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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Roland L. v. State, Office of Children's Services (05/08/2009) sp-6372
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
| ROLAND L., | ) |
| ) Supreme Court No. S- 13295 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-06-166 CN |
| ) | |
| STATE OF ALASKA, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6372 - May 8, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Craig F. Stowers, Judge.
Appearances: Angela M. Greene, Assistant
Public Defender and Quinlan Steiner, Public
Defender, Anchorage, for Appellant. Laura C.
Bottger, Assistant Attorney General,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. A father whose parental rights have been terminated
argues that the Office of Childrens Services (OCS) failed to make
statutorily required active efforts to reunify him with his
daughter. We agree with the father that OCS failed to make
active efforts during the first three months of the daughters
life. But for the next year the father went on the run from the
law, and could not be found. After his re-arrest, OCS delayed
proceedings to terminate his parental rights for six months to
pursue active efforts, and the father did make some progress
during that time. We nonetheless conclude that his desultory
progress was insufficient considering his history of domestic
violence and his problems with anger management, mental health,
and substance abuse. We affirm the trial courts conclusion that
OCS made active efforts to reunify father and daughter.
II. FACTS AND PROCEEDINGS
A. Facts
Sherrie,1 an Indian child, was born on May 2, 2006.
Roland is Sherries father. He was in jail when Sherrie was born.
OCS identified Sherrie as a child in need of aid shortly after
birth. OCS identified Roland as Sherries father within a few
weeks of her birth. But Sherries social worker did not contact
Roland at the jail except to send someone to obtain a specimen
for paternity testing and to give Roland her card.
Roland got out of jail in July 2006, and on August 8 he
called Sherries social worker and asked for visitation with
Sherrie. Sherries social worker set up visitation for Wednesday
mornings from nine to ten, but at first she could not contact
Roland to tell him because he did not give her his contact
information. A few weeks later, he contacted her and she told
him about the visitation. At the termination trial, the social
worker testified that for three weeks in a row, Roland failed to
show up at the visitations. She testified that when he was
telephoned,2 Roland said that he just woke up because he was
working the night shift as a janitor, and he lived too far away
to get there in time, so he would have to miss the visitation.
In October Sherries social worker talked to Roland
about a case plan, but he refused to participate. The social
worker testified that in that conversation Roland said he was not
going to work a fucking case plan. She also testified that he
referred to Sherrie as the damn baby. Rolands testimony
differed, but the trial court believed the social workers version
of events, finding that in 2006 Roland told the social worker in
no uncertain terms he would not work a case plan.
The social worker had no further contact with Roland
after that. She explained: He was on the run. His probation
officer and I were talking and we had an agreement if he were
found, if . . . I found out where he was, I would let him know or
if he found out, he would let me know. Roland later testified
that he had been staying with a friend at the Alaska Senior
Center. He agreed that he had been on the run, and if law
enforcement had found him he would have gone back to jail.
Roland was arrested and re-incarcerated in September
2007. The social worker learned his whereabouts in late November
or early December 2007, when Roland called her to ask for visits
with Sherrie.
B. Proceedings
In December 2006 OCS filed for termination of Rolands
parental rights. The case went to trial in December 2007. At
trial, evidence focused several times on OCSs failure to contact
or assist Roland while he was in jail during the first few months
of Sherries life. On the second day of trial, OCS decided to
continue the termination proceedings against Roland in order to
have additional time to work with him. OCS cited the evidence
that came out at the beginning of the trial and the concerns that
I think everybody had about the efforts that had been made up to
[August 2006]. Superior Court Judge Craig F. Stowers agreed, and
admonished Roland to take full advantage of his second chance.
Judge Stowers advised Roland dont waste any time and dont let a
single opportunity to do what it is that you need to do go by.
Roland replied: Yes, sir.
