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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Audrey H. v. State (07/18/2008) sp-6286
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
| AUDREY H., | ) |
| ) Supreme Court No. S- 12858 | |
| Appellant, | ) |
| ) Superior Court Nos. | |
| v. | ) 3AN-05-00156/157 CN |
| ) | |
| STATE OF ALASKA, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6286 - July 18, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, William F. Morse, Judge.
Appearances: Josie Garton, Assistant Public
Defender and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. Megan R.
Webb, Assistant Attorney General, Anchorage,
and Talis J. Colberg, Attorney General,
Juneau, for Appellee. Dianne Olsen,
Anchorage, for Guardian Ad Litem.
Before: Fabe, Chief Justice, Matthews,
Carpeneti, and Winfree, Justices. [Eastaugh,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
A mother appeals the termination of her parental rights
to two of her daughters, arguing that the superior court erred
when it found that the girls were children in need of aid due to
neglect and when it authorized the state to discontinue making
reasonable efforts to reunite the family. Because the superior
court made adequate findings to support its conclusion that the
girls were neglected and were therefore children in need of aid,
and because the superior courts findings that the state made
reasonable efforts were made in a manner sufficiently close to
that required by statute so as to avoid any harm or prejudice, we
affirm the superior courts order terminating the mothers parental
rights to her two daughters.
II. FACTS AND PROCEEDINGS
Audrey is the mother of four children, including Abby,
who was born in 1992, and Kit, who was born in 1996.1 Audreys
oldest child, a daughter, was removed from Audreys custody by
Office of Childrens Services (OCS) in March 2005. Audreys
youngest child, a son, lives with his father. Neither Audreys
oldest child nor youngest child is a party to this case.
In June 2005 OCS received a report of harm from staff
at the girls elementary school based on a statement by the then-
nine-year-old Kit that there was not enough food in the home. In
separate follow-up interviews with a social worker, both Kit and
Abby stated that they felt concerned and uncomfortable with some
of the people who came to the house and with the activities those
people engaged in within the home. After conducting the
interviews with Kit and Abby, the social worker and a police
officer visited the girls home where they observed alcohol
bottles and dirty clothes piled throughout the home, and broken
glass on the floor. The social worker and the police officer
also noted that there was frozen and canned food in the home
though the social worker observed that a bottle of milk in the
refrigerator was well beyond its expiration date.
Immediately following the home visit, the social worker
drafted a care and safety plan that required Audrey to undergo a
urinalysis for drugs and alcohol and to clean up the house. OCS
then received an additional report of harm from a school nurse
who had spoken with the girls at OCSs request. The school nurse
reported that Abby disclosed that while she was trying to clean
the house her mother became upset and threw books at her. Abby
told the school nurse she observed her mothers friends using
drugs in the house, and that she had once walked in on two people
naked on a bed. Abby also described seeing her mother with what
appeared to be drug paraphernalia and hearing her mother
discussing drugs over the phone. Abby again stated that she did
not feel safe or comfortable around her mothers friends. Kit
told the school nurse that everything was fine at home.
OCS removed the girls on June 8, 2005, assumed
emergency custody, and placed the girls together in a foster
home. The decision to remove the girls was based on concerns
arising from Audreys violent behavior toward Abby and on Abbys
allegations of drug use in the home; Audreys urinalysis had not
yet come back (and it was ultimately negative). On June 9 OCS
filed an emergency petition for adjudication of children in need
of aid and for temporary placement. A probable cause hearing was
held in July 2005 to determine whether Abby and Kit were children
in need of aid. At the conclusion of the hearing the superior
court found that there was probable cause that Abby and Kit were
children in need of aid and that they had been exposed to
neglect. The court specifically noted that theres been a
degradation in [Audreys] ability to care for the physical
environment of the home and that as a result the house has become
almost unliveable. The court also expressed concern that the
girls had been exposed to substance abuse and that the girls may
have observed sexual activity, drug use, drug sales, and possibly
prostitution in their home.
The superior court then turned to the question of
whether OCS had made reasonable efforts pursuant to AS
47.10.086(a). The superior court found that OCS had made
reasonable efforts toward the girls, but that OCS had not made
reasonable efforts to identify the mothers needs. The court was
particularly concerned that Audrey may have been suffering from
organic brain damage from a stroke or from drug abuse, and that
such brain damage may have made it difficult for Audrey to
understand or comply with her OCS case plan.2 Accordingly, the
superior court found that OCS acted unreasonably by failing to
secure a mental health evaluation for Audrey. Finally, the
superior court found that it would not be appropriate to return
the children to their home at that time.
In light of the superior courts instructions, OCS
attempted to arrange a mental health evaluation for Audrey. On
July 28, 2005, the day following the hearing, an OCS social
worker contacted the doctor who had conducted a
neuropsychological evaluation of Audrey in May 2000.3 Although
the doctor initially indicated that her schedule was full until
March 2006, an appointment was eventually made for August 3,
2005. The social worker also scheduled a substance abuse
assessment for Audrey to take place at OCSs office on August 2,
2005, because Audrey was already scheduled for a visit with her
children at the OCS office that day. The social worker wrote
Audrey a letter indicating the time and location of the substance
abuse assessment and put the letter, along with release of
information forms allowing OCS to exchange information with
Audreys doctors, into a packet with a bus pass and left the
packet at Audreys home. The social worker also sent copies of
the letter and the forms via certified mail and informed Audreys
attorney of all of these preparations by e-mail. On July 29 the
social worker called Audrey to inform her of the scheduled time
for the neuropsychological evaluation. At that time Audrey
confirmed that she had received the packet containing the letter,
forms, and bus pass.
