|
(Cite
as: 214 P.3d 284) |
Supreme
Court of Alaska.
NEAL
M., Appellant,
v.
STATE
of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN'S
SERVICES, Appellee.
Lacey
A., Appellant,
v.
State
of Alaska, Department of Health and Social Services, Office of Children's
Services, Appellee.
Nos.
S-13288, S-13289.
Aug.
5, 2009.
*285
Angela Greene, Assistant Public Defender, and Quinlan Steiner, Public Defender,
Anchorage, for Neal M.
Robert
Breckberg, Assistant Public Advocate, and Rachel Levitt, Office of Public
Advocacy, Anchorage, for Lacey A. Megan R. Webb, Assistant Attorney General,
Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for
Appellee. Jerald M. Reichlin, Fortier & Mikko, P.C., for Native Village of
Pilot Point. Dianne Olsen, Law Office of Dianne Olsen, Anchorage, Guardian Ad
Litem.
Before:
FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN,
Justices.
OPINION
EASTAUGH,
Justice.
I.
INTRODUCTION
Lacey
A. and Neal M. are the parents of six minor children.FN1
The superior court terminated their parental rights to the five oldest children
after finding that all six children were in need of aid based on Neal's
substance abuse and Lacey's neglect. Lacey and Neal appeal only the termination
of Lacey's parental rights. Because the superior court did not clearly err in
determining that *286
the children were in need of aid based on Lacey's neglect and that OCS had made
active and reasonable efforts to prevent the breakup of the Indian family, we
affirm.
FN1.
Pseudonyms are used for all family members.
II.
FACTS AND PROCEEDINGS
Lacey
A. and Neal M. are the biological parents of six minor children: Edward (born in
1998), Elliot (born in 2000), Eve (born in 2003), Elan (born in 2005), Emma
(born in 2007), and Elsa (born in 2008). All six are Indian children within the
meaning of the Indian Child Welfare Act (ICWA).FN2
FN2.
25 U.S.C. ? 1903(4) (2006).
Lacey
and Neal first had contact with the Office of Children's Services (OCS) in 1998,
the year their first child was born. By 2005 OCS had received six reports of
harm concerning the children. Those reports were unsubstantiated. But in April
2006 OCS received a new report of harm alleging neglect and substance abuse. An
OCS social worker began regular visits with the family in May 2006 and by August
2006 had made about fifteen visits to Lacey and Neal's apartment.
Lacey
and Neal had four children when the OCS social worker began visiting their home.
The social worker noticed that the couple's then two-and-a-half-year-old
daughter, Eve, was not very verbal. The social worker recommended that Neal and
Lacey enroll Eve in Head Start, but they refused. The social worker also tried
to get Programs for Infants and Children, Inc. (PIC) to perform an in-home
assessment. The social worker later testified that Neal gave the PIC staff a
?really hard time? about scheduling and that PIC was never able to get into the
family home.
The
social worker also learned that the two oldest children were not getting to
school on time and had accrued about seventy-nine absences during one school
year because Neal was oversleeping. Neal claimed that the children were missing
school because they did not have clean laundry. The social worker took Lacey to
Pathway Families to get free clothes for the children. The children's school
gave the family an alarm clock and wake-up calls, but the social worker later
testified that the school's efforts did not help.
The
social worker also transported Lacey to a job center, helped her complete a
resume, helped enroll her with her tribe so she could receive free medical
services, arranged bus passes and taxi service for the family, and contacted
Alaska Housing Finance Corporation about possible housing
assistance.
On
August 18, 2006, the social worker conducted a mid-morning unscheduled home
visit. A woman identifying herself as a friend of the family opened the door.
Entering, the social worker found Lacey and the children asleep and a group of
six or seven unknown adults ?smoking something other than cigarettes? in one of
the bedrooms. The social worker called the police and the unknown individuals
quickly left. Upon arriving, a police officer found an empty liquor bottle with
a hole burned in the middle and ?some type of residue? inside. The officer
?wasn't sure if it was marijuana or cocaine.?
Neal,
who was not then at home, returned to the apartment while the police were there
and became angry that Lacey had allowed the police into the home. The social
worker testified that she was worried about Lacey's safety because Neal was ?in
her face yelling at her.? The police arrested Neal for failing to comply with
his sex offender registration requirements, but Neal returned to the apartment
later that day.FN3
FN3.
