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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Burke P. v. State, Dept of Health and Social Services, Office of Children's Services (06/29/2007) sp-6137
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| BURKE P., | ) |
| ) Supreme Court No. S- 12347 | |
| Appellant, | ) |
| ) Superior Court Nos. | |
| v. | ) 3KO-00-12, 01-40, 01- 41, 04-43 CP |
| ) | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH AND | ) |
| SOCIAL SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6137 - June 29, 2007 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Joel H. Bolger, Judge.
Appearances: Alan L. Schmitt, Jamin Schmitt
St. John, Kodiak, for Appellant. Michael G.
Hotchkin, Assistant Attorney General, and
Craig J. Tillery, Acting Attorney General,
Anchorage, for Appellee. Jill C.
Wittenbrader, Assistant Public Advocate, and
Joshua P. Fink, Public Advocate, Anchorage,
for Guardian Ad Litem.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
MATTHEWS, Justice, with whom BRYNER, Justice, joins,
dissenting.
I. INTRODUCTION
A father challenges the superior courts decision to
terminate his parental rights, arguing that his child was not in
need of aid and that the state did not make reasonable efforts to
reunify his family. He also contends that the superior court
should have ordered post-termination visitation. We affirm the
superior courts decision in all respects.
II. FACTS AND PROCEEDINGS
A. Facts
The father, Burke,1 was born in Laos in 1958 and came
to the United States as a refugee in 1979. During the period of
time relevant to this case, he lived in Kodiak with Sondra.2
Sondra suffers from mild mental retardation and schizophrenia.
Burke and Sondra raised four children, Billy (age eleven), Beau
(age eight), Alec (age six), and Jesse (age four).3 Because
Burke was often away from the home (both at work and at play),
Sondra served as the primary caregiver for all four children.
Burke also visited Laos or Thailand for approximately one month
almost every year, leaving Sondra to act as the childrens sole
caregiver during those absences.
The Office of Childrens Services (OCS) first became
involved with the family in March 2000. Sondra gave birth to
Alec prematurely while Burke was in Laos, leaving no one to care
for Billy and Beau. OCS took Billy and Beau into protective
custody, but dismissed the child in need of aid (CINA) petition
when Burke returned to Kodiak about two weeks later.
The next period of OCSs involvement began in December
2001 and lasted until September 2004. In December 2001, while
Burke was again in Laos, OCS removed Billy, Beau, and Alec after
Sondra had a psychotic episode that rendered her unable to care
for the children.4 After Burke returned several weeks later, he
and Sondra stipulated that the children were in need of aid and
OCS commenced reunification efforts.
As part of its reunification efforts, OCS established
goals that needed to be met before reunification could occur.
These goals included stabiliz[ing] the relationship between Burke
and Sondra in order to provide a safe environment for the
children and plan[ning] appropriate activities for the children
during visitation. OCS referred Burke and Sondra to a variety of
support services to help them meet those goals. Burke was
referred to parenting classes, individual counseling, and couples
counseling. Burke and Sondra enrolled in couples counseling, but
it was discontinued because Burke either dominated the sessions
or failed to attend them. It is not clear whether Burke enrolled
in individual counseling, but he did complete parenting classes.
Janet Brenteson, the social worker in charge of the CINA case,
stated that Burke did not seem to engage in the counseling
process.
OCS initially arranged for supervised visitation, but
later allowed home visits between Sondra and Burke and their
three children. During some of these home visits, Sondra
physically abused the children. In April 2002, for instance,
Sondra purposefully burned Alecs arm with the end of a butane
candle lighter. Sondra hit the children regularly, often without
explanation. After learning about Sondras tendency to physically
abuse her children, social service providers worked with her to
improve her parenting skills.
In October 2002 Jesse was born. He lived with his
parents, despite the fact that his three older brothers were in
foster care. During much of the time that Jesse was living at
home, Sondra received intensive assistance from various service
providers in connection with the ongoing CINA case.
In May 2004, primarily because Sondra made significant
progress improving her parenting skills, OCS placed Billy, Beau,
and Alec back in Sondras and Burkes care for a trial home visit.
The trial visitation period went well and in September 2004 OCS
moved to dismiss the CINA case.
The third period of OCS involvement began only three
months after the previous CINA case had been dismissed. In
December 2004 OCS removed all four children from the home after
receiving reports that Sondra had physically abused them. Sondra
had kicked Alec in the face, bit Beau on the face, and spanked
Jesse with a wooden spoon on his bare bottom. Burke was not
alleged to have physically abused any of the children. However,
the record shows that Burke consistently failed to intervene on
his childrens behalf when Sondra became upset with them and Burke
testified that he was unaware of Sondras tendency to physically
abuse the children.
