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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Denny M. v. State, Dept. of Health & Social Services, Office of Children's Services (1/13/2016) sp-7076
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DENNY M., )
) Supreme Court No. S-15880
Appellant, )
) Superior Court No. 3PA-13-00053 CN
v. ) and 3PA-13-00054 CN (consolidated)
)
STATE OF ALASKA,
) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF
) No. 7076 - January 13, 2016
CHILDREN'S SERVICES, )
)
Appellee. )
)
A
ppeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Gregory Heath, Judge.
Appearances: Lars Johnson, Assistant Public Defender, and
Quinlan G. Steiner, Public Defender, Anchorage, for
Appellant. David A. Wilkinson, Assistant Attorney General,
Fairbanks, and Craig W. Richards,Attorney General,Juneau,
for Appellee.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
MAASSEN, Justice.
I. INTRODUCTION
The Office of Children's Services (OCS) filed a petition to terminate a
mother's parental rights to two of her daughters. The superior court granted the petition.
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The mother appeals the superior court's finding that OCS made active efforts to reunify
the family, as required by state and federal law, as well as a few of the factual findings
underlying this conclusion. Because the superior court did not clearly err in finding that
OCS made active efforts by providing services geared toward reunification - some by
OCS directly and others through the mother's involvement in a therapeutic court - we
affirm the termination decision.
II. FACTS AND PROCEEDINGS
Denny M. is the mother of three daughters, two of whom, Tony (born in
1
2008) and Kam (born in 2010), are involved in this case. They are Indian children for
2
purposes of the Indian Child Welfare Act of 1978 (ICWA). OCS first became involved
with Denny's family in 2010, when it received a report that Denny abused alcohol and
marijuana while pregnant with Kam and said she hated the baby. OCS removed Tony
and Kam from Denny's care and began a trial home visit with their father, Tyler Y., who
in April 2011 was given permanent custody of the girls.
On May 30, 2013, OCS removed Tony and Kam from Tyler's home after
Kam "showed up at her day care provider's house with two black eyes, a blackened nose
and swollen face," allegedly caused by Tyler. The next day OCS filed an emergency
petition for temporary custody based on both Tyler's physical violence and Denny's
3
mental health. OCS placed the children with their aunt, Denny's sister.
1 We adopt the pseudonyms used by the parties.
2 See 25 U.S.C. § 1903(4) (2012).
3 In August 2013 both Tyler and Denny stipulated that the children were in
need of aid. Tyler stipulated to that status under AS 47.10.011(6) (risk of physical harm)
and Denny under AS 47.10.011(11) (parent's mental illness). The parents also stipulated
(continued...)
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OCS developed a case plan intended to promote the family's eventual
reunification. Denny started work on the plan in July 2013, 4
but her progress stopped
in August when she was arrested for assaulting her father - her fourth arrest for assault
since 2010. She was incarcerated until October. The disposition of her criminal case
required that she participate in a variety of services provided through a therapeutic
mental health court, includingcounseling, psychiatriccare,medication management,and
residence in an assisted living facility. Despite those resources, Denny was admitted to
the Anchorage Psychiatric Institute (API) in December 2013, her thirteenth admission.
5
Beginning in February 2014, secondary OCS caseworkers in Anchorage
made near-monthly in-person visits to Denny to track her progress with the case plan.
In March 2014, to advance one of the plan's goals, OCS referred her to Dr. Heather
Macomber for a neuropsychological evaluation. Dr. Macomber diagnosed Denny with
"schizoaffective disorder and post traumatic stress disorder" and made a number of
recommendations. Among other things, she recommended that Denny have "ongoing
psychiatric care" and "frequent appointments" with a doctor "to ensure her optimal
response to psychotropic medications"; that she "maintain consistency with [her]
medications to ensure her emotional stability, behavioralcontrol, and improve her reality
3(...continued)
that OCS had so far made active efforts to reunify the family and that it was in the
children's best interest to remain in OCS custody. The superior court accepted the
stipulation.
4 OCS simultaneously created case plans for Tyler and the children. But
Tyler voluntarily relinquished his parental rights to Tony and Kam in June 2014.
5 Denny's primary caseworker was in the Matanuska-Susitna Valley, where
the OCS case originated. Denny later moved to Anchorage, and OCS assigned
secondary caseworkers there to continue working with her.
