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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sherman B. v. State, Dept. of Health & Social Services, Office of Children's Services (10/11/2013) sp-6833
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
SHERMAN B., )
) Supreme Court No. S-14957
Appellant, )
) Superior Court No. 3AN-12-00028 CN
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH ) No. 6833 - October 11, 2013
AND SOCIAL SERVICES, )
OFFICE OF CHILDREN'S )
SERVICES, )
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse, Judge.
Appearances: Glenda J. Kerry, Law Office of Glenda J.
Kerry, Girdwood, for Appellant. Julia B. Bockmon,
Assistant Attorney General, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for Appellee. Lisa
Wilson, Assistant Public Advocate, and Richard Allen,
Public Advocate, Anchorage, Guardian Ad Litem.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen and
Bolger, Justices.
MAASSEN, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
The subject of this appeal is the termination of Sherman B.'s parental rights
1
to his son Kadin M. The Office of Children's Services (OCS) took Kadin into custody
soon after his birth because he and his mother, Amy M., both tested positive for cocaine,
and because of concerns about both parents' ability to care for the child. OCS had
already been involved with Sherman for several years because of concerns with his other
three children. The superior court terminated both Sherman's and Amy's parental rights
to Kadin in October 2012. Sherman appeals, contesting the court's findings that he
abandoned Kadin, that he failed to remedy the conduct that caused Kadin to be a child
in need of aid, that OCS made reasonable efforts to reunify the family, and that
termination of his parental rights is in Kadin's best interests. We affirm.
II. FACTS AND PROCEEDINGS
A. OCS's Involvement With Sherman's Parenting Of His Other Children
Sherman and Amy had an on-and-off relationship for a number of years.
Their daughter Georgina was born cocaine-positive in 2007. OCS became involved with
the family as a result and created a parenting plan, which required, among other things,
that Sherman not leave Georgina alone with Amy. Sherman appears to have been
Georgina's primary caregiver initially, as Amy was often using drugs. But when
Georgina was somewhere between eight and fourteen months old, Sherman left her in
Atlanta with relatives, who eventually moved her to New York to live with Sherman's
aunt. Sherman did not visit Georgina between December 2008 and March 2011, and
their contact was limited to phone calls.
1 We use pseudonyms for all family members to protect their privacy.
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Amy gave birth to another child, Darcy, in 2009. Although Amy told
Sherman she was pregnant and that he might be the father, he was uninvolved during the
pregnancy and was working in Whittier when Darcy was born. When Darcy tested
positive for cocaine, OCS took custody of her and placed her with Amy's mother.
Sherman became involved in Darcy's life only after OCS facilitated a paternity test that
confirmed he was her father. He visited her on a weekly basis, but his relationship with
her remained somewhat distant, and he voiced his preference that she live with his aunt
and Georgina in New York.
In 2010 Sherman had another child, Khloe, with a different woman. OCS
immediately opened a child-in-need-of-aid (CINA) case for Khloe and placed her with
foster parents.
OCS identified a number of concerns with Sherman's parenting of both
Darcy and Khloe, including his ability to maintain housing and to provide financial
support through either employment or public assistance. OCS had reservations as well
about his ability to understand child development sufficiently to act as a responsible
parent. Also of concern to OCS was the fact that he had been arrested twice, in 2009 and
2010, on drug-related charges, though neither arrest resulted in a conviction.
Sherman completed a parenting class at Fathers Insync in July 2010.
During the fall of 2010 OCS started unsupervised visits with Darcy and Khloe in
Sherman's home and was considering reunification. Sherman was showing
improvement. A Team Decision Meeting was planned for March 2011 to discuss a trial
home visit with Darcy. But the situation changed in mid-March after Sherman's aunt in
New York filed for custody of Georgina, and Sherman traveled to New York, where a
court hearing had been scheduled to consider his aunt's petition. Sherman appeared
unannounced at his aunt's home and over her objections took Georgina away, though
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----------------------- Page 4-----------------------
Georgina had not seen him for several years and did not recognize him. He returned
Georgina two days later pursuant to a court order.