OCS began supervised visitation after removing the
children from their home. Home visits were not permitted because
the two older children stated that they were afraid of their
parents. Burke attended almost all of the scheduled visits, but
was not always actively involved in them. Brenteson testified
that during the supervised visits Burke interacted very little
with the children . . . . Thats been his behavior throughout
visitation. The possibility of home visits was further dampened
by the fact that Burke and Sondra denied Brenteson access to
their home to assess the conditions inside. In an effort to
promote contact between Burke and his children, OCS arranged for
regular telephonic visitation, but Burke called only twice.
OCS did not finalize its case plan for Burke until June
2005. The case plan identified two primary goals: improving
Burkes parenting skills and developing and sustaining Burkes
interpersonal relationships with his children. The case plan did
not refer Burke to service providers to help him achieve these
goals.
In September 2005 the parties agreed to retain Dr.
Susan LaGrande to conduct a psychological evaluation regarding
the familys strengths and weaknesses, including Burkes role, and
to issue a report that OCS could use to guide its permanency
goals and service referrals. Dr. LaGrandes evaluation was
critical of Burke. She observed that [b]ecause [Burke] places
responsibility for the problems in the family on Sondra, he takes
the position that he is blameless, and does not take
responsibility regarding how his actions have negatively impacted
his children. Dr. LaGrade concluded that Burke . . . believes he
understands what is best for his family[,] making it more
difficult to recommend services. With such a perspective it is
unlikely that he would benefit from services.
B. Proceedings
OCS petitioned to terminate Burkes parental rights in
November 2005.5 The superior court held a termination hearing in
May 2006 and concluded that Burkes parental rights should be
terminated. The court concluded that the state had established
by clear and convincing evidence that all four children were
children in need of aid. The state had also shown that OCS had
made timely, reasonable efforts to provide family support
services to the children. The court held that termination of
Burkes parental rights was in the childrens best interests and
declined to order post-termination visitation.
Burke appeals, but limits his appeal to the termination
of his parental rights concerning his youngest son, Jesse, and
the lack of post-termination visitation with all three of his
biological children.
III. STANDARD OF REVIEW
In a CINA case we will affirm the superior courts
factual findings so long as they are not clearly erroneous.6 A
finding is clearly erroneous only if our review of the entire
record leaves us with a definite and firm conviction that the
superior court made a mistake.7 Whether the superior courts
factual findings comport with the requirements of the CINA
statutes is a question of law that we review de novo.8
IV. DISCUSSION
To terminate parental rights, the superior court must
make three findings by clear and convincing evidence.9 First,
the court must find that the child has been subjected to conduct
or conditions that establish that the child is in need of aid.10
Second, there must be a finding that the parent has failed,
within a reasonable time, to remedy the conditions that pose a
danger to the child.11 Third, the court must find that OCS made
reasonable efforts to promote reunification.12
Burke attacks the first and third of these required
findings, arguing that the superior court abused its discretion
in finding that Jesse was a child in need of aid and contending
that OCSs reunification efforts were unreasonable as a matter of
law. Additionally, Burke suggests that the superior court should
have ordered post-termination visitation between him and his
children. We address each of these arguments in turn.
A. The Superior Court Properly Found That Jesse Was in Need of
Aid.
The superior court found that Jesse was a child in need
of aid under four separate statutory provisions. The court found
(1) that Jesse was subject to substantial physical harm or a
substantial risk of suffering physical harm;13 (2) that Jesse
suffered mental injuries;14 (3) that Jesse had been neglected;15
and (4) that Sondra suffered from a mental illness that placed
Jesse at a substantial risk of physical harm or mental injury.16
A child may be in need of aid where the child has
suffered substantial physical harm, or there is a substantial
risk that the child will suffer substantial physical harm, as a
result of conduct by or conditions created by the childs parent .
. . or by the failure of the parent . . . to supervise the child
adequately.17 The superior court made the following findings
regarding actual physical harm and the threat of physical harm:
There is no serious question that Sondra has
physically abused the boys over the period
from 2001-2004. She burned Alecs arm with a
lighter. She spanked all four boys with a
wooden spoon and a suitcase strap. She hit
Billy over the head with a broom stick. She
kissed and sucked on Alec and Beau so hard
that it raised bruises on their faces. She
also kicked Alec in the face raising bruises
and injuries inside and outside his cheek.
There remains considerable risk that she
would injure the children, either
intentionally or accidentally, if they were
returned to her care.
Addressing Burkes lack of involvement with his family, the court
found that Burke had never exhibited the experience, ability or
inclination to be the primary care taker for the boys.
