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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Annette H. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (8/30/2019) sp-7403
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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ANNETTE H., )
) Supreme Court No. S-17290
Appellant, )
) Superior Court No. 3AN-16-00615 CN
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, )
No. 7403 - August 30, 2019
OFFICE OF CHILDREN'S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Peterson, Judge.
Appearances: J. Adam Bartlett, Anchorage, for Appellant.
Laura E. Wolff, Assistant Attorney General, Anchorage, and
Kevin G. Clarkson, Attorney General, Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
CARNEY, Justice.
I. INTRODUCTION
A mother appeals the termination of her parental rights to her son, who was
found to be a child in need of aid based on a hair follicle test positive for controlled
substances. She argues that without proof that her drug use caused the child's exposure,
there is no causal link between her conduct and any circumstances that may have
----------------------- Page 2-----------------------
endangered the child. She also argues that the Office of Children's Services (OCS) did
not make reasonable efforts to reunify the family because it failed to adequately
accommodate her mental health issues. Because the record supports the superior court's
finding that the child was in need of aid, and because OCS's efforts were reasonable
under the circumstances, we affirm the termination of the mother's parental rights.
II. FACTS AND PROCEEDINGS
A. Removal And Emergency Petition
1
Annette H. is the mother of Justin H., who was born in March 2014.
Justin's biological father is unknown; DNA paternity tests excluded both the individual
listed on Justin's birth certificate and Annette's partner Matthew. Annette and Matthew
live together and had been the subjects of a number of reports to OCS, none of which
were substantiated before October 2016.
In October 2016 OCSreceivedareport allegingthatAnnette, Matthew, and
possibly guests in their home were using and exposing Justin to methamphetamine. Two
OCS workers went to their home that day. They saw Annette and Matthew through a
window, but Annette and Matthew did not let them inside; the OCS workers did not see
Justin. Later attempts to contact Annette and Matthew, including a welfare check by the
police, were unsuccessful.
OCS obtained and executed a writ of assistance to gain access to the house
and to Justin. According to one of the OCS workers, Annette and Matthew were
uncooperative: Matthew was reluctant to let them into the house, and Annette was
"screaming, yelling, [and] not letting go of the child." Police officers accompanying the
OCS workers found a number of guests in the home, including a convicted sex offender
not in compliance with registration requirements. Annette and Matthew stated that they
1
We use pseudonyms for all family members to protect their privacy.
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were unaware of their guest's sex offense conviction. OCS found no evidence of drugs
or paraphernalia in the house, and Annette and Matthew both declined hair follicle
screening.
The OCS workers took Justin for a physical exam, which revealed no
evidence of physical abuse, and a hair follicle test; OCS returned Justin to Annette
pending the hair follicle results. Annette and Matthew agreed to OCS's request that they
participate in 30 days of random urinalysis (UA) screening and obtained bus passes from
OCS for transportation to the UAs. After they both missed their first two UAs an OCS
worker visited them and persuaded them to allow oral swabs to test for drugs. Annette's
test was negative; Matthew's was initially positive for amphetamines, but further testing
revealed this to be a false positive. During the visit the OCS worker observed a bag of
marijuana on a table but no other evidence that either of them was using drugs. Based
on Matthew's apparent positive test result, OCS implemented a safety plan, placing
Justin with Matthew's parents and allowing Annette and Matthew to have supervised
visitation.
In early November 2016 OCS received Justin's hair follicle test results,
which were positive for marijuana and methamphetamine. Annette and Matthew denied
using methamphetamine but acknowledged that they sometimes allowed friends to stay
with them; they suggested that one or more of their guests might have exposed Justin to
methamphetamine.
OCS took emergency custody of Justin and filed an emergency Child In
Need of Aid (CINA) petition the next day to adjudicate him as a child in need of aid and
2 The petition alleged that Justin was a child in need of aid based
for temporary custody.
2 See AS 47.10.142 (governing emergency custody); CINA Rule 6 (same).
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----------------------- Page 4-----------------------
3
on neglect, parental substance abuse, and parental mental illness. OCS placed Justin in
a foster home and arranged visitation for both Annette and Matthew. Annette stipulated
to probable cause without admitting any of the allegations; the court adjudicated Justin
a child in need of aid on all three alleged bases and awarded OCS temporary custody
pending disposition.
