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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Edna L. v. State of Alaska, Department of Health & Social Services, Office of Children's Services, John L. v. State of Alaska, Department of Health & Social Services, Office of Children's Services (12/24/2020) sp-7496
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
EDNA L., )
) Supreme Court Nos. S-17485/17505
Appellant, ) (Consolidated)
)
v. ) Superior Court Nos. 3PA-18-00059/
) 3PA-18-00089 CN
STATE OF ALASKA,
)
DEPARTMENT OF HEALTH &
) O P I N I O N
SOCIAL SERVICES, OFFICE OF
)
CHILDREN'S SERVICES,
) No. 7496 - December 24, 2020
)
Appellee. )
)
)
JOHN L.,
)
)
Appellant, )
)
v. )
)
STATE OF ALASKA,
)
DEPARTMENT OF HEALTH &
)
SOCIAL SERVICES, OFFICE OF
)
CHILDREN'S SERVICES,
)
)
Appellee. )
_______________________________ )
rom the Superior Court of the State of Alaska, Third
Appeal f
Judicial District, Palmer, Vanessa White, Judge.
Appearances: Michael Horowitz, Law Office of Michael
Horowitz, Kingsley, Michigan, for Appellant Edna L.
----------------------- Page 2-----------------------
J. Adam Bartlett, Anchorage, for Appellant John L.
Kimberly D. Rodgers, Assistant Attorney General,
Anchorage, and Kevin G. Clarkson, Attorney General,
Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
STOWERS, Justice, with whom CARNEY, Justice, joins, concurring.
I. INTRODUCTION
A mother and father appeal the termination of their parental rights after
proceedings in the Palmer Families with Infants and Toddlers Court (FIT Court). They
argue that their rights were violated when the FIT Court's "rigid, non-fact driven,"
12-month timeline governed the progression of the Child in Need of Aid (CINA) cases
of their two children. We conclude that it was error to adhere to the FIT Court's preset
timeline rather than making an individualized assessment of whether the parents had a
reasonable time to remedy based on the facts of their children's cases, as required by
statute. We further conclude that the parents did not knowingly and voluntarily waive
that statutory requirement.
II. FACTS AND PROCEEDINGS
Edna and John L.1 are married and have a daughter, Ann; Edna also had a
son, Chris, from a previous marriage to Charles F.2
In early March 2018 the Office of
Children's Services (OCS) took custody of six-year-old Chris after Edna and John were
1 We use pseudonyms to protect the parties' privacy.
2 Charles agreed to relinquish his parental rights to Chris if Edna's rights
were terminated so that Chris could be adopted by the foster parents. He did not
participate in this appeal.
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seen using drugs in Chris's presence. In late April OCS took custody of Ann shortly
after her birth. Both children tested positive for drug exposure, and Chris was behind in
school and in need of significant dental work. The children were placed with a foster
family.
Edna and John had long struggled with substance abuse, and both received
behavioral health assessments that recommended intensive outpatient or residential
treatment. Early in their children's CINA cases both parents failed to follow through
with their OCS case plans and continued using drugs. They missed scheduled urinalysis
appointments, court hearings, and family team meetings.
A. The FIT Court Overview
The FIT Court is a therapeutic court in Palmer. Based on similar courts in
other jurisdictions, its stated "primary goals are to achieve permanency within twelve
months and to reunify young children with their families of origin." Families in pending
CINA cases involving children under three years old are eligible to participate.
The FIT Court team consists of the FIT Court judge and project
3 and representatives of various State entities: OCS, the
coordinator, "ICWA specialist,"
Department of Law, the Public Defender Agency, and the Office of Public Advocacy.
When an eligible family expresses interest in the court, the FIT Court team votes on
whether to accept the case; the judge makes the final decision. Cases accepted into the
FIT Court are assigned to the FIT Court judge.
Families are allowed to leave FIT Court until there is an adjudication that
the child is in need of aid; at that point "the participants will no longer have the ability
to opt-out of the therapeutic court." To ensure they understand this and other unique
3
The Indian Child Welfare Act (ICWA) specialist is not further identified
in our record.
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aspects of FIT Court, participants are given an opt-in form to sign, acknowledging that
they "understand and agree to the program requirements." The form requires
participants to initial a set of statements acknowledging that they "understand the goal
of FIT Court is for the minor(s) to reach permanency in 12 months. Permanency means
case closure through reunification, adoption, or guardianship"; they "understand FIT
Court has an alternative hearing schedule, which includes monthly court hearings and
a permanency hearing at 6 months"; and they "understand that [their] case will not return
to regular Child in Need of Aid (CINA) proceedings. It is not possible to opt-out post
adjudication. This is different from other therapeutic courts."
Havingcommitted to this expedited process,FITCourt participants receive
increased attention from caseworkers. An assigned team works to support the parents
in getting the help and services they need. FIT Court participants work through four
phases: (1) "Evaluation of Needs," which takes "approximately three months" and in
which "the participant's goal is to engage in services" such as parenting classes,
substance abuse assessments, urinalyses, visitation, and therapy; (2) "Putting Plans into
Action," "an ongoing phase where the participant is learning and problem solving,
building on family strengths, and fully engaged in services"; (3) "Stability," in which the
participants are finishing classes, are "fully engaged in services," and, if reunification is
still an option, are "ready for reunification"; and (4) "Graduation," at which point
"permanency has been achieved and there is no further need for the Court's
intervention."
