenny's case was not exceptional.
Jane replies that the amended statute allowed an
exception in her case and therefore cannot justify the department's
sudden shift in position. We agree with Jane's argument that the
amended statute would have allowed an exception in her case. [Fn.
16] And for purposes of this decision we assume that there may be
merit to her broader argument that Kaufman acted arbitrarily and
unfairly by unilaterally revising the June 1998 concurrent case
plan to provide for termination as the plan's only goal. But even
so, other factors lead us to reject Jane's ultimate contention that
the doctrine of equitable estoppel barred the state from
terminating her parental rights.
Equitable estoppel typically comprises four elements:
"(1) assertion of a position by conduct or word, (2) reasonable
reliance thereon, . . . (3) resulting prejudice" and, when estoppel
is claimed against the state, (4) a lack of significant prejudice
to the public interest. [Fn. 17] Jane's claim relies on strong
evidence that the department's June 1998 case plan squarely adopted
the position that Jenny could be returned to Jane in December 1998
if Jane remained in compliance with the conditions of the plan; the
evidence of Jane's reliance on this position is equally strong --
Jane did comply with the case plan through December 1998.
Yet Jane's claim of resulting prejudice is considerably
weaker: she has arguably failed to demonstrate how her reliance on
the department's original position ultimately prejudiced her
ability to gain custody of Jenny. [Fn. 18] The fourth element of
estoppel poses an even greater obstacle to Jane's claim, for
important public interests would surely be impaired if the
department's improvident actions could compromise the best
interests of children who were genuinely at risk from parental
abuse and neglect. Just as a custodial parent cannot waive child
support that is due from the noncustodial parent, [Fn. 19] neither
can the department, by working toward reunifying families, waive a
child's interest in terminating contact with parents when clear and
compelling evidence demonstrates that restoring custody would place
the child in ongoing jeopardy of serious physical and emotional
harm.
Moreover, even if we assume that the doctrine of
equitable estoppel might be applied in certain exceptional
termination cases, it certainly could not apply in the specific
circumstances presented here. Jane's claim of estoppel is based on
allegedly arbitrary actions of her social worker in unilaterally
altering her case plan without adequate justification. Yet
Alaska's CINA statutes provide procedural safeguards specifically
designed to protect a parent from suffering prejudice as a result
of such arbitrary state action. Under AS 47.10.080 a parent
aggrieved by a placement decision is entitled to request court
review of the department's action. [Fn. 20] Here, Jane,
represented by capable counsel, availed herself of this procedural
right. Upon conducting a hearing to review the department's
action, the superior court master expressly ratified the prior
decision to initiate termination proceedings. The department took
no irreversible action toward termination until the court had
approved its decision. [Fn. 21] And even when it acted, the
department did not cease its ongoing reunification efforts.
We conclude, given these circumstances, that the superior
court master's approval of the department's decision would cut off
any claim of estoppel arguably arising from arbitrariness inherent
in the department's abrupt decision to change Jane's plan. The
ensuing termination action ultimately resulted not from the hasty
and impulsive action of an individual departmental case worker, but
from a considered decision of the superior court. [Fn. 22]
One last point deserves emphasis in connection with
Jane's estoppel claim: the strong evidence, described above, of the
last-minute relapse that occurred in the course of Jane's trial
figured prominently in the superior court's ultimate termination
decision. Jane makes no claim that the behavior involved in her
relapse had any causal connection to the department's earlier
improvident handling of her case. Hence, the new evidence of
Jane's continuing impairment would independently preclude any claim
that the department's earlier actions -- no matter how arbitrary
they might have been -- estopped it from pursuing its action to
terminate Jane's parental rights.
For all these reasons, we conclude that equitable
estoppel does not bar the judgment terminating Jane's parental
rights.
IV. CONCLUSION
The superior court's decision is AFFIRMED.
FOOTNOTES
Footnote 1:
To protect anonymity, we use pseudonyms for J.H. and other
family members throughout this opinion.
Footnote 2:
Jane listed Walter Roe as the father at birth, but subsequent
paternity testing refuted his paternity.
Footnote 3:
Although the department had evidently contemplated that the
Anchorage Center for Families's report would assess Jane's actual
relationship with Jenny and Jenny's relationship with her foster
parents, a mixup in communications evidently caused Varick to
misunderstand the department's intent. As a result, Varick's
report focused exclusively on Jane's capacity for attachment. It
did not purport to consider the relationship between Jane and Jenny
or Jenny's relationship with her foster family nor did it purport
to evaluate Jenny's best interests.