B. OCS Caseworkers' Efforts
1. First caseworker
OCS assigned the first of three caseworkers to Justin's case soon after
taking custody of Justin. That caseworker met with Annette to draft a case plan. The
case plan listed as a "protective factor[]" that Annette loved Justin and could "take really
good care of him" but included her acknowledgment that she could not "talk so well
sometimes" and tended to "get overwhelmed." The case plan required her to obtain a
substance abuse assessment and to follow its recommendations, obtain a mental health
assessment, complete parenting courses, and comply with the visitation schedule set up
for her and Justin. It noted that she was not willing to consider medication despite
"admit[ting] that she has mental health issues." OCS referred Annette to programs for
the substance abuse and mental health assessments as well as for other parenting, peer
support, and education services. The caseworker gave both Annette and Matthew bus
passes for transportation to visits and other appointments.
The first caseworker later testified that, although she "worked really well"
with Annette, and although Annette was willing to work on her case plan, "her anxiety
3 See AS 47.10.011 (providing child may be found in need of aid if
(9) "conduct by or conditions created by the parent . . . have subjected the child . . . to
neglect," (10) parent's "ability to parent has been substantially impaired by the addictive
or habitual use of an intoxicant" resulting in "a substantial risk of harm to the child," or
(11) parent "has a mental illness . . . of a nature and duration that places the child at
substantial risk of physical harm or mental injury").
-4- 7403
----------------------- Page 5-----------------------
really made it difficult." To try to ease Annette's anxiety, the caseworker accompanied
Annette to schedule a substance abuse assessment, but Annette did not return for the
assessment because she did not want to go alone, and confidentiality requirements
prevented Matthew from accompanying her. The caseworker next found a place where
Annette could do a walk-in assessment to avoid having to schedule an appointment in
advance, but Annette again did not complete the assessment because Matthew could not
come with her. Annette declined the caseworker's offer to accompany her in Matthew's
4
place to a meeting with a substance abuse treatment provider.
2. Second caseworker
In April 2017 the case was assigned to another caseworker. That
caseworker had difficulty establishing a relationship with Annette or engaging her in
completing the tasks listed in the case plan, though Annette continued to consistently
attend visits with Justin. The second caseworker later testified that she was unable to
scheduleappointments for assessmentsfor Annette because Annette and Matthewwould
only meet with her for "about 15 minutes" before they would "walk out." At one point
Matthewindicated that hewould scheduletheassessmentswithout OCS's assistance, but
the record does not indicate that he ever did so.
An adjudication trial was held over two days in late July 2017.5 The court
heard testimony from an OCS worker who had investigated an earlier unsubstantiated
report of harm concerning Annette and Matthew, the OCS worker who had filed the
emergency petition, and both caseworkers who had been assigned to Justin's case. They
4 OCS did allow Matthew to be involved withsomeaspectsofAnnette's case
plan,despitethecaseworker'sconcernthat hewas "being controlling,"becausehewould
raise Justin with Annette if she regained custody.
5 See AS 47.10.080(a) (governing adjudication hearings); CINA Rule 15
(same).
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----------------------- Page 6-----------------------
testified that Matthew had completed a substance abuse assessment but not followed up
with treatment and that Annette had not begun any of the required substance abuse or
mental health services, largely because she refused to attend appointments without
Matthew. Annette continued to visit weekly with Justin, often without Matthew because
OCS had limited his visits after DNA testing excluded him as Justin's biological father.
The superior court found that Justin was a child in need of aid based on
6 rejecting Annette's argument that a visitor to their home "inadvertently
neglect,
exposed" Justin to methamphetamine. The court stated that "if you're a parent, . . . [y]ou
keep your kids away from people who are smoking meth[amphetamine] . . . [and]
marijuana." The court also found that Justin was a child in need of aid based on parental
substance abuse,7 pointing to Annette's and Matthew's acknowledged past use of
methamphetamine and marijuana and their refusal to participate in UAs, although the
court acknowledged it was "unclear whether it's the parents who are using
[methamphetamine] or whether there[] [are] other people who have been using it."