In January 2008 Sherries social worker met with Roland
to develop a case plan and begin visitation with Sherrie. But
after two visits, Roland told Sherries social worker not to bring
Sherrie to the jail any more because he was concerned about germs
at the jail. In late March he asked for visitation to start
again. In April he was moved to a jail in Palmer, and visitation
was reduced to once a month because of the time needed for a
visit: It is a five-hour trip for a social worker to bring
Sherrie to Palmer, do a one-hour visit, and drive back to
Anchorage.
While in jail in Anchorage, Roland refused to
participate in mental health evaluation services that were
available to him there. The social worker testified that he said
he would not participate in [the Anchorage jails mental health]
unit.3 She also testified that in the past . . . he had been on
meds, but he said he wasnt going to take meds again. He also
added that if he did take meds, then people would think he was
mentally ill. Mental health evaluation is not available at the
Palmer jail.
Other than the mental health evaluation, Roland was in
compliance with the rest of his case plan. Once in Palmer he
started taking many of the classes offered in the jail. He took
classes in parenting, anger management, and preventing family
violence.4 He requested funds for a substance abuse assessment,
which could be done at the Palmer jail, and OCS agreed to provide
the money, although it had not yet done so at the time of trial.
During these months, Rolands relationship with Sherries
social worker deteriorated. He claimed that she interfered with
his visits with Sherrie and inappropriately discouraged him from
working his case plan. A number of credible witnesses, many of
whom were witnesses to Rolands visits with Sherrie and other
contact with Sherries social worker, rebutted his testimony. He
continually insisted that she be removed from the case, even
writing a letter to the court asking she be removed. Sherries
social worker testified that shortly before the trial she had
been scheduled to take Sherrie to visit Roland in Palmer. Before
the visit she got a letter from Roland saying that he no longer
wanted me as a social worker, he would like to file a restraining
order against me, he doesnt want me around him. Because she
could not find someone else to take her place on the scheduled
visit, that visit never happened.
The termination trial recommenced on June 26, 2008.
After the trial, the court terminated Rolands parental rights.
It found that OCS failed to make active efforts in the three-
month period when Roland was in jail after Sherries birth, but
that Roland then refused to work a case plan, and went on the
run, making no effort to support his daughter or maintain any
visitation with her. The court wrote: Only with his most recent
arrest and incarceration did he express an interest in working a
case plan . . . . [T]his interest and participation is too
little, too late . . . .
The court discussed Rolands history of domestic
violence and violent crime, and his failure to protect Sherrie
from her mothers drug abuse. The court found a serious question
whether [Roland] has a mental illness or serious emotional
disturbance that may place his daughter at substantial risk of
physical harm or mental injury, but that the state did not prove
by clear and convincing evidence that this was the case.
Finally, the court found that Rolands refusal to cooperate with
his case plans requirement to undergo a psychological assessment
is relevant to his failure to adequately work his case plan, but
it does not, in and of itself, prove he suffers from mental
illness.
The court also discussed Rolands decision to go on the
run from the law for a year. The court noted that Roland has
been in jail or on the run for all of Sherries life. The court
also noted that Rolands disappearance for a year hampered OCS
active efforts. Though the department could have done more, it
was [Roland], after all, who put himself in jail and on the run.
The court found OCS met the active efforts requirement:
The Court finds that under the totality of
the circumstances and given the social
workers active efforts since the December 11,
2007 testimony, [OCS] has proved by clear and
convincing evidence that it made active
efforts under the circumstances to provide
remedial services and rehabilitative programs
designed to prevent the breakup of the Indian
family. This is not to say that this case
represents [OCSs] best active efforts it
doesnt. But the Court has considered
[Rolands] role, especially prior to his
relatively recent change of heart, in earlier
refusing to engage in a case plan, then going
on the run until his arrest in 2007. . . .
In the totality of circumstances, [OCS] has
crossed the minimum threshold of active
efforts required given the circumstances of
this case.
(Emphasis in original.)