Neal was convicted of sexual assault in the first degree in 1988. This
conviction is unrelated to the present case.
The
social worker questioned both parents at the time about drug use in the home and
asked Neal to complete a drug test. Neal tested positive for cocaine and
admitted that he had used drugs at a neighbor's house earlier that day. The
social worker asked Lacey to participate in a plan to ensure the children's
safety. Under that plan, Neal would move out of the home until August 22, 2006,
when the social worker would reevaluate the plan. Lacey agreed that she would
not allow Neal-or anyone else who might be a threat to the children-back into
the home. Lacey's father, who lived nearby, agreed to care for the children
while Lacey was at work.
*287
The social worker returned to Lacey's apartment on August 22 to reevaluate the
safety plan. Both Lacey and Neal were there. The social worker spoke with both
parents about their drug use and Neal admitted he was using drugs. The social
worker also spoke with eight-year-old Edward, who reported that Neal had stayed
in the apartment over the weekend in violation of the safety plan.
On
August 30, 2006, OCS filed an emergency petition to adjudicate Edward, Elliot,
Eve, and Elan as children in need of aid, stating that Neal and Lacey ?were
unable to be protective and assure safety in the home.? OCS alleged that Edward
told a social worker that Neal often smoked crack with his friends in the
bedroom where Edward's toys were, that Edward claimed his dad's friends had been
in and out of his house two hundred times and that they had spent the night more
than ten times, and that Edward reported feeling unsafe in the house because his
parents ?let everyone in the house.?
OCS
placed the children in foster care. A social worker later testified that Edward
and Elliot suffered from ?a lot of delays? including speech, medical,
educational, and social delays.
In
September 2006 the superior court granted OCS temporary custody of the four
children, concluding that there was probable cause to believe they were children
in need of aid based on Neal's substance abuse. Although Lacey and Neal were
permitted supervised visitation with the children, OCS claimed that the parents
missed three visits in September and arrived at another visit ten minutes before
it was to end. The parents allegedly told OCS that they missed the visits
because Lacey was sick or at work and Neal was doing laundry. Neal allegedly
also stated that it hurt too much to see the children.
In
October 2006 Lacey agreed to a new safety plan making her the children's sole
care provider. She agreed that Neal would not contact her or the children unless
authorized by OCS. Neal and Lacey were given a case plan that reiterated that
Lacey should ?not allow [Neal] to reside in her home with the children present?
and should ensure that the children attend school on time.
The
social worker helped Lacey obtain shelter by referring her to Clare House, a
thirty-day temporary shelter for homeless women with children. Lacey's four
children were placed with her at Clare House in November 2006. Later that month,
Lacey moved into an apartment with her children. She completed a Clare House
exit plan that indicated she did not wish to receive follow-up services from her
Clare House case manager after her discharge.
In
December 2006 OCS received a report from a teacher and special education
supervisor that Edward and Elliot had stated that Neal was back in the home. A
social worker later witnessed Neal leaving the residence. Based on Lacey's
violation of the safety plan, OCS again removed the children and placed them in
foster care.
In
April 2007 Lacey gave birth to Emma, her fifth child with Neal. A social worker
created a safety plan calling for Lacey to move into Clare House with Emma when
she was discharged from the hospital. Lacey agreed and was admitted to Clare
House on April 23. OCS filed a non-emergency petition to adjudicate Emma a child
in need of aid.
Lacey
completed parenting classes on May 10. But an OCS social worker later testified
that Lacey still was not able to demonstrate that she could protect her
children. The social worker then referred Lacey for counseling at Southcentral
Foundation.
On
May 24, 2007, Clare House staff discovered that Lacey had been meeting her
?boyfriend? on the bus and giving him food from the center. Emma was reportedly
present at the time. Four days later Clare House staff caught Lacey taking food
out of Clare House in a coat-covered stroller. Lacey later admitted that she was
attempting to take the food to Neal.
On
May 31, 2007, Lacey's case manager at Clare House wrote a discharge letter for
Lacey. It indicated that the reason for the discharge was ?space limitations?
and the fact that Lacey was not eligible for an extension. An OCS social worker
stated in an *288
affidavit that she was told Lacey was being asked to leave due to her
non-compliance with the rules at Clare House. OCS obtained an order authorizing
OCS to remove Emma from Lacey's custody after Lacey reportedly disclosed that
she could not think of any place to go where Emma would be safe. OCS took Emma
into custody on June 1.