8 the court stated that "there's no evidence that it
Finally, as to parental mental health,
creates harm to [Justin]" but nevertheless found that Justin's developmental delays and
exposure to drugs, along with Annette and Matthew's "lack of awareness of bringing . . .
people into the home" who might endanger Justin, "could be indicative of mental
illness." The court further found that OCS had made reasonable efforts to offer services
to Annette and Matthew, including providing them with bus passes and referring them
6 See AS 47.10.011(9).
7 See AS 47.10.011(10).
8 See AS 47.10.011(11).
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----------------------- Page 7-----------------------
9
for assessments, mental health services, and UAs. The court emphasized Annette's and
Matthew's lack of engagement, suggesting that OCS might not have needed to remove
Justin "had the parents cooperated, done the UAs, proven that it was someone else" who
exposed Justin to drugs, and "tightened up their home policy."
OCS filed a predisposition report in October 2017 requesting custody of
Justin for up to two years based on what it characterized as Annette's "untreated mental
health issues, unstable finances, possible substance use, unstable home, and unsafe
environment." The report stated that Annette "continued to refuse to meet with" the
assigned caseworker or accept OCS's help with completing her case plan, though she
regularly attended her visits with Justin, and that Matthew had stopped "actively
engaging with OCS."
In early November 2017 the second caseworker updated Annette's case
plan without Annette. The caseworker testified that she contacted Annette
approximately one to three times per month, usually after her visits with Justin, to try to
get her to work on her case plan, but that Annette was not engaged. The updated plan
remained largely unchanged, requiring Annette to obtain substance abuse and mental
health assessments, participate in UAs, and visit regularly with Justin.
Following a combined disposition and permanency hearing later that
10 the court committed Justin to OCS's custody for up to two years, finding that
month,
Justin remained a child in need of aid, that OCS had made reasonable efforts to provide
support services, and that these efforts had been unsuccessful.
9 See AS 47.10.086(a) (requiring OCS to "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").
10 See AS47.10.080(f),(l)(governingpermanencyhearings);CINARule17.2
(same).
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----------------------- Page 8-----------------------
3. Third caseworker
In December 2017 Justin's case was transferred to a third caseworker, who
met with Annette soon afterward. He later testified that because Annette did not agree
with her case plan, she "refused to actually comply with [it]."
In January 2018 OCS filed a permanency report changing the primary goal
from reunification to adoption because Annette was "not engaged in any services . . . to
address any substance abuse or mental health issues." The court approved the
permanency plan in February but, because Annette and Matthew had re-engaged with
OCS shortly before the permanency hearing, the court did not require OCS to file a
11
termination petition.
The new caseworker did not alter Annette's case plan, but he referred her
to additional agencies to obtain services because she had not gone to the agencies to
which previous caseworkers had referredher. Becausehebelieved that Annette's mental
health issues likely would prevent her from attending a pre-scheduled appointment, he
helped her find walk-in options for substance abuse and mental health assessments and
provided her with bus passes. Even though Annette generally wanted to confer with
Matthew before following up on referrals, the caseworker testified that she agreed to go
to the new walk-in referrals without consulting Matthew. But she did not do so; she
would "come up with reasons" why she had not completed the assessments, such as
having to clean the house or Matthew's being busy.
This caseworker also attempted to assist Annette and Matthew with
parenting courses they could complete at home with a booklet or online, as well as in
person, but they never completed the courses. He also testified that, with Annette's
11 See AS 47.10.088(d)(1), (e)(1) (requiring OCS to petition for termination
of parental rights to child in foster care for 15 of last 22 months absent compelling reason
that petition would not be in child's best interests).
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----------------------- Page 9-----------------------
permission, he at first involved Matthew in their meetings because of the "supportive
role" Matthew played for her. But he testified that Matthew later became "aggressive
towards [him]" and would speak for Annette at the meetings. Eventually Annette
stopped attending the meetings.
C. Termination Trial
In June 2018 OCS petitioned to terminate Annette's parental rights to
Justin. The trial was held in September. Various current and former OCS workers
testified, including all three caseworkers for Justin's case as well as the visitation
supervisor. The first two caseworkers acknowledged Annette's anxiety and testified to
her unwillingness to meet with most service providers without Matthew present. The
visitation supervisor also acknowledged Annette's mental health issues. She testified
that Annette generally attended scheduled visits but was inconsistent in how much she
would engage with Justin during visits, and that she would sometimes "get[] snappy"
with him or "get[] really agitated and blow[] up" when redirected. She expressed
concern that Annette would have difficulty parenting on her own. The third caseworker
also testified to his efforts to assist Annette with her case plan. He stated that because
Annette had not obtained any of the required assessments, OCS had not been able to
even investigate any mental health or substance abuse issues she might have.
