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Dashiell R. v. State, Dept. of Health and Social Services, Office of Children's Services

Supreme Court of Alaska

December 31, 2009

DASHIELL R., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

Page 842

Anthony M. Sholty, Faulkner Banfield, P.C., Juneau, for Appellant.

Michael G. Hotchkin, Assistant Attorney General and Daniel S. Sullivan, Attorney General, Anchorage, for Appellee.

Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Guardian ad Litem Janine Reep.

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

OPINION

CARPENETI, Chief Justice.

I. INTRODUCTION

Following trial, the superior court terminated an incarcerated father's parental rights. He appeals, claiming error in four of the superior court's findings: that he did not remedy the conditions causing harm to the children; that he did not make adequate provisions for the children during his incarceration; that the state made active efforts to keep the family together; and that termination is in the children's best interests. Because abundant evidence supported the superior court's findings that the conditions causing harm to the children remain unremedied and that termination of parental rights is in the children's best interests, we affirm those findings by the superior court. Our holding that the conditions causing harm to the children remain unremedied makes it unnecessary to decide whether the father made adequate provisions for his children during his incarceration. And because the superior court properly considered the efforts of both the Office of Children's Services and the Department of Corrections, we conclude that the court did not err in finding that the state made active efforts in this case. Accordingly, we affirm the superior court's decision terminating the father's parental rights.

II. FACTS AND PROCEEDINGS

A. Facts

Dashiell R. is the biological father of Jules

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S. and Sameera R. [1] Summer S. is the biological mother of both children and has previously relinquished parental rights. Summer is of Tlingit descent, and thus the Indian Child Welfare Act (ICWA) applies to this case.[2]

Jules, now eight years old, was born in June 2001. Sameera, now four, was born in January 2005. Currently the children reside in Washington state with Dashiell's parents, the Rameros.

Dashiell is incarcerated, serving sentences for two counts of perjury, one count of solicitation to tamper with a witness in the first degree, and three counts of misconduct involving a controlled substance in the third degree. Because of an extensive criminal history involving twenty-six prior misdemeanor and two prior felony convictions,[3] he was sentenced, as a worst offender, to twelve years in jail with release at the earliest in 2013. Appeals of his current convictions are pending.

Dashiell also spent significant time in jail Before his current incarceration began. Dashiell's criminal history includes several domestic assault charges. Among those, Dashiell was sentenced for domestic violence in 2001 for choking a woman he was involved with (not Summer) and again in 2003, regarding the same woman. In between those instances, he was arrested for a domestic violence assault of Summer in June of 2002. In February of 2003 Summer's caseworker reported to the police that Dashiell had beaten Summer. Although it was not demonstrated that this behavior was in front of the children, the superior court heard expert testimony that, based on this history, the children would be at risk of harm if returned to Dashiell.

The State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS) and the Juneau Police Department also received several reports of harm to the children, most involving Dashiell. In March 2002 the police were called because Dashiell and Summer were arguing about who nine-month-old Jules should be with. A week later Dashiell called the police to say that Jules was placed in a closed closet in his car seat for an extended period of time while Summer was high on drugs. Another report that month alleged that Dashiell was intoxicated and verbally abusive to Summer. Later in 2002, OCS substantiated an allegation that Dashiell and Summer had minors over for parties and drinking in their home, and OCS received a report of substance abuse by both parents. The record indicates that Jules and Sameera were present during most of this behavior. For a period in 2003, Summer cared for Jules under a " safety agreement" with OCS, stipulating that she would not leave Jules in Dashiell's care.

OCS received two more reports of harm in 2004 Before Dashiell was incarcerated. The first alleged that Summer left Jules with Dashiell in violation of a protective order. The second alleged that the parents locked Jules in a closet while they used cocaine, and that Summer left Jules with Dashiell, who neglected him, as evidenced by a severe diaper rash. Dashiell testified he never used cocaine with Summer and that he never locked Jules in a closet. The superior court found that the report of cocaine use and locking the child in a closet was unconfirmed, but that the allegation of neglect was confirmed.