Audrey failed to appear at the OCS offices for either
her regularly scheduled visit with her daughters or for the drug
and alcohol assessment on August 2. Audrey later explained to a
social worker that she had misread the letter and had traveled
directly to the offices of the center providing the drug and
alcohol assessment. Audrey then informed OCS that she had made
arrangements to undergo the drug and alcohol assessment at the
center. Audrey also confirmed at that time that she would be
ready the next morning to be picked up by OCS and transported to
her neuropsychological evaluation. The social worker again
informed Audreys attorney of all of these events and
arrangements. The next morning, when the social worker arrived
to pick Audrey up for the appointment, she found a note on
Audreys door that read Sorry Not available today. [Audrey]. No
one answered when the social worker knocked on the door. Audrey
never explained why she missed the appointment. The social
worker tried to reschedule another evaluation or at least some
testing, but after initially agreeing Audrey ultimately decided
not to go through with any testing.
Audrey missed several consecutive supervised visits
with her daughters in August, causing OCS to discontinue visits.
Visits recommenced in September, but were again discontinued in
October after Audrey failed to appear for them. By the time of
an adjudication hearing in December 2005, Audrey was not
following up on referrals from OCS, was not in compliance with
her case plan, and was not engaging in over-the-phone or in-
person visitation with her daughters. At the end of the
adjudication hearing, which Audrey did not attend, the superior
court found that Abby and Kit were children in need of aid, that
it would not be appropriate to return the children to their
mothers custody, and that therefore the best interests of the
children would be promoted by maintaining the children in OCS
custody pending a disposition hearing. The superior court then
asked for supplemental briefing on the question whether OCS had
made reasonable efforts.
In January 2006 OCS filed a motion to discontinue
reasonable efforts accompanied by a brief on reasonable efforts
where the parent refuses to participate in services. Audrey
opposed the motion to discontinue reasonable efforts. In
February 2006 the superior court issued its order finding that
OCS had not made reasonable efforts before July 2005, but that by
October 2005 OCS, by the slimmest of margins, finally achieved
the low standard for reasonable efforts. Accordingly, the
superior court concluded that [f]urther efforts to provide family
support to [Audrey] are no longer in the best interests of the
children and that OCS was no longer required to make reasonable
efforts.
The day after issuing its order the superior court held
a disposition hearing. At the hearing, OCS indicated that it
intended to pursue termination of parental rights with a long-
term goal of adoption. The superior court then combined the
disposition hearing with a permanency hearing, noting that it did
not appear to be necessary to wait another thirty days before
holding the required permanency hearing. The superior court
allowed Audreys attorney to object to this combination of the
disposition hearing with a permanency hearing in order to
preserve her right to request a contested hearing in the future,
but there is no evidence that she ever made such a request. The
court then confirmed that OCSs permanent plan was adoption and
made the required permanency finding. The state filed its
petition for termination of parental rights on March 10, 2006.
Meanwhile, in January 2006 both Abby and Kit were
admitted to North Star hospital for mental health treatment.
Both were released within a month.4 Abby was diagnosed as having
major depression with psychotic features, requiring treatment
with psychotropic medication. In November 2006 OCS filed a
motion for an order authorizing OCS to consent to psychotropic
medication, citing the need for timely responses to Abbys doctors
recommendations and Audreys continued unavailability. Audrey
opposed this motion but eventually consented to administration of
the medication by North Star Hospital. OCS renewed its motion
and requested expedited consideration in February 2007 because
Abbys prescriptions were running out, Audrey had not specifically
consented to administration of the medication by Abbys regular
doctor, and Audrey was again unavailable. Following two
hearings, the superior court found that OCS could not be
authorized to consent to the administration of medication, but
that Abbys foster mother could.5 The superior court denied OCSs
motion, instead appointing Abbys foster mother to be her limited
guardian with authority to consent to major medical treatment
including the administration of medication.
The superior court held another permanency hearing in
May 2007 and again found that OCSs efforts to finalize a
permanent plan for adoption of Abby and Kit by their respective
foster mothers was reasonable. OCS then filed an amended
petition for termination of parental rights.6 The superior court
held a hearing on the amended petition in August 2007. At the
hearing the court indicated that it would consider evidence in
the existing records, and heard testimony from OCS that Audrey
had not complied with her case plan or otherwise remedied her
conduct. Following the hearing, the superior court issued an
order terminating Audreys parental rights. The superior court
supported its decision by finding, by clear and convincing
evidence, that (1) both Abby and Kit were subject to neglect by
Audrey; (2) Audrey had not remedied her conduct and, as a result,
returning either child home would put that child at substantial
risk for both physical and emotional harm; (3) the state did not
make reasonable efforts to reunite the family and prevent out-of-
home placement before July 27, 2005, but that the state did make
reasonable efforts between July 28 and October 20, 2005, and the
state was relieved of its obligations to make reasonable efforts
as of February 6, 2006; and (4) termination of Audreys parental
rights to Abby and Kit was in the best interest of each child.