Burke challenges the superior courts findings about
harm or risk of harm by arguing that Jesse was not subject to
anything beyond permissible corporal discipline. Burke also
argues that the superior court erred as a matter of law in
concluding that Jesse was at risk of suffering substantial
physical harm, but provides little support for this argument.
The state contends that the risk of harm that Jesse would face if
returned home is well documented in the record.
Although the record may not show that Jesse suffered
substantial physical harm, there is ample evidence to support the
superior courts finding that Jesse risked substantial harm if
returned home. The record contains evidence documenting Sondras
past physical abuse, which for the couples three older children
went well beyond corporal discipline.18 In 2002 she branded her
son Alec on the arm with a lighter, in 2004 she kicked Alec in
the face and bit Beau on the face. That this abuse was not
isolated is evidenced by several other incidents of abuse.
Sondras abusive behavior was also likely to continue.
Social worker Brenteson testified that although Sondra had made
progress in parenting classes between 2001 and 2004, she believed
that Sondra was still unable to use appropriate disciplinary
techniques. The timing of the December 2004 incident of physical
abuse, which occurred only days after Sondras primary service
provider was forced to temporarily suspend in-home assistance,
shows that even after over two years of parenting support
services Sondra continued to resort to physical abuse when she
felt unable to control her children.
The record shows that Burke did not prevent the abuse
and his lack of involvement as a parent often exacerbated Sondras
abusive behavior. Burke testified that he did not notice Sondras
physical abuse of the children; he also failed to intervene on
the childrens behalf when Sondra became upset with them.
Further, Burke traveled to Laos and Thailand for frequent visits
lasting a month or more, leaving Sondra alone to care for the
children. When he was not traveling or working, Burke often
played cards with friends instead of spending time at home with
his children and Sondra. These absences from the home put
substantial stress on Sondra, which on occasion led her to
physically abuse the children. Dr. LaGrandes conclusion that
Burke was a father who claims he is the mainstay of the family
but through his actions demonstrates neglectful and non-engaged
behaviors supports the conclusion that Burke would not have
prevented Sondra from harming Jesse if Jesse were returned home.
In sum, the superior courts findings that Jesse was a
child in need of aid because he faced a substantial harm if he
returned home are well supported by the record. These findings
are sufficient to establish that Jesse was a child in need of aid
under AS 47.10.011(6).19 As we conclude that the superior court
correctly determined that Jesse faced a substantial risk of
injury if he were returned home, we need not address Burkes
challenges to the superior courts other grounds for concluding
that Jesse was a child in need of aid.20
B. The Superior Court Did Not Err in Concluding That OCSs
Reunification Efforts Were Reasonable.
Burke next argues that OCSs reunification efforts were
unreasonable as a matter of law. He argues that the case plan
that OCS prepared for him after the December 2004 removal was
late and substantively deficient due to its failure to refer him
to any remedial services. The state suggests that when viewed in
the context of OCSs previous reunification efforts and Burkes
failure to cooperate with OCSs prior referrals, OCSs efforts
after December 2004 were reasonable. Although the reunification
efforts here present an extremely close case, we agree with the
state and affirm the superior courts conclusion that OCSs efforts
were reasonable.
When interpreting what types of reunification efforts
are required under AS 47.10.086(a),21 we have stated that OCS must
provide a parent with a reasonable opportunity . . . to remedy
the behavior that caused his [or her] children to be in need of
aid.22 In determining whether reunification efforts during a
specific time period were reasonable, we look at the entire
history of the services that OCS has provided a parent23 as well
as the parents level of cooperation with OCSs efforts.24
Our starting point for evaluating OCSs reunification
efforts is the identification of the problems that caused the
child or children to be in need of aid. Here, Burkes lack of
engagement with his family helped to cause the conditions that
left Jesse in need of aid. Burkes frequent absences from the
home meant Sondra had to parent the couples four children on her
own, which, because of her mental problems, she was largely
incapable of doing without resorting to physical abuse. When
Burke was at home, he was not supportive of Sondra and rarely
interacted with his children in a meaningful way. Sondras
ability to parent without resorting to physical abuse was thus
negatively affected by Burkes lack of involvement. Importantly,
Burkes disengagement from his family was the same problem that
OCS attempted to address between December 2001 and September 2004
as part of its earlier reunification efforts.
The record also shows that Burkes own shortcomings as a
parent contributed to OCSs decision to remove the children from
Burkes and Sondras home.
Burke was either unwilling or unable to realize that his behavior
adversely impacted his children: Dr. LaGrande concluded that
Burke does not take responsibility regarding how his actions have
negatively impacted his children. There is evidence that Burke
had other parenting problems as well. Brenteson testified that
it cannot be perceived that [Burke] is providing support
emotional support, either to [Sondra] or to the boys . . . .
