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holding that OCS had made active sầu efforts to lớn reunify family despite immediately filing petition for termination after concerns regarding father"s sexual misconduct surfaced, when superior court determined case was "unrecoverable" and father"s "desire for more time to seek treatment for his sexual misconduct issues was outweighed by "s need for permanency"

Summary of this case from Viviane K. v. Ala. Dep"t of Health & Soc. Servs.

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Supreme Court No. S-17130


Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, for Appellant. Erik Fossum, Assistant Attorney General, Anchorage, và Kevin G. Clarkson, Attorney General, Juneau, for Appellee.

STOWERS, Justice.

Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, for Appellant.

Erik Fossum, Assistant Attorney General, Anchorage, & Kevin G. Clarkson, Attorney General, Juneau, for Appellee.

Before: Bolger, Chief Justice, Winmiễn phí, Stowers, Maassen, và Carney, Justices.


STOWERS, Justice.


This case involves the termination of a father’s parental rights lớn his only daughter. The father had not been a substantial part of his daughter’s life when the Office of Children’s Services (OCS) took custody of her from her mother. The father was coping with his own mental health, substance abuse, and post-traumatic căng thẳng disorder (PTSD) issues when this case began & was receiving services to lớn address those issues. OCS facilitated some visitation between the father và the daughter, encouraged the father khổng lồ continue participating in the services he was already receiving, and added parenting classes khổng lồ the regimen. By all accounts, the father was making progress. But while the case was ongoing, OCS received a report that the father had sent nude photos of his genitals to lớn a minor female. OCS referred the father for a sex offender assessment và his history of other sexual misconduct came lớn light. Upon receiving the assessing psychologist’s conclusions that the father was a risk khổng lồ his daughter’s safety, OCS moved forward with terminating his parental rights. The superior court terminated the father’s rights after a two-day trial. He appeals, arguing only that OCS failed to lớn make active sầu efforts. Because the record demonstrates OCS made active sầu efforts khổng lồ reunify the father và his daughter, we affirm the superior court’s termination of the father’s parental rights.


A. Background

Sam M. và Julia J. are the biological parents of Lane J. Lane is an Indian child as defined by the Indian Child Welfare Act (ICWA) based on Julia’s affiliation with the Native sầu Village of Kluti-Kaah. Julia relinquished her parental rights khổng lồ Lane and her two other children prior khổng lồ the termination trial. This appeal only involves the termination of Sam’s parental rights to lớn his daughter Lane.

Julia conceived in January 2010 after a single sexual encounter with Sam. Sam was unaware that he had a daughter until she was over a year old. After Sam learned about his daughter, he was able khổng lồ see her every few months until she was three years old. At this point Sam & his father, with whom he lived at the time, filed for custody of Lane because Julia’s stepmother informed Sam that Julia was taking drugs. Directly after Sam filed for custody, Julia left Alaska with the children & relocated lớn Washington for approximately three years. The custody case lapsed, và Sam did not see his daughter again until 2016, after Julia returned khổng lồ Alaska.

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In August năm 2016 OCS responded to a report that Julia was neglecting Lane và her two other children và using methamphetamine. Julia admitted lớn using methamphetamine, & OCS took emergency custody of the children. OCS filed an emergency petition lớn adjudicate the children as children in need of aid (CINA) under AS 47.10.011(6) (risk of physical harm), (9) (neglect), & (10) (substance abuse). At the time OCS filed its emergency CINA petition, Julia was homeless & OCS had trouble getting tương tác information for Sam. The children were all placed with foster parents. Lane and her younger brother were placed with their maternal aunt, where they have remained since OCS took custody. Julia’s stepmother contacted Sam on Facebook after OCS took custody of the kids và advised hyên ổn that Julia and Lane had moved baông chồng to Alaska.

Lane is currently eight years old. She has been diagnosed with autism and may suffer from other disabilities. According khổng lồ Lane’s guardian ad lthành quả, " is a sweet, somewhat shy little girl, who experiences a number of delays in her development." Lane has an individualized education plan at school và "has made progress ... with support from her aunt" who is "an excellent advocate for ." Lane’s aunt stated that she & her husband were interested in adopting Lane & her little brother.

