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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moira M. v. State, Dept. of Health & Social Services, Office of Children's Services (3/18/2016) sp-7088

Moira M. v. State, Dept. of Health & Social Services, Office of Children's Services (3/18/2016) sp-7088

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

MOIRA  M.,                                                       )  

                                                                 )          Supreme  Court  No.  S-15952  

                                Appellant,                       )  


                                                                 )          Superior Court No. 3PA-13-00106 CN  

           v.                                                    )  


                                                                 )          O P I N I O N  


STATE OF ALASKA,                                                 )  


DEPARTMENT OF HEALTH &                                                                                           

                                                                 )         No. 7088 - March 18, 2016  


SOCIAL SERVICES, OFFICE OF                                       )  


CHILDREN'S SERVICES,                                             )  


                                Appellee.                        )  




                      Appeal from the Superior Court of the State of Alaska, Third  


                      Judicial District, Palmer, Vanessa White, Judge.  


                      Appearances: Rachel Cella, Assistant Public Defender, and  


                      Quinlan Steiner, Public Defender, Anchorage, for Appellant.  


                      Kathryn R. Vogel, Assistant Attorney General, Anchorage,  


                      and  Craig  W.  Richards,  Attorney  General,  Juneau,  for  


                      Appellee. Rachel Levitt, Assistant Public Advocate, Palmer,  


                      and Richard Allen, Public Advocate, Anchorage, Guardian  


                      Ad Litem.  


                      Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger,  


                      Justices. [Winfree, Justice, not participating.]  


                      BOLGER, Justice.  

----------------------- Page 2-----------------------


                    The superior court terminated a mother's parental rights based on evidence  


that she failed to remedy her substance abuse and the danger this conduct posed to her  


child.  On appeal the mother first argues that the superior court erred when, prior to the  


termination trial, it denied her request for a visitation review hearing.  She also argues  


that,  at  the  termination  trial,  the  superior  court  erroneously  reduced  the  Office  of  


Children's Services's (OCS) burden to make reasonable reunification efforts after she  


moved out of state.              But the  record  and  our  case law support the superior  court's  


decisions.        The  superior  court  denied  the  visitation  review  hearing  because  OCS  


responded to the mother's motion for a hearing by issuing a family contact plan that  


appeared to fully address her concerns.   And the superior court's analysis of OCS's  


efforts properly considered the specific facts of her case.  Accordingly we affirm the  


superior court's decision to terminate parental rights.  




          A.        Facts  

                    Abel, born in September 2012, is the son of Moira and Sam.1                                   Sam died  


when Abel was three months old.  After Sam's death, Moira and Abel moved to Alaska  


with Moira's boyfriend, Jarvis.  


                    In the early morning hours of August 29, 2013, Palmer police officer James  


Gipson noticed Moira walking alone along the road.  After Moira declined Gipson's  


offer of a ride, Gipson continued driving until he noticed a car parked in a gravel lot.  


Gipson approached the car, discovered it was unlocked, and found an unattended infant  


in the back seat.  While Gipson was waiting for backup assistance, Moira entered the lot  


          1         We  use  pseudonyms  throughout  to  protect  the  family's  privacy.  

                                                              -2-                                                           7088  

----------------------- Page 3-----------------------

and identified the car as belonging to her and the infant as her child.                                                                              Gipson noticed   

signs of impairment in Moira's behavior and notified another officer to contact Moira                                                                                     

while Gipson remained with the infant.                                                 Moira was taken into custody, and while in                                                  

custody she admitted to using cannabis, asserted that she had used methamphetamine for                                                                                            

                                                               2 and admitted that she had driven with Abel after using  

the first time the night before,                                                                                                                                

these drugs. Moira was ultimately charged with endangering the welfare of a child in the  


first degree, driving on a suspended license, driving under the influence, and misconduct  


involving a controlled substance.3                                        After taking Moira into custody, the police released  


Abel into the custody of Jarvis's mother.  