Sherman was in New York for about five weeks, and during that time he
lost his housing in Anchorage. While he was gone, OCS discovered that he had been
allowing Khloe's mother, who had untreated substance abuse issues, to attend the
unsupervised visits with Khloe and Darcy. OCS accordingly switched back to
supervised visits once Sherman returned to Alaska. The visits did not go well. OCS
caseworker Leslie Johnston later testified that Khloe would cry and scream throughout
the visits and Sherman would not accept any help in dealing with her distress. Sherman
partly blamed the OCS workers, who he claimed aggravated the situation by yelling at
him to make Khloe stop crying.
Sherman went back to New York in August 2011 for Georgina's custody
trial. The New York court found that Sherman had "demonstrated a complete
insensitivity" to Georgina's needs by forcibly removing her from his aunt's home after
not having seen the child for years. The court concluded that Sherman's behavior
"demonstrated such incredibly poor parental judgment as to have the court question his
fitness to be responsible for any child." The New York court granted sole legal and
physical custody of Georgina to Sherman's aunt.
Around the time that Sherman made this second trip to New York, OCS
moved visitation with Darcy and Khloe to Cook Inlet Tribal Council at Sherman's
request. But visitation with Khloe continued to be difficult in the new setting. During
one visit, according to the visitation supervisor's paraphrase of Sherman's remarks,
Sherman thought that an inconsolable Khloe "just needs to cry until she breaks" and "just
needs to be broke." In the fall of 2011 the superior court ordered that Sherman's
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visitation with Khloe be halted until he took a psychological assessment. Sherman
refused to take the assessment and as a result had no further visitation with Khloe.
Darcy's and Khloe's cases both ended in the termination of Sherman's
parental rights. The superior court terminated Sherman's rights to Darcy on January 6,
2012, and we affirmed that decision on appeal.2
Sherman's appeal of the termination
in Khloe's case is pending.
B. Kadin
Sherman and Amy's son Kadin was born on February 4, 2012, shortly after
the termination of Sherman's parental rights to Darcy. Kadin tested positive for cocaine
at birth, later experiencing some adverse physical effects from this exposure. OCS took
emergency custody of Kadin at the hospital. Sherman objected to this; he asserted that
he should be allowed to take Kadin home as he had Georgina, who had also been born
cocaine-positive. Sherman and Johnston, the social worker, later described their
interactions at the hospital as contentious; at one point Johnston called security and
Sherman called the police. OCS placed Kadin with Amy's mother, who was already
caring for Darcy.
On February 28, about three weeks after Kadin's birth, OCS moved in
superior court for a determination that it did not need to make reasonable efforts towards
Kadin's reunification with Sherman, as generally mandated by AS 47.10.086(a). OCS
relied on AS 47.10.086(c)(8), which excuses "reasonable efforts"
if the court has found by clear and convincing evidence that
the parental rights of the parent have been terminated with
respect to another child because of child abuse or neglect, the
parent has not remedied the conditions or conduct that led to
2 Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 290 P.3d 421 (Alaska 2012).
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----------------------- Page 6-----------------------
the termination of parental rights, and the parent has
demonstrated an inability to protect the child from substantial
harm or the risk of substantial harm.
OCS contended that Sherman had not remedied his conduct "[i]n the short time since
[Darcy's] trial" and that "his disinterest in [day-to-day parenting] means that he lacks an
ability to perceive and appropriately respond to the emotional needs of a child, which
would cause [Kadin] substantial harm."
The court did not rule on OCS's motion immediately, and OCS eventually
withdrew it. In the meantime, OCS proceeded with case planning. Johnston later
testified that both Sherman and Amy refused to discuss case planning with her during
their initial meeting in March 2012. Amy did state, however, that she intended to go to
New York to get Georgina, a plan that Sherman favored. According to Johnston,
Sherman "didn't seem to understand or care that his aunt was granted sole legal custody
of [Georgina], and it is in her best interest to remain . . . [in] the only home that she
knows." Case plans from March and April 2012 called for Sherman to engage in
visitation with Kadin, maintain housing and employment, provide OCS with information
about his housing and employment, work on his understanding of child development,
take a psychological assessment, and attend monthly case planning meetings.