Brenteson observed that throughout visitation Burke did very
little interacting with his children and she heard Billy tell
Burke that he didnt want to talk to him because Burke didnt
listen to what he had to say. Billy also told a social worker
that Burke chose to play cards with his friends instead of
playing with him. As the superior court found, Burke has never
exhibited the experience, ability or inclination to be the
primary caretaker for the boys. In sum, both Sondras and Burkes
parenting problems contributed to OCSs decision to remove the
children from their home.
Having identified the problems that Burke needed to
remedy, we must next consider whether OCSs efforts were
reasonable. We conclude that they were, but only marginally so.
Over the four-plus years that OCS was involved with
Burke and his children, it provided him with several referrals to
counseling programs that were designed to help him become more
involved with his family. During the CINA case that involved
Burkes three older children, OCS referred Burke to couples
counseling, individual counseling, and parenting classes. These
programs were designed to help Burke become more involved in
parenting his children and in assisting his partner, but Burke
declined to participate meaningfully in couples counseling and
there is no evidence he enrolled in individual counseling. Dr.
LaGrande explained that Burkes disinclination to participate owed
to the fact that he places responsibility for the problems in the
family on Sondra, [and therefore] takes the position that he is
blameless, and does not take responsibility regarding how his
actions have negatively impacted his children. Despite the
referrals he received, Burkes belief that he was not to blame for
his familys problems does not appear to have changed during the
pendency of the CINA cases.
Burke argues that OCSs failure to refer him to service
providers in his 2005 case plan rendered OCSs efforts
unreasonable. Although a case plan normally should refer parents
to appropriate service providers,25 in the specific context of
this case OCSs failure to make referrals was reasonable. In
addition to the fact that OCS referred Burke to service providers
during the three-year duration of the previous CINA case, two
other factors mitigate OCSs failure to include referrals in
Burkes 2005 case plan. First, OCS was entitled to take into
account the fact that Burke had completed only one of three
previous referrals.26 Thus, the fact that Burke previously failed
to complete couples counseling and appears not to have enrolled
in individual counseling weigh in favor of concluding that OCSs
efforts were reasonable.27 Second, and more importantly, at the
time of the December 2004 removal remedial services in Kodiak
appear to have been exhausted. The parties turned to Dr.
LaGrande for recommendations about further services only after
they were unable to determine what other services could be
offered in Kodiak to promote reunification. As the childrens
guardian ad litem explained, Because of the services that had
been made available in the past, I didnt know what else could be
done at this point in time to provide services to this family
. . . . In sum, Burkes previous lack of cooperation and the
exhaustion of resources mitigate OCSs failure to refer Burke to
service providers in the 2005 case plan.
Burke argues that OCS failed to explain to him what he
needed to do in order to be reunited with Jesse. We disagree.
After December 2004, but sometime before the case plan was
finalized, Brenteson met with Burke to discuss what types of
support services were needed to provide a stable home setting.
Although the case plan could have been written in more simple
language, it sufficiently apprised Burke of the improvements that
he needed to make in order to be reunited with Jesse. The case
plan explained that Burke needed to develop the skills necessary
to positively interact with his children or find[] ways to spend
quality time with them. Burkes progress was to be measured
through talking about the activities that he does with the
children during visitation. The second problem area identified
in Burkes case plan was that Burke does not demonstrate the
ability to interact with his family on a positive basis.28 Burke
was asked to develop family-based activities during visitation.
Social worker Brenteson also testified that on occasion she would
explain what was happening in the case and had simple
conversations about whats next. In light of the facts that OCS
had identified the same problems, created similar goals, and
referred Burke to services designed to help him reach those goals
during the previous CINA case, we believe that what Burke needed
to do under the 2005 case plan was reasonably clear.29
Burke also challenges the timeliness of the 2005 case
plan. Even though it took OCS a total of six months to finalize
the case plan, after the case plan was finalized OCS provided
Burke with a reasonable opportunity to show improvement.
Supervised visitation was scheduled once each week and it was
Burkes children who requested that the frequency of the visits
not be increased and home visits not be allowed. During the
supervised visits, Burke failed to demonstrate any greater level
of involvement with his children than before. Social worker
Brenteson testified that Burke interacted very little with the
children throughout the supervised visitation that OCS arranged.
On at least one occasion, instead of interacting with his family,
Burke left visitation twenty minutes early and waited in the car
for the visit to end. During another visit, Burke became upset
with one of his sons for not eating food that Burke had brought
to the visit. His son responded that he did not want to talk to
Burke, stating you dont listen to me anyway. Although visitation
provided Burke with a reasonable opportunity to show that he
could be more involved as a parent, he failed to do so.
