Supreme
Court of Alaska.
JON
S., Appellant,
v.
STATE
of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN'S
SERVICES, Appellee.
No.
S-13257.
July
31, 2009.
*759
Jill Wittenbrader, Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant.
David
T. Jones, Assistant Attorney General, Anchorage, and Richard A. Svobodny, Acting
Attorney General, Juneau, for Appellee.
Before:
FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN,
Justices.
OPINION
EASTAUGH,
Justice.
I.
INTRODUCTION
A
father challenges a superior court order finding his daughter, an Indian child
under the Indian Child Welfare Act (ICWA), to be a child in need of aid and
terminating his parental rights. We conclude that the record contains sufficient
evidence to support the superior court's findings that: (1) the daughter was a
child in need of aid; (2) the father failed to remedy the conduct or conditions
placing her at harm; (3) the state met its active efforts burden; (4) returning
the daughter to the father would beyond a reasonable doubt be likely to cause
her serious emotional harm; and (5) termination of parental rights was in the
best interests of the child. We therefore affirm.
II.
FACTS AND PROCEEDINGS
Melissa
FN1
was born in October 2004. She qualifies as an Indian child through her mother,
Mae, and is affiliated with the Native Village of Barrow. FN2
At the time of Melissa's birth her father, Jon, was living in Seward and was on
discretionary parole for felony assault.
FN1.
Pseudonyms have been used to protect the privacy of the family
members.
FN2.
See
25 U.S.C. § 1903(4) (2006).
Shortly
before April 2005, Mae took Melissa to Seward to live with Jon so Mae could
enter treatment. In April 2005 Jon's parole was revoked and he was
reincarcerated. Considering Melissa's second temporary placement to be unsafe,
the State of Alaska, Office of Children's Services (OCS) filed an emergency
child in need of aid (CINA) petition on June 29, 2005. Jon's OCS caseworker,
Tonja Whitney, unsuccessfully attempted to place Melissa through her tribe, then
placed her in a foster home in Kenai for one month.
OCS
placed Melissa with Jon after his release in July 2005. Between August 2005 and
April 2006 OCS developed and updated Jon's case plan and helped Jon and Melissa
obtain essential services. OCS also requested information about Jon's family for
a possible placement. Robyn Noel, Jon's new OCS caseworker, later testified that
Jon was “doing wonderfully” on his case plan, that Melissa appeared “well
attended to” and “happy,” and that OCS planned for Melissa to stay with Jon
until she could be reunified with either parent. Noel also stated in a report
that Jon and Melissa had “formed healthy bonds of trust and
affection.”
In
April 2006 Jon tested positive for cocaine. His parole was revoked and he was
again incarcerated.
OCS
took Melissa back into state custody. Noel unsuccessfully attempted to contact
Mae and to place Melissa through her tribe. OCS placed Melissa in two temporary
Anchorage foster homes while pursuing placements in Seward and Kenai, and with
Jon's parents in Washington, and discussed transferring the case to Anchorage to
facilitate visits with Jon.FN3
FN3.
The Anchorage supervisor stated that such a transfer would “not really fit
policy.” Robyn Noel remained Jon's OCS worker through the termination
trial.
Although
both Jon and Noel testified that they made several attempts to contact the
other, Jon spoke to OCS only once between April and August 2006.
In
August 2006 OCS located a foster home in Kenai but was still considering
relatives in Barrow or Washington. The case plan goal remained for Jon to care
for Melissa until Mae finished treatment.
*760
By mid-August 2006 OCS had placed Melissa in her current foster home in Kenai.
When Melissa arrived she was exhibiting severe behavioral problems indicative of
an attachment disorder.
On
August 29, 2006, Jon was released to a halfway house in Anchorage and placed on
mandatory reparole. He did not inform OCS of his release. Jon testified that in
September or October 2006 he called from the halfway house and asked Noel to
bring Melissa to visit him. Between Jon's August release and April 2007, OCS
unsuccessfully attempted to contact Jon but did not hear from him. During that
time Noel traveled to Atqasuk and Barrow to meet with Mae, worked to find a
long-term placement through Melissa's tribe or with Jon's family, and updated
Jon's case plan.
Mae
asked in February 2007 to relinquish her parental rights. In April 2007 OCS
requested a permanency hearing, stating its intention to file a petition to
terminate Jon's parental rights. Shortly thereafter Jon was arrested for
violating parole and OCS located him in jail.
In
May 2007 Mae voluntarily relinquished her parental rights. OCS filed a petition
to terminate Jon's parental rights in August 2007. It created a new case plan in
September 2007, listing the goal as adoption, with Jon's family a possibility.
Noel unsuccessfully pursued placement with Jon's family.
Also,
OCS arranged for Melissa to visit Jon in jail in September 2007. The visit
appeared to go well, but Noel testified that shortly thereafter Melissa
regressed to attachment disorder behaviors.
In
October 2007 Dr. Paul Turner, a clinical psychologist, examined Melissa at OCS's
request. Dr. Turner concluded that Melissa had a “disorganized attachment
disorder,” resulting from “persistent disregard” for her basic emotional and
physical needs and “impairment in the formation of stable attachment figures.”
He found that her attachment disorder had improved while she was with her foster
family, that she had a “healthy, solid attachment” to them, and that a change in
her placement would have “significant negative ramifications for her
development.” He recommended no further visits with Jon.
In
March 2008 Jon's attorney arranged one two-hour visit between Melissa, Jon, and
a counselor, Valerie Demming, apparently in preparation for Demming to testify
as Jon's witness at Jon's termination hearing.
The
termination hearing began on April 1, 2008, and lasted six days. The court heard
testimony from Jon; two OCS caseworkers, Whitney and Noel; two parole officers;
the chemical dependency counselor who conducted Jon's substance abuse
assessment; Dr. Turner, testifying as an expert in clinical psychology; and
Demming, who did not testify as an expert because of her limited knowledge of
the case.
In
August 2008 the court issued an order with findings of fact and conclusions of
law. First, the court found that Melissa was a child in need of aid on four
grounds: (a) abandonment, (b) failure to make adequate arrangements while
incarcerated, (c) mental injury, and (d) habitual use of intoxicants. Second,
the court found by clear and convincing evidence that Jon had not remedied this
conduct or these conditions and that doing so would take him at least a year,
which would be too long for Melissa. Third, the court found that the state had
met its active efforts burden under ICWA. Fourth, the court found that giving
Jon custody would, beyond a reasonable doubt, be likely to result in serious
emotional damage to Melissa. Finally, the court found that it was in Melissa's
best interests to terminate Jon's parental rights.