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testing"; that she remain in assisted living and have a guardian appointed "to ensure that
she is protected from legal and financial predation"; and that she undergo another
psychiatric evaluation to identify "the true limitations of her parenting skills, and the
ways in which her current psychiatric symptoms impact her judgment and decision
making skills in the context of parenting." Denny's primary OCS caseworker, Raymond
Edwards, called Denny toexplain theserecommendationstoher;asecondary caseworker
later did the same in person.
These recommendations prompted OCS to refer Denny to Dr. Melinda
Glass, a clinical psychologist, in March 2014, for an evaluation of her prospects as a
parent. Dr. Glass found it difficult to clarify Denny's history "due to her tangential and
bizarre thinking," but she reported Denny's claims that through prayer she had learned
to read, healed animals, and fixed her teeth. Dr. Glass attributed these claims to
delusional thinking rather than any religious or cultural belief. Denny told Dr. Glass that
her daughter had visited her in her dreams but stopped doing so when both of them "shut
down." She admitted to Dr. Glass that she had frequent emotional breakdowns that led
to suicidal thoughts, though she said these resolved at least temporarily with visits to API
6
and medication.
She admitted that she had reconciled with Tyler, who was still in
prison, but she contended that he would not have assaulted the children in her presence
and would not do it again.
Dr. Glass diagnosed Denny with schizoaffective disorder-bipolar type and
substance abuse but ruled out "anxiety disorder related to a history of trauma." She
considered Denny's "grandiose delusions" about her "special powers" to be particularly
concerning, especially when they involved her children. Dr. Glass concludedthat Denny
6 Denny reported that she had been to API "so many times [she] cannot even
count."
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did not have the capacity to parent young children and that her long-term prognosis was
poor. She concluded that Denny required a precise combination of medications and
therapy to address her illness but that she had long struggled with consistency in both
7
areas.
Dr. Glass noted that finding the right balance would be difficult: "[I]t could
never happen or it could happen within a week or two." Regardless, Dr. Glass did not
believe Denny's children could be safely returned to her care in the near future. She
wrote, "[Denny] has a serious mental illness and her acting out is dangerous. The best
a consistent treatment program might provide is containment . . . but this would still not
make her able to protect and appropriately parent her children. [Denny] would require
constant supervision." Dr. Glass testified at trial that Denny's schizoaffective disorder
was "one of the hardest to manage" and unlikely to ever go away.
Following Dr. Glass's report, Denny's secondary caseworkers continued
their meetings with her at the assisted living facility. But Edwards testified that OCS's
last contact with Denny was in August 2014. After that, OCS mailed three certified
letters to her at the assisted living facility between October 2014 and January 2015
requesting contact but received no reply. Edwards testified that he had "no indication
that she's moved anywhere else."
In December 2014 OCS filed its petition to terminate Denny's parental
rights. In February 2015 there was a trial, which Denny attended; the superior court
terminated her parental rights in a written order in March.
7 Dr. Glass testified that "[t]he record is full of statements that she doesn't
comply with her medication as given and is not consistent, and with this type of mental
illness she's really got to, to have any chance of even being able to be stable and think
normally, if that's possible." Exacerbating the problem, in Dr. Glass's view, was that
Denny's "distrust is high and she is not entirely uncomfortable with her mental illness."
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III. STANDARDS OF REVIEW
"In a case involving the termination of parental rights, we review a superior
8
court's findings of fact for clear error."
"Findings are clearly erroneous if, after
reviewing the record in the light most favorable to the prevailing party, we are left with
9
"Conflicting evidence is
a definite and firm conviction that a mistake has been made."
generally insufficient to overturn the superior court, and we will not reweigh evidence
10
when the record provides clear support for the superior court's ruling."
"Whether OCS made active efforts as required by ICWA is a mixed
11
Whether "the trial court's active efforts finding failed to
question of law and fact."
12
comport with ICWA's requirements" is a question of law reviewed de novo.
IV. DISCUSSION
The main issue Denny raises on appeal is whether the superior court erred
in finding that OCS made active efforts to provide resources designed to prevent the
8 Doe v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. , 272
P.3d 1014, 1019 (Alaska 2012) (quoting Maisy W. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs. , 175 P.3d 1263, 1267 (Alaska 2008)).