B. Proceedings
1. Ann's probable cause hearing
The superior court held an emergency probable cause hearing for Ann on
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4
May 3, 2018. The court asked Edna and John to consider participating in FIT Court,
explaining the court's "two-fold" mission:
First to serve families with infants and toddlers with
much more significant wraparound services for the entire
family. So, in your circumstance, given the allegations in the
petition, that might include substance abuse treatment, it
might include mental health treatment. It almost always
includes what we call child-parent psychotherapy . . . .
[The FIT Court] is a court where we're also trying to
make sure that these babies achieve permanency within a
year's time. . . . [O]ne of the primary goals of this program is
to promote permanency within one year's time.
And secondarily, the reason for all of these
wraparound services is to promote reunification of the child
with the parents whenever that can be done safely. So, the
focus is on getting the case resolved within a year. And
whenever possible, having that . . . resolution be reunification
of the child with the family.
The probable cause hearing was continued, and a week later both Edna and John
indicated their interest in FIT Court. The court informed them that they would be the
seventh family to participate and explained that they would have to work hard on their
case plans, be honest, and ask for help when they needed it. In return, the court told
them, the FIT Court team would work hard for them and "lift [them] up":
As long as you do your part, I promise you, the team will do
their part. And they will be honest with you at all times.
This is a tough program, too, because there's no time to
waste. If you're admitted into the FIT Court, you have to hit
the ground running in terms of working the items on your
case plan, because we're going to get [Ann] to permanency
4 See AS47.10.142(a),(d), (e)(governingemergency custody and temporary
placement hearings at which court determines "whether probable cause exists for
believing the child to be a child in need of aid").
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----------------------- Page 6-----------------------
with you or without [you] within 12 months of the date she
was removed. So, there is no time to waste.
2. The Fit Court opt-in in Ann's case
The court had an official FIT Court opt-in hearing for Ann's case on
May 22, 2018. The court walked through all the items on the "FIT Court opt-in
checklist" before making a finding that both of Ann's parents, Edna and John, were
"entering into the FIT Court freely, voluntarily, and intelligently, both with the advice
of competent counsel." The court explained that "some determinations about
permanency" would be made "in about six months' time": "At the six-month mark, if
you're not in a home visit or close to a home visit, then the case may convert from one
where we're focusing on reunification to where we're focusing on adoption for [Ann]."
The court reiterated that "our goal is permanency in 12 months," emphasizing the FIT
Court's higher-than-traditional success rate: "and by success I mean reunification and
no repeat maltreatment."
Edna's attorney informed the court, "[Edna] knows what she's getting into,
and we had a long meeting with the parents last week and discussed some serious
expectations of this family. And I think that they are committed to that."
3. Ann's adjudication as a child in need of aid and the FIT Court
opt-in in Chris's case
5
Ann's adjudication as a child in need of aid occurred on July 13, 2018.
Both Edna and John stipulated through their attorneys - and the court subsequently
found - that Ann was a child in need of aid under AS 47.10.011(10) because of parental
substance abuse.6 Edna's attorney informed the court that Edna intended "to stipulate
5 See AS 47.10.080(a)-(f) (describing process and effects of adjudication).
6
See AS 47.10.011(10) (providing that court may find child to be child in
(continued...)
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to adjudication and disposition without admission under subsection ten." The attorney
explained, "She understands this is her fish-or-cut-bait moment that she is intending to
stay in the FIT Court and work the program."
The court turned to John, whose counsel was not present at the hearing, and
asked whether he had also "had a chance to talk to [his attorney] about the fish-or-cut-
bait part of . . . adjudication." John responded, "Yes." The court continued:
I'm going to spend just a minute making sure that we have a
good record and you understand. . . . [I]f you weren't in FIT
Court, you would have the right to a hearing [on
adjudication]. At that hearing, [OCS] would present
evidence, and I would make a determination after the
evidence was presented and you had a chance to cross-
examine the witnesses as to whether or not it was more likely
than not that [Ann] was a child in need of aid under the
substance abuse section of the Child in Need of Aid statute.
. . .
[T]he next step if I make that finding is, well, what are
wegoing to doabout that? And thewhat-are-we-going-to-do-
about-it part is called disposition. And in a traditional case,
I would more likely than not enter an order giving [OCS]
custody of [Ann] for a period of up to two years. In FIT
Court, I give a disposition order that gives [OCS] custody for
a period of up to one year.
That doesn't mean [OCS] has to have custody for a
whole year, but it means that we don't have to address that
issue again for a year as you're working your case plan and
working toward reunification. As [Edna's counsel] said, this
is also the fish-and-cut-bait moment for FIT Court, because
6 (...continued)
need of aid on ground that "the parent['s] . . . ability to parent has been substantially
impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual
use of the intoxicant has resulted in a substantial risk of harm to the child").
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if you agree to adjudication and disposition today, then
you're in FIT Court until the case is closed. You can't say,
"I've changed my mind, I want to go back to a traditional
court hearing[.]". . . [Y]ou're with me doing it on this
shortened timeline with the enhanced services until the case
is closed. Do you both understand?
John and Edna both said they understood.
