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Lucy J. v. State, Dept. of Health & Social Services, Office of Children's Services

Supreme Court of Alaska

December 17, 2010

LUCY J., Appellant,

Page 1100

[Copyrighted Material Omitted]

Page 1101

Christi A. Pavia, Pavia Law Office LLC, Anchorage, for Appellant.

Megan R. Webb, 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.


FABE, Justice.


Lucy J. appeals the trial court's judgment terminating her parental rights to her children

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Jack H. and Carmen H.[1] Lucy does not challenge the court's finding that Jack and Carmen were children in need of aid on the grounds of exposure to substance abuse, domestic violence, neglect, and Lucy's mental deficiency. But Lucy does challenge four of the trial court's other findings: that Lucy failed to remedy the conduct or conditions in the home that placed the children at substantial risk of harm; that OCS provided active efforts to keep the family together; that returning the children to Lucy's care is likely to result in serious emotional or physical damage to the children; and that termination of Lucy's parental rights is in the best interests of the children. Because abundant evidence supports the trial court's findings that Lucy failed to remedy her substance abuse and neglect of her children, we affirm those findings by the trial court. Our holdings that Lucy did not remedy her substance abuse and neglect make it unnecessary to decide whether Lucy remedied the problems associated with domestic violence and Lucy's mental deficiency. Because the trial court's legal conclusions were correct, and its other factual findings were not clearly erroneous, we affirm the rest of the judgment in its entirety.


Lucy and Rick, the children's father, were in an on-again, off-again relationship from 2001-2005. Jack was born in September 2003 and Carmen in November 2005. Jack and Carmen were placed in foster care in July 2006, and have been in their current foster home since December 2006. These foster parents plan to adopt both children should Lucy's parental rights be terminated. Lucy is affiliated with the Tlingit and Haida Tribes of Alaska, and her children are Indian children within the meaning of the Indian Child Welfare Act (ICWA), 25 U.S. C. ยง 1903(4).

A. OCS Takes Emergency Custody Of Jack In October 2004.

Lucy first came into contact with the Office of Children's Services (OCS) in November 2003 when Rick called OCS to express his concerns about the care of Jack. Rick alleged that Lucy had substance abuse and mental health problems, that she was leaving Jack with unsafe care providers, and that she was threatening to physically harm Jack if someone reported her to OCS. After investigating Rick's report, OCS found that Rick's concerns about Lucy threatening harm to Jack were unsubstantiated. OCS closed the case after providing Lucy with referrals to programs for parenting, mental health, and relationship support.

OCS became directly involved in Jack's life in October 2004, when social worker Caroline Bruschi was called by the police to come to Lucy's home. The police had been called to the home because of a reported sexual assault and found the home in disarray, with four intoxicated individuals present and one-year-old Jack in his crib in a very warm room with two bottles of sour milk. His diaper was full, and his shirt was soaked with urine. One of the individuals present in the home was a registered sex offender and had two children in OCS custody at the time. None of the adults present would tell Bruschi where Lucy was, so Bruschi took custody of Jack and left her card so Lucy could contact her.

Lucy did not contact Bruschi until three hours later. Bruschi met with Lucy and was concerned that Lucy did not seem to understand the importance of closely investigating potential caretakers for Jack.

OCS filed an Emergency Petition for Adjudication of Child in Need of Aid and For Temporary Custody shortly thereafter, on October 12, 2004. After a temporary custody hearing, Superior Court Judge Patricia A. Collins set a date in January 2005 for the adjudication trial and awarded Lucy temporary custody of Jack with supervision by OCS. Two days later Lucy left Jack with another caretaker whose children had been removed by OCS.

B. OCS Provides Assistance To Lucy In Parenting Jack: October 2004-February 2005.

On October 15, 2004, OCS met with Lucy, representatives from the Temporary Assistance

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for Native Families program, and representatives from the Central Council Tlingit and Haida Indian Tribes of Alaska (" Central Council" ) to discuss Lucy's case plan. The case plan recommended that Lucy undergo a substance abuse assessment at SouthEast Alaska Regional Health Consortium (" Health Consortium" ) and referred Lucy to a Central Council therapist named Amalia Monreal for assistance in developing healthy family and parenting choices. The guardian ad litem (GAL), Janine Reep, also added a provision to the case plan asking that OCS provide Lucy with assistance in scheduling appointments, obtaining new housing, and securing a bus pass.