9 Maisy W. , 175 P.3d at 1267 (quoting Brynna B. v. State, Dep't of Health
& Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)) (internal
quotation marks omitted).
10 Id. (internal citations omitted).
11 Sandy B. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
216 P.3d 1180, 1186 (Alaska 2009) (citing N.A. v. State, Div. of Family & Youth Servs.,
19 P.3d 597, 600-01 (Alaska 2001)).
12 Id. (citing Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family
& Youth Servs., 102 P.3d 932, 935 (Alaska 2004)).
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----------------------- Page 7-----------------------
break-up of her family. As a subsidiary issue, she contends that the superior court made
errors of fact in support of its active efforts finding.
A. The Superior Court Did Not Clearly Err When It Faulted Denny For
Losing Contact With OCS.
Denny argues that the superior court clearly erred when it found that she
moved from the assisted living facility in August 2014 without giving OCS a forwarding
address. The superior court found, based on the testimony at trial, that the secondary
caseworker "visited [Denny] at her residence in Anchorage each month; but, beginning
in August 2014, [OCS] struggled to contact her. In response, [OCS] mailed three letters
certified, the last one on January 29, 2015. The letters requested that [Denny] contact
the caseworkers for further support." The court concluded that "[t]he monthly visits by
the caseworker and the caseworker's inability to contact [Denny] on those occasions
tends to show that [Denny] has moved fromher assisted living facility without providing
a forwarding address to her new place of residence."
The evidence about whether Denny moved is unclear,13
but we conclude
that whether the superior court erred in that finding is immaterial. The important point
in the context of the active efforts analysis was not whether Denny moved but whether
she could be faulted for the loss of contact with OCS. "[A] parent's demonstrated lack
of willingness to participate in treatment may be considered in determining whether the
13 The trial transcript shows Denny's primary caseworker, Edwards,
testifying, "She has moved. She didn't notify me." He later testified, "As far as [I]
know, she's still receiving cab vouchers from OCS to the same address. . . . I have no
indication that she's moved anywhere else." The trial court could reasonably have
understood Edwards's testimony on this point in different ways. But as explained above,
any difference is immaterial to the relevant question of whether Denny may be faulted
for the loss of contact.
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----------------------- Page 8-----------------------
14
[S]tate has taken active efforts." The superior court's other relevant factual findings
- about the OCS caseworkers' near-monthly visits to the assisted living facility, their
last visit in August 2014, and the three unanswered certified letters between October
2014 and January 2015 - are supported by the evidence and are sufficient without more
to show that Denny could be faulted for the loss of contact. If the superior court did err
in finding that Denny moved, the error was harmless. 15
B. The Superior Court Did Not Err In Finding By Clear And Convincing
Evidence That OCS Made Active Efforts Toward Reunification.
Denny's primary argument on appeal is that "[g]iven the possibility that
[she] could have rapidly improved, the trial court erred in concluding that OCS made
active efforts to prevent the break-up of the family." She essentially concedes the gravity
of her mental health issues but argues that OCS failed to adequately address them, in part
by passively relying on the therapeutic mental health court to provide many of the
necessary services. But we conclude that the evidence supports the superior court's
finding of active efforts.
14 Sylvia L. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. ,
343 P.3d 425, 432 (Alaska 2015) (first alteration in original) (quoting E.A. v. State, Div.
of Family & Youth Servs. , 46 P.3d 986, 991 (Alaska 2002)).
15 Denny also contends that it was unreasonable for the court to note in its
decision, and apparently to hold against her, the fact that she "was unable to appear in
person at any of her meetings with OCS and court proceedings in this matter; she only
appeared by telephone." But as Denny acknowledges, the court was aware that "Denny
lived in Anchorage while [OCS] meetings were in Palmer" and that it is "common for
clients to attend meetings telephonically." In our view, the court's brief reference to
Denny's telephonic participation cannot reasonably be read as anything other than a
minor, neutral detail in the explanation of how contact between Denny and OCS was
eventually lost.
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----------------------- Page 9-----------------------
"In a termination proceeding involving Indian children, the superior court
must find, by clear and convincing evidence, that the State has made active efforts to
provide remedial services and rehabilitative programs designed to prevent the breakup
16
of the Indian family and that those efforts were unsuccessful."