Jon
appeals each of these rulings except for the court's finding concerning
Melissa's best interests.
III.
DISCUSSION
[1][2]
Before terminating parental rights under ICWA and the CINA statutes and
rules,FN4
a superior court must find by clear *761
and convincing evidence that: (1) “the child has been subjected to conduct or
conditions described in AS 47.10.011”; FN5
(2) 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 in
substantial risk so that returning the child to the parent would place the child
at substantial risk of physical or mental injury”; FN6
and (3) in the case of an Indian child,FN7
“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.” FN8
Also, under ICWA, the court must find “by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of
the child by the parent ... is likely to result in serious emotional or physical
damage to the child.” FN9
Finally, the court must find by a preponderance of the evidence that
“termination of parental rights is in the best interests of the child.”
FN10
FN4.
See
25 U.S.C. §§ 1901-1923, 1931-1934, 1951-1952, 1961-1963 (2006); AS 47.10.088;
CINA Rule 18; Carl
N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
102 P.3d 932, 935 (Alaska 2004).
FN5.
AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
FN6.
AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i).
FN7.
See
25 U.S.C. § 1903(4). Although Jon is not Indian, ICWA applies because Melissa is
Indian. See
K.N.
v. State,
856 P.2d 468, 474 n. 8 (Alaska 1993).
FN8.
25 U.S.C. § 1912(d); CINA Rule 18(c)(2)(B).
FN9.
25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
FN10.
CINA Rule 18(c)(3); see
also
AS 47.10.088(c). Jon does not appeal this finding.
A.
Standard of Review
[3][4][5]
Whether the superior court's factual findings satisfy ICWA and the CINA statutes
and rules raises questions of law to which we apply our independent
judgment.FN11
Whether substantial evidence supports the court's findings that the state
complied with ICWA's “active efforts” requirement and proved beyond a reasonable
doubt that granting the parent custody would likely result in serious damage to
the child are mixed questions of law and fact.FN12
We review factual findings for clear error, reversing only if, after “a review
of the entire record in the light most favorable to the party prevailing below,”
we are left “with a definite and firm conviction that a mistake has been made.”
FN13
We “bear in mind at all times that terminating parental rights is a drastic
measure.” FN14
FN11.
Rick
P. v. State, Office of Children's Servs.,
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).
FN12.
E.A.
v. State, Div. of Family & Youth Servs.,
46 P.3d 986, 989 (Alaska 2002) (beyond a reasonable doubt likely to cause
serious harm); T.F.
v. State, Dep't of Health & Soc. Servs.,
26 P.3d 1089, 1092 (Alaska 2001) (active efforts).
FN13.
Audrey
H. v. State, Office of Children's Servs.,
188 P.3d 668, 672 (Alaska 2008) (internal quotation marks omitted) (quoting
Brynna
B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
88 P.3d 527, 529 (Alaska 2004)).
FN14.
Karrie
B. ex rel. Reep v. Catherine J.,
181 P.3d 177, 184 (Alaska 2008) (internal quotation marks omitted) (quoting
Martin
N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
79 P.3d 50, 53 (Alaska 2003)).
B.
Whether It Was Error for the Superior Court To Find that Melissa Was a Child in
Need of Aid
[6]
The superior court found by clear and convincing evidence that Melissa was a
child in need of aid under AS 47.10.011(1) (abandonment), .011(2) (failure to
make adequate arrangements while incarcerated), .011(8) (mental injury), and
.011(10) (habitual substance use). Jon appeals each of these
findings.
Under
AS 47.10.011(1), a child is “in need of aid” if the court finds “a parent or
guardian has abandoned the child as described in AS 47.10.013, and the other
parent is absent or has committed conduct or created conditions that cause the
child to be a child in need of aid.” Mae voluntarily relinquished her parental
rights. The “other parent” prerequisite has therefore been met. FN15
FN15.
See
Rick
P.,
109 P.3d at 956.
The
court found by clear and convincing evidence that Jon abandoned Melissa by
“failing to provide reasonable support or maintain any meaningful contact with
[Melissa]*762
for over one year.” Jon argues that this finding was clearly erroneous because
his behavior did not exhibit conscious disregard for his parental obligations,
and because his conduct did not destroy the parent-child
relationship.
We
hold that the superior court's finding of abandonment was not clearly erroneous.
Jon failed to provide support by not paying child support after being released
from jail in August 2006, even though he was working. Jon failed to maintain
meaningful contact and made only one contact with OCS between April 2006 and May
2007.FN16
And despite the bonds and affection between Melissa and Jon, Jon's conduct in
violating parole and in falling out of contact led to his absences and Melissa's
foster care placements,FN17
which in turn led to Melissa's disorganized attachment disorder, to which she
regressed after visiting with Jon. Substantial evidence supports the superior
court's conclusions that Jon demonstrated a conscious disregard for his parental
obligations that led to the destruction of the parent-child
relationship.FN18
FN16.
The court found Jon's testimony that “he tried to call OCS several times during
this time period ... neither credible nor convincing”; it also found that even
if Jon were telling the truth, “such token efforts do not show a genuine effort
to maintain a relationship with a young child who has had minimal contact with
her father for almost half of her life.” See
Jeff
A.C., Jr. v. State,
117 P.3d 697, 704 (Alaska 2005) (stating that “token efforts to communicate with
a child” are insufficient (quoting In
re H.C.,
956 P.2d 477, 481 (Alaska 1998))). Although Jon testified that he called many
times from jail but was unable to get through, he could not produce any
supporting documentation, even though the jail required him to submit written
requests to make the calls, and he produced such requests from 2007. We have
held that trial courts are in the best position to weigh witness credibility,
and we give particular deference to findings based on oral testimony.
Josephine
B. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
174 P.3d 217, 222 (Alaska 2007); Martin
N.,
79 P.3d at 53.
According
to the testimony of Jon, Noel, and Jon's parole officer, Jon failed to notify
OCS of his August 2006 release, failed to provide address and contact
information, and failed to make contact by telephone or mail (except for two or
three calls to OCS, one of which resulted in Jon leaving a voicemail) with OCS
or Melissa between August 2006 and May 2007.
FN17.
Cf.
T.F.
v. State, Dep't of Health & Soc. Servs.,
26 P.3d 1089, 1093-94 (Alaska 2001) (noting that even though state contributed
to delay in paternity testing, father bore responsibility because he absconded
before test could be rescheduled).