                            Based on this incident, the police sent OCS a protective services report  


regarding Abel, and OCS immediately began an investigation. OCS was initially unable  


to locate Moira or Abel for several days.   Upon finding them, OCS took Abel into  


emergency custody, and the superior court granted OCS temporary custody.  Because  


Moira did not want Abel placed with relatives outside of Alaska, Abel was placed in a  


foster home with a non-relative.  OCS immediately began offering services to Moira:  


it scheduled urinalyses (UAs) and hair follicle tests for controlled substances for both  


Moira and Abel, arranged  visitation, and offered to provide transportation to these  


services.  Though Moira missed her first visit with Abel, she did meet with an OCS  


caseworker and submitted to UAs.  The UAs came back positive for marijuana once in  


September 2013 and twice in October 2013.  


              2             During             the        termination                  trial       Moira            asserted             that        she         first       tried  

methamphetamine while in high school.                                                  

              3             Moira ultimately pleaded guilty to endangering the welfare of a child and  


driving  under  the  influence.                                     The  charges  for  misconduct  involving  a  controlled  


substance and driving with a suspended license were dismissed.  


                                                                                         -3-                                                                                 7088

----------------------- Page 4-----------------------


                    OCS also referred Moira to the Akeela Assessment Center where she took  


a substance abuse assessment in September 2013. Moira reported that she had a history  


of using alcohol, marijuana, hallucinogens, amphetamines, and opiates.  The substance  


abuse assessment concluded that Moira "exhibited a maladaptive behavioral pattern of  


dependence for cannabis, leading to clinically significant impairment or distress," and  


recommended outpatient services and ongoing UAs.  


                    In October 2013 Moira was admitted to the Akeela Family Program, an  


outpatient counseling program.  About one month later, OCS and Moira developed a  


case plan that required Moira to comply with the recommendations of her substance  


abuse assessment, submit to UA testing, participate in a psychological evaluation, attend  


parenting classes, and follow the visitation plan developed by Alaska Family Services.  


Moira participated in theAkeelaFamily Programuntil January 2014. During this period,  


she attended regular counseling sessions at Akeela, complied with regular UA testing,  


took  parenting  classes,  and  took  a  behavioral  health  assessment  at  Mat-Su  Health  


Services.   Moira also consistently  visited Abel, generally multiple times per week,  


through March 2014.   During these visits Moira exhibited many positive parenting  


attributes and few negative attributes, and she was able to meet many of the assigned  


parenting goals.  


                    Despite  Moira's  initial  progress  toward  her  case  plan  goals,  she  also  


struggled.   She admitted to using spice during this time, and she tested positive for  


opiates   in   November   2013   and   for   both   methamphetamine   and   opiates   in  


December 2013. As a result, her recommended drug treatment gradually increased from  


outpatient services to residential care.  But after late December 2013, Moira failed to  


return to treatment at Akeela, and the next month she was discharged after reporting that  


she would seek outpatient treatment with Alaska Family Services.  

                                                               -4-                                                         7088

----------------------- Page 5-----------------------

                                              Moira also began failing to maintain regular visitation with Abel. In spring                                                                                                                                                          

2014 she began attending fewer visits with him.                                                                                                                       Because Moira did not inform Alaska                                                                        

Family Services about her absences ahead of time, it periodically had to stop and re-start                                                                                                                                                                                       

visitations. OCS also struggled to maintain contact with Moira, despite attempts to visit                                                                                                                                                                                                  

Moira's   residence,   calls   to   different   phone   numbers,   and   visits   to   her   boyfriend's  


                                              Moira's problems with law enforcement also continued.                                                                                                                                           As a result of her                              

August 2013 arrest, Moira was sentenced to 15 days in jail with three years probation                                                                                                                                                                                   

and was ordered to participate in the Alcohol Safety Action Program as a probation                                                                                                                                                                                  

condition.   But she failed to complete that program, and the State accordingly moved to                                                                                                                                                                                                          

revoke her probation. In June 2014 she was arrested for shoplifting. The next month she                                                                                                                                                                                                       

was arrested on an outstanding warrant for violating her probation conditions; at that                                                                                                                                                                                                      

time, she reportedly admitted that she used heroin daily.                                                                                                                                              In December 2014 she was                                                            


indicted for heroin possession.                                                                               

                       B.                     Proceedings  

                                              In January 2014 the superior court adjudicated Abel a child in need of aid,  


and in March 2014, after an uncontested disposition hearing, the court committed Abel  


to OCS custody.  OCS updated Moira's case plan in July 2014.  Noting that Moira had  


made only initial progress, the updated plan recommended that Moira:  (1) "complete a  


substance abuse assessment and follow all recommendations"; (2) "participate  in  a  


psychological evaluation and . . . follow all recommendations"; (3) "follow the family  

contact plan for supervision of visits with [Alaska Family Services] and for telephonic  


and face to face visits supervised by the foster parent," and (4) "develop appropriate  


                       4                      During  the  termination  trial,  Moira  admitted  to  using  heroin  "[a]  couple  

times  in  Alaska"  and  asserted  that  her  use  ended  around  August  2014.    