Dashiell claimed that while not incarcerated he actively participated in raising Jules and that Jules spent most of his time with him. Jules (and eventually Sameera) visited Dashiell regularly in prison while Dashiell was incarcerated near the children, Before beginning his current sentence. Dashiell also stated that he checked in with Jules's preschool teacher when he could. Early in his incarceration Dashiell became concerned with the care Summer was providing their children, and made frequent calls to OCS-so many that he claims he was disciplined by the prison for the repeated contact. In January 2006 he wrote OCS a letter detailing his

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concerns and requesting that Jules be removed from Summer's care.

OCS received several reports of harm concerning Summer's behavior, including allegations of neglect, lack of supervision of the children, and substance abuse. OCS removed the children from Summer's care in 2006. After the removal, the children were placed in at least five foster homes, then with their maternal grandmother, and then back with Summer.

While attempting to keep the children with Summer, OCS prepared case plans for the family, listing Dashiell as a participant, but not requiring anything of him. However, OCS had phone conversations with Dashiell and he participated in reviews of the plans. Also, OCS case workers monitored the programs Dashiell received in prison, consulted with Dashiell and the prison officials, and encouraged Dashiell to take certain programs while incarcerated. Dashiell has participated in several remedial programs offered by the Department of Corrections.

OCS ultimately removed the children from their mother permanently on October 3, 2007, and placed them in foster care again. In November or December of 2007 Dashiell contacted his parents, the Rameros, and left them a voice mail about assuming care for the children. The Rameros contacted OCS, visited the children, and eventually assumed care of the children on August 8, 2008.

Once the children were with the Rameros, OCS facilitated exchanges of mail between the children and Dashiell. According to OCS this was a partial failure because the children wrote Dashiell but he did not respond.

During Dashiell's incarceration OCS also facilitated contact between Dashiell and the children in the form of telephone visits. Although the notes are incomplete, it appears that approximately seven visits occurred, the first one occurring in February 2008. Once the children were placed with the Rameros, OCS cancelled several of the monthly visits because the agency felt it necessary to have the children focus on bonding with the Rameros. For the calls that did occur, OCS hired a therapist to talk with the children after the calls. One of the calls ended with Dashiell frustrated and hanging up on the children. Other calls similarly resulted in Dashiell being frustrated or " rais[ing] his voice ... in a demanding way." The children's responses include being " really scared," running in and out of the room, wetting their pants, and in the case of then seven-year-old Jules, sucking his thumb, talking about not wanting to live anymore, and hiding behind a bookcase.

Indeed, the children's mental states have been heavily documented in this proceeding. As of now, the children have been in seven different foster placements. They were both exposed to prenatal alcohol or drug use, and Sameera tested positive for cocaine at sixteen months. Both children are behind developmental guidelines, have " significant difficulty with self-regulation and conflict resolution and are hyper-vigilant."

Jules has been " known to hit himself in the head while complaining ‘ I'm stupid’ or ‘ I don't do anything right.’ " Both are statements his mother reportedly made to him. Psychological evaluations in January 2008 diagnosed Jules with disruptive behavior disorder; acute adjustment disorder; enuresis; " academic problems" ; clinical levels of anxiety, depression, and aggression; elevated hyperactivity; and somatization. During the evaluation, Jules frequently reverted to sucking his thumb. At these evaluations, Jules's care giver (the foster parent) reported that Jules " has extreme mood swings, frustrates easily, is very anxious and sometimes hits himself." The care giver also reported that Jules sometimes states " he wishes he were dead." Jules's " meltdowns" were described thus: " [H]e'll be hitting himself, he'll be yelling things like, go ahead and kill me...." Nonetheless, Jules's intellectual and academic functioning are in the average range and he performed well in language comprehension. Indeed, the care giver reported that Jules is creative and for the most part gets along with his other siblings.

A more recent psychological evaluation in January 2009 of then seven-year-old Jules concluded that he functions " more like a toddler in his self-regulation and social-emotional skills." The evaluation also noted aggressive/disruptive ...


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