FN18.
See
G.C.
v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
67 P.3d 648, 651-52 (Alaska 2003) (quoting E.J.S.
v. State, Dep't of Health & Soc. Servs.,
754 P.2d 749, 751 (Alaska 1988)); see
also
AS 47.10.013(a).
Jon
argues the court failed to acknowledge he “was incarcerated during much of this
time,” but the court largely based its findings on Jon's objective conduct after
he was released from jail in August 2006.
Although
Jon expressed his desire to have custody of Melissa and testified he requested
pictures and visits with her, the superior court properly focused on objective
evidence, not Jon's subjective intent. See
In
re B.J.,
530 P.2d 747, 749 (Alaska 1975).
The
superior court's finding by clear and convincing evidence that Melissa was a
child in need of aid under AS 47.10.011(1) (abandonment) was not clearly
erroneous. Because only one statutory basis is required for a CINA finding, we
do not need to address the superior court's other CINA findings.FN19
FN19.
See
G.C.,
67 P.3d at 651.
C.
Whether It Was Error To Find that Jon Failed To Remedy the Harmful Conduct or
Conditions
[7]
Before a court may terminate parental rights, it must find by clear and
convincing evidence that the parent has failed to remedy the harmful conduct or
conditions.FN20
FN20.
AS 47.10.088(a)(2); see
also
AS 47.10.088(b) (stating that court may consider any fact relevant to child's
best interests, including “the likelihood of returning the child to the parent
within a reasonable time based on the child's age or needs”); Rick
P.,
109 P.3d at 958 (stating that fact that young child has lived without parent for
significant period of time may be sufficient evidence of substantial risk of
mental injury).
Jon
argues the court erred in finding a failure to remedy because, by the time the
court issued its order, he had been out of jail for four months, he was off
parole, and there was no evidence of any substance use for two years. The state
responds that Jon's pattern of making choices leading to incarceration
demonstrates failure to remedy, and that it *763
would not be in Melissa's best interest to return her to Jon, given Melissa's
“age and needs” and Noel's testimony that it would take Jon eighteen months to
remedy his conduct.
Substantial
evidence supports the finding of failure to remedy. Noel testified that before
visitation could occur, Jon would have to undergo a substance abuse assessment
and treatment, something he had not done at the time of trial, and demonstrate
nine months of documented post-treatment sobriety. Noel also testified that it
would probably take Jon approximately “a year and a half or better” to complete
the tasks necessary for reunification, and that because of Melissa's age and the
fact she had already been in custody for twenty-eight months, a year and a half
more was “just too long to ask of a toddler.”
Dr.
Turner testified that reunification could occur only after Jon demonstrated that
he could provide stability, take care of his basic needs, and “be free of
substances,” and after Jon and Melissa had visitation that increased gradually.
Dr. Turner testified that placing Melissa with Jon even nine months from the
time of trial “represents a very serious risk to her” given her history with
attachment disorder. Dr. Turner also testified “that a bond exists between
[Melissa] and her present foster family, which is very critical at this stage of
her life.” Even Demming, who was supportive of Jon having a continued
relationship with Melissa, testified that she would recommend frequent
supervised contact “for an extensive period of time” and parenting classes
before reunification.
The
court did not clearly err in concluding that Jon had not remedied the conduct or
conditions placing Melissa at risk.FN21
It also did not clearly err in concluding that reunification would not be in
Melissa's best interests.FN22
FN21.
See
Stanley
B. v. State, Div. of Family & Youth Servs.,
93 P.3d 403, 407 (Alaska 2004).
FN22.
See
Debbie
G. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
132 P.3d 1168, 1170-71 (Alaska 2006) (explaining that AS 47.10.088(a) permits
termination of parental rights to achieve “permanent placement” because moving
children can be disruptive and unhealthy (citing Stanley
B.,
93 P.3d at 408 (emphasizing children's “immediate need for permanency and
stability” and risk of long-term harm if permanent placement is not made
immediately))); Carl
N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
102 P.3d 932, 936-37 (Alaska 2004) (concluding father failed to remedy because
expert testified that it would be at least two years until reunification, child
had been in foster care for over three years, and child needed stability and
could not afford to wait).
D.
Whether It Was Error To Find that OCS Made “Active Efforts” To Prevent the
Breakup of the Family
[8][9]
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.” FN23
Although “no pat formula exists for distinguishing between active and passive
efforts,” distinctions do exist.FN24
For example, active efforts require taking a parent through the steps of a plan
and helping the parent develop the resources to succeed; drawing up a case plan
and leaving the client to satisfy it are merely passive efforts.FN25
FN23.
25 U.S.C. § 1912(d) (2006); CINA Rule 18(c)(2)(B).
FN24.
A.A.
v. State, Dep't of Family & Youth Servs.,
982 P.2d 256, 261 (Alaska 1999) (internal quotation marks omitted) (quoting
A.M.
v. State,
945 P.2d 296, 306 (Alaska 1997)).
FN25.
Id.
(citing CRAIG J. DORSAY, THE INDIAN CHILD WELFARE ACT AND LAWS AFFECTING INDIAN
JUVENILES MANUAL 157-58 (1984)).
[10][11][12]
The parent's willingness to cooperate is relevant to determining whether the
state has met its active efforts burden, and a parent's “incarceration is a
significant factor” that “significantly affects the scope of the active efforts
that the [s]tate must make to satisfy the statutory requirement.” FN26
In *764
evaluating whether the state has met its active efforts burden, we look “to the
state's involvement in its entirety.” FN27
FN26.
Id.
at 261-62. Although incarceration does not absolve the state's active efforts
duty, the court may consider the practical impact of incarceration on the
possibility of active remedial efforts. Id.
at 261.
FN27.
Maisy
W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
175 P.3d 1263, 1268-69 (Alaska 2008) (stating that although state failed to make
active efforts for three months, superior court properly looked to entirety of
efforts over three-year time period).
Jon
argues that OCS “made no effort to offer services to Jon” after Jon's April 2006
arrest, and failed to provide a substance abuse evaluation and treatment, and
thus failed to meet its active efforts burden or even the “reasonable efforts”
requirement in AS 47.10.086(a).FN28
Jon also argues that OCS failed to meet its active efforts burden because it de
facto terminated his AS 47.10.084(c) right of reasonable visitation by failing
to provide reasonable visitation between April and August 2006. Finally, Jon
argues that OCS failed to meet its active efforts burden because it did not
comply with ICWA's placement preferences.FN29
The state responds that it made active efforts both before and after Jon's April
2006 arrest. The court found by clear and convincing evidence that the state had
met its active efforts burden.
