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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dashiell R. v. State, Dept. of Health & Social Services, Office of Children's Services (12/31/2009) sp-6447
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
| DASHIELL R., | ) |
| ) Supreme Court No. S- 13447 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 1JU-06-102/103 CP |
| ) | |
| STATE OF ALASKA, DEPART- | ) |
| MENT OF HEALTH AND SOCIAL | ) |
| SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6447 - December 31, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Patricia A. Collins, Judge.
Appearances: Anthony M. Sholty, Faulkner
Banfield, P.C., Juneau, for Appellant.
Michael G. Hotchkin, Assistant Attorney
General and Daniel S. Sullivan, Attorney
General, Anchorage, for Appellee. Dianne
Olsen, Law Office of Dianne Olson, Anchorage,
for Guardian ad Litem Janine Reep.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices. [Eastaugh,
Justice, not participating.]
CARPENETI, Chief Justice.
I. INTRODUCTION
I. Following trial, the superior court terminated an
incarcerated fathers parental rights. He appeals, claiming error
in four of the superior courts findings: that he did not remedy
the conditions causing harm to the children; that he did not make
adequate provisions for the children during his incarceration;
that the state made active efforts to keep the family together;
and that termination is in the childrens best interests. Because
abundant evidence supported the superior courts findings that the
conditions causing harm to the children remain unremedied and
that termination of parental rights is in the childrens best
interests, we affirm those findings by the superior court. Our
holding that the conditions causing harm to the children remain
unremedied makes it unnecessary to decide whether the father made
adequate provisions for his children during his incarceration.
And because the superior court properly considered the efforts of
both the Office of Childrens Services and the Department of
Corrections, we conclude that the court did not err in finding
that the state made active efforts in this case. Accordingly, we
affirm the superior courts decision terminating the fathers
parental rights.
II. FACTS AND PROCEEDINGS
A. Facts
Dashiell R. is the biological father of Jules S. and
Sameera R.1 Summer S. is the biological mother of both children
and has previously relinquished parental rights. Summer is of
Tlingit descent, and thus the Indian Child Welfare Act (ICWA)
applies to this case.2
Jules, now eight years old, was born in June 2001.
Sameera, now four, was born in January 2005. Currently the
children reside in Washington state with Dashiells parents, the
Rameros.
Dashiell is incarcerated, serving sentences for two
counts of perjury, one count of solicitation to tamper with a
witness in the first degree, and three counts of misconduct
involving a controlled substance in the third degree. Because of
an extensive criminal history involving twenty-six prior
misdemeanor and two prior felony convictions,3 he was sentenced,
as a worst offender, to twelve years in jail with release at the
earliest in 2013. Appeals of his current convictions are
pending.
Dashiell also spent significant time in jail before his
current incarceration began. Dashiells criminal history includes
several domestic assault charges. Among those, Dashiell was
sentenced for domestic violence in 2001 for choking a woman he
was involved with (not Summer) and again in 2003, regarding the
same woman. In between those instances, he was arrested for a
domestic violence assault of Summer in June of 2002. In February
of 2003 Summers caseworker reported to the police that Dashiell
had beaten Summer. Although it was not demonstrated that this
behavior was in front of the children, the superior court heard
expert testimony that, based on this history, the children would
be at risk of harm if returned to Dashiell.
The State of Alaska, Department of Health and Social
Services, Office of Childrens Services (OCS) and the Juneau
Police Department also received several reports of harm to the
children, most involving Dashiell. In March 2002 the police were
called because Dashiell and Summer were arguing about who nine-
month-old Jules should be with. A week later Dashiell called the
police to say that Jules was placed in a closed closet in his car
seat for an extended period of time while Summer was high on
drugs. Another report that month alleged that Dashiell was
intoxicated and verbally abusive to Summer. Later in 2002, OCS
substantiated an allegation that Dashiell and Summer had minors
over for parties and drinking in their home, and OCS received a
report of substance abuse by both parents. The record indicates
that Jules and Sameera were present during most of this behavior.