Audrey appeals.
III. STANDARD OF REVIEW
We will sustain a superior courts factual findings in a
CINA case unless those findings are clearly erroneous.7 Findings
of fact are clearly erroneous if a review of the entire record in
the light most favorable to the party prevailing below leaves us
with a definite and firm conviction that a mistake has been made.8
Whether a trial courts findings satisfy the relevant statutory
requirements is a question of law that we review de novo.9
IV. DISCUSSION
In order to terminate parental rights under AS
47.10.088 a superior court must find by clear and convincing
evidence that (1) a child is a child in need of aid as defined by
AS 47.10.011; (2) the parent has not remedied the conduct or
conditions in the home that place the child at substantial risk
of harm; and (3) OCS has made reasonable efforts under AS
47.10.086 to provide services to the family to prevent out- of-
home placement of the child or to enable the safe return of the
child. Audrey challenges the superior courts termination of her
parental rights to Abby and Kit on two grounds, arguing that the
superior court erred in finding by clear and convincing evidence
that Abby and Kit were children in need of aid under AS
47.10.011(9), and that the superior court erred in granting the
states motion to discontinue reasonable efforts.
A. The Superior Court Did Not Err in Concluding that the
Girls Were Children in Need of Aid.
Audrey argues that the superior courts finding, by
clear and convincing evidence, that Abby and Kit were subject to
neglect and therefore were children in need of aid was clearly
erroneous. Audrey argues that the evidence produced at the
probable cause, adjudication, and termination hearings showed
that the girls were fed, clothed, and attended school, and
therefore could not support a finding of neglect. The state
responds that there was sufficient evidence to support the
superior courts finding that Abby and Kit were subject to
neglect. The guardian ad litem argues that there was evidence in
the record that Audrey failed to ensure that the girls had
adequate food, safe shelter, education, and dental care.
Alaska Statute 47.10.011(9) states that a court may
find a child to be a child in need of aid if it finds that
conduct by or conditions created by the parent . . . have
subjected the child or another child in the same household to
neglect. Alaska Statute 47.10.014 states that the court may find
neglect of a child if the parent fails to provide the child with
adequate food, clothing, shelter, education, medical attention,
or other care and control necessary for the childs physical and
mental health and development, though financially able to do so
or offered financial or other reasonable means to do so.
The superior court first determined that there was
probable cause that the girls were children in need of aid in
July 2005, shortly after the girls were removed from their home.
The court found that mom is not capable of doing the normal day-
to-day things and that there was probable cause that the children
have been exposed to alcohol abuse by mom and substance abuse by
mom and by others. The superior court also found at the
adjudication hearing10 in December 2005 that OCS had met its
burden of showing by a preponderance of the evidence that both
children were children in need of aid, stating that it is obvious
that [Audrey] is not having contact with [the girls], is not
being responsive to their emotional needs, and that as a result
the children have emotional damage.
Finally, in its order terminating Audreys parental
rights, the superior court concluded that [b]y clear and
convincing evidence . . . each child has been subjected to
neglect by [Audrey], as defined in AS 47.10.014, and thus are
children in need of aid, pursuant to [AS 47.10.011(9)].11 To
support this conclusion the superior court made several findings
of fact. First, the superior court found, based on its oral
findings from the July 2005 probable cause hearing, that [i]n
June 2005 [Audrey] was incapable of caring for [Abby and Kit].
The family lived in a trailer that was extremely dirty and
contained unsafe physical conditions. [Audrey] allowed others in
the home to abuse alcohol and other drugs, engage in public
sexual activities, including prostitution, and was unable to care
for her children in any meaningful way. Second, the superior
court found, based on its oral findings from the February 2007
hearing on the states motion for an order authorizing OCS to
consent to medication, that [Abby] had become the functional
parent in the household, caring both for [Audrey] and [Kit], and
that this caused [Abby] significant emotional problems that
persist to this day. Third, the superior court found, again
based on its oral findings from the February 2007 hearing, that
[Audrey] remains incapable of caring for her children due to her
own constellation of cognitive and emotional problems. The
superior court also noted that those problems have resulted in
her neglecting her children (not willfully) and make it nearly
certain that she would neglect them again if they were returned
to her home and care. As a result, the superior court found,
[i]f either child was returned to [Audreys] care, that child
would suffer profound emotional damage and possibly physical harm
. . . from further neglect.
Audrey disputes the superior courts findings, noting
that the June 2005 home inspection by an OCS social worker and a
police officer revealed that there was food in the home.
However, none of the findings that the superior court made to
support its conclusions that the girls were subject to neglect
and were therefore children in need of aid relied on an absence
of food in the home.
Audrey also argues that the testimony of the social
worker and the police officer that the home contained dirty
laundry and broken glass was insufficient to establish that there
were unsafe physical conditions in the home and, even if it were,
there was no evidence that Audrey did not clean up the home
because OCS never conducted a follow-up home visit. The unsafe
conditions that the superior court noted included not only the
piles of dirty clothes and the broken glass on the floor,
however, but also the dirty dishes piled in a non-functioning
sink and alcohol bottles all over the home, as well as the
evidence that the girls were exposed to illegal drug use and open
sexual activity, possibly including prostitution, in their home.