FN28.
AS 47.10.086(a) provides, in relevant part: “[T]he department shall make timely,
reasonable efforts to provide family support services to the child and to the
parents ... that are designed to prevent out-of-home placement of the child or
to enable safe return of the child to the family home.”
FN29.
The dissenting opinion contends that OCS's failure to obtain the paternity test
results early in the CINA case was a “critical” failure. Jon does not argue on
appeal that any such failure rendered OCS's efforts ineffective.
The
record contains substantial evidence supporting the superior court's finding
that over the entirety of the case, from October 2004 until the termination
trial in April 2008, the state made active efforts to prevent the breakup of the
Indian family. We list these efforts because they reflect OCS's potentially
useful and substantive efforts made in attempting to reunify the family. In
2005, when Jon and Melissa lived in Seward and Moose Pass, OCS made the
following efforts: paid for and coordinated Jon's paternity test; advocated for
financial and housing assistance for Jon and Melissa; spent approximately $700
in vouchers for diapers, clothes, medicine, and other supplies for Melissa; paid
and arranged for Jon and Melissa to visit Mae in Anchorage; conducted monthly
home visits; provided referral services to SeaView Infant Learning Program and
facilitated an evaluation for Melissa and parenting education for Jon; and
established a case plan for Jon that included a referral to SeaView Community
Services for a substance abuse assessment. FN30
FN30.
Jon underwent the assessment in August 2005. SeaView did not recommend any
follow-up treatment. The chemical dependency counselor who conducted the
assessment later testified that Jon provided incomplete information and that had
he known about Jon's criminal and substance abuse histories, he might have
recommended treatment.
OCS's
efforts in 2006 and 2007 included: establishing and updating case plans;
coordinating with the guardian ad litem to help Jon and Melissa relocate to
Anchorage to be closer to Mae and to improve job opportunities for Jon; helping
Jon and Melissa get into a temporary shelter in Anchorage and finding day care
for Melissa; helping Jon get bus passes in Anchorage; instructing Jon regarding
visits between Melissa and Mae once Jon and Melissa had moved to Anchorage;
setting up a urinalysis appointment after the April 2006 cocaine allegation;
working with Mae, Melissa's tribe, and Jon to find a long-term placement for
Melissa that would comply with ICWA; trying to locate and contact Jon by calling
jail facilities, Jon's parole officers and attorney, and various shelters in
Anchorage both before and after he disappeared in October 2006; referring
Melissa to doctors for medical and psychological evaluations; traveling to
Atqasuk and Barrow to meet with Mae and gather information about Jon's family;
contacting family members of Mae and Jon for possible placement, preparing an
Interstate Compact on the Placement of Children (ICPC) packet for placement with
Jon's brother in Texas, and coordinating with a social worker in Texas on that
placement possibility; and arranging for Melissa to visit Jon in jail in
September 2007. Jon's parole officer also referred Jon to the *765
Cook Inlet Tribal Council's substance abuse assessment program in October 2006;
Jon did not obtain the assessment.
Despite
these extensive active efforts, the record does support Jon's argument that
OCS's efforts declined after his April 2006 incarceration. Both Noel and Jon
testified at length as to their communication problems; they communicated only
once between April and August 2006, and may have communicated one more time in
September 2006. Both Noel and Jon testified that they had discussed giving Jon
photographs of Melissa and an additional visit with her, but that he received
neither the photographs nor the visit.
We
analyze the state's active efforts based on its “overall handling of the case,”
FN31
including efforts by Jon's parole officers. Because the record and testimony
show that OCS and Jon's parole officers made active efforts throughout 2005 and
2006, actively continued trying to locate Jon between October 2006 and April
2007, provided visitation with Melissa once Jon was located again, and actively
pursued placement with Jon's family from October 2006 through November 2007, we
hold that the superior court did not clearly err in finding that the state made
active efforts.
FN31.
See,
e.g., Thomas
H. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
184 P.3d 9, 16 (Alaska 2008); E.A.
v. State, Div. of Family & Youth Servs.,
46 P.3d 986, 990 (Alaska 2002); N.A.
v. Div. of Family & Youth Servs.,
19 P.3d 597, 602-04 (Alaska 2001); In
re J.W.,
921 P.2d 604, 609-10 (Alaska 1996).
Jon
also argues that OCS failed to make active efforts because it should have
transferred the case to Anchorage. Even if transferring the case would have
facilitated more visits between Jon and Melissa, when the case and OCS's overall
efforts are considered in their entirety, OCS's failure to transfer the case
does not demonstrate that OCS did not make active or reasonable efforts to
reunite the family. See
Maisy
W.,
175 P.3d at 1268-69; Thomas
H.,
184 P.3d at 16.
Our
conclusion that the superior court did not err in holding that the state met its
active efforts requirement also disposes of Jon's argument that the state failed
to meet the lower “reasonable efforts” requirement in AS 47.10.086. Cf.
Winston
J. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
134 P.3d 343, 347 n. 18 (Alaska 2006) (applying reasoning of ICWA “active
efforts” cases to AS 47.10.086 “reasonable efforts” case).
Jon
next argues that OCS failed to meet its active efforts burden because it de
facto terminated his AS 47.10.084(c) right of reasonable visitation by failing
to provide reasonable visitation between April and August 2006. Alaska Statute
47.10.084(c) states in part that if legal custody has been transferred but
parental rights have not been terminated, “the parents shall have residual
rights and responsibilities,” including “reasonable visitation.” FN32
The circumstances do not establish the extreme facts necessary to conclude that
Jon's parental rights were de facto terminated: Melissa was placed in a foster
home in Alaska; Jon was out of contact with OCS and his parole officer even when
out of jail; and through November 2006 OCS supported the concurrent goal of
reunification with either parent.FN33
FN32.
AS 47.10.084(c); AS 47.10.080(p) (stating that reasonable visitation is
determined by considering in part “nature and quality” of relationship between
parent and child before child was committed to OCS custody).
FN33.
Compare
D.H.
v. State,
723 P.2d 1274, 1276-77 (Alaska 1986) (holding that decision permitting foster
parents living in Fairbanks to relocate to Alabama was de facto termination of
parental rights because father was “virtually penniless” and state would not pay
for him to fly to see child), with
A.H.
v. State,
779 P.2d 1229, 1234 & n. 10 (Alaska 1989) (holding, in case in which state
placed children in foster home in Anchorage, mother was in Juneau, family's
financial situation prohibited regular visitation, and state had goal of
visitation, that there was no de facto termination of parental rights because
facts were not as “extreme” as those presented in D.H.).