The superior court
17
analyzes OCS's active efforts on a case-by-case basis. "Although there is 'no pat
formula . . . for distinguishing between active and passive efforts,' we have recognized
that what is critical is OCS's involvement with a parent after it has drawn up the parent's
18
case plan." Generally, "OCS makes active efforts . . . when it helps the parents develop
the resources necessary to satisfy their case plans, but its efforts are passive when it
19
requires the parents to perform these tasks on their own."
"The court should look to
OCS's involvement in its entirety, and may consider a parent's demonstrated
16 Philip J. v. State, Dep't of Health & Social Servs., Office of Children's
Servs., 314 P.3d 518, 527 (Alaska 2013) (citing 25 U.S.C. § 1912(d) (2012)); see also
CINA Rule 18(c)(2)(B).
17 Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
204 P.3d 1013, 1021 (Alaska 2009).
18 SandyB. v. State,Dep't of Health &Soc. Servs., Office of Children's Servs.,
216 P.3d 1180, 1188 (Alaska 2009) (alteration in original) (quoting A.A. v. State, Dep't
of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 1999)).
19 Sylvia L., 343 P.3d at 432 (quoting Sandy B., 216 P.3d at 1188); see also
A.A. , 982 P.2d at 261 ("Passive efforts are where a plan is drawn up and the client must
develop his or her own resources towards bringing it to fruition. Active efforts . . . is
where the state caseworker takes the client through the steps of the plan rather than
requiring that the plan be performed on its own." (quoting CRAIG J.D ORSAY,T HE INDIAN
CHILD WELFARE ACT AND LAWS AFFECTING INDIAN JUVENILES MANUAL 157-58
(1984))).
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----------------------- Page 10-----------------------
20
unwillingness to participate in treatment as a factor . . . ." But "an analysis of the
[S]tate's active efforts is not limited to efforts by OCS"; the court may consider services
provided by other state entities such as the Department of Corrections. 21 The services
provided through the specialized therapeutic courts of the Alaska Court System -
wellness courts, mental health courts, and veterans courts - can also be an important
part of a troubled parent's recovery. OCS is entitled to rely on those services as well in
its active efforts if in doing so it can avoid duplicating the programs in the parent's case
plan.
Thesuperior court found byclear and convincing evidencethat "OCSmade
timely, active efforts" to prevent the breakup of Denny's family. It commended OCS for
appointing a secondary caseworker to maintain in-person visits with Denny in
Anchorage after she moved there from the Valley. It noted that "OCS paid for cab
vouchersto all referred services and visitation" because of Denny's inability to "navigate
the bus system." It highlighted the referral to Dr. Macomber, with OCS covering the
cost, and the caseworkers' follow-up discussions of the doctor's recommendations with
Denny "in person and at length." The court noted that OCS also followed up on Dr.
Macomber's recommendations by referring Denny to Dr. Glass "for a psychological
evaluation specific to [Denny's] ability to parent." The court noted that OCS again
20 Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 249 P.3d 264, 271 (Alaska 2011) (citing Dale H. v. State, Dep't of Health &Soc.
Servs., Office of Children's Servs. , 235 P.3d 203, 213 (Alaska 2010)) (internal quotation
marks omitted); see also Sylvia L. , 343 P.3d at 432 ("In determining whether OCS made
active efforts, the trial court may consider all services provided during the family's
involvement with OCS; it need not focus on a distinct period of time.").
21 Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 222 P.3d 841, 849 (Alaska 2009).
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----------------------- Page 11-----------------------
"covered the cost" and that Edwards gathered all of Denny's "past mental and physical
health records" from API and other institutions and "spent a prolonged amount of time
distilling that information into a set of records and documents specifically tailored to Dr.
Glass's request for information." The court noted that Edwards prepared a list of
questions that would help Dr. Glass directly address Dr. Macomber's concerns about
Denny's parenting abilities and that, after Denny failed to appear for her first
appointment with Dr. Glass, Edwards rescheduled it and "coaxed [Denny] into
attending." The court also took note of Denny's involvement with a therapeutic court,
"the Community Resources Project," and its provision of services that OCS was not
required to duplicate. Finally, the court noted that OCS set up monthly visitation
between Denny and her daughters and referred Denny to a family therapy counselor "to
establish a visitation plan." And, as discussed above, the court concluded that Denny's
eventual disengagement from OCS assistance was due in large part to her own failure to
respond to the agency's attempts to contact her.