Footnote 4:
The state had also petitioned to terminate the rights of
Jenny's father, whose identity remained unknown; his paternal
rights were terminated in April 1999, shortly before Jane's
termination trial began.
Footnote 5:
See R.J.M. v. State, Dep't of Health & Soc. Servs., 973 P.2d
79, 84 (Alaska 1999).
Footnote 6:
See A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946,
950 (Alaska 2000).
Footnote 7:
Additional findings required under the federal Indian Child
Welfare Act for Indian children do not apply to this case and are
not considered in this opinion.
Footnote 8:
See AS 47.10.088(a)(1)(B):
(a) Except as provided in AS 47.10.080(o), the
rights and responsibilities of the parent regarding the child may
be terminated for purposes of freeing a child for adoption or other
permanent placement if the court finds
(1) by clear and convincing evidence that
(A) the child has been subjected to
conduct or conditions described in AS 47.10.011; and
(B) the parent
(i) has not remedied the conduct or
conditions in the home that place the child at substantial risk of
harm; or
(ii) has failed, within a reasonable
time, to remedy the conduct or conditions in the home that place
the child in substantial risk so that returning the child to the
parent would place the child at substantial risk of physical or
mental injury[.]
Footnote 9:
AS 47.10.088(a)(2) requires the court to find "by
preponderance of the evidence that the department has complied with
the provisions of AS 47.10.086 concerning reasonable efforts."
AS 47.10.086 provides, in relevant part:
(a) Except as provided in (b) and (c) of this
section, the department shall make timely, reasonable efforts to
provide family support services to the child and to the parents or
guardian of the child that are designed to prevent out-of-home
placement of the child or to enable the safe return of the child to
the family home, when appropriate, if the child is in an
out-of-home placement. The department's duty to make reasonable
efforts under this subsection includes the duty to
(1) identify family support services that
will assist the parent or guardian in remedying the conduct or
conditions in the home that made the child a child in need of aid;
(2) actively offer the parent or
guardian, and refer the parent or guardian to, the services
identified under (1) of this subsection; the department shall
refer the parent or guardian to community-based family support
services whenever community-based services are available and
desired by the parent or guardian; and
(3) document the department's actions
that are taken under (1) and (2) of this subsection.
Footnote 10:
See AS 47.10.088(b) and (c):
(b) In making a determination under (a)(1)(B)
of this section, the court may consider any fact relating to the
best interests of the child, including
(1) the likelihood of returning the
child to the parent within a reasonable time based on the child's
age or needs;
(2) the amount of effort by the parent
to remedy the conduct or the conditions in the
home;
(3) the harm caused to the child;
(4) the likelihood that the harmful
conduct will continue; and
(5) the history of conduct by or
conditions created by the parent.
(c) In a proceeding under this chapter
involving termination of the parental right of a parent, the court
shall consider the best interests of the child.
Footnote 11:
We note that, in advancing this argument, Jane claims that the
Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12101 et
seq.,
applies to CINA cases. Alleging that she is a disabled person
under the ADA and that the act therefore required the department to
accommodate her disability, Jane broadly asserts that the superior
court improperly excluded evidence that would have enabled her to
prove that the department failed to comply with the ADA's
requirements. But the record belies her claim of improperly
excluded evidence: our review of the record reveals that the
superior court excluded no evidence Jane offered in support of her
ADA theory and did not restrict her argument on the point.
Although Jane's ADA theory shifted somewhat in the course of the
trial, she ultimately contended that she was disabled by virtue of
her drug addiction and that the ADA therefore entitled her to
additional time to prepare herself for parenting Jenny. Although
Jane's claim that she qualifies as a disabled person by virtue of
drug addiction is questionable under ADA regulations, see 28 C.F.R.
sec. 35.131, we accept it for present purposes, and we also assume
arguendo that the ADA governs CINA proceedings. In context,
however, AS 47.10.086(a)'s requirement that the department make
reasonable efforts to provide Jane with family support services
appears to be essentially identical to the ADA's reasonable
accommodation requirement. Accordingly, we need not independently
address Jane's ADA theory in disposing of her appeal.
Footnote 12:
See AS 47.10.088(a)(1)(B)(ii) (quoted supra note 8).
Footnote 13:
On appeal, Jane attacks the qualifications and credibility of
expert witness Lori Varick. But when Varick was called to testify
at trial, Jane's counsel did not object to Varick's qualification
as an expert; indeed, he informed the court that he would have
called Varick to testify if the state had not. Jane has thus failed
to preserve this argument for appeal. See Collins v. State, 977
P.2d 741, 745 (Alaska App. 1999).