Jon
also argues that OCS failed to make active efforts because it did not make
sufficient attempts to place Melissa with one of his family members and because
Melissa's placement is therefore not ICWA-compliant. The superior court
concluded that Melissa's “current placement with her foster family is
appropriate.” ICWA gives preference first to extended family members, then to
other members of the child's tribe, and finally to other Indian families.
FN34
FN34.
25 U.S.C. § 1915(a) (2006); cf.
AS 47.14.100(e)(3) (preferring placement with family members, then family
friends, then licensed foster homes that are not family members).
*766
OCS made numerous efforts to place Melissa with Jon and Mae's family members,
but those placements proved inadequate.FN35
Both OCS caseworkers testified that on multiple occasions Melissa's tribe
informed OCS it did not have any placement possibilities for Melissa. Melissa's
current foster family is an Indian family, belonging to the Kenaitze Indian
Tribe. This satisfies both ICWA and state law.FN36
The superior court therefore did not err in concluding that the state made
active efforts to ensure that Melissa's placement was
ICWA-compliant.
FN35.
The dissenting opinion correctly notes that the guardian ad litem recommended
preparing an ICPC packet for Jon's parents in March 2006, and that OCS does not
appear to have prepared an ICPC packet for any member of Jon's family until it
did so for Jon's brother and sister-in-law, Robert and Betty, in September 2007.
Despite that single failing, OCS made sufficient active efforts to place Melissa
with Jon's family, including getting information from Jon about his family in
March 2006; asking Jon for his parents' contact information in July 2006;
getting contact information for Jon's family from Mae in September 2006;
contacting Jon's parents and one of his sisters in October and November 2006;
creating a case plan in September 2007 that included exploring Jon's family for
possible placement options; and contacting Robert and Betty and preparing an
ICPC packet for them in September 2007.
FN36.
See
25 U.S.C. § 1915(a); AS 47.14.100(e)(3).
The
temporary decline in the state's efforts after Jon was reincarcerated in April
2006 is troubling. Although we conclude that the superior court permissibly held
that the state met its statutory burden, we emphasize that to ensure an outcome
in the child's best interests while simultaneously promoting reunification and
reducing delays in achieving permanency, the state must zealously fulfill its
active efforts duty. But we measure active efforts over the entirety of the
case.FN37
Despite the deficiencies ably cataloged in the dissenting opinion, we are not
convinced that the superior court clearly erred in finding that the state made
active efforts, or that it committed legal error in concluding there was clear
and convincing evidence of active efforts. FN38
FN37.
See,
e.g., Roland
L. v. State, Office of Children's Servs.,
206 P.3d 453, 456-57 (Alaska 2009) (holding that OCS's failure to make active
efforts for first three months of case, during which time father was
incarcerated, did not determine termination outcome); Maisy
W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
175 P.3d 1263, 1268-69 (Alaska 2008).
FN38.
The superior court based its active efforts finding on the following factual
findings, all of which are supported by the record:
OCS
developed a case plan that included a referral for a substance abuse assessment
and following all recommendations, providing stable and suitable housing,
obtaining parenting education support, providing for [Melissa's] basic needs,
and establishing [Jon's] paternity in order to qualify [Jon] for certain
services/programs. OCS also advocated for [Jon] on four separate occasions
to receive special funding from the Department to help him with purchases to
meet [Melissa's] basic needs; drafted a letter to assist [Jon] in qualifying for
public assistance and housing assistance; coordinated to set up multiple visits
between the mother and [Jon] and [Melissa]; update the case plans for both
parents as the case progressed; worked with [Jon] to help him relocate to
Anchorage in order to more easily find a job and appropriate housing; provided
day care assistance to allow [Jon] to apply for jobs and housing during the day.
OCS case worker Robyn Noel made numerous attempts to locate and contact [Jon] by
calling the Anchorage jail, [Jon's] attorney, [Jon's] Kenai probation officer,
and [Jon's] Anchorage probation officer, as well as leaving and posting messages
at Bean's Café and the Brother Francis Shelter. OCS also personally met with
[Mae] in Atqasuk and obtained the names of paternal relatives for possible
permanent placement and then followed up with the identified paternal family
members to discuss placement of [Melissa]. OCS investigated individuals
identified by [Mae] as possible placement/adoption alternatives, including
following up with several of [Jon's] family members. OCS further submitted an
ICPC request for [Robert and Betty S.] for possible placement and adoption. This
placement fell through when [Robert and Betty] moved and were no longer
available for consideration. OCS also arranged a visit between [Melissa] and
[Jon] on September 24, 2007, and referred [Melissa] for psychological evaluation
with Dr. Turner to assess the quality of her relationship with her current
foster family and any impact on her to remove her from that family.
E.
Whether the Superior Court Erred in Finding that Returning Melissa to Jon Would
Likely Result in Serious Emotional Harm
[13][14]
ICWA and CINA Rule 18 require the trial court to find beyond a
reasonable*767
doubt that the parent's custody would likely result in serious emotional or
physical damage to the child.FN39
Although the court must focus on risk of future harm rather than past injury,
past failures may predict future conduct.FN40
Proof of the likelihood of future harm “must include qualified expert testimony
based upon the particular facts and issues of the case,” but the trial court may
aggregate this with other evidence as a basis for its finding.FN41
FN39.
25 U.S.C. § 1912(f) (2006); CINA Rule 18(c)(4).
FN40.
J.J.
v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
38 P.3d 7, 11 (Alaska 2001); L.G.
v. State, Dep't of Health & Soc. Servs.,
14 P.3d 946, 950 (Alaska 2000) (quoting E.M.
v. State, Dep't of Health & Soc. Servs.,
959 P.2d 766, 771 (Alaska 1998)).
FN41.
E.A.
v. State, Div. of Family & Youth Servs.,
46 P.3d 986, 991 (Alaska 2002); L.G.,
14 P.3d at 950.
The
court found beyond a reasonable doubt that returning Melissa to Jon would likely
cause her harm; it based its conclusion on Dr. Turner's testimony and Jon's past
behavior. Jon argues that Dr. Turner's expert testimony was not sufficient to
support the court's finding because the testimony was not grounded in knowledge
of the specific facts of the case.FN42
The state responds that Dr. Turner's testimony, combined with evidence of
Melissa's regression after visiting Jon in September 2007, supported the court's
finding.