Lucy submitted to a substance abuse assessment provided by Health Consortium counselor Albert Nells in mid-November. Lucy admitted that she had four minor consuming charges and a larceny charge on her record, that there was domestic violence in her relationship with Rick, that she had checked herself into the hospital when she was suffering from depression, that she was consuming ten beers per night and had engaged in binge drinking with binges lasting as long as two weeks, and that she had been dishonorably discharged from the National Guard. Nells issued his assessment report on December 8, 2004, diagnosing Lucy with alcohol dependence and recommending residential services in a therapeutic community, counseling for abuse issues, and additional evaluations for depression and traumatic brain injuries.

The OCS caseworker who took over Lucy's case, Stephanie Day, met with Lucy in late November 2004. At the time Lucy was using a number of services, including Temporary Assistance for Native Families, food stamps, parenting and anger management classes, and childcare assistance. Lucy communicated with Day frequently through at least 2005. Lucy also had a family caseworker from the Central Council, Larry Jackson, who was in regular communication with Day and Reep.

In January 2005 Lucy stipulated that Jack was a child in need of aid as a result of neglect under AS 47.10.011(9). The trial court then issued an Order for Adjudication and Disposition Based on Stipulation that adjudicated Jack as a child in need of aid and released him into Lucy's custody, subject to supervision by OCS.

Lucy completed inpatient treatment for substance abuse in Sitka during January and February 2005. Her aftercare recommendations included receiving intensive outpatient substance abuse and mental health treatment, following through with OCS and her parenting plan, finding a sponsor and attending Alcoholics Anonymous meetings, and following the care plan that she developed while in treatment.

Lucy also continued to have access to other services through OCS, including Catholic Community Services' Healthy Change Program, group and individual services with Monreal (the Central Council therapist), and a home-visiting pre-preschool program for Jack. Although the GAL recommended that Lucy receive assistance in obtaining housing, Lucy had secured housing where she wished to remain.

C. Domestic Violence In Lucy's Relationships And Continued Services: Spring-Fall 2005

After Lucy returned to Juneau following her treatment in February 2005, Rick moved in with Lucy, and they were engaged to be married. Lucy became pregnant with the couple's second child, Carmen. Lucy and Rick began having problems in March 2005 and called Day twice in the middle of arguments for help. Day testified that " there was growing concern about domestic violence in the relationship," that Lucy expressed that she was " afraid that [Rick] may pound her face in," and that Lucy told Day that Rick was threatening to commit suicide. On March 31 Day drove Lucy to the AWARE shelter for domestic violence victims, and Day, Central Council, and AWARE assisted Lucy in obtaining an ex-parte domestic violence protective order against Rick in early April. Despite taking this action, Lucy declined to participate in the healthy relationships class offered by AWARE that Monreal and Day recommended for her.

Lucy participated in the Healthy Change program for a few months until it ended in

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June 2005 because of a loss of funding. She also attended several AA meetings, but then stopped going even though Day encouraged her to join a group offered at a more convenient time. Lucy also had some involvement in a Parents Anonymous program but stopped attending because she believed the meetings were not helpful to her. Lucy had a hard time remembering her appointments with Monreal and lost touch with Nells.

Day referred Lucy to another Catholic Community Services program that focused on family preservation, but it was full, so Michael Dindinger, the family support specialist at Catholic Community Services, offered a less-intensive individual family support program to Lucy from August 2005 until November 2005. Dindinger interviewed both Lucy and Rick, who again had moved back in with Lucy for a brief period before returning to Skagway, and offered an initial assessment. After Rick left, Dindinger assisted Lucy in creating a family safety plan, which she later declined to sign, provided transportation to appointments for her, and helped her deal with public assistance. Dindinger discharged Lucy from the program after she completed it in November 2005 but continued to have interactions with her until February 2006 and occasionally talked to her and offered her transportation.

D. Lucy Relapses During Pregnancy With Carmen: Fall 2005.

Meanwhile, in summer 2005, Day considered closing Lucy's case and releasing custody because she " seemed to be doing well," there were no new concerns, and " she had a lot of supportive services in place." Around this time Lucy, who was then six months pregnant, began expressing that she was under a lot of stress and needed a break from caring for Jack. In October 2005, a month before Carmen was born, Lucy disclosed to Day that she had been drinking one or two times a month beginning in June.