In sum, OCS was involved with Burkes family for over
four years and during that time attempted to remedy the same
problem: Burkes lack of involvement as a parent. Because OCS
referred Burke to classes designed to address this problem and
because Burke ultimately did not become more involved despite
numerous opportunities to prove to the contrary, we conclude that
OCSs efforts were reasonable. We acknowledge that OCSs
reunification efforts in this case were far from perfect.30 In
the specific context of this case, however, we conclude that
despite OCSs deficiencies its efforts at reunification were
reasonable.
C. The Superior Court Did Not Err in Declining to Order Post-
Termination Visitation.
Burke argues that the superior court erred as a matter
of law when it concluded that [t]here is probably no authority
for the court to require post termination-visitation.31 While
recognizing that there is no CINA statute that expressly grants
the superior court the authority to order post-termination
visitation, Burke argues that such visitation should be allowed
where it is in the childrens best interests. The state and
guardian ad litem respond that public policy considerations weigh
strongly against recognizing any authority in the superior court
to order post-termination visitation in cases involving
involuntary termination of parental rights.
We addressed the issue of post-termination visitation
in C.W. v. State.32 We noted that when adequate grounds for
termination exist, there is no presumption that the parent should
have visitation rights.33 This was so because where parental
rights are terminated the biological parent does not retain any
residual rights relating to his or her child.34 We did not,
however, foreclose the possibility that the superior court could
authorize post-termination visitation in extraordinary
circumstances. We noted that in such circumstances post-
termination visitation would only be permitted to the extent that
the authorized visitation is in the best interest of the child.35
The superior court did not find extraordinary
circumstances to support post-termination visitation, and we
conclude that it was not error for the superior court to decline
to make such a finding. The childrens guardian ad litem
testified that the children needed permanency in their lives
after having been moved in and out of OCS custody multiple times
in a five- to six-year period. In an effort to secure permanency
for the children, the state had placed them with foster families
that expected to adopt them. Because visits with Burke, who was
in an adversarial relationship with the prospective adoptive
families, could clearly interrupt the childrens sense of
permanency with these families, it is unlikely that such
visitation would have been in the childrens best interests.36
Accordingly, the superior court did not err when it declined to
order post-termination visitation.
V. CONCLUSION
Because the record supports the superior courts
conclusions that Jesse was a child in need of aid, that OCSs
reunification efforts were reasonable, and that the court lacked
authority to order post-termination visitation, we AFFIRM its
decision in its entirety.
MATTHEWS, Justice, with whom BRYNER, Justice, joins, dissenting.
I believe that the state failed in its obligation to
make reasonable efforts to reunite Jesse with Burke.
Jesse was removed from the custody of Burke and Sondra
for the first and final time in December of 2004 because of
reports that Sondra had physically abused their children. The
specific allegations of physical abuse involving Jesse seem
relatively minor. But there was no question that in light of
Sondras mental illness and history of physically abusing the
other children Jesse was at risk of physical injury so long as he
was cared for by Sondra. This meant that Jesse was a child in
need of aid and justified at least the temporary exercise of
state custody over him.
Child-in-need-of-aid status is step one in a three-step
process that can result in the termination of parental rights.
The third and final step is a parents failure to remedy within a
reasonable time the condition that made the child in need of aid.
The second step is that the state must make reasonable efforts to
enable the safe return of the in-need-of-aid child to one or both
parents. These reasonable efforts should be aimed at helping a
parent remedy the condition that caused the in-need-of-aid
status. If the efforts succeed, the condition will be remedied,
the final step will not be reached, and the parents rights will
not be terminated.
As noted above, the condition that caused Jesse to be a
child in need of aid was that he was at risk of physical injury
from Sondra. This condition could have been remedied by Burke if
he had separated from Sondra and made arrangements to care for
Jesse in a way that protected Jesse from risk of injury by
Sondra. Our case law contains examples where state social
workers have advised a parent to separate from a live-in partner
where the continued presence of the partner could result in the
termination of the parents rights.1 But no such advice was given
to Burke.2
In many cases efforts at reuniting parent and child are
likely to fail because of the nature of the parents problems. In
such cases, the reasonable efforts requirement can be satisfied
by making efforts that are relevant to the problem that has
caused child-in-need-of-aid status even though there is not much
hope that the efforts can succeed.3 But this is not a typical
case. Burke has no obvious problems that make him an unfit
parent. He is a man who, as the superior court found, works long
hours in the fish processing facilities in Kodiak. He is not
addicted to drugs or alcohol and is not sexually or physically
abusive. And while Burke was not an ideal parent, there is
considerable evidence of his parental involvement. The superior
court noted Burkes contributions at the April 2005 adjudication
hearing: [Burke], the childrens father, provides a great deal of
support. When he is at home, he shoulders many of the
responsibilities for cooking and laundry and for childcare. Case
worker Rush, who was in the household quite a bit in 2004, also
noted Burkes parental support:
[Burke] did grocery shopping, he did the
laundry, you know, when he got up in the
morning, he would get [Billy] up, make sure
[Billy] was ready to go, you know, just kind
of help [Sondra] make sure all the kids were
ready to go when they needed to be ready.