On May 10, 2012, OCS petitioned for the termination of Sherman's
parental rights to Kadin, arguing that Sherman had caused Kadin to be a child in need
of aid through neglect and abandonment. On the same day, OCS also moved for an order
requiring Sherman to undergo a psychological evaluation. OCS's primary rationale was
that, given OCS's difficulties in working with Sherman and his past inability to change
his behaviors, "[a] psychological evaluation is the best chance of determining what, if
any, services could possibly help [Sherman] retain custody of [Kadin]." In June 2012
the superior court granted the motion, finding that Sherman's mental state was in
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controversy and that there was good cause for a psychological evaluation. Sherman
refused to comply.
Sherman did participate in visitation twice a week at OCS from the time
Kadin was born until June or July 2012. He then left for Kenai or King Salmon,
informing OCS that he was going to work in the seafood industry during fishing season
and would travel back to Anchorage for weekly visitation.3
He did not return to
Anchorage for about a month, at which time OCS changed the regular visitation schedule
to once a week.
The termination trial was held in October 2012. Sherman and Amy were
both represented by counsel. After hearing the evidence the superior court terminated
both Amy's and Sherman's rights, finding that Amy placed Kadin in need of aid due to
her cocaine use during pregnancy and that Sherman placed Kadin in need of aid due to
abandonment. Sherman appeals the court's findings that (1) he caused Kadin to be a
child in need of aid; (2) he failed to remedy the conduct or conditions that placed Kadin
in need of aid; (3) OCS provided reasonable reunification efforts; and (4) termination
was in Kadin's best interests.4
3 Johnston expressed some doubt as to whether Sherman actually went out
of town during this period, testifying that she saw him in the OCS lobby after he had
canceled a visit and said he was going to Kenai.
4 We recently decided Amy's appeal from the same order. Amy M. v. State,
Dep't of Health & Soc. Servs., Office of Children's Servs. , ___ P.3d ___, Op. No. 6820,
2013 WL 4768382 (Alaska, Sept. 6, 2013).
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----------------------- Page 8-----------------------
III. STANDARD OF REVIEW
5
Whether a child is in need of aid,
whether a parent has remedied the
6
conditions that placed the child in need of aid, and whether termination is in a child's
7
best interests are factual determinations. We review factual findings in child-in-need-of-
aid cases for clear error.8 "Findings of fact are clearly erroneous if a review of the entire
record in the light most favorable to the prevailing party below leaves us with a definite
and firm conviction that a mistake has been made."9
"Generally, conflicting evidence
is insufficient to overturn the superior court's decision, and we will not reweigh evidence
when the record provides clear support for the superior court's ruling."10
We give
deference to the superior court's credibility assessments, especially when such
5 Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 249 P.3d 264, 270 (Alaska 2011) (citing T.B. v. State, 922 P.2d 271, 273 (Alaska
1996)).
6 Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 254 P.3d 1095, 1103-04 (Alaska 2011) (quoting Barbara P. v. State, Dep't of
Health & Soc. Servs., Office of Children's Servs. , 234 P.3d 1245, 1253 (Alaska 2010)).
7
Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
291 P.3d 957, 962 (Alaska 2013) (citing Pravat P. , 249 P.3d at 270).
8 Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 289 P.3d 924, 930 (Alaska 2012) (citing Christina J., 254 P.3d at 1103).
9
Pravat P., 249 P.3d at 269-70 (quoting Dale H. v. State, Dep't of Health
& Soc. Servs., Office of Children's Servs., 235 P.3d 203, 209-10 (Alaska 2010)) (internal
quotation marks omitted).
10 Hannah B. , 289 P.3d at 930 (citing Maisy W. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008)).
-8- 6833
----------------------- Page 9-----------------------
11
assessments are based on oral testimony. Whether OCS has made reasonable
reunification efforts is a mixed question of law and fact.12 "Whether the superior court's
factual findings satisfy applicable child in need of aid (CINA) statutes and rules is a
question of law that we review de novo."13
IV. DISCUSSION
A. Legal Framework
14
To terminate parental rights, the superior court must make four findings.