FN42.
See
C.J.
v. State, Dep't of Health & Soc. Servs.,
18 P.3d 1214, 1218 (Alaska 2001); J.J.,
38 P.3d at 9-10.
Dr.
Turner's testimony was sufficiently grounded in important facts about Melissa's
behavior and needs, and about Jon's suitability to parent; his testimony was not
“fatally weakened” by “over-reliance on documents” or his failure to interview
Jon.FN43
Although Dr. Turner did not read the entire OCS case file, he read court records
from 2005 to 2007, information from the guardian ad litem and OCS, the 2005
emergency petition for adjudication of child in need of aid, the 2006
pre-disposition report, an affidavit from the OCS caseworker, and early
childhood inventories completed by Melissa's foster parents. He also spoke with
Jon's social worker and Melissa's guardian ad litem and foster mother, and met
with Melissa on four occasions. His testimony addressed many of the case's
specifics and responded to hypotheticals based on information relating to the
case.
FN43.
Marcia
V. v. State, Office of Children's Servs.,
201 P.3d 496, 507 (Alaska 2009) (holding that this was not case in which
“over-reliance on documents fatally weakened the expert's testimony” because
although expert had not interviewed mother, daughter, or other service
providers, expert had reviewed numerous documents and expert's testimony covered
important facts in case); E.A.,
46 P.3d at 991-92 (holding testimony sufficient because, although experts had
not interviewed parent, they had “substantial contact” with child, testified to
specifics of child's needs and behavior, and testified to relationship between
child's behavior and mother).
The
record contains substantial evidence of Jon's past pattern of making choices
that led to incarceration or that caused him to disappear from Melissa's life,
demonstrating his instability and inability to parent. FN44
The record also contains substantial evidence of Melissa's history of physical
and emotional problems and attachment disorder, how those problems are connected
to Jon's absences from her life, and the risk that disrupting Melissa's current
placement would cause her serious emotional and physical harm. The superior
court therefore did not err in concluding that returning Melissa to Jon would
likely result in serious emotional harm.
FN44.
See
E.A.,
46 P.3d at 992 (relying in part on substantial evidence of mother's “instability
and parental incapacity outside of the experts' testimony”).
IV.
CONCLUSION
The
superior court's order terminating parental rights is therefore
AFFIRMED.
CHRISTEN,
Justice, dissenting in part.
CHRISTEN,
Justice, dissenting in part.
I
agree with the court in all but one respect. In my view, OCS failed to make
active efforts in this case.
Congress
identified two policy goals in enacting ICWA: “to protect the best interests
*768
of Indian children and to promote the stability and security of Indian tribes
and families.” FN1
Our legislature and this court have recognized that permanency is in children's
best interests.FN2
But our case law allows “active efforts” to be measured over the entirety of a
case, without regard to how long it takes to achieve permanency.FN3
Our legislature has expressly recognized that delays in these cases can further
victimize children and that multiple or prolonged placements can cause emotional
harm.FN4
Measuring OCS's active efforts over the entirety of a case, without regard for
the impact of delays attributable to OCS, threatens to lower the “active
efforts” standard and permits unnecessary-and harmful-delays in achieving
permanency. In this case, the record shows that OCS's actions significantly
lengthened the time it took to achieve permanency for Melissa, that these
actions were inadequately explained, and that the resulting delays harmed
Melissa and reduced her chances of reunifying with Jon or his extended family. I
therefore respectfully dissent from the court's active efforts
analysis.
FN1.
25 U.S.C. § 1902 (2006); see
also A.B.M.
v. M.H.,
651 P.2d 1170, 1172 (Alaska 1982) (citing H.R.REP. NO. 95-1386, at 8 (1978)
(stating the same), as
reprinted in
1978 U.S.C.C.A.N. 7530, 7530). ICWA's requirements apply to non-Indian
biological parents of Indian children. See
In
re Adoption of T.N.F.,
781 P.2d 973, 978 (Alaska 1989).
FN2.
Martin
N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
79 P.3d 50, 55-56 (Alaska 2003) (identifying risk of harm resulting from
disruptions in a young child's “critical attachment process” and emphasizing
need to achieve permanency “expeditiously” to avoid this risk (quoting AS
47.05.065(5))); see
also Debbie
G. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
132 P.3d 1168, 1170-71 (Alaska 2006) (stressing the need to achieve a permanent
placement to avoid multiple temporary placements).
FN3.
See
Roland
L. v. State, Office of Children's Servs.,
206 P.3d 453, 456-58 (Alaska 2009); Maisy
W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
175 P.3d 1263, 1268-69 (Alaska 2008); E.A.
v. State, Div. of Family & Youth Servs.,
46 P.3d 986, 990 (Alaska 2002); N.A.
v. State, DFYS,
19 P.3d 597, 599, 603 (Alaska 2001).
FN4.
AS 47.05.065(5).
I.
VIEWING THE ENTIRETY OF THE STATE'S EFFORTS WITHOUT REGARD FOR THE IMPACT OF
DELAYS ATTRIBUTABLE TO OCS IMPERMISSIBLY LOWERS THE ACTIVE EFFORTS
STANDARD.
Congress
did not require that reviewing courts consider the entirety of the state's
involvement in a case to determine whether active efforts have been made; our
court adopted this approach by looking to case law from other
jurisdictions.FN5
Initially, our court applied this approach under relatively narrow
circumstances, where three identified conditions existed: (1) efforts had been
made to address a substance abuse problem, (2) the parent had shown no
willingness to change, and (3) parental rights had been terminated as to another
child.FN6
This court began applying this approach when the burden of proof was
preponderance of the evidence,FN7
but it has continued to apply it in recent cases, without discussion, even
though the law now provides that active efforts must be demonstrated by clear
and convincing evidence to terminate parental rights.FN8
And the *769
application of this rule has expanded. In two recent cases our court looked to
the entirety of the state's efforts to conclude the active efforts burden was
met without considering whether the three conditions existed, focusing instead
on the lengths of the time periods of active and passive efforts and on the
degree to which the parent showed willingness or ability to change.FN9
FN5.
See
25 U.S.C. § 1912(d) (2006); N.A.,
19 P.3d at 603-04 (establishing approach of looking to entirety of case and
citing Letitia
V. v.Super. Ct.,
81 Cal.App.4th 1009, 97 Cal.Rptr.2d 303, 308-09 (2000); In
re A.R.P.,
519 N.W.2d 56, 60 (S.D.1994)).
FN6.