The court then proceeded to discuss opt-in for the case of Edna's son Chris,
who had earlier been adjudicated a child in need of aid. Although FIT Court is primarily
for younger children, the team allowed Chris's case to proceed in FIT Court so that the
CINA cases for Edna's two children could follow the same timeline and access the same
resources.
When explaining the FIT Court to Chris's father Charles, who was
participating by phone, the court said, "The benefit to [Chris] is that [he] will get to
permanency sooner than he would. Whether permanency is reunification with mom,
reunification with you, or some other permanent arrangement, he's going to get to
permanency sooner in this court." At a subsequent hearing, the court explained:
So, I'll enter - [Charles,] this is all legal mumbo jumbo.
What it means is . . . that you guys are in the program, you're
stuck with me until we're done. And today I'm entering what
we call disposition orders, and that just means that the Office
of Children's Services will be granted custody of [Chris and
Ann] for a period not to exceed one year. . . . The one year
is just sort of a benchmark, and we're going to continue to
work through the case. The goal is to try and have these
kids' cases completely resolved within that year. But it's . . .
a legal formality that I have to enter . . . that order for
disposition. Is that clear?
Charles answered, "Yes."
When obtaining Edna's consent to hearing Chris's case in FIT Court, the
court did not go through all the questions on the opt-in form or confirm Edna's
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understanding of them, reasoning, "[B]ecause [Edna's] already done an opt-in hearing
with me for [Ann's case], I'm very comfortable just having that opt-in form filled." The
court entered disposition orders for both children committing them to OCS's custody for
a period not to exceed one year.
4. Permanency hearing
ANovember 2, 2018 status hearing was also a permanency hearing for both
7
children.
The court re-emphasized the FIT Court's goal of reunification: "We're going
to keep doing exactly what we've been doing and that is trying to achieve reunification
within this year or so of time. Do you understand?" The court commended Edna for
being sober, undergoing detox, and getting into a residential treatment program.
Notwithstanding this recognized progress, OCS served petitions for
termination of parental rights on the parties at the hearing. OCS's attorney explained that
although Edna had "made some brief progress, . . . at this time the goal is adoption.
We'll still continue to work reunification but the primary goal is adoption." The court
explained these developments to the parents:
Okay. So, what that means is that there's still two goals,
right? Adoption and reunification. But because of the
amount of time that has passed since [Ann and Chris] came
into foster care, [OCS] at this point needs to be addressing the
possibility that these children will be freed for adoption.
It does not mean that reunification is not possible. . . .
[W]hat it does mean is if reunification is going to be a viable
possibility, everybody needs to be clicking on all cylinders
from here on out. Everybody on the same page about that?
7 "The purpose of the permanency hearing is to establish a permanency plan
for each child committed to state custody . . . and to ensure that findings with respect to
the plan are made as required by state and federal laws." CINA Rule 17.2(a).
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Thecourt determined that bothadoption and reunification wereappropriate
goals: OCS "continued to make appropriate efforts to promote reunification and to
finalize the permanency plan," but, while "recognizing the progress that each parent is
making," "it would be contrary to both children's best interests to return them to the care
or custody of any of their parents." The court stated that the next hearing would be a
pretrial conference. At a December 6 hearing the court decided that the termination trial,
originally slated for February, would be held in March to accommodate scheduling
conflicts.
5. Motion to continue the termination trial
Edna moved to continue the termination trial, citing the progress that both
she and John were making in their substance abuse treatment programs. At a hearing on
February 28, 2019, OCS opposed the continuance, arguing that accepting "a wait-and-
see" approach and hoping that "more time will provide more information" would
"eviscerate the FIT Court and the expedited permanency timeline that parents knowingly
and voluntarily chose to engage in, in exchange for the enhanced services and efforts to
get the children into permanency." OCS's counsel pointed out that the case had been
pending in FIT Court for "nine months at least, . . . maybe ten if you include the time
before [opt-in,] and that is within the norm in terms of . . . the timing of termination
petitions."
Edna's attorney protested that the 12-months-to-permanency goal was
being treated as a deadline divorced from the facts of the case:
I do believe that good cause exists [to continue the trial].
And I think that if everybody in this room were honest with
themselves, they would recognize and admit that this case
would not be heading to a termination trial with a mother
who's four or five months sober but for the timeline - the
artificially imposed timeline of FIT Court.
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The court replied that the deadline "is not . . . artificial, it is not arbitrary," but rather "is
based on social science about what kids need." The court expressed its frustration that
this was the third or fourth FIT Court case in which parents' attorneys had requested
continuances based on the argument that FIT Court imposed "an arbitrary deadline."
The court explained that termination was not "a fait accompli" simply because the
petition had been filed and that trial could still result in a finding that the grounds for
termination had not been satisfied.
Edna's lawyer argued, however, that the ramifications of the 12-month
timeline were "not clearly . . . explained to the parent at the outset." She contended that
none of the FIT Court milestones in Edna's case - "a termination petition at the five-
month mark" and "proceed[ing] to trial at the 10-month mark . . . in the hopes that we'll
achieve an adoption by the 12-month mark" - were "based on the facts of [Edna's] case
whatsoever." She reiterated that if Edna "were in regular court, she would be entitled to
more time."