First, the court must find by clear and convincing evidence that the child "has been
subjected to conduct or conditions described in AS 47.10.011" and is thus in need of
15
aid.
Second, the court must find by clear and convincing evidence that the parent has
failed to remedy the conduct and conditions in a timely manner such that the child would
16
be at risk of physical or mental injury if returned to the parent. Third, the court must
find by clear and convincing evidence that OCS has made reasonable efforts, pursuant
11 Id. (citing Pravat P., 249 P.3d at 274).
12 Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 290 P.3d 421, 428 (Alaska 2012).
13 M.W. v. State, Dep't of Health & Soc. Servs., 20 P.3d 1141, 1143 (Alaska
2001).
14 CINA Rule 18(c); AS 47.10.080(c)(3).
15 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
16 CINA Rule 18(c)(1)(A)(i)-(ii).
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----------------------- Page 10-----------------------
17
to AS 47.10.086, in support of reunification. Fourth, the court must find by a
preponderance of the evidence that termination is in the child's best interests.18
B. The Superior Court Did Not Err In Finding That Kadin Was A Child
In Need Of Aid.
Sherman contests the superior court's finding that he caused Kadin to be
19
a child in need of aid through abandonment. "We have articulated a two-part test for
reviewing cases of abandonment: (1) [t]here must be parental conduct evidencing a
willful disregard for parental obligations, leading to (2) the destruction of the parent-
child relationship."20 This test is objective, focusing on the parent's demonstrated actions
rather than subjective intent.21
Abandonment may also be found if the parent, without
justifiable cause, "failed to participate in a suitable plan or program designed to reunite
17 AS 47.10.088(a)(3); CINA Rule 18(c)(2).
18 AS 47.10.088(c); CINA Rule 18(c)(2)(A).
19 Sherman also argues that "[w]hen both parents are available, the State must
prove that each parent is unfit before it may interfere with the family." But we have held
that an initial determination of CINA status may be "based on the acts of just one
parent." Jeff A.C., Jr. v. State , 117 P.3d 697, 703 (Alaska 2005). And a parent's conduct
that is found to have placed the child in need of aid for purposes of termination
proceedings need not be the same conduct that originally caused the State to seek
custody. Id. Here, the superior court properly focused on Sherman's abandonment
despite the fact that Amy's drug use was a primary factor prompting State intervention.
20 Sean B. v. State, Dep't of Health & Social Servs., Office of Children's
Servs., 251 P.3d 330, 335 (Alaska 2011) (alteration in the original) (quoting Rick P. v.
State, Office of Children's Servs., 109 P.3d 950, 957 (Alaska 2005)) (internal quotation
marks omitted).
21 Id. at 335-36 (quoting Jeff A.C., Jr. , 117 P.3d at 704).
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----------------------- Page 11-----------------------
22
the parent . . . with the child." The superior court in this case found that Sherman
abandoned Kadin both under the general, two-part test and by failing to participate in his
case plan.
We first considered what is meant by the statutory phrase "failed to
participate" in a case plan in A.B. v. State .23
"While [AS 47.10.103(a)] does not
necessarily require a parent to follow his or her reunification plan to the letter, it does
require more than minimal participation."24
The record in this case supports a finding
that Sherman failed to comply with several important aspects of his case plan, including
undergoing a psychological assessment, providing verification of his housing and
employment, and gaining an understanding of Kadin's developmental needs and abilities.
OCS arranged for Sherman to undergo a psychological evaluation with the
purpose of learning how to better educate him about being a responsible parent, given
its history with him and its past inability to effect his reunification with his other
children. Sherman refused to undergo the evaluation, even after the court ordered that
he do so. Sherman admits this failure on appeal, though he argues that he had a right to
refuse and that he justly suspected that the ordered evaluation was "nothing but a fishing
expedition because he had already proved that he was safe with the children." But the
record amply supports OCS's concerns and its need for better communication with him;
it also amply supports the superior court's conclusion that Sherman's refusal to undergo
the evaluation even when ordered to do so was objective evidence of an unjustified
failure to participate in the case plan.