Footnote 14:
Laura Jones, a clinical psychologist with expertise in
attachment and bonding, testified that a toddler removed from the
home where she had lived all her life could suffer serious
emotional problems if moved to the custody of a person with whom
she had no stable attachment.
Footnote 15:
The revised version of AS 47.10.088 states in critical part:
(d) Except as provided in (e) of this
section, the department shall petition for termination of a
parent's rights to a child, without making further reasonable
efforts, when a child is under the jurisdiction of the court under
AS 47.10.010 and 47.10.011, and
(1) the child has been in foster care
for at least 15 of the most recent 22 months;
. . . .
(e) If one or more of the conditions listed
in (d) of this section are present, the department shall petition
for termination of the parental rights to a child unless the
department
. . . .
(2) is required to make reasonable
efforts under AS 47.10.086 and the department has not provided to
the parent, consistent with the time period in the department's
case plan, the family support services that the department has
determined are necessary for the safe return of the child to the
home.
Footnote 16:
Although the condition listed in paragraph (d)(1) applied in
this case because Jenny had been in foster care continuously for
more than 15 months before the statute took effect on September 14,
1998, the exception stated in paragraph (e)(2) also fit the case
precisely: the department was required to make reasonable efforts
in Jane's case; the most recent approved version of her case plan
-- the June 1998 concurrent plan -- determined that additional
family support services would be necessary until December 1998; and
the department had not yet provided all those services to Jane.
Footnote 17:
Municipality of Anchorage v. Schneider, 685 P.2d 94, 97
(Alaska 1984).
Footnote 18:
In her briefing, Jane claims that she
relied on the state's conduct and oral as well
as written word and worked diligently on her case plan, investing
her time and emotions so she could be reunified with [Jenny]. The
Department's actions resulted in extreme prejudice to [Jane] as the
Department's change of position has deprived [Jane] of her right to
companionship and society with her daughter.
But Jane does not explain how working with services aimed
at reunification was detrimental to her efforts to regain custody
of her daughter.
Footnote 19:
See Keating v. Traynor, 833 P.2d 695, 696 (Alaska 1992) ("[A]
parent may not waive the requirements of Rule 90.3 by private
agreement.") (citing Bergstrom v. Lindback, 779 P.2d 1235, 1237-38
(Alaska 1989)); see also State, Dep't of Revenue v. Valdez, 941
P.2d 141, 144 n.14 (Alaska 1977) ("Where CSED is acting on behalf
of the custodial parent to collect child support which is then
passed through to that parent, CSED's conduct cannot amount to
waiver or estoppel. The right to support is that of the child and
thus cannot be waived by CSED.").
Footnote 20:
AS 47.10.080(f) provides:
A child found to be a child in need of
aid is a ward of the state while committed to the department or the
department has the power to supervise the child's actions. For an
order made under (c)(1) of this section, the court shall hold a
permanency hearing as required by (l) of this section and at least
annually thereafter during the continuation of foster care to
determine if continued placement, as it is being provided, is in
the best interest of the child. The department, the child, and the
child's parents, guardian, and guardian ad litem are entitled, when
good cause is shown, to a permanency hearing on application. If
the application is granted, the court shall afford these persons
and their counsel reasonable advance notice and hold a permanency
hearing where these persons and their counsel shall be afforded an
opportunity to be heard. The persons entitled to notice under AS
47.10.030(b) are entitled to notice of a permanency hearing under
this subsection and are also entitled to be heard at the hearing.
The child shall be afforded the opportunity to be present and to be
heard at the permanency hearing. After the permanency hearing, the
court shall make the written findings that are required under (l)
of this section. The court shall review an order made under (c)(2)
of this section at least annually to determine if continued
supervision, as it is being provided, is in the best interest of
the child; this review is not considered to be a permanency hearing
and is not governed by the provisions of this subsection that
relate to permanency hearings.
Footnote 21:
We note that AS 47.10.086(b) expressly empowers the superior
court to excuse the department from further compliance with its
reasonable efforts duty and to order it to pursue termination in
appropriate cases:
(b) If the court makes a finding at a hearing
conducted under AS 47.10.080(l) that a parent or guardian has not
sufficiently remedied the parent's or guardian's conduct or the
conditions in the home despite reasonable efforts made by the
department in accordance with this section, the court may conclude
that continuation of reasonable efforts of the type described in
(a) of this section are not in the best interests of the child.
The department shall then make reasonable efforts to place the
child in a timely manner in accordance with the permanent plan and
to complete whatever steps are necessary to finalize the permanent
placement of the child.
Footnote 22:
Jane's appeal does not challenge the master's decision, as
such.