Before he walked out in the morning, he just
made sure everybody was up. So he got
[Sondra] up and made sure all the kids were
up before he left in the morning. . . . He
works at the cannery, so he worked odd hours,
but he tried to make sure he was available,
you know, left early morning, and then in the
evening, and then theyd let him off for for
lunch to pick up the kids during summer camp,
and sometimes in the evening. Ive stopped by
there a couple evenings, and he was cooking
dinner, or he was getting dinner ready. So
he was doing his part of the share of house
house keeping chores and making sure things
were going okay.
In the case plan that the state developed for Burke on
June 2, 2005, the state identified only two interrelated concerns
with respect to Burke: (1) he had not demonstrated an ability to
interact with his family on a positive basis and (2) he had not
developed the skills necessary to positively interact with his
children or find ways to spend quality time with them. These are
common shortcomings among parents. They are not the reasons why
Jesse was a child in need of aid, nor are they reasons that would
stand in the way of the safe return of Jesse to Burke.
The overriding concern that resulted in Jesses in-need-
of-aid status was that Sondra could not be trusted to be left
alone with Jesse. So long as Burke and Sondra remained a couple,
Jesse could not be returned to Burke. In the face of this
concern, Burke needed the frank advice that unless he separated
from Sondra he could not regain custody of Jesse and his parental
rights were likely to be terminated.4 I think that any
reasonable effort at reuniting Jesse with Burke necessarily would
have included this advice. Since it was not given, I would hold
that the reasonable efforts requirement was not satisfied and
reverse the order of the superior court.
_______________________________
1 Pseudonyms have been used to protect the privacy of the
parties.
2 Sondra is not a party to this appeal.
3 Burke is not Billys biological father, but has acted as
his parent and is considered Billys psychological father. Burke
is the biological father of the other three children.
4 Jesse was not born until October 2002.
5 At the same time OCS also sought termination of Sondras
parental rights.
6 Carl N. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 102 P.3d 932, 935 (Alaska 2004) (quoting
Brynna B. v. State, Dept of Health & Soc. Servs., 88 P.3d 527,
529 (Alaska 2004)).
7 M.W. v. State, Dept of Health & Soc. Servs., 20 P.3d
1141, 1143 (Alaska 2001).
8 Carl N., 102 P.3d at 935.
9 AS 47.10.088(a).
10 AS 47.10.088(a)(1).
11 AS 47.10.088(a)(2)(A)-(B).
12 AS 47.10.088(a)(3).
13 See AS 47.10.011(6).
14 See AS 47.10.011(8).
15 See AS 47.10.011(9).
16 See AS 47.10.011(11).
17 AS 47.10.011(6).
18 See In re D.C., 596 P.2d 22, 23 (Alaska 1979) (holding
that discretion allotted to parents in administration of
punishment is not unlimited).
19 See 6 Arnold H. Rutkin, Family Law and Practice
64.11[2] (2005) (The rights of a parent who allows the other
parent . . . physically to abuse the child may also be terminated
for failing to protect the child.).
20 See Rick P. v. State, Office of Childrens Servs., 109
P.3d 950, 956 (Alaska 2005) (noting that it is unnecessary to
consider other findings where one ground for finding child to be
in need of aid is supported by record).
21 AS 47.10.086(a) provides:
(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 departments 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 departments actions that are
taken under (1) and (2) of this subsection.
22 Frank E. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 77 P.3d 715, 720 (Alaska 2003).
23 Erica A. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 66 P.3d 1, 7 (Alaska 2003).
24 See Jeff A.C., Jr. v. State, 117 P.3d 697, 707 (Alaska
2005).
25 See Frank E., 77 P.3d at 720 ([T]he requirement that
the state offer reunification services is fulfilled by setting
out the types of services that a parent should avail himself or
herself of in a manner that allows the parent to utilize the
services.).
26 See K.N. v. State, 856 P.2d 468, 477 (Alaska 1993)
(Although . . . [OCS] might have done more, it is unlikely that
further efforts by [OCS] would have been effective in light of
[the parents] attitude.).
