John C. Pharr, Law Offices of John C. Pharr, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellee.
Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Guardian Ad Litem.
Before: CARPENETI, Chief Justice, FABE, WINFREE, CHRISTEN, and STOWERS, Justices.
Kent and Naomi are the biological parents of Kenny, who was born in November 2002.
In September 2007 the Office of Children's Services (OCS) filed a petition to terminate Kent's and Naomi's parental rights. The petition was denied in July 2008 following a bench trial because the superior court did not find beyond a reasonable doubt that placement with Naomi would be harmful to Kenny. A second petition to terminate Kent's and Naomi's parental rights was filed in October 2008. Kent filed a motion to dismiss the second petition, arguing that it was barred by the doctrine of res judicata. The superior court denied the motion to dismiss and the case proceeded to trial. At the second trial, OCS relied upon psychological examinations of Kenny and Naomi that were conducted after the first trial and also introduced evidence from the first trial. The court granted the second petition and terminated the parental rights of both parents. On appeal, Kent renews his argument that the second petition was barred by the doctrine of res judicata. Because the trial court appropriately considered the entirety of Kenny's history and because the second petition presented new material facts, we affirm the trial court's termination of parental rights.
II. FACTS AND PROCEEDINGS
Kent is the biological father of Kenny, who was born in November 2002 and is an " Indian child" under the Indian Child Welfare Act (ICWA). Kent has a history of criminal conduct and alcohol abuse and he was incarcerated when Kenny was born. Kenny's mother, Naomi, has a history of poly-substance abuse. Naomi was participating in a residential substance abuse program when Kenny was born and one of her older children was in the State's custody. Because of her circumstances, OCS filed a petition for custody when Kenny was just days old. The court granted OCS supervision, Kenny remained placed with Naomi, and the petition was dismissed by OCS in December 2004.
In February 2006, Kent made a report of concern to OCS. He alleged that it was dangerous for Kenny to live with Naomi because Naomi's husband was abusive and Naomi was continuing to use drugs. Following an investigation, OCS filed a new CINA petition in April 2006 and again took emergency custody of Kenny. At the time, Kent was working on the North Slope and had no established relationship with Kenny. Kenny was placed with his current foster family in June 2006. He has lived with them continuously since that time.
After resuming custody, OCS began working with Kent to help him establish a relationship with Kenny. The goal was a full transition to Kent's care. The process started with telephone conversations and progressed to daytime visits, then overnight visits, and, eventually, weekend visits. In May 2007, the final weekend before Kenny was to transition to a trial living situation with Kent, OCS received a substantiated report that Kent had resumed drinking and had slapped Kenny. A few days later, Kent was arrested for his fifth DUI, and the plan for a trial placement in Kent's home was abandoned.
OCS petitioned to terminate Kent's and Naomi's parental rights in September 2007 and a trial was held in April and June 2008. The superior court focused its findings on Naomi; Kent was not available to parent at the time because he was incarcerated. The superior court ruled that OCS proved by clear and convincing evidence that Kenny was a child in need of aid. But emphasizing the high burden of proof in ICWA cases-proof beyond a reasonable doubt including testimony of a qualified expert witness -the court did not terminate either party's parental rights because it did not find that Kenny would suffer serious emotional or physical damage if Naomi's parental rights were not terminated. The court noted that OCS's expert witnesses " really had nothing to say about whether or not putting [Kenny] with [Naomi] ... would result in serious harm to [Kenny]." The court also stated that " under the circumstances, [Naomi] is being so closely
monitored by the program that she's in, there's nothing there to suggest placement would be harmful." The only statement the court made about Kent was that he " is currently incarcerated pending trial and unavailable to meet [Kenny's] needs."
Immediately after the court's oral ruling, OCS's attorney asked the court if it would allow OCS to present another witness who OCS believed could meet the ICWA standard. Counsel for Naomi and Kent both objected, arguing that OCS " had their opportunity and they lost it." The court responded that OCS would have to file a motion to reopen the evidence if it " wants to have a second bite at the apple" so that the parents would have an ...