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Lara S. v. State, Dept. of Health & Social Services

Supreme Court of Alaska

June 5, 2009

LARA S., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee.

Jill Wittenbrader, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

Laura C. Bottger, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.

Dianne Olsen, Law Office of Dianne Olsen, Anchorage, Guardian Ad Litem.

Before : FABE, Chief Justice, EASTAUGH, CARPENETI, WINFREE, and CHRISTEN, Justices.

FABE, Chief Justice.

I. INTRODUCTION

After struggling with her drug problem, failing in two inpatient treatment programs, and experiencing difficulty working on her Office of Children's Services case plan, a mother of three boys voluntarily relinquished her parental rights. But when the trial court vacated its order placing the children with relatives, the mother requested a review hearing to rescind the termination of her parental rights. The mother initially argued that the placement change entitled her to a hearing, but she eventually pointed to recent steps taken to secure a full-time job and to attend one or two narcotics or alcoholics anonymous meetings a week. The trial court denied the mother's motion for a review hearing, reasoning that she was not entitled to a hearing because her affidavit failed to establish the three statutory requirements: (1) that it was in the children's best interests that her parental rights be reinstated, (2) that she had successfully addressed her substance abuse problem, and (3) that she was

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capable of caring for her children. Because the trial court did not abuse its discretion in determining that the mother failed to make a sufficient showing of good cause to entitle her to a hearing under AS 47.10.089(h), we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

Lara is the mother of three boys, Earl, Herb, and Roan.[1] Earl, born in 1999, did not have a relationship with his biological father, Don, until child in need of aid (CINA) proceedings were initiated in 2005. Ron is the biological father of both Herb, born in 2003, and Roan, born in 2005.

In January 2005 the Office of Children's Services (OCS) received a report that Lara was abusing substances while she was pregnant with Roan and caring for Earl and Herb. After having tested positive for cocaine, Lara admitted to using cocaine and agreed to follow a care and safety plan to ensure her children's safety and to prevent their removal from her home. Under the plan, Lara agreed to receive a substance abuse assessment, follow through with treatment recommendations, undergo random urinalysis testing twice a week, attend all doctor appointments, and apply for financial assistance.

Lara tested positive for cocaine again in late February 2005 after she had failed to make two appointments for urinalysis tests earlier that month. According to OCS, it made repeated attempts through telephone calls and home visits to contact Lara to discuss her positive urinalysis test and her care and safety plan. On March 21, 2005, a social worker visited the home of Lara and Ron, who both appeared to be under the influence of drugs. Lara admitted to using cocaine and OxyContin. That day OCS took emergency custody of Earl and Herb and immediately filed an emergency petition for adjudication of the children as in need of aid and for temporary placement. A case plan was established for Lara, requiring (1) " substance abuse assessment/treatment," (2) " [urinalysis] testing," (3) " mental health evaluation and treatment," and (4) " parenting classes." The plan also provided that Lara would have visitation with her children.

Lara completed a substance abuse assessment with the Salvation Army's Clitheroe Center on March 29, 2005. The assessment recommended that Lara participate in ninety days of inpatient treatment with the Clitheroe Center's Reflections program while she waited for an opening at another treatment facility, Dena A Coy. Lara tested positive for cocaine on April 1 and was admitted to detox at the Clitheroe Center. Lara entered Reflections' residential treatment program on April 18 but left after four days. The discharge recommendation was that Lara complete a ninety-day inpatient treatment program. On April 27 Lara was assessed by Dena A Coy and she entered into an intensive outpatient treatment program. During the month of April Lara took three urinalysis tests, two of which were positive, and failed to make seven other appointments for urinalysis tests. Lara failed to take any urinalysis tests in May.

Lara's third son, Roan, was premature when he was born on June 19, 2005. After Roan tested positive for cocaine and opiates, Lara acknowledged using cocaine and OxyContin just Before Roan was born. Roan was administered morphine and phenobarbital to manage his withdrawal symptoms and to avoid seizures. OCS took emergency custody of Roan on June 20 and the next day filed an emergency petition for adjudication of Roan as in need of aid and for temporary placement. After spending six weeks in a neonatal intensive care unit, Roan was discharged to a medical foster home in early August. Although Lara was permitted to spend unlimited time with Roan while he was in the hospital, her visits were infrequent and short. But Lara attended most of her OCS-supervised visits after Roan was placed in a foster home.

Dena A. Coy reported on June 28, 2005, that Lara had failed to comply with her treatment program but that she had re-engaged in the previous week. Lara had two negative urinalysis tests on June 22 and July

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18 but again tested positive for cocaine on July 28. Lara failed to take any urinalysis tests in August, and on August 17 OCS received a report that Lara was using crystal meth. Lara took one urinalysis test in September, which was positive for opiates. Lara missed 67 of her 102 appointments for urinalysis tests between late April and early September. Due to lack of attendance and compliance, Lara was discharged from Dena A. Coy's outpatient program in early September.

Lara took two urinalysis tests in October and twice tested positive for opiates. Lara failed to make any of her appointments for urinalysis tests from November to mid-December.

Lara completed an assessment with Cook Inlet Tribal Council's First Step program in late November 2005. Lara did not sign a release for OCS to receive information concerning her participation in the program and it is undisputed that she was not truthful during the assessment, maintaining that she was compliant with her urinalysis testing and that she had not abused substances since June 19, 2005, the day she gave birth to Roan. Perhaps because of Lara's lack of candor during the assessment, Cook Inlet Tribal Council's recommendation differed from the two earlier recommendations for ninety days of inpatient treatment and only advised that she participate in intensive outpatient treatment.

Guardian ad litem Shirley Perry expressed concern over Lara's lack of progress during the first year of treatment under her case plan in a ...


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