The court agreed: "She would - whether she was entitled to it or not, she
would get more time 99 percent of the time. . . . But she opted to do this instead." The
court observed that other parents who would be granted a continuance under these
circumstances "didn't opt into this court recognizing that the goal is permanency within
12 months." The court noted that Chris had been in OCS custody for about a year
already, and "when we get to trial, [Ann] will be at 10 and a half months," which is
"within the timeframes for the FIT Court." The court continued: "[Edna] opted into a
therapeutic court with a 12-month-to-permanency timeline. She didn't opt into wellness
court. . . . She opted into this model. And these kids have a right to permanency."
Denying the motion to continue trial, the court repeated its "tremendous frustration . . .
with this argument that [Edna] didn't sign on for what she signed on for, for these kids
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and to achieve permanency. . . . [I]t's disingenuous to argue that she didn't know that she
would be going to trial about now."
6. Termination trial
A termination trial was held over nine days in March 2019. John,
participating telephonically from prison, testified that he was taking a residential
substance abuse treatment program, an anger management class, and a parenting class;
was being treated for mental illness; and was scheduled to be out on parole "in about a
year." He testified that he was "disgusted" with his addiction and what it had done to his
family and was committed to improving himself for his family's sake going forward. As
for Edna, at the time of trial she was 145 days sober and making progress in inpatient
treatment. Her primary therapist at the treatment facility testified that Edna had made
"enormous" change.
At the close of trial the court entered both oral and written findings
terminating Edna's and John's parental rights. The court found by clear and convincing
evidence that Edna had subjected Ann to the conditions described in AS 47.10.011(10)
(parental substance abuse), and that John had subjected Ann to the conditions described
in subsections (2) (incarcerated parent's failure to adequately arrange for child's care)
and (10). The court found by clear and convincing evidence that Edna had subjected
Chris to the conditions described in subsections (9) (neglect) and (10). The court also
found by clear and convincing evidence that Edna and John failed "within a reasonable
time" to remedy the conduct that rendered Chris and Ann children in need of aid. The
court explained that "if you were going to grade [Edna] on a curve for her participation
in family contact, she'd get at least a B. She really tried most of the time to engage in
family contact with both of the children," but her efforts were ultimately insufficient:
[Edna] has yet to accomplish multiple foundational treatment
objectives necessary to build a foundation for a meaningful
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recovery much less build a health[y] relationship with [Ann
or Chris]. [John] has not remedied the conduct or conditions
that brought [Ann] into care and upon release from
incarceration would need to demonstrate his ability to be a
sober and appropriate caregiver along [with completing] case
plan activities that cannot be completed in custody.
The court also found that OCS had made reasonable efforts towards
reunification and that termination was in the children's best interests. Edna and John
appeal.
III. STANDARDS OF REVIEW
8 When reviewing
We review questions of statutory interpretation de novo.
a trial court's decision that a litigant has waived a right, we review the court's fact-
finding for clear error, but we review de novo its decision that those facts satisfy the
relevant legal standard.9
IV. DISCUSSION
A. Unless The FIT Court's Timeline Has The Flexibility To Account For
Individual Circumstances, It Violates The Statutory Requirement
That Parents Have A Reasonable Time To Remedy.
Alaska Statute 47.10.088(a)(2)(B) provides that a court may not terminate
8 L.D.G., Inc. v. Brown , 211 P.3d 1110, 1118 (Alaska 2009).
9
See Hutton v. State, 350 P.3d 793, 796-98 (Alaska 2015) (applying "mixed
question of law and fact standard of review" to whether defendant made constitutionally
valid waiver of right to jury trial, with superior court's underlying factual findings
reviewed for clear error and "the ultimate conclusion drawn from those facts - whether
a defendant's waiver is constitutionally sufficient" - reviewed de novo); see also
Hudson v. Citibank (S.D.) NA, 387 P.3d 42, 45-46 (Alaska 2016) (observing that "it is
clear that the majority of jurisdictions treat arbitration waiver as a mixed question of law
and fact"); Forster v. State, 236 P.3d 1157, 1161-62 (Alaska App. 2010) ("We must
uphold the trial court's factual findings unless they are clearly erroneous, but we
independently determine whether [a Miranda] waiver was knowing and intelligent,
viewing the facts in the light most favorable to the judge's ruling.").
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parental rights and responsibilities absent clear and convincing evidence that the parent
"has failed, within a reasonable time, to remedy the conduct or conditions in the home
that place the child in substantial risk so that returning the child to the parent would place
the child at substantial risk of physical or mental injury." A court making this
determination
may consider any fact relating to the best interests of the
child, including
(1) the likelihood of returning the child to the parent within
a reasonable time based on the child's age and needs;
(2) the amount of effort by the parent to remedy the conduct
or the conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the
parent.[10]
"Any fact relating to the child's best interests is relevant to the determination."11
Although the focus is on the children's needs, the parents' efforts - and any progress
they have made to ensure that "the harmful conduct will [not] continue" - are among
the statutory factors relevant to determining whether and how the children's needs will
be met.12
In Christina J. v. State, Department of Health & Social Services, Office of
Children's Services, a termination trial took place 13 months after the child was removed
10 AS 47.10.088(b).
11 Trevor M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 368 P.3d 607, 612 (Alaska 2016).
12 AS 47.10.088(b)(2), (4); see, e.g., Trevor M., 368 P.3d at 612 (discussing
father's "minimal" "efforts to remedy his conduct" in relation to child's best interests).