The superior court was less concerned with dangerous conditions
posed by the physical state of the home and more concerned with
the evidence these conditions provided that Audrey was not
capable of doing the normal day-to-day things, and was incapable
of caring for her children.
Additionally, the superior court observed that the
greatest risk of harm to which the girls were exposed was the
risk of emotional harm. This emotional harm included the fact
that the girls, and particularly Abby, had been forced at a young
age to become the primary care-givers within their home. This
concern is underscored by indications that the girls assumed this
role even in the face of opposition from Audrey, most notably the
evidence that Audrey threw books at Abby when Abby was cleaning
the home.
Therefore, although it is true that OCS did not conduct
a follow-up inspection of the home, the superior courts
conclusions were based less on a single observation of the
physical conditions of the home and more on its overall
conclusion that Audrey was not capable of caring for her
daughters. The superior court was particularly concerned that
Abby had been forced to assume a care-giving role far beyond what
would normally be expected of someone so young, and that this
responsibility had the potential to cause significant emotional
damage.
Although the evidence presented may have been
insufficient to establish that the girls were at risk of physical
harm from inadequate food, clothing, and shelter, AS 47.10.014
also specifically states that the court may find neglect of a
child if the parent fails to provide the child with the care and
control necessary for the childs physical and mental health and
development. The superior courts primary conclusion was that
Audreys inability to care for her children placed them at great
risk of suffering profound emotional damage. Further, the record
suggests that both Abby and Kit have already exhibited strong
evidence of emotional damage. In January 2006 both Abby and Kit
were admitted to North Star hospital for mental health treatment.
Abby began ongoing treatment for major depression with psychotic
features. Abbys treatment has involved the use of psychotherapy
and psychotropic medications.
Finally, Audrey argues that the superior courts
references to Audreys mental illness and to the girls exposure to
drug use were irrelevant to a finding under AS 47.10.011(9), and
did not meet the requirements of AS 47.10.011(11) (parents mental
illness), or AS 47.10.011(10) (parents addictive or habitual use
of an intoxicant). Although it is true that there was
insufficient evidence to support a finding that the girls were
children in need of aid under subsections (10) or (11), the
superior courts findings were made entirely under subsection (9).
Audrey does not point to any case law for the proposition that
the superior court may not consider evidence probative to one
subsection in making a determination that a child is in need of
aid under another subsection.
The superior court therefore considered the full range
of evidence available to it, and made specific findings
sufficient to support its conclusion that Abby and Kit were
subjected to neglect due to their mothers failure to provide them
with the care and control necessary for their mental health and
development.12 Because there was clear and convincing evidence in
the record to support the superior courts finding that the girls
had been subjected to neglect, and because this finding was
sufficient to establish that the girls were children in need of
aid,13 the superior court did not err in concluding that the girls
were children in need of aid.14
B. The Superior Court Did Not Err in Authorizing OCS To
Discontinue Making Reasonable Efforts Under AS
47.10.086.
Alaska Statute 47.10.086(a) requires OCS to make
timely, reasonable efforts to provide family support services to
the child and to the parents . . . 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. The superior court
may excuse OCS from continuing to make reasonable efforts if the
court makes a finding at a hearing conducted under AS
47.10.080(l) that a parent . . . has not sufficiently remedied
the parents . . . conduct or the conditions in the home despite
reasonable efforts made by the department in accordance with this
section.15 Alaska Statute 47.10.080(l) describes the procedures
to be followed in conducting a permanency hearing and the
findings that a superior court must make in establishing the
permanent plan for the child.
The superior court issued an order on February 9, 2006,
finding that OCS did not make reasonable efforts before July 27,
2005, but had begun making reasonable efforts by October 20,
2005. The superior court therefore concluded that the
requirements of AS 47.10.086(b) were met and granted the states
motion to discontinue making reasonable efforts.
Audrey argues that the superior court erred in two
respects by issuing its order excusing OCS from making reasonable
efforts. First, Audrey claims that the court had no authority to
order the discontinuation of reasonable efforts under AS
47.10.086(b) because the case was not in permanency proceedings.
Second, Audrey claims that the superior court erred in finding
that the states efforts constituted reasonable efforts sufficient
to permit the state to abandon its obligations.
1. The failure of the superior court to make findings
during a permanency hearing that excused OCS from
making reasonable efforts was harmless error.
Under AS 47.10.086(b) a court may conclude that the
continuation of reasonable efforts is not in the best interests
of the child if the court makes a finding at a hearing conducted
under [the permanency hearing provisions of] AS 47.10.080(l) that
a parent or guardian has not sufficiently remedied the parents or
guardians conduct or the conditions in the home despite
reasonable efforts made by the department in accordance with this
section.16 CINA Rule 17.1(b) states that [a]t the permanency
hearing required under AS 47.10.080(l), the court may find that a
continuation of reasonable efforts is not in the best interests
of the child under AS 47.10.086(b). CINA Rule 17.1(b) also
provides that [a]ny party recommending such a finding must
include the recommendation, specifying the factual basis for it,
in its report for permanency hearing required by CINA Rule
17.2(c) or in a separate motion.