Dennycontendsthat theseefforts were not enough, first because they failed
to focus on stabilizing her mental health issues; this in turn, she contends, would have
aided her ability to parent and given her a more realistic perspective on Tyler's
destructive influence in her life. Denny points out that she attended the psychological
evaluations to which OCS referred her and that she was willing to pursue some, though
not all, of the doctors' recommendations. She argues that "OCS should not have given
up on the possibility of [her] becoming a safe parent."
But the superior court's findings that Denny's mental health problems are
of long standing, and that she has done little to address them, are supported by the
record. The court noted that Denny's delusions occasionally included her children and
that, because of her inconsistency with both medication and therapy, her poor prognosis
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----------------------- Page 12-----------------------
suggested that change in the near future was unlikely. In its discussion of the children's
best interests the court found that they were bonded to their maternal aunt, not to Denny.
The court further found that "[t]he children require stability and consistency to overcome
the emotional deficit created by their parents' conduct" and that they "should not wait
22
any longer for a permanent and loving home, a home that [Denny] cannot provide."
We have repeatedly observed that a "child's need for permanence and stability should
not be put on hold indefinitely while the child's parents seek to rectify the circumstances
23
that cause their children to be in need of aid"; the court appropriately applied that
principle here.
22 Although OCS's primary concern was Denny's mental health, it had two
others that could theoretically be addressed independently: her parenting abilities and
her financial stability. The superior court made no findings about whether OCS helped
Denny address her financial situation (other than paying for services) or whether it
actually referred her to a parenting class, and Denny cites OCS's failures in these areas
in her brief. But OCS's priority was to manage Denny's mental health problems, for
which she had come to OCS's attention twice before. It is clear from the record, and
Denny concedes, that her mental health was the major obstacle to improvement in other
aspects of her life, and the superior court could reasonably accept OCS's prioritization
of its concerns. We have previously held that when a parent receives "a number of
referrals from the state for services," OCS's failure to make others need not be fatal.
Thomas H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 184 P.3d
9, 17 (Alaska 2008) ("[W]hile the trial court acknowledged that OCS should have
referred Thomas to a mental health provider following its November 20, 2006 case plan,
the court also found that Thomas's own actions . . . would have frustrated the success of
any OCS services. Furthermore . . . Thomas received a number of referrals fromthe state
for services . . . ."); E.A. v. State, Div. of Family & Youth Servs. , 46 P.3d 986, 990
(Alaska 2002) (holding that OCS's failure to make active efforts for part of the case was
"insignificant in light of the extensive remedial efforts the state has provided throughout
its involvement").
23 Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 310 P.3d 943, 954 (Alaska 2013) (quoting 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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----------------------- Page 13-----------------------
Dennyalsofaults OCS for passively relying on the services provided by the
mental health court without following up to make sure those services were working.
Denny's primary caseworker, Edwards, was unsure whether OCS ever communicated
with Denny's therapeutic court providers apart from the staff at the assisted living
facility, though he testified he did receive some of their records. We have repeatedly
stated that OCS's "efforts need not be perfect; they need only be reasonable under the
24
circumstances."
Dennyreceived extensiveresources directly fromOCS,includingcase
planning, frequent and in-person support from caseworkers, monthly therapeutic
visitation with her daughters, and referrals for both neuropsychological and
psychological evaluations. Though our record lacks a full description of the services
ordered by the therapeutic court, Denny does not dispute that these services were also
provided. And there is no evidence that any deficiencies in coordination between OCS
and the court-ordered services damaged Denny's prospects as a parent.
Denny also argues that many of the services the court cited as showing
OCS's active efforts - psychological assessments, cab fare, collecting medical records,
arranging visitation - are "unremarkable," because those are the services OCS
ordinarily provides in these cases. But regardless of whether OCS put in extra efforts,
what matters is whether its efforts were reasonable under the circumstances. We
conclude that the superior court's decision of this issue was well supported by the record
and that it did not err in finding that OCS satisfied the active efforts requirement.
V. CONCLUSION
For these reasons, we AFFIRM the judgment of the superior court.
24 Sylvia L., 343 P.3d at 432.
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