                                                                                                                                                -5-                                                                                                                                                    7088  

----------------------- Page 6-----------------------

parenting behaviors through parenting classes and . . . demonstrate these techniques                                                                                                                                                                                                                                     

while at visitations."                                                                  OCS also recommended changing Abel's permanency goal from                                                                                                                                                                                                  

reunification to adoption. Moiraopposed                                                                                                                                  thepermanency                                                      goal change, asserting that she  

had scheduled a psychological evaluation and                                                                                                                                                               planned to participate in an updated                                                                                     

 substance abuse assessment with Akeela.                                                                                                                                     

                                                       After her case plan was updated,Moiraagain began following                                                                                                                                                                                                 through with  

her case plan goals.                                                              In August 2014 she participated in a psychological evaluation with                                                                                                                                                                                                 

Dr. Michael Rose and a substance abuse assessment at Akeela Assessment Center.                                                                                                                                                                                                                                                                       The  

 substanceabuseassessment found that Moirawasdependentonamphetamines,cannabis,                                                                                                                                                                                                                                                   

nicotine,   and   alcohol.     Given   Moira's   recent   and   regular   use,   the   assessment  

recommended detoxification as well as medium-                                                                                                                                                          or long-term residential treatment. The                                                                                                         

psychological evaluation diagnosed Moira with perpetrating child neglect, struggling                                                                                                                                                                                                                                        

with   cannabis   dependence   and  methamphetamine   abuse   (both   in   remission),   and  

exhibiting possible borderline personality.                                                                                                                                           The evaluation recommended that Moira                                                                                                                 

abstain from using substances, engage in psychotherapy and substance abuse treatment,                                                                                                                                                                                                                                         

demonstrate fiscal responsibility, and pursue parenting education.                                                                                                                                                                                                                 

                                                        By the time Moira                                                         began to follow                                                  through with her case plan, however, the                                                                                                                

 superior court had already approved adoption as Abel's permanency goal, finding that                                                                                                                                                                                                                                                                  

Moira had not made substantial progress toward her case plan goals and that it would be                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                          5       In September 2014 OCS  

contrary to Abel's best interests to return him to her custody.                                                                                                                                                                                                                                                                                   

notified Moira that it planned to relocate Abel to Washington to live with Kayla, Abel's  


paternal  grandmother.                                                                                    Moira  initially  objected  to  this  decision  and  requested  a  


placement review hearing.  


                            5                           Moira  did  not  request  a  contested  hearing.   

                                                                                                                                                                              -6-                                                                                                                                                                  7088  

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                                                       The superior court held the placement review hearing in October 2014.                                                                                                                                                                                                                                             

 Shortly before the hearing, OCS assigned caseworker Lynette Anselm to Abel's case,                                                                                                                                                                                                                                                             

and she was able to meet with Moira and Kayla at the hearing.                                                                                                                                                                                                           At the hearing, Moira                                               

changed her position and agreed that placing Abel with Kayla in Washington would                                                                                                                                                                                                                                                          

 serve his best interests.                                                                           She also testified that she was looking into substance abuse                                                                                                                                                                           

treatment in Washington so that she could be closer to him.                                                                                                                                                                                             

                                                        Shortly after the placement review hearing, Abel moved to Washington to                                                                                                                                                                                                                              

live with Kayla.                                                       OCS and Moira continued to communicate, but the extent of their                                                                                                                                                                                                           

communication is unclear.                                                                                      Moira also had telephonic contact with Abel after his move,                                                                                                                                                                 

but the extent of this contact is also not clear from the record.                                                                                                                                                                                          In December 2014, a few                                                                

months after Abel's move, OCS petitioned to terminate Moira's parental rights.                                                                                                                                                                                                                                                             

                                                       In January 2015 Moira moved to Oregon to live with her family.                                                                                                                                                                                                                   At the   

time, she had open criminal cases in Alaska, and by the time of the termination trial in                                                                                                                                                                                                                                                                     