Here, the state filed a motion to discontinue
reasonable efforts in January 2006. The state briefed the effect
of parental refusal to participate in services, and asked the
court to make a finding that reasonable efforts have been
provided, and for an order that the department may stop providing
these efforts at the next permanency hearing, as provided by CINA
Rule 17.1 and AS 47.10.086(b).17 This motion provided both a
recommendation to the court and the factual basis for the
requested finding that reasonable efforts have been made and
should be discontinued at the next hearing. Audrey filed her
opposition to the states motion to discontinue reasonable efforts
on January 30, 2006.
Rather than making its findings at the next permanency
hearing as required by AS 47.10.086(b) and CINA Rule 17.1(b),
and as requested by the state in its motion the superior court
issued a written order on February 9, 2006 granting the states
motion to discontinue reasonable efforts. On February 10, 2006,
the day after issuing its order, the superior court held a
disposition hearing at which it also made permanency findings.18
At the disposition hearing the state acknowledged that it had
received the courts order regarding the discontinuation of
reasonable efforts the day before, and indicated its belief that
the court was required to hold a permanency hearing within thirty
days of issuing its order permitting the state to discontinue
reasonable efforts. The court, accepting the states assertion,
indicated its intention to combine the disposition hearing with a
permanency hearing.19 Although the superior court allowed Audreys
attorney to object to the courts making permanency findings at
the disposition hearing in order to preserve her right to reopen
the issue in the future, there is no evidence that Audrey ever
challenged the findings or requested that the issue be reopened.
At the February 10 disposition/permanency hearing the superior
court approved the states permanent plan of adoption and required
the state to file a petition for termination of parental rights
by March 15, 2006.
Audrey argues that the superior courts written order
excusing OCS from continuing to make reasonable efforts was not
valid because its findings were not made at a permanency hearing
as required by AS 47.10.086(b). Audrey is correct that the
superior court issued its order granting the states motion to
discontinue reasonable efforts to reunite the family without
first holding a permanency hearing. However, Audrey misstates
the facts when she claims that the superior court did not hold a
permanency hearing until May 2007. Audrey also fails to
establish that she suffered any prejudice or injury as a result
of the courts actions.
The superior court should have responded to the states
motion to discontinue reasonable efforts by holding a permanency
hearing at which it could make the required findings that Audrey
had not sufficiently remedied her conduct or the conditions in
the home despite reasonable efforts made by the department,20 and
that discontinuing reasonable efforts was in Abby and Kits best
interests.21 Instead, the superior court made these findings in
its written order granting the states motion to discontinue
reasonable efforts, and then made permanency findings the
following day at the scheduled disposition hearing. In its
written order granting the states motion to discontinue
reasonable efforts the superior court found that the state had
made reasonable efforts by October 2005, that there is little
reason to believe that further efforts by the State to provide
family support services to [Audrey] will enable her to modify her
conduct or alleviate the conditions in her home that the children
would be exposed to if returned there, and that [f]urther efforts
to provide family support to [Audrey] are no longer in the best
interests of the children. The superior court therefore made the
findings required by AS 47.10.086(b) and CINA Rule 17.1(b),
albeit in a written order and not at a permanency hearing. The
superior court again made findings on the states reasonable
efforts in its findings and orders following permanency hearings
held in May 2006 and May 2007.
Therefore, although the superior court initially made
its findings in a written order and not during the permanency
hearing, it did conduct a permanency hearing on the following
day, at which it extended to Audrey the chance to be heard
further on the matter if she desired. In addition, the superior
courts February 8 written order contained extensive findings, the
accuracy and sufficiency of which we discuss below. While the
superior court should have made its findings at the permanency
hearing, this error appears to have been harmless because Audrey
has not established that she suffered any prejudice from the
courts decision to make the findings in a written order prior to
holding a permanency hearing.22 Nor can we imagine any prejudice:
Audrey was heard on the issue through the opposition brief that
she filed, she did not seek an evidentiary hearing when the
states motion was before the superior court, and she did not ask
for a hearing after the chance to do so was explicitly discussed
with counsel at the disposition/permanency hearing.
2. The superior court did not err in finding that the
state had made reasonable efforts as required by
Alaska Statute 47.10.086(b).
In order to permit the state to discontinue making
reasonable efforts under AS 47.10.086(b), the superior court must
find that the parent has not sufficiently remedied her conduct or
the conditions of the home despite reasonable efforts made by OCS
under AS 47.10.086(a), and that the continuation of reasonable
efforts is not in the best interests of the child.23 The timely,
reasonable efforts required of OCS by AS 47.10.086(a) include the
duty to: (1) identify family support services that will assist
the parent . . . 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; . . .
and (3) document the departments actions that are taken under (1)
and (2) of this subsection. When making determinations under AS
47.10.086, the primary consideration is the childs best
interests.24
The efforts that OCS makes must be reasonable but need
not be perfect.25 OCSs efforts must be evaluated in light of the
circumstances of each particular case, including the parents
actions or inaction.26 The reasonableness of the states efforts
must be viewed in light of the entire history of services that
the state had already provided.27 A parents demonstrated
unwillingness to participate in treatment may be considered in
determining the reasonableness of state efforts.28
Here, the superior court considered the entirety of
OCSs interactions with Audrey, beginning in March 2000. The
superior court also considered OCSs efforts to work with Audrey
following the removal of Abby and Kit from their home in June
2005. The superior court concluded that the state did not make
reasonable efforts before July 2005, noting that it was not
reasonable to direct a person with [Audreys] apparent mental
health problems to evaluators but then do little more to
determine her status when she failed or was unable to obtain the
assessments she so obviously needed. The superior court then
concluded that the state had made reasonable efforts by October
2005, noting that the state had arranged for a substance abuse
assessment and a neuropsychological evaluation for Audrey (and
had gone to great lengths to assure that Audrey would attend) but
that Audrey had failed to arrive for her appointments and that
Audrey had continually missed visits with Abby and Kit. The
superior court also found that [f]urther efforts to provide
family support to [Audrey] are no longer in the best interests of
the children.