Lacey
moved to Glenallen and began living with Neal in June 2007. It was about this
time that Lacey became pregnant with her sixth child, Elsa. On July 2, 2007, OCS
placed the five children with Lacey's maternal uncle in Pilot Point. OCS
arranged for Lacey to stay with another uncle in the same village. A social
worker flew out with the children and Lacey and provided them with food and
other necessities, such as clothing and beds.
When
she moved to Pilot Point, Lacey had not yet begun the counseling sessions OCS
required. But a social worker testified that she referred Lacey to a family
service worker in Pilot Point who was willing to meet with Lacey for counseling
sessions.
Lacey
testified telephonically at a mid-July disposition hearing that she had met with
the family service worker and was told that counseling would begin after the
worker returned from a two-week vacation. Lacey also testified that if she had
to choose between Neal and her children, she ?would choose [her] kids? and that
she ?can't stand being without them.? She testified that she would not let Neal
have contact with their children without scheduled visits and that she would
turn him in to the local police if he showed up in Pilot Point.
Lacey
never began therapy in Pilot Point. She later testified that she was unable to
get counseling in Pilot Point because ?they [didn't] have qualified people down
there.? In October 2007 Lacey moved back to Anchorage without telling OCS. Her
children remained in Pilot Point. Lacey testified that she moved because she had
?no housing down there.? She told a licensed clinical psychologist that she left
Pilot Point ?because they have brown water sometimes I went without electricity
and water in the house, sometimes no propane.? Lacey also allegedly told the
psychologist that she left Pilot Point to get an ultrasound.
After
returning to Anchorage, Lacey began counseling at Southcentral Foundation in
November 2007 in an attempt to comply with her OCS case plan. During her intake
assessment, Lacey indicated that she was living with Neal, whom she described as
her fianc?, and described their relationship as ?excellent.? Although she
acknowledged that OCS did not want the children to live with Neal, Lacey
allegedly stated that she intended to continue living with Neal even after she
received custody. The intake counselor determined that Lacey needed parenting
techniques to regain custody. The counselor indicated that Lacey's prognosis
with treatment was good, even though she recognized that Lacey's attitude
towards treatment as an OCS-imposed requirement might become a barrier to
treatment. The counselor recommended that Lacey participate in individual
therapy.
Meanwhile,
Neal continued to struggle with substance abuse. Of the eleven urinalysis
appointments he had in November 2007, he failed to show up for seven and tested
positive for cocaine at the other four. Salvation Army Clitheroe Center had
performed a substance abuse assessment on Neal in July 2007 and observed that
Neal ?demonstrated a lack of awareness and understanding regarding addiction and
would benefit from receiving substance abuse treatment.? Although Neal was ?not
appropriate for treatment? at Clitheroe, the counselor who evaluated Neal
recommended that he seek treatment at a facility like Akeela House that could
address his ?history of criminality, antisocial behavior/
In
December 2007 OCS petitioned the superior court to terminate Lacey and Neal's
parental rights as to the five oldest children. OCS alleged that Neal had not
addressed his problems with substance abuse, neglect of the children, and anger
management; OCS also alleged that Lacey ?continues to be unable or unwilling to
protect the children from [Neal].?
*289
In February 2008 Lacey gave birth to Elsa, her sixth child with Neal. OCS
assumed temporary custody of Elsa. An OCS social worker later testified that she
had given Lacey the option of returning to Pilot Point after OCS assumed custody
of Elsa but that Lacey ?wasn't willing to go.?
Although
Lacey later testified that she and Neal had broken up a couple weeks before Elsa
was born, the record indicates they were still associating after Elsa's birth.
The superior court observed that the return of service on the petition OCS filed
to adjudicate Elsa as a child in need of aid showed that Lacey and Neal were
both at Bean's Caf? on March 10, 2008 when they were served. And Neal described
Lacey as his fianc?e during a March 21 intake assessment.