April 2015, multiple bench warrants had issued for her arrest.                                                                                                                                                                                                    Once in Oregon, Moira                                                     

applied to the ARC Center, a nearby substance abuse treatment facility, and was put on                                                                                                                                                                                                                                                                     

the   wait   list   for   an   inpatient   program.     ARC   offered   Moira   temporary   outpatient  

treatment, but Moira initially declined.  And while on the wait list, Moira did not look                                                                                                                                                                                              

                                                                                                                                                                                                                                                                                                        6          But she did  

for   work   because employment was not readily                                                                                                                                                            available in                                          the   area.                                                                          

participate in Alcoholics Anonymous and Narcotics Anonymous once or twice a week.  


                                                       After her move Moira attempted to call Abel through Kayla, but Kayla did  


not allow her to speak to him, telling her that OCS had cut off visitation.  During this  


time OCS was trying to locate Moira, and Anselm, the OCS caseworker, believed that  


Moira was incarcerated in Alaska. According to Anselm, Moira did not tell OCS that she  




                                                       Moira explained that she occasionally worked for her grandparents to cover  


rent, but she did not ask them for additional work because she was focused on treatment.  

                                                                                                                                                                             -7-                                                                                                                                                                 7088  

----------------------- Page 8-----------------------

planned to move to Oregon, and Anselm was not aware of Moira's plans until after she                                                                                                                                                        

moved.   After Kayla denied Moira contact with Abel, Moira's attorney contacted OCS                                                                                                                                                    

in mid-January for clarification but heard no response and thus contacted OCS again in                                                                                                                                                         

mid-February.  At a pretrial hearing in late January, Moira's attorney also noted that                                                                                                                                                    

Moira was living in Oregon and raised the issue of visitation. Anselm testified that these                                                                                                                                             

communications marked the first time she knew for certain that Moira was residing in                                                                                                   


                                      Because she was unable to discuss visitation with OCS,                                                                                                                  Moira filed a                      

                                                                                                                                                                                                      7      She asked the  

motion in mid-February 2015 requesting a visitation review hearing.                                                                                                                                                                         

court to review whether OCS was complying with its obligation to provide her with  


reasonable visitation8 and to require OCS to prove by clear and convincing evidence that  


                                                                                                                   9  Moira claimed that she had not had in-person  

visitation was not in Abel's best interests.                                                                                                                                                                               


or  phone  contact  with  Abel  since  December  2014  and  that  OCS  had  not  directly  


responded to her requests for visitation.  Moira asserted that, in effect, OCS had denied  


visitation with Abel.  


                                      In response, OCS established a family contact plan. The plan provided for  


Kayla to call Moira three days per week and for the calls to last up to five minutes.  It  


also provided for supervised visitation between Moira and Abel once a week set up by  


Washington Child Protective Services.   OCS thereby opposed Moira's motion for a  


                   7                  See  CINA Rule 19.1(a) ("At any time in a proceeding, a parent . . . who has                                                                                                                          

been denied visitation . . . may move the court for a review hearing at which [OCS] must                                                                                                                                                

show by clear and convincing evidence that visits are not in the child's best interests.").                                                                                                                         

                   8                  SeeAS 47.10.080(p) ("If a child is removed fromtheparentalhome, [OCS]  


shall provide reasonable visitation between the child and the child's parents . . . .").  


                   9                  See  CINA  Rule  19.1(a)  (requiring  OCS  to  demonstrate  by  clear  and  


convincing evidence that "visits are not in the child's best interests").  


                                                                                                                       -8-                                                                                                             7088

----------------------- Page 9-----------------------


hearing and rejected Moira's "assertion that visitation has been denied." The court then  


denied Moira's motion "because OCS ha[d] established a family contact plan," but it  


noted that OCS should be prepared to address the apparent delay in establishing this plan  


at the termination trial.  


                    The  termination  trial  was  held  in  April  2015.                                Moira,  testifying  


telephonically, explained that since she moved to Oregon she had limited phone access,  


but she had been leaving a message with Kayla when she wanted to talk with Abel.  She  


described her contact with Abel at the time of the trial as follows:  


                    I get to talk to him as much as I can . . . get a hold of [Kayla]  


                    or [she can] get a hold of me because my phone situation has  


                    been hard because I've just not been working[,] and I've still  


                    been trying to get into my treatments and joining [Narcotics  


                    Anonymous]groups, and[AlcoholicsAnonymous]groups as  


                    much as I can.  