See
N.A.,
19 P.3d at 603-04 (“Other courts have expressly held that where efforts have
been made to address a substance abuse problem, the parent has shown no desire
to change, and parental rights were terminated with respect to one child, ICWA
allows the superior court to consider all of the efforts made by the state to
avoid the breakup of the family in assessing whether those efforts were
reasonable.” (citing Letitia
V.,
97 Cal.Rptr.2d at 308-09; In
re A.R.P.,
519 N.W.2d at 60)); see
also E.A.,
46 P.3d at 991 (same) (citing N.A.,
19 P.3d at 603-04).
FN7.
See
E.A.,
46 P.3d at 989-90; N.A.,
19 P.3d at 602.
FN8.
See
CINA Rule 18(c)(2)(B) & note; ch. 20, § 1-2, 8, SLA 2006 (heightening burden
of proof); Roland
L.,
206 P.3d at 456 (applying clear and convincing burden of proof and relying on
Maisy
W.,
175 P.3d at 1268-69, and E.A.,
46 P.3d at 990, to look to entirety of OCS's involvement); Maisy
W.,
175 P.3d at 1268-69 (applying clear and convincing burden of proof and relying
on E.A.,
46 P.3d at 990, and N.A.,
19 P.3d at 599, 603, to look to entirety of OCS's involvement).
FN9.
See,
e.g., Roland
L.,
206 P.3d at 456-57; Maisy
W.,
175 P.3d at 1269.
Although
our case law has evolved to take a more expansive view of the active efforts
requirement, our legislature was unequivocal in identifying how delays in
resolving child-in-need-of-aid cases can harm children. The legislative
findings, set forth in AS 47.05.065, provide, in relevant part:
The
legislature finds that
....
(5)
numerous studies establish that
(A)
children undergo a critical attachment process before the time they reach six
years of age;
(B)
a child who has not attached with an adult caregiver during this critical stage
will suffer significant emotional damage that frequently leads to chronic
psychological problems and antisocial behavior when the child reaches
adolescence and adulthood; and
(C)
it is important to provide for an expedited placement procedure to ensure that
all children, especially those under the age of six years, who have been removed
from their homes are placed in permanent homes expeditiously.
I
question the trajectory of our case law and believe the sequential approval of
orders terminating parental rights in cases where significant delays
attributable to OCS go unexplained may inadvertently undercut ICWA's important
legislative goals and effectively lower the active efforts
standard.
II.
AVOIDABLE, INADEQUATELY EXPLAINED, AND HARMFUL DELAYS ATTRIBUTABLE TO OCS ARE
NOT CONSISTENT WITH ACTIVE EFFORTS.
OCS
faces the difficult job of balancing efforts to reunify families with efforts to
protect children's best interests.FN10
There are no readily available “cures” for many of the problems that prompt OCS
to assume emergency custody of children, such as long-term addictions. For this
reason, some delays in resolving child-in-need-of-aid cases are inevitable. But
unnecessary delays attributable to OCS that substantially reduce the chances for
successful reunification or lengthen the time it takes to achieve permanency are
not consistent with “active efforts.”
FN10.
See
25 U.S.C. § 1902 (2006) (“The Congress hereby declares that it is the policy of
this [n]ation to protect the best interests of Indian
children....”).
The
court's opinion lists steps taken by OCS in this case, but in my judgment
whether “active efforts” were made should be a qualitative, not quantitative,
question. Meeting the “active efforts” burden should require that OCS's efforts
increase the likelihood that families will be reunified, or at least reduce the
amount of time it takes to determine whether reunification will be possible.
Where reunification is possible, a child's best interests are served by helping
to reunify the family without the risk of harm from extended or multiple
out-of-home placements. Where reunification is not possible, the child's best
interests are served by initiating termination proceedings without avoidable
delay.
The
facts of Melissa's case lead me to conclude that OCS did not meet its active
efforts burden because of three critical failures: (1) OCS failed to obtain
paternity test results in the early stages of the case; (2) OCS did not train
its caseworker on how to locate and communicate with Jon while he was in state
prison; and (3) OCS failed to train its caseworker on how to interpret and apply
ICWA's placement preferences, resulting in the caseworker waiting to pursue
placement with paternal relatives until several months after the mother asked to
relinquish*770
her parental rights. In my judgment, these delays were attributable to OCS,
avoidable, inadequately explained, and harmful to Melissa and her chances for
reunification.
A.
The Failure To Obtain Paternity Test Results in a Timely Manner in the Early
Stages of the Case Was Attributable to OCS, Inadequately Explained, and
Harmful.
One
factor the court cites in support of its conclusion that OCS made active efforts
is that the caseworker arranged for paternity testing.FN11
But the testing did not help Melissa achieve permanency; testing results were
needed. Jon needed the test results to qualify for the financial assistance that
could have better positioned him to find housing and employment earlier in the
case. This assistance could have permitted OCS to determine, at an earlier
point, whether he was likely to be able to successfully parent
Melissa.
FN11.
Op. at 764.
Jon
submitted to a paternity test by fall 2005,FN12
but OCS did not receive the results until sometime between December 2005 and
March 2006. The results were not obtained earlier because the OCS caseworker did
not know how to obtain them. The caseworker testified she “called the Bureau of
Vital Statistics five or six times and left a message,” and that it was not
until she called OCS Anchorage in December 2005 or January 2006 that she learned
that LabCorp does the testing. She then called LabCorp and received the results
“within two weeks.” Arranging for paternity testing, without knowing how to get
paternity test results, is inconsistent with “active efforts.”
FN12.
The record does not indicate the exact date when Jon took the paternity test,
but the record suggests he took the test before late October.
Although
OCS asked that Jon and Melissa receive priority consideration for financial
assistance in light of the delayed paternity results, this assistance was
denied. By March 2006, Jon still had not been approved for financial assistance.
OCS's failure to obtain the test results promptly contributed to delays in
achieving permanency for Melissa and in reducing the likelihood of successful
reunification; this failure was attributable to OCS, not adequately explained,
and harmful to Melissa.
B.
OCS's Failure To Train Its Caseworker on How To Locate and Communicate with Jon
While He Was in State Prison Was Unexplained and Harmful.