At the close of trial the court made oral findings that OCS had proven by
clear and convincing evidence that Justin was subjected to neglect based on the positive
12 that Annette's marijuana use substantially impaired her ability to
hair follicle test;
parent, though it found that OCS had not met its burden with respect to proving
12
See AS 47.10.011(9).
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----------------------- Page 10-----------------------
13
methamphetamine use; and that Annette suffered from mental health issues that would
14
put Justin at substantial risk of physical harm and mental injury in her custody. The
court also found by clear and convincing evidence that Annette had not remedied the
conduct or conditions making Justin a child in need of aid within a reasonable time,
because the case had been pending for nearly two years. The court found that it was in
Justin's best interests to terminate Annette's parental rights so his foster family could
proceed with adoption. The court issued its written order terminating Annette's parental
rights in November.
Annetteappeals, challenging both thefinding that Justin wasa child in need
of aid and the finding that OCS made reasonable efforts.
III. STANDARD OF REVIEW
"In a case involving the termination of parental rights, we review a superior
15
court's findings of fact for clear error." "Findings are clearly erroneous if review of the
entire record leaves us with 'a definite and firm conviction that a mistake has been
16
made.' " "[W]e will not reweigh evidence when the record provides clear support for
17 We review for clear error the factual question of "[w]hether
the trial court's ruling."
13 See AS 47.10.011(10).
14 See AS 47.10.011(11).
15 Denny M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 365 P.3d 345, 348 (Alaska 2016) (quoting Doe v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 272 P.3d 1014, 1019 (Alaska 2012)).
16 Claudio P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 309 P.3d 860, 863 (Alaska 2013) (quoting Sherman B. v. State, Dep't of Health
& Soc. Servs., Office of Children's Servs., 290 P.3d 421, 427-28 (Alaska 2012)).
17 Id. (quoting Sherman B., 290 P.3d at 428).
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----------------------- Page 11-----------------------
18
a child is a child in need of aid." "Whether factual findings satisfy the requirements of
19
the applicable [CINA] statute is a question of law that we review de novo." "Whether
20
OCS made reasonable efforts to reunify the family is a mixed question of law and fact."
IV. DISCUSSION
A. The Superior Court Did Not Err When It Found By Clear And
Convincing Evidence That Justin Was A Child In Need Of Aid.
In a termination of parental rights case, OCS must prove by clear and
convincing evidence: that the child is in need of aid under AS 47.10.011; that the parent
has failed to remedy the conduct or conditions placing the child at risk of harm; and that
OCS has made reasonable efforts to provide family services designed to enable
21
reunification. OCS must also prove by a preponderance of the evidence that
22
termination of parental rights is in the child's best interests.
Alaska Statute 47.10.011(9) provides that a court may find a child to be a
child in need of aid if "conduct by or conditions created by the parent, guardian, or
custodian have subjected the child or another child in the same household to neglect."23
Neglect is defined as "fail[ure] to provide the child with adequate food, clothing, shelter,
education, medical attention, or other care and control necessary for the child's physical
and mental health and development, though financially able to do so or offered financial
18 Theresa L. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 353 P.3d 831, 837 (Alaska 2015).
19 Id.
20 Sherman B., 290 P.3d at 428.
21 AS 47.10.088(a); CINA Rule 18(c)(1)-(2).
22 CINA Rule 18(c)(3).
23 AS 47.10.011(9).
-11- 7403
----------------------- Page 12-----------------------
or other reasonable means to do so." 24
Annette argues that OCS failed to prove by clear and convincing evidence
that Justin was in need of aid on any of the three grounds alleged in its petition because
it did not establish a causal relationship between her conduct or mental health issues and
25 We need not consider each of the grounds alleged if we
Justin's exposure to drugs.
determine that the record supports any one of the superior court's child in need of aid
findings; we may affirm that finding without considering the other grounds.26
Annette contends the court erred by finding that her conduct subjected
Justin to neglect because OCS "never established how the methamphetamine
[documented by the hair follicle test] got into Justin's system." She argues that the court
"overlook[ed] the fact that the statute requires [OCS] to prove that the child was subject
to neglect as a result of parental conduct." (Emphasis added.) OCS responds that it is
not required to prove that Annette "actively created a drug-filled environment." Rather,
it argues, the court was correct to find that Annette neglected Justin by failing to protect
him from exposure to marijuana and methamphetamine by people she allowed to stay in
her home.