Prior to lớn any liên hệ with OCS, Sam was already taking advantage of services at Dena’ina Wellness Center in Kenai; he was attending PTSD support group meetings & seeing a behavioral health counselor to help with substance abuse issues & depression. Sam suffered from PTSD in part because he was sexually assaulted by a stranger when he was six. Early in năm 2016 Sam attempted suicide & was hospitalized at the Alaska Psychiatric Institute (API). According to API records, Sam had a history of suicide attempts & self-harming. Sam also had a history of seizures that caused hyên ổn to lớn thua a number of jobs. Sam’s parents are divorced, & he has lived off và on with each of them. His father has provided hyên ổn with financial tư vấn. At the time of the termination trial he was mostly living with his mother.

B. Sam’s Liên hệ With OCS

Sam’s first liên hệ with OCS was sometime between August and October 2016 with Hannah Gorman, the first of three caseworkers assigned to his case. Gorman was only on the case for about a month before she left OCS. During that time she spoke with Sam briefly about visiting with Lane. She was not interested in placing Lane with hyên because he was living with his mother, a convicted sex offender; Gorman also had concerns about Sam’s treatment needs & Lane’s desire to lớn avoid tương tác with hlặng at the time. When Gorman left the case, Sam was mix up with a case manager & counselor at the Dena’imãng cầu Wellness Center.

Sam’s mother was convicted of a sex offense involving a minor và is a registered sex offender. Sam’s OCS caseworker worried that this "would potentially hinder ability khổng lồ himself receive sầu treatment & be in a healthy environment where he could be able khổng lồ one day parent his child."

In October the case was reassigned lớn OCS caseworker Chery Schafngười. She contacted Sam to schedule monthly meetings at OCS. She also sought to lớn meet with hlặng to develop a case plan. Schafbạn testified that Sam disclosed mental health & substance abuse issues, a history of sexual abuse as a child, & a seizure disorder that affected his being able lớn maintain employment or drive. Sam reported not having been actively involved in Lane’s life và not having seen her for the past couple of years. Schafbạn arranged face-to-face tương tác between Sam & Lane. She described several visits that she supervised, và at each she characterized Sam as having difficulty engaging with Lane. Schafngười explained that visits ideally would have happened weekly, but because Sam lived in Soldotna and did not drive sầu, transportation to lớn Anchorage was a problem; they tried to lớn accomplish monthly visits instead. Schafbạn stated that she saw improvement in the interactions between Sam & Lane throughout her time on the case. Sam disclosed his laông xã of prior experience parenting a child, specifically a child with special needs, và Schafngười spoke with him about taking parenting classes at the Dena’ina Wellness Center where he was already receiving other services.

In April 2017 Sam’s counselor reported khổng lồ OCS that Sam had disclosed sending và receiving nude photos with a 16-year-old female. After receiving this report, Schaftín đồ referred Sam for a psychological evaluation, a sex offender assessment, and a parenting assessment with Dr. Paul Turner, a clinical psychologist. Schafbạn stated that she had phone conversations with Sam arranging, explaining, & getting his consent for the assessment, và that OCS paid for the assessment.

Dr. Turner evaluated Sam in August and September 2017. He also reviewed various records and discovered Sam’s history of inappropriate sexual behavior, which included four incidents in addition lớn the April 2017 incident. He reviewed an Alaska Department of Public Safety incident report from October 2013, when Sam was 23 years old, which recorded that Sam reported having sex with a minor. The minor was interviewed và denied any sexual liên hệ. He reviewed a superior court judgment, indicating that Sam pleaded guilty khổng lồ sexual assault in the fourth degree after allegations that Sam had "inappropriate sexual behavior towards his sister." Dr. Turner also reviewed API records from năm 2016 indicating that Sam had engaged in inappropriate sexual behavior while at API. The API record stated: "This patient did have sầu some difficulty with inappropriate statements with females và as a consequence a ten-foot boundary had lớn be placed on him." Dr. Turner testified that he was aware of an additional incident that occurred when Sam was 18 & still in high school, in which he sent a picture of his genitals to lớn a 17-year-old classmate & was charged with misuse of a cell phone.

Schafbạn testified that she discussed Sam’s pattern of inappropriate sexual behavior with hyên and that his response was "a lot of minimizing ... and he would refer me to lớn his attorney." In response lớn a question about whether she ever considered placing Lane with Sam, Schaffan explained that Sam’s father had been considered as a placement at a team decision meeting following a positive sầu trang chính study, but after receiving the reports of Sam’s inappropriate sexual behavior, these plans were abandoned. Schaffan stated that OCS needed to lớn address whether Sam’s sexualized behavior would be a safety concern if Lane was placed in his care.