A
probable cause hearing for Elsa was held on February 29, 2008. The superior
court held that there was probable cause to find that Elsa was a child in need
of aid and that removal was warranted for the same reasons that justified
removing the five older children. The court asked an OCS social worker to
articulate her expectations for Lacey and Neal. The social worker explained that
OCS would ask Lacey to abstain from having a relationship with Neal if he
continued to be non-compliant with his case plan. She stated that her goal for
Lacey was to get her ?really active in her therapy? in order to help her
overcome her dependency on Neal and realize that leaving Neal was ?a decision
that [Lacey] will have to make.?
Lacey
continued to receive counseling through May 2008 and completed the eight
sessions OCS required plus three additional sessions. An OCS social worker
observed that Lacey began to show some progress around May 2008 when she claimed
that she would discontinue contact with Neal, move back to Pilot Point, and get
her children back. But the social worker later testified that Lacey never
followed through on those intentions.
In
June 2008 Neal was driving Lacey's car when the police stopped him because of a
defective headlight. Neal, who had a suspended license and two outstanding
warrants, was arrested and taken to the Anchorage Correctional Complex. Lacey
visited Neal nine times between June 4 and June 14 and identified herself as
Neal's fianc?e during her visits. Lacey testified at a June 20 placement review
hearing that she self-identified as Neal's fianc?e just so she wouldn't ?have to
go through a lot of talk.? Lacey testified that she and Neal were no longer
involved and that they had not lived together since February 2008. But in
mid-July 2008 Lacey posted Neal's fifty-dollar bail after he was charged with
vehicle tampering.
A
three-day termination trial was held in August 2008. Neal testified at the trial
and admitted that he continued to use cocaine and that, despite seeking
treatment on a number of occasions, he had failed to complete his treatment
plan.
Dr.
Melinda Glass, a clinical psychologist who evaluated Lacey in June and July
2008, testified as an expert witness at the termination trial. Dr. Glass
testified that she did not believe Lacey would keep her children away from Neal
or that she would discontinue her relationship with him. Dr. Glass testified
that, although Lacey had stated that she was willing to do anything to get her
children back, Lacey had not demonstrated any such willingness on a ?concrete
level.?
The
superior court concluded that there was clear and convincing evidence that all
six children were children in need of aid based on Neal's substance abuse and
Lacey's neglect. The court found that:
[Lacey]
has engaged in conduct that subjects the children or has subjected the children
in this household to neglect, and the neglect is not so much of neglect as a
parent but neglect in the way of being unable or unwilling to prevent [Neal] ...
from being around the children.
The
court found that it was unlikely that the children could be returned to Lacey
within a reasonable time because she had chosen to be involved with Neal and
would likely continue to be involved with him in the foreseeable future.
FN4
FN4.
Clare House's records, which were admitted into evidence at Lacey's disposition
hearing, indicate that Lacey had previously stayed at the facility in December
2005. The superior court noted that there were reports in Lacey's file from her
past stays that tended to show her inability to supervise her children on her
own. Staff members documented one instance in which Lacey was sleeping on the
floor with one child while Eve, then two-years old, was ?running wild? around
the room after pulling off her diaper and urinating on the floor. Elan, about
two months old at the time, was lying in her basinet with a wet diaper and
spit-up running down her mouth. Clare House staff remarked that Lacey ?seem[ed]
to have no clue what to do with her kids.? Another time, one of Lacey's children
pushed open an emergency exit door ?due to lack of supervision.? The superior
court relied on these staff reports in finding that Lacey ?was unable to
adequately supervise the children in the sheltered environment of Clare House.?
The court used this finding as support for its failure-to-remedy analysis, which
Lacey does not seem to contest on appeal.
*290
The court also concluded that there was clear and convincing evidence that OCS
had made active and reasonable efforts to reunify the family, which proved
unsuccessful. As to Lacey, the court noted that providing the Clare House
services and sending Lacey and the children to Pilot Point where they would be
separated from Neal was sufficient to meet the statutory standard. The court
accordingly terminated Lacey and Neal's parental rights to their five eldest
children and adjudicated the youngest child, Elsa, as a child in need of
aid.
Lacey
appeals the termination of her parental rights. Neal joins in Lacey's appeal but
does not argue that the superior court erred by terminating his parental
rights.
III.
DISCUSSION
A.