22 AS 47.10.013(a)(4).
23 7 P.3d 946, 951 (Alaska 2000).
24 Id.
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----------------------- Page 12-----------------------
With regard to other requirements of the case plan, Sherman contends that
the superior court clearly erred in finding that he "refuse[d] to show [OCS] how he
earned money or where he lived." Johnston testified at the evidentiary hearing that it
was important for OCS to know about Sherman's sources of income because they needed
to formulate a plan for him to take care of Kadin and because OCS was concerned that
Sherman might be supporting himself by dealing drugs. Johnston testified that Sherman
had not shown any proof of income after Kadin's birth despite his claims that he
sometimes worked in the fishing industry and that he owned a seafood business. The
superior court methodically but with little success asked Sherman to describe his recent
employment history. Sherman testified that he had held a few temporary jobs shortly
before and after Kadin was born, that he had set up a seafood business, and that he was
currently getting help with food, clothes, and rent from a housing assistance program.
He testified that he had not filed a tax return since before 2001 but could not explain why
not. His testimony about his earnings overall was confused, inconsistent, and
contradictory and supported Johnston's testimony that he was less than forthcoming.
Giving the required deference to the superior court's determinations of credibility,25
we
cannot say that the court clearly erred in finding that Sherman failed to participate in the
case plan by refusing to inform the State about his sources of income.
The same is true of Sherman's housing. He contends in part that the
superior court inappropriately focused on its quality. The governing statute provides that
"the court may not find a minor to be a child in need of aid . . . solely on the basis that
the child's family is poor, lacks adequate housing, or exhibits a lifestyle that is different
25 See Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 289 P.3d 924, 930 (Alaska 2012) (citing Pravat P. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 249 P.3d 264, 274 (Alaska 2011)).
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----------------------- Page 13-----------------------
from the generally accepted lifestyle standard of the community where the family
26
lives."
But the superior court here focused not on the quality of the housing but on
Sherman's secretiveness about it, a matter which was of significant concern to OCS.
At the time of Kadin's birth, Sherman was living in a rooming house, but
he soon moved someplace else. He testified that he asked Johnston to conduct home
visits at both locations but she refused to do so. Johnston conceded at trial that Sherman
asked her to conduct a home visit at the rooming house, but she testified that when she
was available to do it he was no longer receptive. She testified that he refused to reveal
the address where he lived next, and that she was eventually unable to make any further
inquiry into his housing situation because he stopped coming to case planning meetings.
It may be that some of the resistance OCS encountered was due to communication
difficulties. But once more giving the required deference to the superior court's
determinations of credibility,27 we cannot say that the court clearly erred in finding that
Sherman failed to participate in the case plan by refusing to give OCS the information
it needed about his housing.
Sherman also contests the court's finding that he "exhibited no significant
understanding of [Kadin's] developmental needs or abilities," which marked a failure to
meet one of the important goals of his April 2012 case plan. Sherman argues that the
examples cited by the superior court - his belief that Kadin could hold his head up and
recognize faces at five days old and his misidentification of Darcy's age in a
photograph - "do not involve the type of weighty justification needed to support a
26 AS 47.10.019.
27 See Hannah B., 289 P.3d at 930 ("We defer to a superior court's credibility
determinations, particularly when they are based on oral testimony." (citing Pravat P.,