For a period in 2003, Summer cared for Jules under a safety
agreement with OCS, stipulating that she would not leave Jules
in Dashiells care.
OCS received two more reports of harm in 2004 before
Dashiell was incarcerated. The first alleged that Summer left
Jules with Dashiell in violation of a protective order. The
second alleged that the parents locked Jules in a closet while
they used cocaine, and that Summer left Jules with Dashiell, who
neglected him, as evidenced by a severe diaper rash. Dashiell
testified he never used cocaine with Summer and that he never
locked Jules in a closet. The superior court found that the
report of cocaine use and locking the child in a closet was
unconfirmed, but that the allegation of neglect was confirmed.
Dashiell claimed that while not incarcerated he
actively participated in raising Jules and that Jules spent most
of his time with him. Jules (and eventually Sameera) visited
Dashiell regularly in prison while Dashiell was incarcerated near
the children, before beginning his current sentence. Dashiell
also stated that he checked in with Juless preschool teacher when
he could. Early in his incarceration Dashiell became concerned
with the care Summer was providing their children, and made
frequent calls to OCS so many that he claims he was disciplined
by the prison for the repeated contact. In January 2006 he wrote
OCS a letter detailing his concerns and requesting that Jules be
removed from Summers care.
OCS received several reports of harm concerning Summers
behavior, including allegations of neglect, lack of supervision
of the children, and substance abuse. OCS removed the children
from Summers care in 2006. After the removal, the children were
placed in at least five foster homes, then with their maternal
grandmother, and then back with Summer.
While attempting to keep the children with Summer, OCS
prepared case plans for the family, listing Dashiell as a
participant, but not requiring anything of him. However, OCS had
phone conversations with Dashiell and he participated in reviews
of the plans. Also, OCS case workers monitored the programs
Dashiell received in prison, consulted with Dashiell and the
prison officials, and encouraged Dashiell to take certain
programs while incarcerated. Dashiell has participated in
several remedial programs offered by the Department of
Corrections.
OCS ultimately removed the children from their mother
permanently on October 3, 2007, and placed them in foster care
again. In November or December of 2007 Dashiell contacted his
parents, the Rameros, and left them a voice mail about assuming
care for the children. The Rameros contacted OCS, visited the
children, and eventually assumed care of the children on August
8, 2008.
Once the children were with the Rameros, OCS
facilitated exchanges of mail between the children and Dashiell.
According to OCS this was a partial failure because the children
wrote Dashiell but he did not respond.
During Dashiells incarceration OCS also facilitated
contact between Dashiell and the children in the form of
telephone visits. Although the notes are incomplete, it appears
that approximately seven visits occurred, the first one occurring
in February 2008. Once the children were placed with the
Romeros, OCS cancelled several of the monthly visits because the
agency felt it necessary to have the children focus on bonding
with the Rameros. For the calls that did occur, OCS hired a
therapist to talk with the children after the calls. One of the
calls ended with Dashiell frustrated and hanging up on the
children. Other calls similarly resulted in Dashiell being
frustrated or rais[ing] his voice . . . in a demanding way. The
childrens responses include being really scared, running in and
out of the room, wetting their pants, and in the case of then
seven-year-old Jules, sucking his thumb, talking about not
wanting to live anymore, and hiding behind a bookcase.
Indeed, the childrens mental states have been heavily
documented in this proceeding. As of now, the children have been
in seven different foster placements. They were both exposed to
prenatal alcohol or drug use, and Sameera tested positive for
cocaine at sixteen months. Both children are behind
developmental guidelines, have significant difficulty with
self-regulation and conflict resolution and are hyper-vigilant.