Standard of Review
[1][2]
Whether the superior court's factual findings comport with ICWA and are
sufficient to support termination of parental rights under the Child in Need of
Aid (CINA) statutes and rules are questions of law that we review applying our
independent judgment.FN5
Whether the state has complied with ICWA's ?active efforts? requirement presents
a mixed question of law and fact.FN6
FN5.
Rick
P. v. State, OCS,
109 P.3d 950, 954-55 (Alaska 2005) (CINA); L.G.
v. State, Dep't of Health & Soc. Servs.,
14 P.3d 946, 950 (Alaska 2000) (ICWA); see
also Martin
N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
79 P.3d 50, 53 (Alaska 2003) (explaining that when engaging in de novo review,
this court adopts ?the rule of law that is most persuasive in light of
precedent, reason, and policy? (citing Guin
v. Ha,
591 P.2d 1281, 1284 n. 6 (Alaska 1979))).
FN6.
J.S.
v. State,
50 P.3d 388, 391 (Alaska 2002) (citing A.A.
v. State, Dep't of Family & Youth Servs.,
982 P.2d 256, 259 (Alaska 1999)).
[3][4]
We ?will reverse the factual findings of the superior court in a termination of
parental rights case only when those findings are clearly erroneous.?
FN7
This standard ?is met only if we are left with a definite and firm conviction
that a mistake has been made after review of the entire record.? FN8
In reviewing a superior court's determination to terminate parental rights, we
?bear in mind at all times that terminating parental rights is a drastic
measure.? FN9
FN7.
Martin
N.,
79 P.3d at 53 (?When reviewing factual findings, ?[this court views] the
evidence in the light most favorable to the party prevailing below.? ? (quoting
In
re J.L.F. & K.W.F.,
828 P.2d 166, 170 n. 12 (Alaska 1992), superseded
on other grounds by statute,
ch. 99, ? 1, SLA 1998)).
FN8.
Id.
(internal citation omitted).
FN9.
Karrie
B. ex rel. Reep v. Catherine J.,
181 P.3d 177, 184 (Alaska 2008) (internal quotation marks omitted) (quoting
Martin
N.,
79 P.3d at 53).
B.
Were the Children in Need of Aid in Part Because of Lacey's
Neglect?
Lacey
argues that the superior court erred in concluding that her children were in
need of aid based on her neglect. She contends that she did everything that OCS
required of her by completing parenting classes, attending counseling sessions,
and recognizing that Neal could not be around her or the children until he
resolved his drug problem.FN10
FN10.
To terminate parental rights to Indian children, the superior court must find:
(1) by clear and convincing evidence that ?the child has been subjected to
conduct or conditions described in AS 47.10.011?; (2) by clear and convincing
evidence that the parent ?has not remedied the conduct or conditions in the home
that place the child at substantial risk of harm,? or ?has failed, within a
reasonable time, to remedy the conduct or conditions in the home that place the
child at substantial risk of physical or mental injury?; (3) by clear and
convincing evidence that ?active efforts have been made to provide remedial
services and rehabilitative programs designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful?; (4) by evidence
beyond a reasonable doubt that the continued custody of the child by the parent
or Indian custodian is likely to result in serious emotional or physical damage
to the child; and (5) by a preponderance of the evidence that termination of
parental rights is in the best interests of the child. 25 U.S.C. ? 1912(d), (f)
(2006); AS 47.10.088; CINA Rule 18(c); Maisy
W. v. State, ex rel. Dep't of Health & Soc. Servs., Office of Children's
Servs.,
175 P.3d 1263, 1268 (Alaska 2008); Gilbert
M. v. State,
139 P.3d 581, 589-90 (Alaska 2006); Carl
N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
102 P.3d 932, 935 (Alaska 2004). The superior court here addressed all five
requirements. Lacey's appeal challenges only the first and the third required
findings as listed here.
*291
The superior court may find a child to be a child in need of aid if it finds by
a preponderance of the evidence that the child has been subjected to ?conduct by
or conditions created by the parent, guardian, or custodian [that] have
subjected the child or another child in the same household to neglect.?
FN11
The court may find neglect if the parent
FN11.
AS 47.10.011(9).
fails
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 or other reasonable means to do so.[FN12]
FN12.
AS 47.10.014.