27 However, we give Burkes lack of cooperation only
limited weight because his lack of cooperation was not
pronounced. Cf. E.A. v. State, Div. of Family & Youth Servs., 46
P.3d 986, 990 (Alaska 2002) (holding that seven-month long
failure to provide active reunification services did not render
overall efforts unreasonable where parent had long history of
either refusing services altogether or abandoning treatment plans
prior to completion).
28 The dissent credits Burkes testimony that he did not
know what to do in order to increase visitation and regain
custody. (Dissent note 4) But the case plan specifically called
upon him to develop the skills to identify appropriate activities
and entertainment in order to spend more time with his children,
and to demonstrate an active participation in the family and meet
the support needs of his family. Moreover, Brenteson testified
that visitation was not increased over time primarily because of
the childrens objections.
29 The dissent concludes that OCSs efforts were
insufficient because OCS did not advise Burke to separate from
Sondra.
We note first, in response to this argument, that
nowhere on appeal has Burke suggested that OCS should have
advised him to separate from Sondra. Nor is there any evidence
that he would have been willing to separate from her.
Second, and assuming that the couples separation was a
course that Burke might have accepted, the cases that the dissent
relies on are inapposite: Because of the deficiencies in Burkes
own parenting skills, this was not a case in which the only
serious obstacle to reunification was Burkes continued
relationship with Sondra. Cf. Ruby A. v. State, Dept of Health &
Soc. Servs., Div. of Family & Youth Servs., Mem. Op. & J. No.
1152, 2003 WL 23018276 (Alaska, December 29, 2003) (where only
obstacle preventing reunification was parents continued
relationship with sexually abusive partner and OCS warned parent
of need to end relationship with that partner in order for
reunification to occur, OCSs reunification efforts were
reasonable); V.H. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., Mem. Op. & J. No. 1124, 2003 WL 393768,
*2 (Alaska, February 19, 2003) ([T]he only serious obstacle to
reuniting Victor with Ruth appeared to be Victors inability or
unwillingness to end his relationship with Lisa.).
The dissent also suggests that Burke for the sake of
his children may have chosen to do the very thing that caused him
to lose them. This possibility was based on the testimony of
social worker Jaquelyn Rush that Burke had told her that he was
not going to marry Sondra but would stay with her to help her
with the kids. But Rush also testified that Sondra had told her
that she felt Burke only wanted her for her money and always was
asking her for her Social Security money. Rush also testified
that Burke asked for the boys PFD checks for the purpose of going
back to Laos to visit. The superior court made no findings
either way in this regard.
30 OCS could have finalized Burkes case plan more quickly
and reiterated in the 2005 case plan the types of services that
Burke should have availed himself of.
31 Unlike Burkes previous arguments, this argument
involves all three of his biological children.
32 23 P.3d 52 (Alaska 2001).
33 Id. at 57.
34 Id.
35 Id. at 58.
36 Burke characterizes this case as one where it is
undisputed that post-termination visits are in the best interests
of the children, but that characterization is not accurate. It
is true that the superior court did amend its findings at Burkes
behest to include the following: Dr. Susan LaGrande, the states
expert psychologist, testified that it would be in the best
interests of the . . . children to have contact with their father
in the future. But Dr. LaGrandes report was highly conditional.
Referring to post-termination visitation as an ideal scenario,
Dr. LaGrande noted that [t]o meet this ideal scenario [the
parents] each must establish an[] improved relationship with the
children. [Burke] will need to learn how to be interactive and
support the individuality of each child. Later Dr. LaGrande
noted that Burke had made no progress in this regard. She also
noted that at this time [Burke] has not demonstrated respectful
engagement with support services.
1 See Ruby A. v. State, Dept of Health & Soc. Servs.,
Div. of Family & Youth Servs., Mem. Op. & J. No. 1152, 2003 WL
23018276, at *1 (Alaska, December 29, 2003) (noting that the
parents OCS social worker told her that unless she evicted her
boyfriend, who had sexually molested one of her children in the
past, she would lose immediate custody of her children); V.H. v.
State, Dept of Health & Soc. Servs., Div. of Family & Youth
Servs., Mem. Op. & J. No. 1124, 2003 WL 393768, at *1 (Alaska,
February 19, 2003) (finding that the father has been repeatedly
and explicitly warned by . . . the social worker, and the court
that if [the substance-abusing mother] remained in his home, his
parental rights would likely be terminated).