Jules has been known to hit himself in the head while complaining
Im stupid or I don't do anything right. Both are statements his
mother reportedly made to him. Psychological evaluations in
January 2008 diagnosed Jules with disruptive behavior disorder;
acute adjustment disorder; enuresis; academic problems; clinical
levels of anxiety, depression, and aggression; elevated
hyperactivity; and somatization. During the evaluation, Jules
frequently reverted to sucking his thumb. At these evaluations,
Juless care giver (the foster parent) reported that Jules has
extreme mood swings, frustrates easily, is very anxious and
sometimes hits himself. The care giver also reported that Jules
sometimes states he wishes he were dead. Juless meltdowns were
described thus: [H]ell be hitting himself, hell be yelling
things like, go ahead and kill me . . . . Nonetheless, Juless
intellectual and academic functioning are in the average range
and he performed well in language comprehension. Indeed, the
care giver reported that Jules is creative and for the most part
gets along with his other siblings.
A more recent psychological evaluation in January 2009
of then seven-year-old Jules concluded that he functions more
like a toddler in his self-regulation and social-emotional
skills. The evaluation also noted aggressive/disruptive
behaviors and poor anger control, disruption in basic bodily
functions, decreased ability to be aware of social and emotional
cues, and delay in social-emotional skills, among other issues.
Sameera, the younger child, was also evaluated in 2008.
She was diagnosed with static encephalopathy,4 depressive
disorder, severe receptive language disorder, mild gross and fine
motor delays, and significant sensory processing and modulation
challenges. According to the report, her intellectual ability
appears normal, but she has difficulties in verbally-based
learning and in expressive/receptive language use. . . . [S]he is
easily overwhelmed, confused, and frustrated. Her problem-
solving and coping skills are lagging . . . and she often
responds . . . with irritability, withdrawal, [and] aggression .
. . . A separate psychologist found her emotionally volatileand
prone to frequent tantrums. The psychologist found Sameera quite
delayed in social-emotional and self-regulation skills and
asserted that four-year-old Sameera appears to be functioning
more like a 18-24-month-old toddler. The psychologist noted
behavior consistent with traumatic experiences in the early very
critical years of development and possible prenatal exposure to
alcohol.
Mr. Ramero, Dashiells father, testified extensively at
trial. The Rameros currently care for the children and favor
having permanent custody in order to retain responsibility for
the children in the event Dashiell is released. However, Mr.
Ramero conceded he would care for the children even if he were
not granted permanent custody. Mr. Rameros testimony repeatedly
reflected on the emotional state and progress of the children. A
psychologist evaluating the children described the placement with
the Rameros as a stable . . . positive, nurturing and supportive
home for the children. The children relate to the Rameros in a
very positive, affectionate, loving way. The superior court
found the Rameros to have significant experience working with
children with special needs and found the placement to have real
promise of a stable home meeting the childrens special needs
while still allowing a relationship with the biological parents.
B. Proceedings
On November 22, 2006, OCS filed a Petition for
Adjudication of Children in Need of Aid and for Temporary
Custody. Following the adjudication hearing, Superior Court
Judge Patricia A. Collins granted the petition on April 5, 2007.
In January 2008 Dashiell petitioned the court for
telephone and mail communication with the children. Finding that
he had made a prima facie case that the State has failed to
provide reasonable, let alone active, efforts at reasonable
visitation or parent-child contact, Judge Collins directed the
state to create a case plan. OCS created a plan dated September
2008. Although prior case plans had not involved Dashiell
specifically, the September 8 plan concluded he had not made
progress on his plan.
Even before the September 8, 2008 plan, OCS filed the
petition for termination of parental rights on June 3, 2008. The
superior court held a trial January 27-28, 2009, and issued its
order terminating Dashiells parental rights on February 2, 2009.
The court found the children in need of aid as defined in AS
47.10.011 subsections (2), (6), (8), (9), and (10).
Independently, the court also found termination of parental
rights to be justified based on Dashiells incarceration, per AS
47.10.080(o). The superior court then found that continued
custody by Dashiell would likely cause the children harm; that
the state had made active efforts to prevent the breakup of the
family, in accord with the federal Indian Child Welfare Act; and
that termination of parental rights is in the childrens best
interests.
