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Sandy B. v. State, Dept. of Health & Social Services, Office of Children's Services

Supreme Court of Alaska

September 25, 2009

SANDY B., Appellant,
State of Alaska, Department of Health & Social Services, Office of Children's Services, Appellee.

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[Copyrighted Material Omitted]

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Angela Greene, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

Sandy B. Brooke Browning, Lewis & Thomas, P.C., Nome, for Appellant Leo W. Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for Appellee.

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


FABE, Justice.


The Office of Children's Services (OCS) removed three girls, who are Indian children under the Indian Child Welfare Act, from the care of their parents in three separate alcohol-related incidents between September 2005 and December 2007. The parents began to participate in residential substance abuse treatment just three weeks Before the trial to terminate their parental rights. Before entering residential treatment, the parents had repeatedly denied that they had problems with alcohol, declined to communicate with OCS, failed to provide OCS with current contact information, and expressed interest in relinquishing their parental rights to the two oldest girls. Following a three-day termination trial, the trial court issued two written orders terminating their parental rights to all three children. The parents appeal the trial court's findings concerning the adequacy of OCS's active efforts to reunify them with their children and the sufficiency of the expert testimony. Given OCS's efforts throughout its involvement with the family and the parents' lack of cooperation and failure to acknowledge their problems with alcohol, the trial court's active efforts finding was not erroneous. The trial court also did not err in giving weight to the testimony of OCS's expert because the testimony was sufficiently grounded in the case's facts and issues and was consistent with the other evidence presented at trial. We therefore affirm the trial court's termination of the parents' rights to the three children.

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A. Facts

Sandy is the mother of three girls, Vicki, Kathy, and Sarah.[1] Leo is the father of Vicki, born in 2001, and Sarah, born in 2007. Kathy was born in 2004 and her father, Trevor, is deceased. The three girls are Indian children under the Indian Child Welfare Act (ICWA).[2]

The children were removed from their parents' custody at different times. On September 8, 2005, OCS filed an emergency petition for adjudication of Kathy as in need of aid and for temporary custody. The petition alleged that during the early morning of September 7 Sandy became intoxicated in the presence of Kathy and then left Kathy in her apartment in Kotzebue with Kathy's father, Trevor, who was also intoxicated. According to the petition, Trevor later left the sixteen-month-old girl alone in the apartment and committed suicide.

Sandy was admitted to the Maniilaq Health Center in Kotzebue on September 8, 2005, due to suicidal ideation, and she remained in the hospital for about a week. Between September and December 2005, Sandy participated in residential drug and alcohol treatment at the Maniilaq Recovery Center, but she left twice against treatment advice. During substance abuse and mental health assessments at the center, Sandy disclosed her extensive history of depression and alcohol and marijuana use.

While Sandy was in residential treatment, she routinely attended OCS-scheduled visits with Kathy three times a week. But Sandy rarely visited Kathy after she left the treatment program. In addition to scheduling supervised visits between Sandy and Kathy, OCS enrolled them in the Early Learning Family program, which included monthly visits with a program worker as well as monthly play groups for parents and their children. OCS alleged in a September 2006 request and report for permanency findings that it had " attempted to get [Sandy] to commit to a regular visitation schedule and was willing to provide transportation" and that " [o]n several occasions [she] agreed to times for visitation, home visits or office visits and then was either not home or didn't arrive at the office at the prearranged time."

At the termination trial, Sandy testified that she met regularly with OCS during the winter of 2006 to talk about her desire to have Kathy adopted but that she was told to wait. In February 2006 OCS received two reports of Sandy and Leo being " passed out drunk" and leaving their four-year-old daughter Vicki without a sober care provider. In March OCS received a report that the police had stopped Leo for intoxication and that Leo had failed to pick up Vicki from the babysitters. At the time, Sandy was incarcerated after having been arrested for criminal trespass when she refused to leave a residence while intoxicated. In April OCS helped Sandy apply for an inpatient program in Fairbanks but she declined to enter the program when a bed became available in June. That spring Sandy and Leo were living in various places in Kotzebue and Fairbanks because they did not have a permanent residence due to their frequent drinking.

On the morning of June 15, 2006, Vicki's babysitter tried to return Vicki to her parents but they were intoxicated and fighting. Vicki's babysitter called the Kotzebue police and said that she could not continue to care for Vicki or identify other suitable care providers. Vicki received a mental status evaluation after OCS took custody of her. According to the evaluation, Vicki told an OCS supervisor that Leo had offered her alcohol but she declined to drink it because she did not like the taste. The evaluation also reported that Vicki recalled watching her father push her mother to the floor and threaten

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to kill her. On June 16 OCS filed an emergency petition for adjudication of Vicki as in need of aid and for temporary custody. The petition noted that Vicki was " clearly affected by the incident[,] making remarks such as[,] ‘ did you see what my daddy did [to] my mommy?’ "

On August 9, 2006, Sandy entered a treatment program in Fairbanks, but she left on September 1. OCS subsequently lost track of Sandy and Leo, apparently because OCS was unable to reach them using the phone numbers that Sandy and Leo had provided. According to a December 18, 2006 OCS report, Sandy and Leo spent most of the fall of 2006 in Fairbanks, living with relatives or in a homeless shelter, and each had problems with the law that involved alcohol.

After OCS discovered that Sandy was in the Kotzebue jail in late February 2007, it resumed communication with her and Leo, though OCS continued to have difficulty reaching them by phone. OCS also used radio announcements to try to contact Sandy and Leo during 2006 and 2007, but OCS stopped trying to reach Leo through the radio after he asked that an announcement be taken off the radio in late May 2007. OCS also sent the parents letters, some of which were returned.

In February 2007 OCS arranged seven supervised visits between the children and their parents, but Sandy and Leo failed to make most of the visits even though OCS had on some occasions been able to reach them by phone to remind them of the visits. The parents' absence may have been due to their expressed desire to relinquish their parental rights. After the parents missed several visits, OCS cancelled the rest because, as their case worker explained, " it's pretty traumatic for the kids to continually show up for a visit and wait for their parents to come and have nobody come." In the spring of 2007, OCS scheduled two substance abuse assessment appointments for Leo after he mentioned difficulty in arranging them himself, but he failed to attend both. A June 2007 permanency report for Vicki, which was incorporated into a superior court order, summarized Sandy's three unsuccessful attempts at completing substance abuse treatment while Vicki was in OCS's custody and observed that Leo had been " offered services to address substance abuse, [but] throughout the case he has adamantly stated he does not have a substance abuse problem." According to the report, the parents had not maintained contact with Vicki or participated in their case plans.

In the summer of 2007, Sandy and Leo expressed to their case worker that they were not interested in treatment, that " they had given up on the older two children," and that they had focused their efforts on retaining their youngest daughter, Sarah, who was born in August 2007. Within ten days of Sarah's birth, OCS received a number of reports concerning Sandy and Leo. On August 6 Leo was arrested for disorderly conduct after he was screaming at Sandy in the middle of the road at 2:30 a.m. On August 14 a Kotzebue police officer reported that four days Before Sandy gave birth he had an interaction with her and she was intoxicated. The same police officer found Sandy passed out in the road on August 14. Sandy was admitted to the hospital for detox but she refused services. During a home visit after these reports were made, Sandy declined to talk with the family's case worker. Leo told the case worker that while Sandy was hospitalized, he was caring ...

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