In concluding that the state had made reasonable
efforts the superior court relied on the low standard for
reasonable efforts described in Frank E. v. State[29] and Jeff
A.C. v. State.[30] In Frank E. we held that the state had met the
reasonable efforts requirement even though it had failed to make
reasonable efforts during a portion of the time that it worked
with the parent.31 We also held in Frank E. that the 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.32 In Jeff A.C. we concluded that the
reasonableness of the states efforts may depend on the interest
in parenting expressed by the parent, with the states
responsibility decreasing as the parents interest decreases.33
Audrey argues that OCS failed to make reasonable
efforts, asserting that [b]etween June 8, 2005 and February 2006,
the states efforts consisted of no more than several hours work,
one attempt to pick [Audrey] up for a mental health evaluation,
arranging two evaluations, drafting a handful of letters, and
dropping them off at [Audreys] trailer. Audrey claims that these
efforts were particularly unreasonable in light of Audreys
cognitive and mental disabilities.
The state and the guardian ad litem dispute both
Audreys description of the facts and her characterization of the
states efforts as unreasonable. We agree with the state and the
guardian ad litem. When considered in the context of the full
history of its involvement with Audrey,34 the states efforts to
provide family support services to Audrey were reasonable.
OCS has a long history of working with Audrey,
beginning in 1998 when it first received reports of harm that she
was neglecting her children. In 2000 OCS arranged and provided
funding for Audrey to undergo a neuropsychological evaluation.
The doctor who conducted the evaluation concluded that Audreys
most dramatic symptoms appeared to be psychiatric in origin and
recommended medication management of depressive and paranoid
symptoms and goal-focused therapeutic intervention. Although
Audrey did attend counseling, she did not follow through on
medication management. OCS then closed the case plan. In
January 2005 OCS received a report of harm involving substance
abuse and domestic violence between Audrey and her boyfriend.
OCS prepared a care and safety plan for Audrey involving a
substance abuse evaluation, a mental health evaluation,
urinalysis testing, and counseling, but Audrey did not comply
with the plan. In March 2005 Bailey, Abby and Kits older sister,
required in-patient psychiatric treatment. Upon her release from
the hospital Bailey was placed into OCS custody because Audrey
failed to work with OCS to provide appropriate services for
Bailey. In May 2005 Audrey refused to meet with a social worker
who came to the house to discuss Baileys case plan, and then was
absent when the social worker arrived for a subsequent agreed
upon meeting.35
In June 2005 OCS received the report of harm from Abby
and Kits school that gave rise to the proceedings at issue in
this case. Following the initial home visit, OCS created a care
and safety plan that called on Audrey to clean the house and to
participate in a urinalysis test. Audrey participated in the
urinalysis, which later came back negative for drugs and alcohol.
But then OCS received additional reports of harm from the girls
school. In June 2005 Audrey also discussed with OCS staff the
possibility of undergoing a mental health assessment and
indicated her intention of taking a parenting class. OCS did not
immediately make efforts to arrange for the mental health
evaluation, and did not arrange the parenting class because
Audrey indicated that she was already making her own
arrangements.
At the probable cause hearing in July 2005 the superior
court found that the state had not made reasonable efforts to
identify Audreys needs. The superior court recognized that
Audrey has been difficult to deal with recently and has
articulated an unwillingness at times to accept services or to
participate in a case plan. Nevertheless, the superior court
stated that because there was evidence that Audrey had suffered
organic brain damage the state had a heightened duty to more
assertively gain Audreys confidence and get her to participate in
an evaluation to gauge the extent of the injury and its potential
impact on Audreys ability to comply with a case plan.
Immediately following the probable cause hearing, an
OCS social worker arranged for the doctor who had performed
Audreys May 2000 neuropsychological evaluation to conduct another
evaluation and arranged for Audrey to undergo a drug and alcohol
assessment. Despite the fact that OCS scheduled the drug and
alcohol assessment to take place at the OCS offices following a
regularly scheduled visit between Audrey and the girls; notified
Audrey of the time and location of the appointments orally and
via a letter at her residence, a letter sent by certified mail,
and an e-mail to her attorney; provided Audrey with a bus pass to
get to the OCS offices and arranged to drive her to the
neuropsychological evaluation, Audrey missed both appointments.
Eventually Audrey made clear that she did not intend to undergo
any evaluation. In January 2006 an OCS social worker met with
Audrey in her home to discuss her case plan and provided her with
a packet that contained information on alcohol and drug treatment
and assessment resources, mental health resources, food and
shelter resources, and also contained bus tokens and directions
to a urinalysis facility.