Dashiell appeals.
III. STANDARD OF REVIEW
We apply the clearly erroneous standard when reviewing
the factual findings supporting the termination of a parents
right to raise his or her children.5 A finding is clearly
erroneous when a review of the entire record leaves this court
with a definite and firm conviction that the superior court has
made a mistake. 6 In determining whether a finding is clearly
erroneous, we have stated that we view the evidence in the light
most favorable to the party prevailing below.7
The question of whether the state has complied with
ICWAs active efforts requirement is a mixed question of law and
fact.8 Accordingly, we review the legal issues de novo, while
reviewing the factual determinations for clear error.9
IV. DISCUSSION
I. The procedures for terminating parental rights are set out
in Alaska Child in Need of Aid Rule 18. Those procedures are
primarily governed by Alaska statutes but also, in the case of an
Indian child, include federal requirements under ICWA.10 There
are four main procedural steps.
The first step has two alternative tracks, the latter
applicable when a parent is incarcerated.11 In the typical case,
the state must prove by clear and convincing evidence that the
child has been subjected to conduct or conditions described
in AS 47.10.011.12 That statute enumerates twelve grounds
relevant to the childs welfare, including the incarceration of a
parent,13 on which a court may find a child to be in need of aid.
The state also must show that the parent has failed to remedy
those conditions or conduct.14 However, in the case of an
incarcerated parent, the state may instead show (1) that the
period of incarceration during the childs minority is significant
given the childs age and needs, (2) that no other parent is
willing and able to care for the child, and (3) that the
incarcerated parent failed to make adequate provisions for the
childs care.15
The second step is also bifurcated, here according to
whether the child is Indian.16 Generally, the state must prove by
clear and convincing evidence that it made reasonable efforts to
provide family support services designed to keep the child with
his or her parents.17 However, in the case of an Indian child,
ICWA requires the state to make active efforts at providing
remedial and rehabilitative programs to keep the family together.18
Although Alaska statutes make an exception in some cases where
the parent is incarcerated (in which case reasonable efforts are
not required),19 ICWA has no exception for incarceration, and
requires active efforts even when a parent is incarcerated.20
Third, the state must show by a preponderance of the
evidence that termination of parental rights is in the best
interests of the child.21
Fourth and finally, in the case of an Indian child, the
state must prove by evidence beyond a reasonable doubt, including
by expert testimony, that continued custody of the child by the
parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.22
Dashiell appeals four of the superior courts findings.
He claims that the superior court erred (1) in finding unremedied
the conditions that caused harm to the children (step one above),
(2) in finding he had not made adequate provisions for the
childrens care during his incarceration (alternate step one
above), (3) in finding that the state made reasonable efforts to
reunify the family (step two above), and (4) in finding
termination of Dashiells parental rights to be in the childrens
best interests (step three above).
Dashiells first two points attack, respectively, the
two alternate paths of CINA Rule 18s first step. As detailed
above, before a court may terminate parental rights, the state
must prove either that unremedied conditions harmful to the child
exist or that an incarcerated parent made inadequate provisions
for the child during the parents incarceration. Because we find
no merit in Dashiells first claim, and therefore affirm the
superior courts finding that the harmful conditions remain
unremedied, we do not reach his second claim, that he made
adequate provisions for the children. Accordingly, the following
discussion addresses in turn Dashiells three remaining claims on
appeal.
A. The Superior Court Did Not Err in Finding that Dashiell Had
Not Remedied the Conditions Causing Harm to the Children.
A. Dashiell contends the superior court erred in finding that
the conditions harmful to his children were unremedied. He
claims that the majority of the harmful conditions were due to
the childrens mother and that, for his part, he has enrolled in
many remedial programs while in prison. We review the superior
courts findings of fact for clear error.23
As Dashiell points out, the record indicates that the
childrens mother was responsible for many conditions harmful to
the children. The record also indicates that Dashiell actively
urged OCS to remove one child, Jules, from the mothers care.