Dr. Rose testified as an expert witness based on his psychological examination of Moira.  


He asserted that unless Moira engaged in treatment, any child living with her would be  


at risk of harm.  Finally, Anselm testified about her interactions with Moira and noted  


her difficulty communicating with Moira throughout the case.  


                    At the close of the termination trial, the superior court issued oral and  


written findings terminating Moira's parental rights.  The court found that Abel was a  


child in need of aid because of Moira's substance abuse.   Noting Moira's relapses,  


decision to decline outpatient treatment, token participation in Alcoholics Anonymous  


andNarcotics Anonymous,decision to fleeAlaska, failureto maintain contact with OCS,  


and failure to maintain consistent contact with Abel, the court determined that Moira had  


failed to remedy the conduct that put Abel at substantial risk of harm.  The court also  


found that OCS made reasonable efforts to promote reunification throughout the case.  


And it found Moira not credible and determined that OCS's reasonable efforts burden  

                                                                -9-                                                         7088

----------------------- Page 10-----------------------

was  necessarily  reduced  after  Moira  left  Alaska  and  failed  to  provide  reliable  contact  

information.    Finally   the   court found   that   returning   Abel   to   Moira's   care   would   be  

contrary  to  his  best  interests.   

                       Moira  appeals  the  termination  of  her  parental  rights  to  Abel.   


                       We  review  a  trial  court's  decision  to  deny  a  review  hearing  for  abuse  of  



                        "A  trial  court  abuses  its  discretion  only  if  its  decision  arises  from  an  



improper motive or is arbitrary, capricious, or manifestly unreasonable." 

                       "Whether  factual  findings  satisfy  the  requirements  of  the  applicable  child  


in  need  of  aid  .  .  .  statute  is  a  question  of  law  that  we  review  de  novo,"                              adopting  the  rule  


of  law  most  persuasive  in  light  of  precedent,  reason,  and  policy.                                        

IV.	        DISCUSSION  

            A.	        The  Superior  Court  Did  Not  Abuse  Its  Discretion  In  Denying  Moira's  

                       Request  For  A  Visitation  Review  Hearing.  

                       In   her   motion   for   a   visitation   review   hearing,   Moira   argued   that   OCS  

violated  her  right  to  reasonable  visitation  under  AS  47.10.084(c)  and  AS  47.10.080(p).   

She  noted  her  attempts  to  contact  OCS  and  restart  visitation,  and  she  asserted  that  OCS's  

failure to respond to her inquiries constituted a de facto denial of visitation with Abel.  

            10         Lara S. v. State, Dep't of Heath & Soc. Servs., Office of Children's Servs.                                                   ,  

209 P.3d 120, 124 (Alaska 2009).                             

            11	        Id. at 124-25.  


            12         Theresa L. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 353 P.3d 831, 837 (Alaska 2015) (citing Ralph H. v. State, Dep't of Health &Soc.  


Servs., Office of Children's Servs., 246 P.3d 916, 920 (Alaska 2011)).  


            13         Susan M. v. Paul H., 362 P.3d 460, 463 (Alaska 2015) (quoting Rockstad  


v. Erikson, 113 P.3d 1215, 1219 (Alaska 2005)).  


                                                                       -10-	                                                                 7088

----------------------- Page 11-----------------------


Moira concluded that she was entitled to a review hearing under AS 47.10.080(p) and  


CINA Rule 19.1(a).  


                    The right to reasonable visitation for parents whose parental rights have not  


been terminated originates from AS 47.10.084(c), which provides:  "When there has  


been transfer of legal custody . . . and parental rights have not been terminated by court  


decree, the parents shall have residual rights and responsibilities.  These residual rights  


and responsibilities of the parent include . . . the right and responsibility of reasonable  


visitation . . . ."   Alaska Statute 47.10.080(p) explains what constitutes  reasonable  



                    When determining what constitutes reasonable visitation . . . ,  


                     [OCS]   shall   consider   the   nature   and   quality   of   the  


                    relationship that existed between the child and the family  


                    member before the child was committed to the custody of  


                     [OCS]. . . . [OCS] may deny visitation to the parents . . . if  


                    there is clear and convincing evidence that visits are not in  


                    the  child's  best  interests.  If  [OCS]  denies  visitation  to  a  


                    parent  . . . , [OCS] shall inform the parent . . . of a reason for  


                    the denial and of the parent's . . . right to request a review  


                    hearing as an interested person.  A parent . . . who is denied  


                    visitation may request a review hearing. (Emphases added.)  