249 P.3d at 274)).
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----------------------- Page 14-----------------------
finding that one has abandoned his child." We agree that these instances alone would
be insufficient to justify such a finding, but the court specifically cited them as examples
of a wider problem. And it is unnecessary for us to decide whether the court erred in
making this finding. Even disregarding Sherman's failure to make progress on the child
development issue, there is no clear error in the superior court's finding that Sherman
failed, without justification, to participate in his case plan by refusing to take the court-
ordered psychological evaluation and refusing to disclose information about his income
and housing.28
We also cannot say that the superior court clearly erred in finding that
Sherman abandoned Kadin under the general, two-part test. Sherman's failure to take
the actions necessary to improve his chances of success in his relationship with Kadin
constitutes (1) "parental conduct evidencing a willful disregard for parental obligations,
29
leading to (2) the destruction of the parent-child relationship." This is especially true
given past events. Sherman's rights to Darcy had been terminated just months before for
reasons very much like those at issue here; yet Sherman was unable to show that he was
28 Sherman also argues that the record provides no support for the superior
court's conclusion that his visits with Kadin were "rather superficial." He correctly
points out that Johnston testified that his behavior with Kadin during visitation was
"fine." Yet we find persuasive OCS's argument that the court found the visits to be
superficial because of Sherman's failure to make other changes in his life that would
increase his contact with Kadin and lead to reunification.
In addition, Sherman contends that "the court inappropriately used [his]
hostility to OCS to determine that he was not fit to parent." But the court's finding was
properly focused on Sherman's relationship with Kadin; the court found that Sherman's
hostility to OCS was not an excuse for his failure to be more involved with the child.
29
Sean B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
251 P.3d 330, 335 (Alaska 2011) (quoting Rick P. v. State, Office of Children's Servs. ,
109 P.3d 950, 957 (Alaska 2005)) (internal quotation marks omitted).
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----------------------- Page 15-----------------------
seriously interested in addressing the reasons for that termination and working toward
a better result this time.
C. The Superior Court Did Not Err In Finding That Sherman Failed To
Remedy The Conditions That Placed Kadin In Need Of Aid.
Sherman challenges the superior court's finding that he did not remedy the
conditions that placed Kadin in need of aid. Before terminating parental rights, the court
must find by clear and convincing evidence that the parent "has failed, within a
reasonable time, to remedy the conduct or conditions in the home that place the child in
substantial risk so that returning the child to the parent would place the child at
substantial risk of physical or mental injury."30
In determining whether a parent has
remedied the relevant conduct or conditions, the court may consider the best interests of
31 32
the child. A failure to comply with a case plan may constitute a failure to remedy.
Sherman argues that he met all the requirements of his case plan except for
the psychological evaluation, which, he contends, OCS failed to show was really needed.
However, OCS presented reasonable justifications for the evaluation, including
Sherman's troublesome conduct with Georgina in New York, the difficulty that social
service providers had in trying to work with him, and the fact that he was barred from
visitation with Khloe until an evaluation was completed. Furthermore, as discussed in
Section IV.B. above, the superior court did not err in finding that Sherman failed to
comply with other aspects of his case plan, namely informing OCS about his housing and
30 AS 47.10.088(a)(2)(B); see also CINA Rule 1.8(c)(1)(A)(i)-(iii).
31 AS 47.10.088(b).
32 See Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 175 P.3d 1263, 1268 (Alaska 2008).
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----------------------- Page 16-----------------------
employment situation. The court's conclusion that Sherman failed to remedy the conduct
that led to the finding of abandonment is not clearly erroneous.
D. The Superior Court Did Not Err In Finding That OCS Made
Reasonable Reunification Efforts.
Sherman challenges the superior court's finding that OCS made reasonable
efforts to reunify him and Kadin. In order to facilitate reunification, OCS must "make
timely, reasonable efforts to provide family support services to the child and to the
parents . . . that are designed to . . . enable the safe return of the child to the family home,
when appropriate, if the child is in an out-of-home placement."33
OCS must identify
relevant support services that may aid the parent in remedying the relevant conduct or
34
conditions and must actively help the parent to obtain those services.
OCS may fulfill
this obligation "by setting out the types of services that a parent should avail . . . herself
of in a manner that allows the parent to utilize the services."35
"[OCS] has some
discretion both in determining what efforts to pursue and when to pursue them."36
On appeal, Sherman emphasizes the fact that it was just three weeks after
Kadin's birth that OCS asked for a determination that no reasonable efforts were needed,
and that OCS filed for termination when Kadin was just three months old. He argues that
33 AS 47.10.086(a).
34 Id .
35 Tara U. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
239 P.3d 701, 705 (Alaska 2010) (quoting Frank E. v. State, Dep't of Health & Soc.
Servs., Div. of Family & Youth Servs., 77 P.3d 715, 720 (Alaska 2003)) (internal
quotation marks omitted).