Similarly, the record shows that Dashiell enrolled in several
programs while incarcerated.
However, these facts alone do not clearly show that the
superior court erred. The superior court must consider the whole
picture when deciding whether a parent has remedied the conduct
or conditions posing harm to the children:
(b) In making a determination . . . the
court may consider any fact relating to
the best interests of the child,
including
(1) the likelihood of returning the
child to the parent within a
reasonable time based on the childs
age or needs;
(2) the amount of effort by the
parent to remedy the conduct or the
conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful
conduct will continue; and
(5) the history of conduct by or
conditions created by the
parent.[24]
In the present case, Judge Collins looked at all of the relevant
factors under these rules and concluded that the conduct and
conditions had not been remedied. Dashiells contentions, even if
fully credited, do not establish clear error by the superior
court.
First, Judge Collins was aware that many of the
conditions were due to the mother, but nonetheless found many
important conditions were attributable to Dashiell and remained
unremedied. Indeed, as a result of Dashiells conduct, the court
found the children to be in need of aid under five separate
statutory subsections. The court also detailed his domestic
violence history, his criminal history, his current
incarceration, and the reports (both confirmed and unconfirmed )
of his neglect of his children. The court then found that
Dashiell had not remedied the conditions that caused so much harm
to these children and places them at such great risk of future
serious physical and mental injury. This was consistent with
expert testimony that the children would be at risk of harm if
returned to Dashiell. Accordingly, the superior court was well
aware that some conditions were the result of the childrens
mother, but nonetheless found Dashiells conduct sufficient to
support termination.
Second, Dashiell is simply wrong in asserting that,
because he attended programs in prison, the state could not prove
by clear and convincing evidence that the conditions arising from
his behavior are unremedied. The court credited Dashiell with the
many programs he has availed himself of while incarcerated, but
stated that given the depth and breadth of his problems, they can
not be expected to be immediately cured upon release. Alaska
Statute 47.10.088(b) allows the court to consider the parents
history of conduct and the likelihood that it will continue.25 In
making its findings, the court relied upon expert testimony and
several empirical indicators. For example, the outcome of the
phone visits between Dashiell and the children was not favorable.
The childrens responses to the conversations with Dashiell
include being really scared, running in and out of the room,
wetting their pants, and in the case of then seven-year-old
Jules, sucking his thumb, talking about not wanting to live
anymore, and hiding behind a bookcase. The superior courts
decision is fully supported by the evidence. Third, and
finally, it was not error for the court to base its decision in
part on the fact that it was unlikely the children could be
returned to Dashiell in a reasonable time. The court noted its
finding is inherent in the fact that [Dashiell] will most likely
be in jail for years to come and unable to parent his children.
That is a proper consideration under AS 47.10.088(b)(1)26 and goes
unaddressed by Dashiells argument concerning his prison programs.
Indeed, the court pointed out that stability and permanency is
crucial to the childrens health. The uncertainty regarding
Dashiells release and theoretical ability to parent is a
component of the ongoing harm facing the children. Regardless of
the prison programs he enrolled in, the court found that Dashiell
will most likely be incarcerated for the next four to nine years
a crucial period in the childrens minority. The court was
concerned that the threat of impermanency and the potential
return to Dashiell are themselves harmful conditions for the
childrens mental state. In light of these concerns noted by the
superior court, its finding is not clearly erroneous.
In conclusion, the issues raised by Dashiell on appeal
were explicitly addressed by the superior court. Relying on a
comprehensive record, the court nonetheless found unremedied the
conduct and conditions posing harm to the children. The courts
finding under AS 47.10.088 is well supported by the evidence and
Dashiell has not shown clear error.
B. The Superior Court Did Not Err in Finding that OCS Met Its
Duty of Making Active Efforts To Reunify the Family.