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from the mother's custody.13 Alaska Statute 47.10.088(d) mandates that OCS petition
for termination when "the child has been in foster care for at least 15 of the most recent
22 months," and the mother argued that the statute "soundly suggests that 22 months is
a reasonable time period during which both the 'efforts' required and the decision
14 We rejected the argument that
regarding the initiation of a termination can be made."
the statute set "a minimum time OCS must wait before filing."15 Instead, OCS was
required to determine "when to file a petition based exclusively on the best interests of
the child."16 We clarified that "reasonable time" is defined by statute "not as a specific
number of months or by reference to parents' needs, but as 'a period of time that serves
the best interests of the child, taking in[to] account the affected child's age, emotional
and developmental needs, and ability to form and maintain lasting attachments.' "17 We
highlighted the factual context of the superior court's decision that 13 months was a
reasonable time to remedy, including not just the child's need for permanency but also
the mother's "failure to make any real progress toward" completing treatment, which
"indicated that there was a very low likelihood of returning [the child] to her care within
a reasonable time based on his age and needs - a permitted consideration under
AS 47.10.088(b)."18 Emphasizing again that "reasonable time" was centered on the
child's needs, we concluded: "We do not suggest that 13 months is an objectively
13 254 P.3d 1095, 1106 (Alaska 2011).
14
Id. (quoting appellant's brief).
15 Id.
16 Id. at 1106-07.
17 Id. at 1107 (emphasis added) (quoting AS 47.10.990(28)).
18 Id.
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'reasonable time' for parents to remedy their conduct; as reflected in our past CINA
decisions, this determination must be made on a case-by-case basis and the amount of
19
time considered 'reasonable' will vary. "
In this case, the absence of a case-by-case determination of a reasonable
time to remedy clearly worked to the parents' disadvantage. When denying Edna's
motion to continue trial, the superior court acknowledged that she would have had more
time to work on remedying her conduct had she not been in FIT Court. The court's
findings following trial made clear that its termination decision was based on Edna's
failure to remedy within the 12-month timeline: "[Y]ou cannot waive the right to have
a longer period of time to engage in your recovery and then argue that the lack of more
time to engage in your recovery is a violation of your rights to due process or equal
protection." The court acknowledged that a few more months may have made a
difference for Edna, observing that if she had started her residential treatment
immediately after her first substance abuse assessment in June 2018, rather than waiting
until the end of October, "there would have been the potential to begin a family home
visit as soon as December or January." But the court affirmed its view that the case was
governed by the 12-months-to-permanency timeline regardless of what might have
happened without it: "Unfortunately, she wasn't able to [remedy her conduct] in a timely
fashion even though she recognized that the timelines in FIT Court are there to promote
permanency for the child in a relatively brief period of time."
When implementing court-created rules in the CINA context, we must be
careful not to infringe on the legislative balancing of policy and process. In Jennifer L.
19 Id. at 1108 (emphasis added); see also Trevor M. v. State, Dep't of Health
& Soc. Servs., Office of Children's Servs. , 368 P.3d 607, 612 (Alaska 2016) (reiterating
Christina J. 's holding that the reasonable time determination must be made on a case-by-
case basis).
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v. State, Department of Health & Social Services, Office of Children's Services , we
addressed a provision of the CINA rules allowing the superior court to delegate to a
master the task of holding a temporary custody hearing and determining whether a child
20 The rule incidentally added a layer of judicial
should be immediately returned home.
review and ensuing delay that we held was contrary to the "especially expeditious
process" contemplated by the CINA statutes.21 Recognizing "that procedural rules can
affect substantive rights," we noted also that "[c]hildren's welfare and the parent-child
relationship are particularly infused with concerns of public policy" and thus fell within
the legislature's authority to create substantive law.22 We cautioned that the courts
should "be especially attentive to the effects of procedural rulemaking" in CINA cases.23
The CINA statutes and our case law make clear that a reasonable time to
remedy, "made on a case-by-case basis," is critical to the protection of the parents'
fundamental interest in the custody and care of their children.24 To the extent the 12-
months-to-permanency timeline is interpreted as lacking the flexibility to account for
individual circumstances, it contravenes the statutory command of AS 47.10.088(b). It
was error for the court to hold that the FIT Court timeline was determinative of whether
the parents had a reasonable time to remedy.
20 357 P.3d 110 (Alaska 2015).
21 Id. at 116.
22 Id. at 117.
23 Id.
24 Id.
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B. TheParentsDidNotKnowingly AndVoluntarilyWaiveThe Statutory
Requirement Of A Timeline Tailored To Their Individual
Circumstances.
Parties to CINA proceedings may waive certain rights, even those with
25
constitutional underpinnings. Any such waiver, however, "must be knowing and
26
voluntary."
The superior court determined that parents who opt into FIT Court "waive
the right to have a longer period of time to engage in [their] recovery." Edna and John
argue, however, that they never intended to give up the right to a fact-based
determination of whether they had had a reasonable time to remedy.