36
Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 290 P.3d 421, 432 (Alaska 2012) (citing Sean B. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 251 P.3d 330, 338 (Alaska 2011)).
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----------------------- Page 17-----------------------
the timing of these actions, along with the fact that OCS was concurrently completing
a home study for a possible adoption by Amy's mother, prove that OCS never considered
reunification to be a "true goal." He also argues that the superior court improperly
placed the burden of reunification on him. OCS responds that its efforts were reasonable
given its history with Sherman and his unwillingness to cooperate.
The superior court found this to be a close case, and it observed that the
compressed time frame would have precluded any finding of reasonable efforts if it were
not for Sherman's recent history with OCS. The court explained that
[t]he very recent behavior of [Kadin's] parents in regards to
[Darcy] gives meaning and context to their behavior towards
[Kadin] during his life so far and is evidence of how they
would likely behave in the near future. It also informs the
experience of [OCS] and helps define what efforts it must
reasonably make to provide family support services to the
parents.
It is true that "[t]he reasonableness of the division's efforts . . . must be viewed in light
of the entire history of services that [OCS] had already provided."37 We have previously
held "that '[OCS's] efforts to prevent breakup of the entire family' may be considered
38
'in assessing whether that effort was sufficient' with respect to a particular child."
Johnston, the OCS caseworker, testified that during Darcy's and Khloe's
cases OCS provided Sherman with information about public assistance and food stamps
and that her predecessor at OCS had helped Sherman complete a parenting class by
working with the class facilitator after Sherman was almost discharged for non-
37 Erica A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 66 P.3d 1, 7 (Alaska 2003) (citing E.A. v. State, Div. of Family & Youth Servs. ,
46 P.3d 986, 990 (Alaska 2002)).
38 Id. at 8 (quoting E.A., 46 P.3d at 991).
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attendance. OCS had arranged supervised visitation between Sherman and his daughters
Darcy and Khloe and had made a number of efforts to address difficulties that arose
during those sessions. First, OCS workers tried to help Sherman deal with Khloe's
distress during visitation, but he was not receptive and would ask them to leave. Second,
OCS moved visitation to Cook Inlet Tribal Council at Sherman's request. Third,
Johnston arranged for Sherman to work with a parenting coach at Alaska Youth and
Family Network after he asked for additional help with the visits. But Sherman refused
to take the parenting classes that the program required, claiming that he had already
learned all he needed to know. He also refused to engage with a staff member from the
Father's Journey parenting program who came to speak with him about taking part in a
fathers' group.
The record supports a finding that OCS continued to make reunification
efforts after Kadin was born. OCS provided supervised visitation with Kadin twice a
week until Sherman's summer trip to Kenai or King Salmon in 2012, after which the
visits decreased to once a week (apparently due to scheduling problems). Johnston held
a case planning meeting in March 2012, scheduled two other planning meetings which
Sherman did not attend, and attempted to speak with Sherman on the phone. OCS
provided Sherman with a bus pass every month. Finally, OCS set up the court-ordered
psychological evaluation which Sherman refused to attend - as he had with the
evaluation scheduled before Kadin's birth.39
39 We note that a court may determine that reasonable efforts are no longer
required if the court finds that "the parent has . . . failed to comply with a court order to
participate in family support services." AS 47.10.086(c)(3). OCS apparently did not ask
the superior court to make such a finding in this case.