III. STANDARD OF REVIEW
In termination of parental rights cases, we review a
superior courts findings of fact for clear error.5 We find clear
error when the record, reviewed in the light most favorable to
the prevailing party, firmly and definitely convinces us that the
superior court made a mistake.6 Whether findings of fact meet
the statutory standard is a question of law that we review de
novo.7 Whether the state complied with the statutory active
efforts requirement is a mixed question of law and fact.8
IV. DISCUSSION
OCS Proved by Clear and Convincing Evidence that It
Made the Active Efforts ICWA Requires To Prevent
Breakup of this Indian Family.
When the state seeks to terminate parental rights to an
Indian child, the Indian Child Welfare Act (ICWA) requires that
it must prove that it made active efforts to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the Indian family, and that those efforts were
unsuccessful.9 Roland argues that OCS failed to make active
efforts when he was in jail May through July 2006, and that this
initial failure undermined any subsequent remedial measures taken
by OCS. He also argues that OCSs efforts in the spring of 2008
were too little, too late. Even if he followed his case plan
exactly, he argues, there was not enough time for him to complete
the case plan before termination of his parental rights. The
state responds that, although it admittedly failed to make active
efforts during the first three months, those months were
overshadowed by Rolands conduct in refusing to work a case plan
and hiding out for a year. The state argues that Roland missed
his chance to become a father when he spent a year on the run.
The states concession that it did not make active
efforts when Roland was in jail in 2006 is well taken. No one
contacted Roland while he was in jail, except to take a paternity
sample and give him the social workers business card. Roland
first initiated contact with OCS when he was released in the
summer of 2006. OCS apparently did not formulate a case plan
until that time.
But we disagree with Rolands theory that the states
failure of active efforts during the first three months of
Sherries life prevented him from ever becoming a parent to
Sherrie. We have held that active efforts must be evaluated over
time.10 These three months out of the twenty-six months before
termination of Rolands rights do not determine the outcome of
this case.
We also disagree with Rolands argument that the active
efforts from January through July 2008 were too little, too late.
First, we think the state made active efforts during that time
period. Social workers met with Roland to discuss his case plan,
offered him a mental health evaluation at the Anchorage jail, and
brought Sherrie regularly for visits. Furthermore, the Palmer
jail provided a number of classes to Roland.11 We conclude that
the state made active efforts.
We agree with the trial court that Rolands involvement
during that time was too little, too late. Although he made some
progress during that time, he failed to take a number of
opportunities that the state made available to him. The slow
progress that resulted was insufficient considering his history
of domestic violence, his prior refusal to work with a case plan,12
and his disappearance for a year of his daughters short life.13
First, after getting a second chance and being advised
by the court not to let a single opportunity go by, Roland
incredibly terminated his visits with Sherrie in January after
only two visits. He had showed little interest in his daughter
in the past, and then decided to halt visitation for two months
between mid-January and mid-March 2008. In 2006, Roland had
failed to attend the few visitations scheduled for him when he
was still in contact with OCS. He did not attempt to contact or
provide for his daughter during the year he was hiding from the
law, and also for his first few months in jail after his re-
arrest. An important part of his case plan was bonding with his
daughter and forming an attachment with her. But after only two
visitations in January, Roland called off the visitations until
late March. Those two months were Rolands best opportunity to
bond with his daughter because shortly thereafter he was
transferred to Palmer where visitation with his daughter, who had
to be brought from Anchorage, was reduced to once a month.
Rather than seizing his opportunity, Roland tossed it away.
Second, there is some evidence that Roland suffers from
mental health problems, and he refused to comply with the portion
of his case plan requiring him to get a mental health evaluation
when he had the opportunity to do so in jail in Anchorage.
Mental health evaluations were available for inmates at the
Anchorage jail, but Roland refused to be involved with that
program. He was then transferred to a Palmer jail that does not
offer mental health evaluations. Therefore, Roland would have to
wait until his release in September to get a private evaluation.
Third, Roland refused to work with the social worker
assigned to Sherries case. Indeed, he told her he wanted to
commence a lawsuit against her. This further hindered his
ability to comply with his case plan in the few months available
to him. It resulted in the cancellation of his monthly visit
with Sherrie while in Palmer. It is troubling that he gave up
time with Sherrie in order to avoid a social worker he disliked.