The
second OCS social worker assigned to this case did not know how to locate and
contact a parent in state custody. She testified she contacted Jon in state
prison just once between April and August 2006, that this contact did not occur
until July 2006, and that she did not contact Jon earlier because she did not
know how to find or communicate with someone in state custody. In fact, she
testified that she did not receive any guidance on how to communicate with state
inmates, that this case was “a communication nightmare,” and that she had not
heard of the VINE-line for locating inmates or the Evercom phone system for
calling and receiving calls from inmates. The caseworker also testified that
when she took over the Seward OCS office, which had been “handled by transient
social workers coming in and out of the office” and “hadn't been manned” for
seven months, she received just “two weeks of training.”
OCS
undoubtedly faces geographic and budgetary challenges, but if it is to meet its
active efforts burden, it must ensure that caseworkers receive adequate
training, supervision, and access to resources. The near lack of communication
with Jon while he was in prison for four months in 2006 inhibited his ability to
make progress on his case plan and delayed OCS's ability to determine whether he
was a likely candidate for reunification.FN13
FN13.
The court's opinion correctly notes that the trial court did not find Jon's
claims that he tried to contact OCS while he was in prison credible. Op. at 762
n. 16. But OCS had an obligation to contact Jon; this is an ICWA case and OCS is
obliged to use active, not passive, efforts.
The
record shows that Melissa's lack of contact with Jon during this four-month
incarceration*771
was damaging. Jon's caseworker testified that Melissa was “happy” and “well
attended to” before the March 2006 pre-disposition hearing, and in its
pre-disposition report OCS described Jon and Melissa as having “healthy bonds of
trust and affection.” Melissa was only eighteen months old when Jon was
incarcerated in 2006. OCS knew that she was well-bonded to Jon and that she
could not be placed with Mae while Jon was in jail. Yet OCS did not arrange any
visits between Melissa and Jon during this four-month period of incarceration.
By August 2006, when Melissa had been out of contact with Jon for four months
and when OCS placed her in her current foster home, she was exhibiting severe
attachment disorder symptoms, including suffering serious constipation that
required medication, engaging in self-injurious behavior (biting her cheeks and
cutting her gums), hiding food in her cheeks, holding her breath, exhibiting
social withdrawal and hypersensitivity to touch, whispering, having anxiety and
trouble sleeping, using little emotional expression or reaction, and showing
expressive language delays. OCS's inaction while Jon was incarcerated in 2006
was neither consistent with “active efforts” nor with ICWA's policy goal of
protecting the Indian child's best interests.FN14
FN14.
25 U.S.C. § 1902 (2006).
C.
The Failure To Follow Statutory Placement Preferences and the Delay in Exploring
Placement With Paternal Relatives Were Attributable to OCS, Inadequately
Explained, and Harmful.
The
record and testimony contain substantial evidence showing that OCS failed to
train its social worker on placement preferences and that this failure caused an
impermissible delay in pursuing a family placement per ICWA's placement
preferences.FN15
The record reveals that OCS considered Mae, Mae's mother's family, and a
non-relative Alaska Native family as preferential placements over Jon or his
non-Native family.FN16
FN15.
See
25 U.S.C. § 1915(a) (2006) (preferring extended family over non-family Native
homes); id.
§ 1903(2) (defining extended family); In
re Adoption of Sara J.,
123 P.3d 1017, 1021 n. 14 (Alaska 2005) (“[I]f one parent is Native and the
other is not, the Indian child's extended family may include non-Native members
who might argue for preferred placement status under ICWA.”).
FN16.
Jon is African-American.
For
nearly two years, from June 2005 (when OCS took Melissa into emergency custody)
until April 2007 (after Mae asked to relinquish her parental rights), OCS
identified reunification with Mae as the permanent goal. Reunification with Mae
remained the goal though Mae was in and out of treatment and jail and was out of
contact with OCS for extended periods of time. Indeed, in July 2006 OCS
expressed concern about pursuing placement with Jon's relatives in Washington
because that would “make reunification more difficult [ ] when the mother
resurfaces,” though by this time Mae had been out of contact with OCS for around
four months. Placement with Mae remained the goal even after she expressly
refused to work on her case plan in fall 2006. This persistent focus on Mae is
especially concerning because it caused OCS to delay researching a family
placement with one of Jon's relatives, though OCS knew Mae had an ongoing and
long-term addiction, had not successfully worked her case plans with her
previous children, and was not likely to succeed with Melissa.
OCS
did not fill out an ICPC packet for placement with Jon's family until September
2007. This was a year and a half after Jon gave OCS information about his
family, and a year and a half after the guardian ad litem recommended an ICPC
packet be prepared for Jon's parents in Washington. It was also a year after Mae
asked OCS to contact Jon's family for placement, seven months after Mae asked to
relinquish her parental rights, and three months after her parental rights were
terminated. Although the record reveals that one of Jon's siblings discouraged
OCS from placing Melissa with Jon's elderly parents, once OCS contacted Jon's
other siblings, it discovered that at least two were interested in placement. In
fact, Jon's brother was preliminarily approved, but because he moved to another
state during the placement review due to a job transfer, the *772
placement was denied. The result may have differed had Jon's brother been
contacted earlier in the case.
The
delay in attempting to make contact with Jon's family and in filling out an ICPC
packet for placement with his family resulted from OCS's failure to train its
caseworker on ICWA's placement preferences. It is concerning that the testimony
before the trial court revealed confusion within OCS about ICWA's preference for
placement with a biological parent or that parent's extended family in instances
where that preference order results in placement with family that is not
Native.FN17
FN17.
See
25 U.S.C. § 1915(a) (2006) (preferring extended family over non-family Native
homes); id.
§ 1903(2) (defining extended family); In
re Adoption of Sara J.,
123 P.3d at 1021 n. 14.
The
caseworker's unfamiliarity with ICWA's placement preferences and OCS's delay in
considering a permanent placement with Jon's family contributed to the length of
time it took to achieve permanency for Melissa. The delay in achieving
permanency caused harm to Melissa; while waiting for a permanent home, she went
through three placements and developed an attachment disorder. The confusion
over ICWA's placement preferences and the delay in pursuing placement with Jon's
family resulted in a failure to make active efforts to prevent the breakup of
the Indian family.
III.
CONCLUSION
Melissa
has made important gains in her current foster home, and I agree with the court
that she will benefit by remaining there. But in my judgment, the conclusion
that OCS met its active efforts burden cannot be reconciled with the avoidable,
inadequately explained, and harmful delays described above. For these reasons, I
respectfully dissent from the court's “active efforts” analysis.