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In evaluating whether OCS has made reasonable efforts, the court should
"look at . . . the parent's level of cooperation with OCS's efforts."40
In E.A. v. State , we
concluded that while OCS's efforts during the latter part of the case "consisted largely
of failed attempts to contact [the mother] or obtain information from her rather than the
provision of services, [the mother's] evasive, combative conduct rendered provision of
services practically impossible."41
The mother's antagonistic conduct included
withholding contact information, being verbally abusive toward the social worker, and
failing to complete a substance abuse assessment.42
The facts are similar here. The
evidence supports the superior court's conclusion that Sherman was both confrontational
and secretive in his dealings with OCS. Johnston testified that Sherman refused to
discuss case planning with her during the March 2012 meeting; that he failed to come to
the next two planning meetings she scheduled with him; and that when she tried calling
him, their conversations were not productive or he would hang up on her. Johnston
testified that Sherman had been uncooperative with OCS prior to Kadin's case and that
he had threatened her and other OCS workers. His lack of candor with regard to his
housing and sources of income have already been detailed above and also find support
in the record.
It is true that reunification efforts after Kadin's birth took place over a short
period of time, and that visitation was sometimes reduced partly because of OCS's
limitations. However, "[t]he efforts that OCS makes must be reasonable but need not be
40 Tara U., 239 P.3d at 705 (citing Burke P. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 162 P.3d 1239, 1245 (Alaska 2007)).
41 E.A., 46 P.3d at 990.
42 Id. at 990 n.12.
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43
perfect." OCS provided - or attempted to provide - a number of services to Sherman
over the course of its history with him and tried different tactics to engage with him both
before and after Kadin's birth. The superior court did not clearly err in finding that
OCS's efforts toward reunification were reasonable.44
E. The Superior Court Did Not Err In Finding That Termination Of
Sherman's Parental Rights Was In Kadin's Best Interests.
Sherman challenges the superior court's finding that termination is in
Kadin's best interests. Under AS 47.10.088(c) and CINA Rule 18(c)(3), before a court
terminates parental rights it must find by a preponderance of the evidence that
termination is in the best interests of the child. It is "proper to consider the children's
bond to their caregivers, their need for permanency and stability, and the potential risk
45
"[A] child's need for permanence and
to the children if returned to their parent's care."
stability should not be put on hold indefinitely while the child's parents seek to rectify
46
The record supports
the circumstances that cause their children to be in need of aid."
the superior court's determination that it was unlikely Sherman would be able to rectify
43 Hannah B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 289 P.3d 924, 933 (Alaska 2012) (quoting Audrey H. v. State, Office of
Children's Servs., 188 P.3d 668, 678 (Alaska 2008)) (internal quotation marks omitted).
44
We note that this may have been an appropriate case for the application of
AS 47.10.086(c)(8), which excuses OCS from making further reasonable efforts towards
reunification if an earlier case has demonstrated that the efforts are likely to fail. OCS
withdrew its request that the statute apply to this case before the trial court could rule on
it, so this issue is not before us.
45 Hannah B , 289 P.3d. at 933 (citing Dashiell R. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs., 222 P.3d 841, 850-51 (Alaska 2009)).
46
Kent V. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
233 P.3d 597, 603 (Alaska 2010).
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his behavior in the near future, that Kadin had formed bonds in his new household with
his grandmother and his sister Darcy, and that his grandmother was meeting his needs
for permanence and security.
Sherman contests several of the court's specific findings, including its
conclusion that he has never shown a "real desire to care for a child." For support, he
points to his care of Georgina during her first nine months and his regular visitation with
Darcy. But these actions must be viewed in light of his placement of Georgina with
relatives in Atlanta and New York and his lack of substantive contact with her thereafter;
his initial preference that Darcy be sent to New York as well; and the difficulties he
experienced with visitation, difficulties that he failed to surmount despite OCS's efforts.
Given this history, we cannot say that the superior court erred in finding that
"[Sherman's] claims to be motivated to care for [Kadin] are not credible."
Sherman also faults the superior court for failing to specify the type of
emotional harm to which Kadin would be exposed if he were in Sherman's care. But the
risk of emotional harm follows logically from the court's other more specific findings
about Sherman's repeated failure to show consistent interest in his children, growth in
his parenting abilities, and commitment to a case plan. We see no error in the court's
conclusion that terminating Sherman's parental rights was in Kadin's best interests.
V. CONCLUSION
We AFFIRM the superior court's decision terminating Sherman's parental
rights to Kadin.
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