A. Dashiell contends the superior courts finding of active
efforts is clear error.27 He points to several problems with the
states efforts. First, despite Dashiells requests, the state
allegedly failed to facilitate communication between him and the
children for the majority of his incarceration, at which time the
state was only targeting
its efforts at the childrens mother. Second, OCS allegedly
failed to create a case plan for Dashiell until almost two years
after OCS assumed custody of the children. He further alleges
that plan is a sham because it was created after OCS initiated
proceedings to terminate parental rights. Third, Dashiell argues
that the efforts OCS ultimately took were insufficient because
they were not comprehensively aimed at reuniting the family, and
were only undertaken half-heartedly.
The superior courts discussion of active efforts was
comprised of a brief analysis and did not parse the meaning of
active efforts. The opinion noted, however, that the states
efforts were heavily oriented towards the mother, that Dashiells
incarceration impacted the efforts the state could make, and that
the state made efforts at visitation and written communication,
albeit imperfectly. Elsewhere in the opinion, the court noted
the programs that were made available to Dashiell while he was
incarcerated and in which he enrolled.
As discussed above, we review active efforts under ICWA
as a mixed question of fact and law, reviewing the superior
courts factual findings for clear error, and the legal issues de
novo.28
Pursuant to ICWA and the second step of CINA Rule 18,
the state must make active efforts at family reunification when
Indian children are involved.29 ICWAs precise language requires
that active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of
the Indian family and that these efforts have proved
unsuccessful.30 As opposed to passive efforts such as simply
developing a plan for the parent to follow, active efforts
require that the state actually help the parent develop the
skills required to keep custody of the children.31 This is
required even if the parent is incarcerated, although [t]he
circumstances surrounding a parens incarceration may have a
direct bearing on what active remedial efforts are possible.32
These circumstances include the duration of the parents
incarceration and the services possible for incarcerated parents.33
Moreover, an analysis of the states active efforts is not limited
to efforts by OCS; programs offered by the Department of
Corrections are also considered part of the states efforts.34
Dashiell has not demonstrated that the superior court
erred in finding that the state made active efforts. Dashiells
argument, that his plan did not come about until too late, and
therefore was a sham, is unconvincing because it views the
September 8, 2008, plan without considering the states other
efforts. Indeed, the superior courts discussion of active
efforts never mentioned the September 2008 plan. The record
before the court was replete with other state efforts, including:
$ the state made undisputedly extensive efforts to keep the
children with their mother during Dashiells incarceration;
$ the Department of Corrections offered several programs,
including classes in parenting, anger management, domestic
violence, and therapeutic counseling and Dashiell indeed
enrolled in them;
$ OCS staff communicated with Dashiell during his
incarceration regarding the childrens status, and communicated
with him and prison staff regarding prison programs for
Dashiell; and
$ OCS arranged for written exchanges and telephone visits
between Dashiell and the children.
$ In light of this record, the superior court had a strong
basis for its conclusion that the state made active efforts
targeted at keeping the family together. The many programs
Department of Corrections provided to Dashiell are a relevant
component of the states services.35 Moreover, there is evidence
that counselors from OCS worked with Dashiell and prison staff
regularly long before the September 2008 plan came about, and, as
admitted in Dashiells briefing, Dashiell anticipated the case
plan and acted on it well in advance.
Further, a court may take into account the limits
imposed by a parents incarceration or the length of his
sentence.36 Given that the superior court found the children were
in need of stability, continuity, and safety, the court was
correct, in assessing the active efforts by the state, to take
into account Dashiells sentence.
Finally, the superior court was correct to point to
efforts OCS made regarding the mother. Again, the states efforts
to keep the Indian family together were more comprehensive than
just the September 8, 2008, case plan. In this case, had the
children been able to stay with the mother, who was not
incarcerated, there is no indication Dashiells parental rights
would have been terminated, because there would have been no need
for the children to be placed elsewhere. As the superior court
noted and Dashiell does not contest the states efforts
regarding the mother were very active. We view these efforts as
an important aspect of the states active efforts to keep the
family together.