The superior court determined that Edna and John opted into FIT Court
voluntarily and that the opt-in process was sufficient to ensure that they understood the
consequences ofthe12-monthcommitment. At thehearing on Ann's adjudication, when
the parents also stipulated to disposition, the court addressed both parents directly. The
court remindedthemthatby agreeing "to adjudication and disposition today, [they would
25 Norman S. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 459 P.3d 464, 466 (Alaska 2020) ("By consenting to certain procedures or by
failing to object to others, a party may waive those rights which are arguably
encompassed within due process guarantees." (quoting In re C.L.T. , 597 P.2d 518, 522
(Alaska 1979))); Matthew H. v. State, Dep't of Health &Soc. Servs., Office of Children's
Servs., 397 P.3d 279, 283-84 (Alaska 2017) (discussing parent's right to waive counsel
pursuant to Alaska CINA Rule 12(c)); Lucy J. v. State, Dep't of Health & Soc. Servs.,
OfficeofChildren's Servs.,244P.3d 1099, 1118-19 (Alaska2010) (concluding that issue
of expert qualification in ICWA termination proceeding was waived by failure to object
at trial).
26 Schacht v. Kunimune, 440 P.3d 149, 157 (Alaska 2019) (quoting Deptula
v. Simpson, 164 P.3d 640, 644 (Alaska 2007)) (holding that waiver of statutory rights
must be knowing and voluntary); Brandner v. Providence Health & Servs.-Wash., 394
P.3d 581, 588 (Alaska 2017) ("We previously have held that a waiver of constitutional
rights must be knowing and voluntary, and even in civil cases 'courts must indulge every
reasonable presumption against their waiver.' " (quoting Lynden Transp. v. State, 532
P.2d 700, 717 (Alaska 1975))).
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----------------------- Page 19-----------------------
be] in FIT Court until the case [was] closed," and they could not later "say I've changed
my mind, [and] I want to go back to a traditional court hearing." The court asked the
parents whether they understood; both responded, "Yes, ma'am," and the court accepted
their stipulations for adjudication and disposition. The court found that both Edna and
John "entered into this stipulation freely, voluntarily, and intelligently . . . with the advice
of competent counsel."
Eight months later, when Edna's attorney argued for a continuance of the
termination trial on the basis of Edna's progress in recovery, the court agreed with her
point that other parents in her situation would receive more time to remedy "99 percent
of the time"; the court observed, however, that those other parents "didn't opt into this
court recognizing that the goal is permanency within 12 months." When Edna argued
that she had not understood the rigidity of the deadline, the court called her argument
"just disingenuous."
The superior court's oral findings at the close of trial reiterated that Edna
had opted into FIT Court voluntarily, understanding the rules. The court noted that
Edna's attorney "went through every single line item of that waiver form, that opt-in
form with her. She understood every single one of them." In its subsequent written
order the court repeated that "[Edna] made the decision to opt-in knowing what the rules
and expectations were as her attorney reviewed the opt-in form with her."
Edna argues, however, that she did not fully comprehend what she was
27 In her trial testimony she denied that she understood the FIT Court rule
agreeing to.
to be "a hard and fast 12-month-you-would-be-terminated rule." Our review of the
record confirms that the parents were given, at best, mixed messages as to whether
27 John does not explicitly argue a lack of adequate notice, but his argument
implies that neither parent intended, by opting into FIT Court, to give up "their right to
have a reasonable amount of time to remedy their conduct."
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----------------------- Page 20-----------------------
12-months-to-permanency was an aspirational goal or an inflexible deadline. In its
explanations of FIT Court the court repeatedly emphasized the parents' need to work fast
because of the expedited timeline, warning, "[W]e're going to get [Ann] to permanency
with you or without [you] within 12 months of the date she was removed." At the same
time, however, the court consistently characterized 12-months-to-permanency as a goal :
"[O]ne of the primary goals of this program is to promote permanency within one year's
time." "[O]ur goal is permanency in 12 months. . . . [T]he primary goal of the program
is permanency for these kids in 12 months." At the opt-in hearing for Chris's case, the
court explained, "The one year is just sort of a benchmark, and we're going to continue
to work through the case. The goal is to try and have these kids' cases completely
resolved within that year."
The opt-in forms signed by the parents, and gone over with them orally at
the opt-in hearings, used the same terminology: "I understand the goal of FIT Court is
for the minor(s) to reach permanency in 12 months." The program manual is even
broader in its characterization of the timeline:
The goal [of FIT Court] is to successfully complete the
program between six and twelve months. Each participant
and case is different, and healing the relationship between
participants and their child(ren) is an ongoing process which
cannot be confined to any specific time frame. The goal of
the Palmer FIT Court is to reach permanency within twelve
[28]
months.
28 There is no indication in the record that the parents read the FIT Court
policy and procedures manual. The manual states, however, that it "provides the team
with detailed information about the practices and expectations of the Palmer FIT Court"
and "guides the Palmer FIT Court Team as well as others involved with the court." It
further provides that "[t]he participant's attorney is responsible for explaining the
program requirements to the participant." We assume that the language used in the
(continued...)
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----------------------- Page 21-----------------------
Edna's lawyer relied on the word "goal" when arguing for a continuance of the
termination trial: "[T]he fact that we . . . call it a goal means it's aspirational. It does not
mean you will be bound by a 12-month timeline." The lawyer's understanding of "goal"
29
is consistent with the word's ordinary usage.
