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Neal M. v. State, Dept. of Health and Social Services, Office of Children's Services

Supreme Court of Alaska

August 5, 2009

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.

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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.[1] 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

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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.

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).[2]

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.[3]

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.

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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

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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 ...


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