In sum, the superior court did not err in concluding
that the state made active and ultimately unsuccessful efforts to
reunify the family.
A. The Superior Court Did Not Err in Determining that
Termination of Dashiells Parental Rights Was in the Childrens
Best Interests.
Dashiell appeals as clear error the superior courts
finding that termination of his parental rights was in the
childrens best interests.
Before terminating parental rights, a superior court
must find termination to be in the childs best interests by a
preponderance of the evidence.37 We review such a finding for
clear error.38
In a brief discussion, Judge Collins found termination
of parental rights to be in the best interests of the children.
The court found the Rameros to be exceptionally qualified
parents, particularly with respect to children with special
needs. The court then concluded that the current situation shows
promise for a stable home for the duration of Juless and Sameeras
childhoods, and may even allow the children to know their
biological parents. The court also noted the childrens need for
stability and permanency, and that continued custody by Dashiell
is likely to cause serious harm to the children.
Dashiell raises two specific contentions. First, that
the children will remain with the Rameros regardless of whether
Dashiells parental rights are terminated. Second, that if he is
not released from jail imminently, he would not contest the
Rameros eventual adoption of the children. These arguments do
not establish clear error.
Both arguments are unpersuasive because the court found
the need for a permanent, stable relationship now. Even though
the Rameros would still care for the children if Dashiell
retained parental rights, the childrens future would be in flux
depending on the incarceration and progress of Dashiell. And the
court was extraordinarily wary of Dashiells prospects for
success. In other words, the court found that the children right
now need a home where they have an ongoing sense of permanence
and security, and can bond with their care giver during their
formative years. The Rameros provide that environment. If the
Rameros care were only temporary and the children remain with the
Rameros now, but under the cloud of continuing uncertainty, the
childrens need for permanence and security would not be met.
Moreover, the court specifically found that any future
custody by Dashiell would risk serious emotional or physical
damage to the children. His contention that he might not take
the children until later does not alter the analysis on this
point.
In light of the superior courts findings, Dashiell has
not shown that it was clear error to conclude that termination of
Dashiells parental rights was in the childrens best interests.
V. CONCLUSION
Because the superior court properly considered the
evidence in its entirety, and that evidence supported the courts
finding, we AFFIRM its finding that the conditions harmful to the
children remain unremedied. Accordingly, we need not reach the
question whether Dashiell made adequate provisions for the
children during his incarceration. Additionally, because the
active efforts the state must make to keep the Indian family
together are defined comprehensively, and include programs
offered by both the Office of Childrens Services and the
Department of Corrections, we AFFIRM the superior courts
conclusion that the state made active efforts to reunify the
family. Finally, because there was an adequate basis in the
record for the superior courts finding that that termination of
parental rights is in the childrens best interests, we AFFIRM
the superior court on that issue. Accordingly, we AFFIRM the
decision of the superior court terminating Dashiells parental
rights.
_______________________________
1 We use pseudonyms to protect the familys privacy.
2 25 U.S.C. 1912 (2006).
3 These include burglary, domestic violence assault,
violating conditions of release, drug violations, and driving
while intoxicated.
4 Static encephalopathy is defined as permanent or
unchanging brain damage. . . . [It] can appear as a single
diagnosis, however, it is often used in conjunction with a range
of disabilities . . . . Minnesota Low Incidence Project, Static
Encephalopathy http://swsc.schoolwires.net/16331022111121927/lib
/16331022111121927/Static_Encephalpathy_Fact_Sheet.pdf (last
visited Nov. 25, 2009). In Sameeras case, it was associated
with fetal alcohol syndrome.
5 Frank E. v. State, Dept of Health & Soc. Servs.,
Division of Family & Youth Servs., 77 P.3d 715, 717 (Alaska 2003)
(quoting G.C. v. State Dept of Health & Soc. Servs., Division of
Family & Youth Servs., 67 P.3d 648, 650 (Alaska 2003)).