The
superior court found clear and convincing evidence that Lacey and Neal's
children were in need of aid based in part on conditions created by Lacey and
Neal that had subjected the children to neglect. The court based this finding on
evidence that: (1) Edward and Elliot missed almost eighty days of school during
the 2005-2006 school year, reportedly because the parents overslept; (2) on
August 18, 2006, Neal tested positive for cocaine after an OCS social worker
found six to seven unknown adults ?smoking something other than cigarettes? in
the apartment while the children were home; (3) the parents missed visits with
the children after OCS assumed custody; and (4) Edward, Elliot, and Eve suffered
from significant delays in speech and verbal skills and required dental care
when they entered state custody in 2006.
Lacey
does not argue that these findings were clearly erroneous, and each is amply
supported by the evidence discussed in Part II, above.
Moreover,
evidence discussed in Part II concerning the August 18, 2006 family-home
incident raises grave doubts about Lacey's ability to provide the care and
control needed for her children's physical and mental health and
development.
In
Audrey
H. v. State, Office of Children's Services,
we stated that the superior court, when determining whether the child has
suffered from neglect, may consider a child's exposure to drug use.FN13
We held that the superior court did not err by concluding that the mother had
failed to provide her children with the care and control necessary for their
mental health and development, in part because she exposed her children to
illegal drug use and open sexual activity.FN14
FN13.
Audrey
H. v. State, Office of Children's Servs.,
188 P.3d 668, 675 (Alaska 2008).
FN14.
Id.
at 675.
The
August 18, 2006 incident similarly demonstrates that Lacey failed, on at least
one occasion, to provide the care and control necessary for her children's
health and development. Lacey may not have invited the individuals into her home
to engage in what was likely illicit drug use, but she seemed unable (or
unwilling) to prevent the occurrence from happening.
Lacey's
arguments that she complied with her case plan and admitted that Neal had a drug
abuse problem have little bearing on the children-in-need-of-aid
finding.
[5]
We conclude, as OCS argues, that there was more than sufficient evidence to
demonstrate that Lacey and Neal's children were children in need of aid based on
neglect, that the evidence demonstrates that Lacey failed to provide the
children with adequate education, medical attention, or other care and control
necessary for their physical and mental health and development, *292
and that the superior court correctly concluded that Lacey's inability or
unwillingness to prevent Neal from being around the children amounted to
neglect. The record contains ample evidence supporting the superior court's
finding by clear and convincing evidence that all six children were in need of
aid based in part on Lacey's neglect.
Lacey
also challenges particular evidence bearing on the court's child-in-need-of-aid
finding. She argues that Dr. Glass improperly based her opinion of Lacey's
parenting ability on Lacey's decision to leave Pilot Point and return to
Anchorage without her children. Dr. Glass testified that Lacey's decision to
leave her children in Pilot Point demonstrated that, despite her stated
willingness to do anything to get her children back, Lacey had not historically
done what it would take to regain custody. On cross-examination, Dr. Glass
acknowledged that Lacey claimed she left Pilot Point to obtain counseling
services that she could not get in the village. But Dr. Glass then testified
that, even if Lacey was faced with ?competing? case plan requirements, she
should have discussed with OCS which requirement was to have
priority.
Lacey
asserts that she left Pilot Point only because she could not obtain counseling
services there. She argues, at least implicitly, that she moved back to
Anchorage to complete her case plan requirements. She contends that it is not
fair to place her in a ?Catch 22 situation,? in which her attempts to comply
with OCS's requirements help support the termination of her parental rights. She
accordingly asks that the termination be reversed and that on remand her
decision to return to Anchorage not be used to support terminating her parental
rights.
The
superior court did not expressly mention Lacey's decision to leave Pilot Point
in 2007 when it determined that the children were still in need of aid. But it
seems to have considered this fact in its active efforts analysis, and noted
that OCS had attempted to create a physical separation between Lacey and Neal by
relocating Lacey and her children to Pilot Point. It then found that Lacey
?chose to return to Anchorage in October 2007 rather than reside near the
children.?
It
was not error to allow OCS to elicit evidence that Lacey left Pilot Point to
return to Anchorage in 2007, and it appears OCS is correct in arguing that Lacey
did not object to Dr. Glass's testimony in this regard. Even assuming Lacey
relocated to get OCS-mandated counseling, there was a valid dispute whether, as
Dr. Glass also testified, Lacey should have sought clarification from OCS before
moving back to Anchorage.