Roland was aware of how hard he would have to work at
his case plan during the continuance. When Judge Stowers
continued the termination trial in January 2008 in order to give
OCS more time to work with Roland, he made clear to Roland that
he would have to act diligently and take full advantage of the
continuance in order to avoid termination of his parental rights:
THE COURT: I would note that the child
[Sherrie], you know, needs to get permanency
and consistency and things like that. So
time is of the essence in terms of her best
interest. And [Roland], I would say to you,
sir, you know, youve managed to have this
case resurrected to give you a chance to work
a case plan and to do all of the things that
[OCS] believes is necessary, so please dont
waste any time and dont let a single
opportunity to do what it is that you need to
do go by.
[ROLAND]: Yes, sir.
THE COURT: Because the clock is running.
[ROLAND]: Yes, sir.
Roland let a number of opportunities pass him by, and
did waste time, in this crucial second-chance period. For a man
with significant domestic violence and anger management problems,
and possible mental health and substance abuse problems, who had
been on the run from the law for almost half his daughters short
life, he made insufficient progress on his case plan when he had
a second chance at reunification with his daughter. We agree
with the trial court that OCS made active efforts during this
time, and that those efforts failed.
V. CONCLUSION
Although OCS did not make ICWA-required active efforts
during the first three months of this case, it made active
efforts after that, but they failed. The fathers intervening
year-long disappearance gave him a limited time before
termination of his parental rights in which to address the
various requirements of his case plan. Sherrie is now three
years old, and has spent all three years with a foster family
that wishes to adopt her. She can no longer wait for Roland. We
AFFIRM the termination of Rolands parental rights.
_______________________________
1 We use pseudonyms to protect the identities of the
parties.
2 By this time the social worker had obtained contact
information for Roland.
3 Roland testified that he spent a week in the Anchorage
jails mental health unit for observation, but that he was never
given an assessment, and was returned to the general population
after a week of observation revealed no problems. The judge,
however, found the social workers testimony that Roland refused
to cooperate with an assessment to be credible.
4 At the time of trial, OCS had not yet reviewed those
classes to determine if they meet Rolands case plans
requirements. Sherries social worker testified that sometimes
jail classes do not meet OCS standards: Some of those classes are
very short and probably dont address what is needed by people
that have a long history . . . of violence.
5 Maisy W. v. State, OCS, 175 P.3d 1263, 1267 (Alaska
2008).
6 Id.
7 Id.
8 Id.
9 25 U.S.C. 1912(d) (2006).
10 See Maisy W., 175 P.3d at 1268-69 (three-month failure
of active efforts did not prevent termination of ICWA parents
rights where there was substantial OCS involvement and efforts
during three years that case lasted); E.A. v. State, DFYS, 46
P.3d 986, 990 (Alaska 2002) (seven-month failure of active
efforts over many years of OCS involvement with this ICWA parent
did not prevent termination of parents rights where parent not
sober, failed to take many opportunities to get treatment, and
when active efforts started again, she was hard to contact and
uncooperative).
11 See T.F. v. State, Dept of Health & Soc. Servs., 26
P.3d 1089, 1096 (Alaska 2001) (noting that ICWA requires the
state to make active efforts, and therefore the efforts of
different agencies, such as OCS and the Department of
Corrections, may be considered together when determining whether
the state made active efforts).
12 See Maisy W., 175 P.3d at 1268 (We have stated that a
parents demonstrated lack of willingness to participate in
treatment may be considered in determining whether the state has
taken active efforts. (quoting N.A. v. State, DFYS, 19 P.3d 597,
603 (Alaska 2001))).
13 We have previously considered a fathers disappearance
and avoidance of OCS when determining whether the state made
active efforts. See Ben M. v. State, Dept of Health & Soc.
Servs., No. 13090, 2009 WL 879755, at *8 (Alaska Apr. 3, 2009,
amended Apr. 21, 2009). See also Rick P. v. State, Office of
Childrens Servs., 109 P.3d 950, 957 (Alaska 2005).
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