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Jon S. v. State, Dept. of Health and Social Services, Office of Children's Services

Supreme Court of Alaska

July 31, 2009

JON S., Appellant,

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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.


EASTAUGH, Justice.


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.


Melissa [1] was born in October 2004. She qualifies as an Indian child through her mother, Mae, and is affiliated with the Native Village of Barrow. [2] At the time of Melissa's birth her father, Jon, was living in Seward and was on discretionary parole for felony assault.

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 In April 2005 Jon's parole was revoked and he was reincarcerated.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.[3]

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.

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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.


Before terminating parental rights under ICWA and the CINA statutes and rules,[4] a superior court must find by clear

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and convincing evidence that: (1) " the child has been subjected to conduct or conditions described in AS 47.10.011" ; [5] (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" ; [6] and (3) in the case of an Indian child,[7] " 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." [8] 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." [9] Finally, the court must find by a preponderance of the evidence that " termination of parental rights is in the best interests of the child." [10]

A. Standard of Review

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.[11] 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.[12] 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 " ...

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