In addition to providing services for Audrey and
arranging evaluations, OCS also made repeated efforts to arrange
visitation between Audrey and the girls. After OCS removed the
girls from their home in June 2005, OCS arranged for in-person
supervised visitation and allowed daily phone visitation. OCS
then arranged for a two-hour visit once a week at the OCS
offices. Audrey was late to or completely missed visits
throughout June and July, even though OCS had provided her with a
bus pass so that she could attend the visits. In August 2005 OCS
temporarily cancelled Audreys supervised visitations due to
Audreys lack of attendance. In September 2005 OCS recommenced
visitation after providing Audrey with a letter that outlined the
conditions of visitation. The letter also made clear that a
visit would be canceled if Audrey was more than fifteen minutes
late, and that visitation would be suspended again after three
missed visits. OCS suspended visitation again in October 2005
due to Audreys lack of contact with and continual disregard for
the outlined visitation guidelines. Audreys participation in
phone visitation with her daughters was also sporadic, and she
stopped accepting their calls in November 2005.
As stated above, the superior courts finding in July
2005 that OCS had not made reasonable efforts was premised
largely on the courts concern that Audreys potential cognitive
and mental limitations could be making it difficult for her to
work with OCS and to comply with her case plan. The evidence is
not clear on the degree to which Audreys cognitive and mental
conditions contributed to her demonstrated unwillingness to
attend appointments or to work with OCS on her case plan. The
doctor who conducted Audreys 2000 neuropsychological evaluation
concluded that Audreys more dramatic symptoms were not consistent
with the effects of brain lesions and appeared to be psychiatric
in origin. The doctor further noted that Audreys cognitive
functioning does not limit her ability to benefit from parent
training and other interventions typically provided by [OCS].
The record therefore shows that OCS repeatedly
attempted to arrange evaluations and services for Audrey
including neuropsychological evaluations, alcohol and drug abuse
assessments, and urinalysis. In addition to identifying these
services, OCS took affirmative steps to ensure Audreys
participation, including paying for the neuropsychological
evaluation, arranging to drive Audrey to the neuropsychological
evaluation, arranging for the drug and alcohol assessment to be
conducted at the OCS office immediately following a previously
scheduled visitation, and providing Audrey with bus passes and
tokens so that she could attend court hearings, assessments, and
visitations. OCS also arranged and facilitated visits between
Audrey and the girls.
OCS identified family support services that would
assist Audrey in remedying the conduct or conditions in the home
that made Abby and Kit children in need of aid by identifying the
neuropsychological evaluation, drug and alcohol assessment, and
urinalysis testing.36 Had Audrey participated in these
evaluations, OCS would have been able to identify additional
services catered to her specific needs. OCS actively offered
Audrey, and referred her to, those evaluations by making
appointments, arranging payment, and providing for
transportation.37 It has not been contested that OCS documented
these efforts.38 Although OCSs efforts were not perfect, they
were reasonable,39 particularly in light of Audreys demonstrated
unwillingness to participate in treatment.40 Accordingly, the
superior court did not err in finding that the state had made
reasonable efforts.
Because the superior court did not err in finding by
clear and convincing evidence that Abby and Kit were children in
need of aid and that OCS had made reasonable efforts, and because
the superior court found that despite these reasonable efforts
Audrey was unable to accept the states offers of assistance and
was incapable of caring for the children, the superior court did
not err in concluding that further efforts to provide family
support to Audrey would no longer be in the best interests of the
children.41
V. CONCLUSION
Because adequate findings supported the superior courts
conclusion that Abby and Kit were children in need of aid, and
because the superior court did not err in authorizing OCS to
discontinue making reasonable efforts to reunify the family, we
AFFIRM the superior courts order terminating Audreys parental
rights to Abby and Kit.
_______________________________
1 We adopt the pseudonyms employed by the state and the
guardian ad litem for family members involved in this case.
2 In May 2000 Audrey reported to a neuropsychologist that
she had suffered strokes in 1994 and 1997.
3 The neuropsychologists May 2000 report indicates some
skepticism regarding the nature and severity of the incidents
that Audrey describes as strokes, noting, for instance, that
Audreys records reveal the majority of [Audreys] complaint did
not correlate with area of brain involvement indicated by MRI.
The neuropsychologist concluded that [a]lthough [Audreys] subtle
neuropsychological impairments are consistent with site of
lesion, her more dramatic symptoms are not consistent with
observed brain lesions, and appear to be primarily psychiatric in
origin.
4 During this same month, Audrey was evicted from her
home for failure to pay rent, and also lost her disability
payments, leaving her without financial resources.
5 By this time Abby had been placed with a new foster
family. Kit remained with the original foster family.
6 OCS had originally filed a petition for termination of
parental rights in March 2006, but at the May 2007 permanency
hearing the superior court instructed OCS to submit an amended
petition for termination of parental rights.
7 Brynna B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004).
8 Id. (quoting A.B. v. State, Dept of Health & Soc.
Servs., 7 P.3d 946, 950 (Alaska 2000)).
9 Id.
10 Alaska Child in Need of Aid Rule 15(a) provides that an
adjudication hearing is a trial to the court on the merits of the
petition for adjudication that must be completed within 120 days
after a finding of probable cause is entered. At the conclusion
of the adjudication hearing the court is to make findings of fact
and enter a judgment that the child is or is not a child in need
of aid. CINA Rule 15(d).