CINA Rule 19.1(a) similarly provides that a parent who has been denied visitation may  


move for a hearing "at which [OCS] must show by clear and convincing evidence that  


visits are not in the child's best interests."  


                    On appeal Moira argues that the superior court erred when it denied her  


motion  for  a  visitation  review  hearing.                       She  claims  that  the  family  contact  plan  


established by OCS, which relied on Kayla calling Moira and on Moira traveling to  


Washington to visit Abel, was unreasonable given Moira's limited access to a phone and  


lack of driver's license. Had the court granted her motion for a visitation review hearing,  


she asserts that she would have demonstrated the plan was impractical.  Moira further  

                                                               -11-                                                         7088

----------------------- Page 12-----------------------


claims that after denying her motion for a review hearing, the court used her inability to  


follow the plan against her when it terminated her parental rights. She concludes that the  


court's  failure to  grant the hearing  prejudiced her  case at the termination  trial and  


accordingly asks us to reverse the superior court's decision.  


                    Moira's argument overlooks the fact that, after OCS filed its family contact  


plan, Moira did not file a reply opposing the plan nor did she challenge its inadequacy  


at the termination trial.  Moira's motion for a visitation review hearing, which was filed  


before OCS established its family contact plan, alleged that OCS had not responded to  


her requests for  visitation and had therefore effectively denied her visitation.   And  


though Moira supported the motion with examples of her correspondence with OCS,  


those exhibits did not show that OCS objected to visitation.   "[B]ecause OCS ha[d]  


established a family contact plan," which appeared to address Moira's concerns, the  


court denied the motion.  


                    Moira argues that the family contact plan didnotconclusively establish that  


she no longer was suffering a de facto termination of her visitation rights.  Moira also  


argues that even if OCS's family contact plan established that she did not suffer a  


de facto termination of her visitation rights, there was still an ongoing controversy  


warranting  a  review  hearing,  because  the  superior  court  could  have  given  Moira  


additional relief by augmenting the family contact plan.  


                    However, when the superior court denied the motion for a review hearing,  


it had no way of knowing that Moira objected to the family contact plan.  The sole issue  


that Moira raised in her motion was a lack of visitation; she requested "a review hearing  


to address the denial of visitation." (Emphasis added.)  The motion did not mention any  


concerns  with  phone  access  or  transportation.                            The  family  contact  plan  provided  


visitation through both phone contact and in-person visits.  It thus granted Moira all the  


relief she requested in her motion.  

                                                               -12-                                                         7088

----------------------- Page 13-----------------------

                                  It is unclear why the superior court would need to hold a hearing to review                                                                                                

the denial of visitation when OCS had already established a visitation plan and permitted                                                                                                             

visitation.   Accordingly it was reasonable for the superior court to conclude that OCS                                                                                                               

had resolved the sole issue before it, lack of visitation, and that the matter no longer fell                                                                                                                         

under CINA Rule 19.1(a), which provides for review hearings when visitation has been                                                                                                                               

denied.   Thus the superior court did not err when it denied Moira's motion.                                                                                                                     14  

                 B.	              The Superior Court Did Not Erroneously Lower OCS's Burden To  


                                  Make Reasonable Efforts.  


                                  Before  terminating  parental  rights,  a  court  must  find  that  OCS  "has  


complied with the provisions of AS 47.10.086 concerning reasonable efforts."15  Alaska  


Statute 47.10.086(a) requires OCS to "make timely, reasonable efforts to provide family  


support services to the child and to the parent[] . . . that are designed to . . . enable the  


safe  return  of  the  child  to  the  family  home."  Such  reasonable  efforts  include  


"identify[ing] family support services that will assist the parent . . . in remedying the  


conduct or conditions in the home that made the child a child in need  of aid" and  


"actively offer[ing] . . . and refer[ring] the parent" to such services.16  The statute also  


provides limited exceptions to the requirement that OCS make reasonable efforts.17  


                 14               Because we resolve  Moira's  appeal  on  these  grounds,  we  do  not  address  the  

constitutional  arguments  regarding  her  right  to  visitation  that  she  also  makes  on  appeal.   