24 AS 47.10.014.
25 In addition to subsection (9) of AS 47.10.011, OCS alleged that Justin was
a child in need of aid under subsections (10) and (11), which provide that a child is in
need of aid if "(10) the parent['s] . . . ability to parent has been substantially impaired by
the addictive or habitual use of an intoxicant" resulting in "a substantial risk of harm to
the child," or if "(11) the parent . . . has a mental illness, serious emotional disturbance,
or mental deficiency of a nature and duration that places the child at substantial risk of
physical harm or mental injury." AS 47.10.011(10)-(11).
26 Payton S. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 349 P.3d 162, 169 (Alaska 2015).
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----------------------- Page 13-----------------------
The record supports a finding by clear and convincing evidence that
Annette neglected Justin by allowing him to be exposed to marijuana and
methamphetamine. It is true that the only evidence of methamphetamine use by anyone
close to Justin is the positive hair follicle test. Neither Annette nor Matthew was
observed using, admitted to using, or tested positive for methamphetamine; their oral test
results were negative; and, aside from a bag of marijuana, no drug paraphernalia was
ever found in their home. However, as the court noted, there was no suggestion that
Justin had been exposed to methamphetamine "anywhere else at daycare or anything like
27 No evidence at the termination trial indicated that Justin had spent time in
that."
someone else's care or had been exposed to drugs somewhere other than in Annette's
home.28
Given this, it was not clearly erroneous for the court to infer, based on the
positive hair follicle test, that Justin had been exposed to methamphetamine while under
Annette and Matthew's care and that conditions they created in their home had led to his
exposure. Nor was it error for the court to determine that, absent any indication that the
drug exposure could have occurred outside Annette's home, the follicle test constituted
27 While the court made this finding in the context of its oral findings on
parental substance abuse rather than neglect, this finding also underlies the court's
inference that Justin was exposed to drugs in Annette's home, and that Annette's
decision to allow drug users to stay in her home amounted to neglect.
28 Annette and Matthew themselves speculated at one point that one or more
visitors to their home may have exposed Justin to methamphetamine. However, this
evidence emerged at the adjudication trial, and the court did not rely on it for its findings
of neglect at termination; we thus do not consider it on appeal. See Bill S. v. State, Dep't
of Health & Soc. Servs., Office of Children's Servs., 436 P.3d 976, 983 n.32 (Alaska
2019) (noting that on appeal this court cannot rely upon evidence not admitted at
termination trial).
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----------------------- Page 14-----------------------
clear and convincing evidence of neglect, even if the specific mechanism of that
exposure could not be determined based on the available evidence.
Because we affirm the superior court's finding that Justin was a child in
need of aid based on neglect, we need not review the court's findings regarding parental
29 However, we remind superior courts that findings
substance abuse and mental illness.
must be sufficient to support meaningful appellate review.30 In this case the superior
court's written findings stated only that "[t]he child, who is under [18] years of age, was
shown by clear and convincing evidence to be a child in need of aid pursuant to
AS 47.10.011(9), (10), and (11)." It is only because the court's oral findings made
reference to specific facts and evidence presented at the termination trial that we are able
to review its child in need of aid determination at all.31 We reiterate that trial courts must
make specific findings; where the written findings are largely conclusory, as here, the
29 See Payton S. , 349 P.3d at 169.
30 See, e.g., In re Adoption of Hannah L., 390 P.3d 1153, 1157 n.16 (Alaska
2017) ("[T]he superior court must provide findings sufficient to give a clear
understanding of the grounds upon which it reached its decision." (quoting Price v.