A second troubling aspect of the 12-months-to-permanency goal is how it
wasdefined: emphasizingreunification tothevirtualexclusionof the seriousalternative,
the expedited termination of parental rights. We recognize that therapeutic courts are
intended to provide settings in which participants are coached, encouraged, and praised
for their progress. We do not intend to minimize the importance of an atmosphere of
optimism and support. At the same time, however, when parents are giving up an
important right it is critical that they understand the consequences, particularly the
likelihood of an adverse outcome. For parents most likely to benefit from the kind of
services FIT Court advertises - parents like Edna and John with long-term substance
abuse problems, for example - FIT Court may well mean a fast track to termination,
because what the parents can accomplish in less than a year will not be enough to offset
a history of relapse and recovery.30 We are not persuaded that Edna and John were
28 (...continued)
manual is intended to shape how attorneys explain the program to their clients.
29 See Goal , T HE RANDOM HOUSE COLLEGE DICTIONARY (rev. ed. 1988) ("the
result or achievement toward which effort is directed; aim; end"); Goal, T HE AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2020) ("The object toward
which an endeavor is directed; an end").
30 See, e.g., Christopher C. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 303 P.3d 465, 475-76 (Alaska 2013) (affirming finding that mother
had failed to remedy in reasonable time despite "her more than eight months of sobriety
(including her four months in residential treatment)" and other positive changes in her
life); Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs.,
(continued...)
-21- 7496
----------------------- Page 22-----------------------
adequatelyinformed, before opting into FIT Court, that alikelyconsequencewas theloss
of their parental rights in less time than they would have outside of FIT Court.
We note that the superior court never used the word "termination" when
describing the FIT Court program to the parents, and the word does not appear in any of
the program's written materials. The FIT Court brochure says that the program's
"primary goals are to achieve permanency within twelve months and to reunify young
31 The written description of FIT Court's four
children with their families of origin."
phases states, for Stage 3, that "[i]f you have not completed enough of your case plan to
begin to talk about reunification, the court team will shift focus to an alternative plan for
the permanency of your child(ren)," but it does not say what that alternative plan might
be. The only resolution described in the phases is "graduation" at Stage 4, when the
participant demonstrates her "plan to be self-sufficien[t] and to be able to meet the needs
of [her] family." The policy and procedures manual, at the end of the "Court Meetings
and Hearings" section, describes only "the reunification ceremony" that "recognizes the
parents' commitment to family preservation and to providing a safe, nurturing home for
their children." The opt-in form, which the court read through with the parents and on
30 (...continued)
74 P.3d 896, 902-03 (Alaska 2003) (affirming finding that mother had not remedied her
conduct within reasonable time despite one year's sobriety before trial, as sobriety was
"a relatively new phenomenon in her life" after she had "struggled with substance abuse
and relapsed after treatment a number of times"). In this case, even if Edna - while
pregnant with Ann - had become sober the day OCS took custody of Chris, she would
only have been sober for 12 months at trial. Given her long history of substance abuse
and the still-relatively-high risk of relapse, the superior court may still have determined
that she had not remedied the harmful conduct within a reasonable time. The court
recognized that the parents would struggle and have some setbacks while working
toward sobriety.
31 ALASKA COURT SYSTEM,P ALMER FAMILIES WITH INFANTS AND TODDLERS
COURT (Pub 123 (2/18)), https://public.courts.alaska.gov/web/forms/docs/pub-123.pdf.
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----------------------- Page 23-----------------------
which it relied for its finding of waiver, does list the three possible routes to
"permanency" as "reunification, adoption, or guardianship," but the court's oral
explanations repeatedly emphasized that a successful permanency meant family
reunification.
This focus carried through the case, as the court praised and encouraged
Edna without mentioning the possibility that her efforts would be insufficient to prevent
an expedited termination. By November, when OCS filed the petitions to terminate
parental rights, Edna had successfully completed detoxification and was in residential
treatment. The court told her that these steps marked "a tremendous step in the right
direction": "[W]hen I read that in your report, I just put the paper down and stopped for
a minute and I was so excited . . . that I couldn't keep reading." The court told her,
"We're going to keep doing exactly what we've been doing and that is trying to achieve
reunification within this year or so of time." The prospect that the case would end soon
in termination of parental rights instead was not mentioned even as the lawyers discussed
on the record how to best accomplish service of the termination petitions.
We are unable to conclude from this record that Edna and John were
adequately advised of FIT Court's serious downside for parents: termination of their
parental rights more quickly than it would happen outside of FIT Court.
We note one other ambiguity in how FIT Court was presented: whether the
12-month period was calculated from when the children were taken into custody or from
when the parents opted into FIT Court. The answer to this question determines whether
the parents would have 12 months to work with the FIT Court team on remedying the
conduct that caused their children to be in need of aid or whether termination could occur
months short of that, as in fact it did. The court started the 12-months-to-permanency
timeline with the date the children were removed from their parents' custody, holding
the termination trial 12 months after Chris was taken into custody (in March 2018) and
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----------------------- Page 24-----------------------
nearly 11 months after Ann was taken into custody (in April 2018). But Edna testified
at trial that she believed the 12 months ran "from the time [she] opted in. So . . . [her]
understanding when [she] signed [the opt-in form] was it'd be from May to May for
[Ann], July to July for [Chris]." In other words, at the time of the March 2019 trial, Edna
believed she should have had two more months to work on Ann's case and four more
months to work on Chris's.