2 Ironically, there is evidence suggesting that Burke
stayed in his unhappy relationship with Sondra for the sake of
the children. Case worker Rush described their relationship as
follows:
And [Burke] made it very clear that they were
not going to get married and at the time that
he was going to stay there with [Sondra],
help her with the kids, and they would work
on their relationship as time goes on, but I
think they have decided that their best
interest is the children, and they could
remain just friends, and take care of their
kids, and that they would not [sic] have a
platonic relationship, and that they were not
going to get married. (sic in original.)
Thus, it seems that Burke for the sake of his children may have
chosen to do the very thing that caused him to lose them. This
underscores the fact that he needed sound advice from OCS.
Todays opinion seeks to cast doubt on this conclusion
by noting that Sondra at one point told Rush that Burke only
wanted her for her money. Slip Op. at 16 n. 29. The court seems
to be suggesting that instead of staying with Sondra for the sake
of the children Burke was staying with Sondra for personal
enrichment. No witness, not even Sondra (who testified that she
spent the boys PFD money on clothes, shoes, a computer, and back
rent), testified that this was so, and Rushs account of what
Sondra told her does not support any such inference. According
to Rush, Sondra did not make these statements at the time that
Burke told Rush that the couple had decided to stay together
because of the children, but at another time when Sondra was
dissatisfied with their relationship and was considering leaving
Burke. The Q&A between counsel for the guardian at litem and
Rush on this point was as follows:
Q And did she, at times, tell you that she felt like
he only wanted her for her money and always was
asking her for her Social Security money?
A To pay to pay rent, to help him pay rent and
stuff like that, correct.
Q Did she also tell you that he asked her for the
boys PFD checks?
A Yes, he did.
Q And what was he intending to do with them,
according to her?
A She felt like he was going to take off and go back
to Laos to visit. He wanted to do a burial
celebration for his grandparents or father. I
cant remember which one it was.
Later in the same examination Rush confirmed that as of the time
of trial in May 2006 Burke and Sondra were making sincere efforts
to stay together in the hope that the children would be returned:
[T]hey appear to be really working on their relationship and the
communication to maintain that, and to continue to work on that
so that if the kids come back in the home, they will do better.
3 I am less convinced than the court that Burke was
unreceptive to the remedial suggestions of OCS. Burke completed
the parenting class and participated in the couples counseling
until it was discontinued because he tended to dominate sessions
and had attendance problems. The court twice suggests that Burke
did not enroll in individual counseling after it was suggested by
OCS. Slip Op. at 13, 14. But the record is unclear on this
point. When asked about the matter, Brenteson testified I cant
honestly recall if [Burke] actually did any individual
counseling. Thus, we know that he successfully completed one of
OCSs suggested programs, attended another with less successful
results, and compliance with the third whatever it might have
consisted of is simply unclear.
4 Burke testified that the social worker assigned to his
case, Jan Brenteson, never told him what he needed to do in order
to regain custody. He testified that Brenteson
never have no conversation with me, you know. She
never tell me what I should do to get my kid what
I do what I do wrong or what. You know, no
communication, you know.
Q So, since December of 2004, have you known what
youre supposed to do to get your children back?
A No, I dont know. I dont know nothing.
When Brenteson was in the process of taking the
children from the home Burke asked her to leave the children with
him. He testified that he received no response and felt
powerless to act in the face of authority:
[S]omehow Jan [Brenteson] come into my house I
going take your kid away from you, I say why, what
I do wrong to my kid. Then I asked her, Jan, if
you think there some if you know if can you
leave my kid here at home with me and can you take
[Sondra] somewhere else and just emergency for her
if she get well, and she come back, you know, with
my kids and she dont talk to me. She just took my
kid away from me. And I dont know until I have to
go to court next day then I know whats going on
and well, what can I do. I dont know nothing. I
just do what they want me to I mean do what they
want to do because I have no right to say nothing
to her especially when the police go over there,
so I dont. They got power; I dont have power.
Burke further testified that his requests for additional
visitation were also denied and that again he felt that there was
nothing he could do:
Q And have you had any concerns about what the the
way the visits have happened?
A I been thinking a lot and how do I going to open
how got I have some kind of key to talk to Jan
that I can see more my kid in the kind of see
more my kid when I like to visitation more, but I
just dont because Jackie [Rush], you know, I just
dont want to I always like talk to Jackie.
Jackie, can you find some kind of door or window
to get to Jans office. Lets see if I can visit my
kid more, you know. And I just I dont know. I
dont have no answer from anybody. It just I just
what I do is tell [Sondra], [Sondra], you do what
you like at home, okay, just try to make yourself
comfortable, and I going go work fight for my
bill now, you know, and just do what they want us
to do. One time one hours a day a week its
okay, you know. Thats all we can do.
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