Eastham, 128 P.3d 725, 727 (Alaska 2006))); Borchgrevink v. Borchgrevink, 941 P.2d
132, 139 (Alaska 1997) ("A trial court's factual findings . . . must either give us a clear
indication of the factors which the superior court considered important in exercising its
discretion or allow us to glean from the record what considerations were involved.").
31 Although we conclude that the court's findings on neglect are sufficient to
permit appellate review and affirm on that basis, we note that its findings on parental
mental illness under subsection (11) of AS 47.10.011 appear inadequate. The court
observed that Annette had an "outburst" and struggled "to control herself " during the
trial; based on this the court "acknowledged that she ha[s] mental health issues," but it
made no connection to any potential harm to Justin as a result. The court stated that
"there was clear and convincing evidence presented that [Annette] does have a mental
illness" and that OCS had proven "both harm and mental injury . . . with respect to
[Justin] remaining in [Annette]'s custody or care," but it pointed to no specific facts that
would support either finding.
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----------------------- Page 15-----------------------
court must make oral findings that are sufficiently detailed to explain the basis for the
court's decision and to enable meaningful review.
B. The Superior Court DidNot ErrWhenItDetermined That OCS Made
Reasonable Efforts To Reunify The Family.
Alaska Statute 47.10.086(a) requires OCS to "make timely, reasonable
efforts to provide family support services to the child and to the parents . . . that are
designed to prevent out-of-home placement of the child or to enable the safe return of the
child to the family home." The statute requires OCS to:
(1) identify family support services that will assist the parent
or guardian in remedying the conduct or conditions in the
home that made the child a child in need of aid;
(2) actively offer the parent or guardian, and refer the parent
or guardian to, the services identified under (1) of this
subsection; [OCS] shall refer the parent or guardian to, and
distribute to the parent or guardian information on,
community-based family support services whenever
community-based services are available and desired by the
parent or guardian . . . ;
(3) document [OCS]'s actions that are taken under (1) and (2)
[32]
of this subsection.
The superior court must find by clear and convincing evidence that OCS has made the
required reasonable efforts before it can order termination of parental rights.33
Annette argues that OCS's efforts "failed to address the needs of the family
because OCS did not accommodate [her] anxiety issues." She concedes that her first
caseworker "tried to provide her with a stress free environment," but asserts that "later
caseworkers did not accommodate [her] anxiety." She argues that, because OCS must
32 AS 47.10.086(a)(1)-(3).
33 AS 47.10.088(a)(3).
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34
tailor its efforts to the circumstances of her case and because OCS was aware of her
mental health issues, efforts that "may have been sufficient for someone without an
anxiety disorder . . . fell far short of what was needed in the present case." She suggests
that OCS should have consulted a mental health expert to determine how best to engage
with her "on her terms." OCS responds that the record supports a finding that
caseworkers took specific steps to accommodate and mitigate Annette's anxiety. OCS
blames Annette's lack of engagement for its failed efforts and emphasizes that, because
OCS has some discretion to decide what efforts to pursue, it was not required to consult
a mental health expert in this case. OCS further argues that because Annette refused to
complete a mental health assessment, a mental health expert would have been unable to
identify Annette's needs or how to address them.
We have held that "OCS's efforts must be 'reasonable but need not be
35 and must be assessed "in light of the circumstances" of the case, which "can
perfect' "
36 In determining the
include a parent's unwillingness to participate in treatment."
reasonableness of OCS's efforts, we may consider "all interactions between the parent
and OCS" as well as "the entire history of services" OCS has provided.37 "Our case law
34 See Shirley M. v. State, Dep't of Heath & Soc. Servs., Office of Children's
Servs., 342 P.3d 1233, 1242 (Alaska 2015) ("OCS is . . . required to take into account
the parent's limitations or disabilities and make any reasonable accommodations.").
35 Violet C. v. State, Dep't of Health &Soc.Servs., Office of Children's Servs.,
436 P.3d 1032, 1038 (Alaska 2019) (quoting Audrey H. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 188 P.3d 668, 678 (Alaska 2008)).
36 Amy M. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs. ,
320 P.3d 253, 259 (Alaska 2013).
37 Sylvia L. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
343 P.3d 425, 432 n.21 (Alaska 2015) (first quoting Audrey H. , 188 P.3d at 679 n.35;
(continued...)