Moreover,
there was conflicting evidence about why Lacey returned to Anchorage. She
claimed she left to complete a counseling requirement that could not be
satisfied in Pilot Point, but there was evidence permitting a contrary finding.
An OCS social worker testified that she referred Lacey to a family service
worker in Pilot Point who was willing to meet with Lacey for counseling. Lacey
testified in mid-July that she met with the family service worker and was told
that her counseling would begin after the family service worker returned from a
two-week vacation. And when she was asked at a placement review hearing why she
moved back to Anchorage, Lacey testified: ?Because I have no housing down there
and I was looking for housing down here.? She later told Dr. Glass that she left
Pilot Point because she needed an ultrasound and ?because they have brown water
sometimes I went without electricity and water in the house, sometimes no
propane.?
This
conflicting evidence raised credibility disputes to be resolved by the superior
court. The court appears to have weighed Lacey's decision to relocate from Pilot
Point against her. The record provides support for the implicit finding that
Lacey's decision to leave Pilot Point was inappropriate.
C.
Was There Clear and Convincing Evidence OCS Made Active and Reasonable Efforts
To Prevent the Breakup of the Indian Family?
[6]
Lacey argues that the superior court erred in finding that OCS made active and
reasonable efforts to prevent the breakup of the Indian family. She contends
that the court's active-and-reasonable-effort analysis *293
ended when OCS relocated her to Pilot Point, and that the findings do not
reflect that OCS ?effectively abandoned? her after the relocation. Lacey appears
to argue that OCS should have, first, determined whether there was any
additional treatment available in Anchorage that would benefit her and, second,
provided her with any such treatment.
ICWA
requires that before a court may terminate parental rights, it must find by
clear and convincing evidence ?that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the breakup of
the Indian family and that these efforts have proved unsuccessful.? FN15
We have held that ?no pat formula exists for distinguishing between active and
passive efforts? and have adopted a case-by-case approach for active efforts
analysis.FN16
We have nevertheless recognized the following distinction between active and
passive efforts:
FN15.
25 U.S.C. ? 1912(d) (2006); CINA Rule 18(c)(2)(B).
FN16.
A.A.
v. State, Dep't of Family & Youth Servs.,
982 P.2d 256, 261 (Alaska 1999) (internal quotation marks omitted) (citing
A.M.
v. State,
945 P.2d 296, 306 & n. 12 (Alaska 1997)).
Passive
efforts are where a plan is drawn up and the client must develop his or her own
resources towards bringing it to fruition. Active efforts, the intent of the
drafters of the Act, is where the state caseworker takes the client through the
steps of the plan rather than requiring that the plan be performed on its own.
For instance, rather than requiring that a client find a job, acquire new
housing, and terminate a relationship with what is perceived to be a boyfriend
who is a bad influence, the Indian Child Welfare Act would require that the
caseworker help the client develop job and parenting skills necessary to retain
custody of her child.[FN17]
FN17.
Id.
at 261 (quoting Craig J. Dorsay, The
Indian Child Welfare Act and Laws Affecting Indian Juveniles Manual
157-58 (1984)).
[7]
In evaluating whether the state met its active efforts burden, the court may
consider ?a parent's demonstrated lack of willingness to participate in
treatment.? FN18
Courts also look ?to the state's involvement in its entirety.? FN19
In Maisy
W. v. State, Department of Health & Social Services, Office of Children's
Services,
we affirmed a termination even though the state conceded it had not made active
efforts during a three-month period. FN20
We concluded that the entirety of the state's efforts after it first became
involved met the active efforts requirement.FN21
We similarly held in E.A.
v. State, Division of Family & Youth Services
that the state's failure to make active efforts during one seven-month period
was ?insignificant in light of the extensive remedial efforts the state has
provided throughout its involvement.? FN22
FN18.
Maisy
W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
175 P.3d 1263, 1268 (Alaska 2008) (quoting N.A.
v. State, DFYS,
19 P.3d 597, 603 (Alaska 2001)).
FN19.
Id.
at 1268.
FN20.
Maisy
W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
175 P.3d 1263, 1269 (Alaska 2008).
FN21.
Id.
at 1269.
FN22.