                 15               AS  47.10.088(a)(3).  

                 16               AS  47.10.086(a)(1)-(2).  

                 17               AS  47.10.086(b)-(c).  

                                                                                                          -13-	                                                                                                   7088

----------------------- Page 14-----------------------

                                         When reviewing a superior court's reasonable efforts determination, we                                                                                                                                                 


evaluate OCS's efforts in light of the specific facts of each case.                                                                                                                                                                                           

                                                                                                                                                                                                      We also have held that  


a  superior  court  may  determine  at  the  termination  trial  that  the  reasonable  efforts  




requirement is excused. 

                                         Consistent with our case law, the superior court evaluated OCS's efforts in  


light of the specific facts of this case.  The court found:  


                                         Reasonable efforts have been made by [OCS] at all times.  


                                         Necessarily   those   efforts   were   reduced   when   [Moira]  


                                         relocated  and  did  not  have  reliable  contact  information.  


                                          [OCS] ha[s] to be able to contact her to engage in efforts.  


                                         But that was [Moira's] choice. She has not been proactive in  


                                         addressing . . . what she says is the reason for her choice,  


                                         more significant contact with her son.  


                     18                  See, e.g.                  ,   Shirley M. v. State, Dep't of Health & Soc. Servs., Office of                                                                                                                              

 Children's Servs.                                    , 342 P.3d 1233, 1241 (Alaska 2015) ("Reunification efforts need not                                                                                                                                      

be perfect; they need only be reasonable under the circumstances depending upon:                                                                                                                                                                              the  

parent's substance abuse history . . . ; her willingness to participate in treatment; the                                                                                                                                                                      

history of services provided by OCS; and the parent's level of cooperation with OCS's                                                                                                                                                                

efforts. The reasonableness of OCS's efforts may also depend on the parent's expressed                                                                                                                                                     

interest in parenting, withOCS's responsibility for reunification efforts decreasing as the                                                                                                                                                                      

parent's interest decreases." (footnotes omitted));                                                                                                     Sherman B. v. State, Dep't of Health                                                        

& Soc. Servs., Office of Children's Servs.                                                                                    , 290 P.3d 421, 432 (Alaska 2012) ("We have                                                                                  

acknowledged that the State has some discretion both in determining what efforts to                                                                                                                                                                                

pursue and when to pursue them.");                                                                                Sean B. v. State, Dep't of Health & Soc. Servs.,                                                                                  

Office of Children's Servs.                                                      251 P.3d 330, 338 (Alaska 2011) ("A parent's willingness to                                                                                                                        

participate in services is relevant to the scope of the efforts OCS must provide.").                                                                                                                                    

                     19                   Vivian P. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  


Servs., 78 P.3d 703, 709 (Alaska 2003) ("But the fact that [OCS] is precluded from  


determining on its own that reasonableefforts areunnecessary under AS 47.10.086(c)(1)  


does not preclude the court from determining after commencement of a termination trial  


that the reasonable efforts requirement is excused.").  


                                                                                                                               -14-                                                                                                                       7088

----------------------- Page 15-----------------------

                                              Moira argues that the statutory scheme requires OCS to make reasonable                                                                                                                            

efforts   unless the superior                                                                  court,   after   notice and                                                        hearing,   decides that the specific                                                       

circumstances obviate the need for reasonable efforts. She asserts that analyzing OCS's                                                                                                                                                                                            

efforts in light of the specific circumstances of each case improperly empowers OCS to                                                                                                                                                                                                             

abdicate its responsibility to make reasonable efforts, in contravention of the statutory  

scheme.     This   approach,   she   explains,   deprives   litigants   of   notice   of   outcome- 

determinative issues and "conflicts with notions of fundamental fairness and notice,"                                                                                                                                                                                         

because this approach allows courts to determine, after the fact, whether OCS had a                                                                                                                                                                                                                  

reduced burden to make reasonable efforts.                                                                                                              

                                              Moira's arguments are not persuasive.                                                                                                      Although the statutory scheme                                                         

recognizes the superior court's role in determining whether OCS may cease making                                                                                                                                                                                               

                                                               20  Moira does not identify a statutory requirement that OCS efforts be  

reasonable efforts,                                                                                                                                                                                                                                                                               

deemed reasonable before a termination trial.  The statute does not require such a pre- 


trial finding.  