6 Id.
7 Id. (quoting In re J.L.F. & K.W.F., 828 P.2d 166, 170
n.12 (Alaska 1992), overruled on other grounds by In re S.A., 912
P.2d 1235 (Alaska 1996)).
8 T.F. v. State Dept of Health & Soc. Servs., Division of
Family & Youth Servs., 26 P.3d 1089, 1092 (Alaska 2001).
9 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 259 (Alaska 1999).
10 CINA Rule 18 (referencing requirements in AS 47.10.011,
47.10.080,and 47.10.086; and providing, in the case of Indian
children, protocols that comport with the Indian Child Welfare
Act, 25 U.S.C. 1912(d) and (f), (2006)).
11 CINA Rule 18(c)(1).
12 Id.
13 AS 47.10.011(2).
14 CINA Rule 18(c)(1)(A)(i)(ii) (comporting with AS
47.10.088(a)(2) and (b)(1)(5)).
15 CINA Rule 18(c)(1)(B) (referring to AS 47.10.080(o),
which provides the three prong test).
16 CINA Rule 18(c)(2).
17 CINA Rule 18(c)(2)(A) (referring to AS 47.10.086, which
defines reasonable efforts).
18 CINA Rule 18(c)(2)(B) (comporting with 25 U.S.C.
1912(d) (2006)). The standard of proof provided in CINA Rule 18
is clear and convincing evidence, although preponderance of
evidence appears in some case law. See, e.g., A.M. v. State [I],
891 P.2d 815, 826 (Alaska 1995), affd on rehearing, A.M. v. State
[II], 945 P.2d 296, 305-06 (Alaska 1997).
19 AS 47.10.086(c)(10).
20 See 25 U.S.C. 1912(d).
21 CINA Rule 18(c)(3) (comporting with AS 47.10.088(c)).
22 CINA Rule 18(c)(4) (comporting with 25 U.S.C.
1912(f)).
23 Frank E. v. State, Dept of Health & Soc. Servs.,
Division of Family & Youth Servs., 77 P.3d 715, 717 (Alaska
2003).
24 AS 47.10.088(b).
25 AS 47.10.088(b)(4), (5).
26 [T]he likelihood of returning the child to the parent
within a reasonable time based on the childs age or needs[.] AS
47.10.088(b)(1).
27 Although the superior court correctly analyzed the case
in terms of federally mandated active efforts, counsel for
Dashiell appeals in terms of reasonable efforts, citing Alaska
law. The confusion is somewhat understandable, since the lower
court cited to a decision concerning reasonable efforts under
Alaska statutes, not active efforts under the ICWA.
However, as the state points out, active efforts are
required in this case because the childrens mother was Indian.
See 25 U.S.C. 1912(d) (2006); and CINA Rule 18(c)(2)(B).
Accordingly, we review the states efforts under that standard.
28 See Ben M. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., 204 P.3d 1013, 1018 (Alaska 2009);
A.A. v. State, Dept of Family & Youth Servs., 982 P.2d 256, 259
(Alaska 1999).
29 25 U.S.C. 1912(d) (requiring active efforts).
30 Id.
31 A.M. v. State [I], 891 P.2d 815, 827 (Alaska 1995).
32 Id. (also stating that [n]either incarceration nor
doubtful prospects for rehabilitation will relieve the State of
its duty under ICWA to make active remedial efforts).
33 Id.
34 Frank E. v. State, Dept of Health & Soc. Servs.,
Division of Family & Youth Servs., 77 P.3d 715, 720-21 (Alaska
2003); T.F. v. State, Dept of Health & Soc. Servs., Division of
Family & Youth Servs., 26 P.3d 1089, 1096 (Alaska 2001).
35 Frank E., 77 P.3d at 720-21; T.F., 26 P.3d at 1096.
36 A.M. [I], 891 P.2d at 827.
37 CINA Rule 18(c)(3) (comporting with AS 47.10.088(c)).
38 Frank E., 77 P.3d at 717.
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