E.A.
v. State, Div. of Family & Youth Servs.,
46 P.3d 986, 990 (Alaska 2002).
The
superior court here concluded that there was clear and convincing evidence that
OCS made active and reasonable efforts to prevent the breakup of the Indian
family. In support, the court made these findings:
a.
[An OCS social worker] offered assistance to the family between May and August
2006 by providing wake-up calls, an alarm clock, transportation, assistance with
benefits, food, diapers, household goods, bus pass, PIC referral, Head Start
referral, and job applications.
b.
A Care and Safety Plan was signed by the parents on August 18, 2006, which
required [Neal] to leave the home so the children could remain in the home with
[Lacey]. The plan failed because [Neal] returned to the home.
c.
[Neal] was referred to urinalysis.
d.
[Neal] was referred to Clitheroe for a substance abuse assessment. He
completed*294
an assessment on July 27, 2007. He was diagnosed as cocaine abuse/
e.
The children were placed with [Lacey] at Clare House on November 3, 2006.
[Lacey] obtained housing for herself and the children as part of a second trial
home visit. The plan failed because [Neal] returned to the home.
f.
[Neal] completed a mental health assessment with [a licensed marriage and family
therapist].
g.
[Neal] attended some anger management classes at Southcentral Foundation's
Fathers Journey Program.
h.
[Elsa] was placed with [Lacey] at Clare House on April 21, 2007.
i.
[Lacey] attended counseling at Southcentral Foundation between November 2007 and
May 2008. [Lacey] reported that she did not see the need for treatment and was
only attending to get her children back. In November 2007, [Lacey] reported that
when she regained custody of her children, she would reside with the children's
father.
j.
Both parents attended parenting classes. Lacey completed a parenting class at
Alaska Youth and Family Network (AYFN).
k.
[Neal] attended substance abuse assessments at Clitheroe and Cook Inlet Tribal
Council (CITC) Recovery Services. In March 2008, CITC diagnosed him as cocaine
dependent and recommended intensive outpatient treatment, but [Neal] did not
participate in treatment.
l.
In July 2007, the children were placed with relatives in Pilot Point. [Lacey]
was allowed to reside in Pilot Point and have unlimited contact with the
children. The department created a physical separation between [Lacey] and
[Neal], but [Lacey] chose to return to Anchorage in October 2007 rather than
reside near the children. She reunited with [Neal].
(Internal
citations omitted.)
Lacey
does not argue that these findings are clearly erroneous. Contrary to her
argument that the superior court's analysis ended when OCS relocated her to
Pilot Point, the court's findings note that Lacey received counseling at
Southcentral Foundation through May 2008, after she left Pilot Point. OCS also
resolved disputes between Lacey and the foster family in Pilot Point and paid
for Lacey and the children to remain in telephonic contact after Lacey returned
to Anchorage.
OCS's
involvement with Lacey and Neal from May 2006 until May 2008 demonstrates that
OCS did not expect them to satisfy the case plan without assistance. Although
OCS expected Lacey to become a more protective parent and to learn to appreciate
the dangers of Neal's drug abuse, OCS attempted to help her develop the skills
and mental resolve to accomplish those things through parenting classes and
counseling sessions.
The
superior court found that these efforts were unsuccessful. It noted that Lacey
and Neal ?remain together despite [Lacey's] assertions to the contrary,? and
that Lacey continued to be ?unable or unwilling to parent the children without
[Neal] in the home.? The court further found, after relying on Dr. Glass's
testimony, that Lacey ?does not perceive any danger to the children related to
the home conditions or parenting? and has no desire to change.
Looking
at the ?totality of the efforts made,? we agree with OCS and hold that the
superior court did not err in concluding that OCS made active efforts to
identify and provide remedial services that ultimately happened to be
unsuccessful. We also hold, as OCS contends, that OCS did not abandon Lacey but
continued to make ongoing efforts through the summer of 2008 by identifying a
mental health services provider in the village, communicating with Lacey's
counselors in Anchorage, and ensuring that Lacey kept in telephonic contact with
her five oldest children even after she left Pilot Point.FN23
FN23.
The Native Village of Pilot Point filed a notice joining in the arguments made
in OCS's brief of appellee.
*295
We therefore conclude that the superior court did not err in holding that OCS's
efforts were active and reasonable.
IV.
CONCLUSION
For
these reasons, we AFFIRM the termination of Lacey's parental
rights.