                                              Further, Moira's claimthattheapproach unfairly deprives aparent ofnotice  


about  what  efforts  OCS  might  make  also  lacks  merit.                                                                                                                                                            Waiting  to  review  the  


reasonableness of OCS efforts until the termination trial does not allow OCS to evade  


its responsibility to provide objectively reasonable efforts. It provides a check to ensure  


                       20                     AS 47.10.086(b) (providing that the reasonable                                                                                                                   efforts requirement may be                                                         

excused "[i]f the court makes a finding at a [permanency] hearing" that the parent has                                                                                                                                                                   

not sufficiently remedied the conduct or conditions that led to the commencement of                                                                                                                                                                                                               

proceedings);   AS   47.10.086(c)   (providing   that   "[t]he   court   may   determine   that  

reasonable efforts . . . are not required if the court has found by clear and convincing                                                                                                                                                                           

evidence" that one of many enumerated aggravated circumstances exist).                                                                                                                                                                                        

                                                                                                                                              -15-                                                                                                                                       7088

----------------------- Page 16-----------------------

that OCS met its obligation in light of the specific circumstances of each case.                                                                    Our  

precedents very clearly identify the efforts that parents should expect: reasonable efforts                                                      

under the circumstances.                     21  


                        Finally, Moira claims that the superior court improperly lowered OCS's  


burden to prove reasonable efforts after her move to Oregon. She argues that we should  


reversethecourt's reasonableefforts finding,becausethecourtblamed Moirafor leaving  


Alaska when it terminated her parental rights.  She claims the court thereby "diluted  


OCS's burden, failed to honor the statutory scheme instructing OCS to seek advance  


permission to suspend efforts, and deprived Moira of adequate notice that her relocation  


would be used against her in this manner."  


                        But Moira's argument takes the court's finding out of context; in its oral  


findings the court stated: "Reasonable efforts have been made by [OCS] at all times.  


Necessarily those efforts were reduced when [Moira] relocated and did not have . . .  


reliable contact information." This finding is reasonable based on the testimony of OCS  


caseworker  Anselm and  Moira  about  the  difficulty  that  Moira  had  with  telephone  


communication after she moved to Oregon.   Anselm testified that OCS had trouble  


communicating with Moirathroughout thecase, includingbeforeMoira'smove, because  


Moira's phone number and address frequently changed and because she did not respond  


to voicemails and letters.  Moira's move only exacerbated these communication issues:  


Anselm explained that Moira did not inform OCS that she was moving to Oregon, and  


Anselm did not know her whereabouts for some time.  Anselm further testified that she  



                        See, e.g., Shirley M., 342 P.3d at 1241-42; Sherman B., 290 P.3d at 432-33;  


Sean B., 251 P.3d at 338-39.  

                                                                          -16-                                                                          7088  

----------------------- Page 17-----------------------


had been unsuccessful in directly contacting Moira after she moved to Oregon. Anselm  


also  stated  that  Moira  never  told  her  that  she  had  limited  phone  access  and  never  


provided OCS with an email address.  


                    Moira's testimony acknowledged that she had irregular contact with both  


Abel and OCS because of her unreliable access to a telephone.  She explained that she  


was living in a rural area in Oregon, and her mother, the only person in the house with  


a working cell phone, was often out of town.  And she asserted that she could not afford  


her own phone because she had not been working.  Together, Moira's and Anselm's  


testimony support the superior court's finding that OCS made reasonable efforts to  


facilitate reunification given the specific facts of this case. Moira does not challenge the  


superior court's factual findings on this issue; and the court's findings about the efforts  


OCS made are well supported.  


                    Thesuperior court followed our precedentsinanalyzing thereasonableness  


of OCS's efforts:  it did not err in determining that a decreased level of communication  


was reasonable given the circumstances of Moira's move.  

V.        CONCLUSION  

                    Because the superior court did not abuse its discretion in denying Moira's  


motion for a placement reviewhearing andproperly appliedour precedents when finding  


that OCS made reasonable efforts, we AFFIRM the superior court's termination of  


Moira's parental rights.  


                                                              -17-                                                        7088

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