-16- 7403
----------------------- Page 17-----------------------
and the internal policies of OCS suggest that family reunification services should be
38
provided in a manner that takes a parent's disability into account."
OCS's duty to
"offer reunification services is fulfilled by setting out the types of services that a parent
should avail himself or herself of in a manner that allows the parent to utilize the
39 OCS's obligation does not extend to forcing an uncooperative or unwilling
services."
parent to engage in services, including mental health treatment.40
Here the superior court found that OCS caseworkers had "gone over and
above . . . to try and get [Annette] to engage in treatment," contacting her frequently by
multiple means of communication and finding options for walk-in appointments after
determining that her mental health issues would make attending pre-scheduled
appointments difficult. The court also noted that Annette did consistently attend visits
with Justin, which the court took as evidence that "she is able to get where she needs to
go when she wants to" and that it was not her mental illness but her unwillingness to
37 (...continued)
then quoting Erica A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 66 P.3d 1, 7 (Alaska 2003)).
38 Lucy J. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs .,
244 P.3d 1099, 1115-16 (Alaska 2010); see ALASKA OFFICE OF CHILDREN 'S SERVICES,
C H I L D P R O T E C T I V E SE R V I C E S M A N U A L § 6 . 1 .1 4 ( c) ( 2 0 1 9 ) ,
http://dhss.alaska.gov/ocs/Documents/Publications/CPSManual/cps-manual.pdf("The
Division shall operate each of its services, programs, and activities so that a service,
program, or activity, when viewed in its entirety, is readily accessible to and usable by
individuals with disabilities.").
39 Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 322 P.3d 842, 851 (Alaska 2014) (quoting Audrey H. , 188 P.3d at 679).
40 Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 309 P.3d 850, 857 (Alaska 2013) (holding that OCS was not required to obtain
court order requiring parent to participate in mental health services to satisfy Indian
Child Welfare Act's active efforts requirement, see 25 U.S.C. § 1912(d) (2012)).
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engage that prevented her fromgetting substance abuse and mental health assessments.
The record provides ample support for the court's findings. Although
Annette's three caseworkers experienced varying levels ofsuccess getting her to engage,
they all made efforts to accommodate her. They testified that they worked with Annette
to identify walk-in services because she struggled with attending appointments made far
in advance. The initial caseworker also offered to accompany Annette to a meeting with
a substance abuse treatment provider when Annette refused to go without Matthew. And
when Annette expressed discomfort with the providers to whom OCS had initially
referred her, the third caseworker made new referrals and attempted to make sure she
was comfortable with following up on them. He also gave Annette and Matthew a
variety of options for completing the parenting classes Annette's case plan required,
including using a booklet at home or taking classes online or in person. And
caseworkers allowed Matthew to participate with Annette, acknowledging the
"supportive role" he played in mitigating Annette's anxiety. They also tried to engage
with Annette alone when Matthew's influence appeared counterproductive.
The record also contains ample evidence of Annette's lack of engagement.
She completed neither a substance abuse nor a mental health assessment. She and
Matthew repeatedly cut short meetings with caseworkers or failed to attend them
altogether, and Annette would "walk out" when the second caseworker tried to speak
with her after her scheduled visits with Justin. Because she refused to get assessments,
OCS was unable to determine the extent of her mental health or substance abuse needs
41 See Lucy J. , 244 P.3d at 1117 (rejecting mother's argument that OCS failed
to accommodate her disabilities in part based on evidence supporting trial court's finding
that she was "capable of and has initiated programs when she want[ed] to").
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or how best to assist her.
The court therefore did not err when it found by clear and convincing
evidence that OCS had made reasonable efforts to reunify the family, taking Annette's
mental health issues into account. We affirm the superior court's reasonable efforts
finding.
V. CONCLUSION
Because the record adequately supports the superior court's finding that
Justin was a child in need of aid based upon neglect, and because OCS made reasonable
efforts to accommodate Annette's mental health issues as it worked to connect her with
services, we AFFIRM the termination of Annette's parental rights.
42 See Audrey H. , 188 P.3d at 681 (affirming reasonable efforts finding in part
based on parent's unwillingness to participate in evaluations that might have allowed
OCS "to identify additional services catered to her specific needs").
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