11 CINA Rule 18(b) provides that a termination hearing is
a disposition hearing to the court on the question of whether the
parental rights to an adjudicated child in need of aid should be
terminated.
12 See AS 47.10.014.
13 See AS 47.10.011(9).
14 See AS 47.10.088.
15 AS 47.10.086(b).
16 This provision, under which a court may authorize the
state to discontinue making reasonable efforts, should not be
confused with AS 47.10.086(c), under which a court may determine
that reasonable efforts to reunite the family are not required in
the first place if the court has found by clear and convincing
evidence that one of several enumerated conditions is present.
Such conditions include that the parent or guardian has subjected
the child to circumstances that pose a substantial risk to the
childs health or safety including abandonment, sexual abuse,
torture, chronic mental injury, or chronic physical harm; has
committed felony homicide of a parent of the child or has
committed felony assault that resulted in serious physical
injury to the child; or is not locatable by OCS after a
reasonably diligent search of at least three months. CINA Rule
17.1(a) provides that a determination under AS 47.10.086(c) may
be made at any stage of a proceeding upon a motion by a party.
If the court makes such a determination in a proceeding other
than a permanency hearing, CINA Rule 17.1(c) states that the
court shall hold a permanency hearing under AS 47.10.080(l)
within 30 days after the determination.
17 The state specifically stated that it was not seeking a
finding that reasonable efforts are not necessary, because these
children did not suffer any of the circumstances described under
AS 47.10.086(c).
18 According to CINA Rule 17, [t]he purpose of a
disposition hearing is to determine the appropriate disposition
of a child who has been adjudicated a child in need of aid
including whether the child should be removed from her home,
(CINA Rule 17(a),(d)(2)) while [t]he purpose of the permanency
hearing is to establish a permanency plan for each child
committed to state custody including whether the child should be
returned to the parent, placed for adoption, or placed in another
planned, permanent living arrangement. CINA Rule 17.2(a),(e)(2)-
(4).
19 In making its decision to combine a disposition hearing
with a permanency hearing, the superior court stated that I know
the rule says I have to do that in 30 days, an apparent
reference to CINA Rule 17.1(c) which provides that [i]f the court
determines that reasonable efforts are not required under AS
47.10.086(c) in a proceeding other than a permanency hearing, the
court shall hold a permanency hearing under AS 47.10.080(l)
within thirty days after the determination. Accordingly, the
superior court appears to have combined the permanency hearing
with the disposition hearing in an attempt to avoid holding a
separate permanency hearing within the next thirty days. In
reaching this decision, however, the court misapplied the CINA
rules. Because the states motion to discontinue reasonable
efforts was brought under AS 47.10.086(b) requiring that the
findings regarding discontinuation of reasonable efforts be made
during the permanency hearing and not AS 47.10.086(c), the
thirty day deadline from CINA Rule 17.1(c) did not apply and the
superior court had already erred by failing to make the findings
during a permanency hearing before issuing its order granting the
motion to discontinue reasonable efforts.
20 See AS 47.10.086(b).
21 See CINA Rule 17.1(b).
22 See Bennett v. Hedglin, 995 P.2d 668, 674 (Alaska 2000)
(noting this error is harmless because [appellant] has failed to
demonstrate that the [courts action] caused him prejudice).
23 See also AS 47.10.080(l)(4)(A).
24 AS 47.10.086(f).
25 Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska
2005) (noting that while the states efforts were not exemplary,
neither were they unreasonable).
26 Id. at 707 (concluding that the state, in determining
what efforts to reunite parent and child are reasonable, may
consider the parents actions).
27 Erica A. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 66 P.3d 1, 7-8 (Alaska 2003) (noting
that determination of reasonable efforts in context of
termination of parental rights may include consideration of
efforts made by the state even before affected children were
born).
28 E.A. v. State Div. of Family & Youth Servs., 46 P.3d
986, 991 (Alaska 2002) (applying this principle to the higher
standard of active efforts required in Indian Child Welfare Act
cases).
29 77 P.3d 715, 718-21 (Alaska 2003).
30 117 P.3d at 705-07.
31 77 P.3d at 720-21 (stating that we examine whether the
states reunification efforts, when looked at in their entirety,
satisfy the requirements of AS 47.10.086(a)).
32 Id. at 720.
33 117 P.3d at 707 (noting that the states efforts in this
case to reunite Jeff with Jasmine were reasonably calibrated to
the interest in parenting demonstrated by Jeff).
34 See Erica A. v. State, Dept of Health & Soc. Servs.,
Div. of Family & Youth Servs., 66 P.3d 1, 7-8 (Alaska 2003).
35 Although these interactions between OCS and Audrey
regarding Bailey did not directly involve Abby or Kit, the
determination of whether OCS made reasonable efforts may involve
consideration of all interactions between the parent and OCS. See
id.
36 See AS 47.10.086(a)(1).
37 See AS 47.10.086(a)(2).
38 See AS 47.10.086(a)(3).
39 See Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska
2005).
40 See E.A. v. State Div. of Family & Youth Servs., 46
P.3d 986, 991 (Alaska 2002).
41 See AS 47.10.086(b).
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