A third OCS caseworker, Michelle Fanning, was assigned the case in October 2017. It appears Fanning received a verbal report from Dr. Turner regarding his conclusions & filed a petition lớn terminate Sam’s parental rights on October 30. Fanning received Dr. Turner’s written report in November, but did not cốt truyện the report with Sam. Fanning instead spoke with Sam about the report and recommended that he follow its recommendations. Fanning referred Sam to his attorney rather than answer specific questions about how long he needed to work on the recommendations. She testified that based on the report from Dr. Turner, Sam should have sầu been referred for sex offender treatment, but that she did not make that referral. Fanning pointed to three visits she supervised between Sam and Lane from December 2017 to February 2018. Fanning characterized the visits as awkward và noninteractive sầu.

C. Dr. Turner’s Testimony And The Superior Court’s Ruling

A termination trial was held over two days in April and May of 2018. OCS called Dr. Turner lớn testify at trial. Dr. Turner related Sam’s history of inappropriate sexual behavior & testified that his "findings were that ’s risk khổng lồ his daughter ... at least moderate, because of his unusual sexual behavior, corroborated since 2013, and his complete denial of any involvement, sexual offending, except for one admission on one objective sầu thử nghiệm." He explained:

engaged in inappropriate sexual behavior as recently as 2017. He denied any responsibility or guilt with his assault conviction, reduced khổng lồ a misdemeanor. And I felt in this context that OCS had identified his daughter as autistic, so she’s a vulnerable child, so there’s safety concerns. I felt that his sexual risks were incompatible with the child protection requirements for his daughter’s safety.

Dr. Turner opined that Sam "has borderline intellectual functioning with extremely low processing speed, which ... was a barrier to successful independent parenting," & that Sam "has less than minimally adequate parenting capability capathành phố." He explained that he recommended sex offender treatment for Sam, and Sam’s prognosis for remedying his problems was poor. Dr. Turner believed "it would take some more years of treatment, plural."

Sam testified at the termination trial. He expressed his desire to parent Lane và khổng lồ be a part of her life. In response to a question about how long it would be before Sam felt lượt thích he could independently parent Lane, he stated it would be "maybe a year, maybe two years." He suggested that his father could retain guardianship over Lane during that time.

The superior court commended Sam for making progress by receiving services from the Dena’imãng cầu Wellness Center. But the court observed that "there’s still a lot of work to lớn be done." The court balanced whether khổng lồ extover the time for Sam to lớn address his problems against Lane’s clear need for permanency. The court questioned OCS’s failure to lớn refer Sam to lớn sex offender treatment, and OCS responded that by the time OCS found out how serious Sam’s sexual behavior issue was — when OCS received Dr. Turner’s report — it was too late to lớn address the issue.

The court, reflecting the guardian ad litem’s testimony, summarized the history of the case, explaining that Sam và OCS were on the road khổng lồ reunification & possible placement with Sam’s father, but when Sam’s history of sexual misconduct came khổng lồ light the situation became "unrecoverable" given the permanency concerns for Lane.

At the conclusion of the trial the court made an oral decision lớn terminate Sam’s parental rights and then issued a written termination order in June 2018. The court found that Lane was a child in need of aid under AS 47.10.011(11) because Sam had "a mental illness, emotional disturbance, and mental deficiency of a nature và duration that place at substantial risk of physical harm or mental injury." The court found by "clear và convincing evidence that active sầu efforts ... lớn provide remedial services and rehabilitative sầu programs designed to prevent the breakup of this Indian family," and that those efforts were unsuccessful. The court also found that Sam failed to lớn remedy the conduct or conditions that placed Lane at substantial risk of harm, that returning Lane lớn Sam would likely result in serious emotional or physical damage khổng lồ her, and that terminating Sam’s parental rights was in Lane’s best interests. Sam appeals, arguing only that the superior court’s active efforts finding was erroneous.


"Whether OCS made active sầu efforts to provide remedial và rehabilitative sầu services lớn reunify the family as required by ICWA is a mixed question of law và fact." "We Đánh Giá the nội dung of the superior court’s findings for clear error, but we Đánh Giá de novo whether those findings satisfy the requirements of the CINA rules and ICWA." "Findings of fact are clearly erroneous if a Đánh Giá of the entire record in the light most favorable to the prevailing party below leaves with a definite and firm conviction that a mistake has been made." "We will not reweigh evidence when the record provides clear support for the superior court’s decision."

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