Edna's perception is understandable considering the information she was
given. The court repeatedly used the phrase "within a year" or "within twelve months"
when describing the permanency goal, but we have found only one instance when the
court mentioned on the record the starting point of that one-year period. At the probable
cause status hearing for Ann, two months after removal and while the parents were first
considering FIT Court, the court explained, "If you're admitted into the FIT Court, . . .
we're going to get [Ann] to permanency with you or without [you] within 12 months of
the date she was removed. So, there is no time to waste." (Emphasis added.) At later
hearings, including the hearing when Edna and John agreed to opt into FIT Court for
Ann's case, the court emphasized the 12-month timeline without ever pinpointing its
starting date. The opt-in forms acknowledged the parents' understanding that "the goal
of FIT Court is for the minor(s) to reach permanency in 12 months" without indicating
when that period began; the parents signed the forms on May 22, 2018. There was no
clarification of this issue later in the hearing when Ann officially opted into FIT Court;
the court explained the one-year disposition order given in FIT Court as meaning "that
we don't have to address [the issue of OCS custody] again for a year as you're working
your case plan and working toward reunification." The FIT Court policies and
procedures manual is also vague on this issue, stating that "[t]he goal [of the FIT Court
program] is to successfully complete the program between six and twelve months"
without specifying the start date.
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----------------------- Page 25-----------------------
Uncertainty as to thestartdatewasevident in Edna's February 2019 motion
to continue the termination trial. The court repeatedly pointed to the time the children
were removed from their parents' care as significant, but Edna's attorney countered that
it was the parents' opt-in to FIT Court, not removal, that marked the beginning of the
12-month period: "[W]e as a FIT Court have identified this 12-month timeline . . . from
when we get . . . our hands on these parents, because we understand that the services that
we provide are . . . special." Other than the court's one mention of the removal date
while the parents were first considering FIT Court, the attorney's understanding of the
timeline is consistent with the explanation given to her client.
In sum, in light of the ambiguities and potential for serious
misunderstanding in the way the 12-months-to-permanency goal was presented to Edna
and John, we conclude that the record does not support Edna's and John's knowing and
voluntary waiver of a CINA process that adequately took into account their individual
circumstances.
V. CONCLUSION
We REVERSE and VACATE the order terminating Edna's and John's
parental rights and REMAND for further proceedings.
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----------------------- Page 26-----------------------
STOWERS, Justice, with whom CARNEY, Justice, joins, concurring.
I concur in the court's opinion holding that the superior court erred in
"adher[ing] to the FIT Court's preset timeline rather than making an individualized
assessment of whether the parents had a reasonable time to remedy based on the facts of
their children's cases, as required by statute." I note, however, that Edna argued on
appeal that the superior court violated her right to due process by basing termination of
her parental rights on the rigid FIT Court timeline rather than the specific facts of her
children's cases. It is appropriate that the supreme court decides Edna's and John's
appeals on statutory grounds and does not reach the parents' constitutional claims. This
1 But this does not mean that
resolution respects the principle of constitutional avoidance.
the superior court's error did not also violate the parents' due process rights; the superior
court's rigid and arbitrary adherence to a fixed timeline without reference to the facts of
the case may well have crossed the constitutional threshold.2 A future case may bring
this question to this court for resolution.
I write separately to highlight a larger problem: the existence and structure
of the FIT Court itself. I think it is ludicrous to believe that parents with longstanding
substance abuse problems or other intractable problems (including mental health issues)
could, within the FIT Court's 12-month timeline possibly (1) receive substance abuse
treatment, mental health treatment, parenting classes, and other necessary therapies;
1 See Alaska Fish & Wildlife Conservation Fund v. State , 347 P.3d 97, 102
(Alaska 2015); Alaska Trademark Shellfish, LLC v. State , 91 P.3d 953, 957 (Alaska
2004).
2 A particular concern is the FIT court's apparent elevation of the goal of
permanency for children to the exclusion of parents' fundamental right to the "care,
custody, and control of their children." In re Tammy J., 270 P.3d 805, 813 (Alaska 2012)
(quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)).
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----------------------- Page 27-----------------------
(2) successfully completethesetreatments,programs, and therapies;and(3)demonstrate,
over some reasonable period of time, that they have internalized what they have learned
and demonstrate their ability to safely parent their children. I think the entire premise of
the FIT Court vis-á-vis these kinds of serious parental issues is invalid and for many
parents illusory particularly given the FIT Court's failure to ensure that the promised
wraparound services are provided.3 So in addition to reversing the termination orders
in this case, I would (1) immediately suspend all further FIT Court proceedings, (2)
return parents enrolled in the FIT Court to regular CINA proceedings, and (3) if there is
interest in continuing a FIT Court-type of therapeutic court, require that an assessment
of how such a court might be structured be presented to the supreme court for its review
and approval.
3 "Wraparound services" is a term of art and requires holistic services
delivered by asupportive, integrated teamofproviders. See Wraparound Basics or What
is Wraparound: An Introduction, NATIONAL WRAPAROUND INITIATIVE (2020),
https://nwi.pdx.edu/wraparound-basics/.
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