Day immediately tried to get Lucy into treatment at Rainforest Recovery Center, which offered to take her right away if Lucy could find a caretaker for Jack. Because Lucy did not want to put Jack in foster care, Lucy's brother came to care for Jack at Lucy's house, and Lucy entered treatment. Rainforest Recovery recommended that Lucy receive long-term inpatient treatment and was working to help Lucy get into the Fairbanks Native Association program. Although the Rainforest Recovery program was intended to last 21 days, Lucy stayed only three or four days. Even though Lucy checked out of their program, Rainforest Recovery submitted Lucy's paperwork to Fairbanks Native Association and found out that Lucy was eligible. Rainforest Recovery asked Lucy to come in and finalize the paperwork so that she could begin treatment in Fairbanks on November 11. Lucy did not show up to finish the paperwork, and she explained to Day that she " was not sure about going to treatment; that she felt treatment was stressful" and that the stress " would make her want to drink again."

E. Lucy Gives Birth To Carmen And Moves To AWARE Shelter: Fall 2005-Spring 2006.

Lucy gave birth to her second child, a daughter named Carmen, on November 24, 2005 in Sitka. OCS received a report that Lucy told hospital staff that " she was looking forward to coming home, and she just wanted to smoke pot when she came home." OCS investigated and requested a drug test, which came back positive for marijuana use (THC).

On December 23, 2005, Day went to Lucy's residence for a home visit to see Lucy, Jack, and Carmen. Day noticed that Jack " was not very communicative" and did not respond to her attempts to play with him. Day was concerned by her observation and the fact that Lucy drank during her pregnancy with Carmen, so she made a referral for both children to an infant learning program. A week later, Lucy reported to Day that she was concerned that Jack may have been sexually abused by a babysitter who had been on probation for rape when he cared for Jack. Lucy told Day that Jack had been fussy and upset after the man had babysat him and that Jack was touching his genitals and had diaper rash the next morning.

After discussing the matter with Reep and Jackson, Day asked Lucy to go to the AWARE shelter on December 31, 2005.

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Lucy eventually agreed, so Day provided Lucy with a $100 food voucher, helped her shop for groceries, and transported Lucy and the children to AWARE.

On January 4, 2006, OCS filed a Petition for Adjudication of Child in Need of Aid and for Temporary Custody, requesting OCS supervision of Carmen for a period not to exceed two years, and a Petition for Extension of Supervision Not To Exceed One Year, requesting that supervision of Jack continue for an additional year. Following a hearing on January 9, 2005, the trial court issued a temporary custody order stating that there was probable cause to believe that Carmen was a child in need of aid; granting temporary physical custody to Lucy, subject to OCS supervision; and setting the date for the adjudication trial. The parties (including the Central Council, whose motion to intervene was granted with regard to both children) stipulated that Carmen was a child in need of aid based on neglect under AS 47.10.011(9) on April 19, 2006. The trial court ordered Carmen adjudicated a child in need of aid and released her into the custody of Lucy, subject to supervision by OCS.

Day testified that she was willing to allow the children to stay with Lucy because they were staying at the AWARE shelter with safe people around them until Lucy could begin long-term treatment. Lucy left the AWARE shelter several times, however, and only returned after Day explained that she could either remain at AWARE or the children could go into state foster care. The staff at AWARE was concerned with Lucy's ability to respond appropriately to Jack's behavior and provided her with some basic techniques to help, such as cuddling, looking into his eyes, providing brain stimulation for him, and learning to read Jack's cues. There were also concerns that Lucy was inattentive with Jack and that she was leaving him unattended, requiring staff or other residents to watch him. These concerns were reported to David Plotnik, the OCS social worker who took over Lucy's case in March 2006.

F. Staff At Residential Care Center And AWARE Shelter Report Neglect: May 2006-July 2006.

In May 2006 Lucy began treatment at Stepping Stones, a residential care center for women and their dependent children in Anchorage, where patients typically spend a year. Lucy testified that Plotnik only gave her three days to pack and that she had to give up her apartment in Juneau. She also had financial problems because, while Medicaid paid for her to be enrolled in Stepping Stones, she had to pay for other expenses such as child care. Because Lucy left Juneau, her Temporary Assistance for Native Families case was closed there and was not yet reopened in Anchorage, so she could not immediately receive assistance.

When Lucy arrived at the Stepping Stones shelter she tested positive for marijuana, although she indicated that she had not smoked for a month or two. Lucy immediately began to have problems in the program. She was late getting started because Jack and Carmen had not had the required tuberculosis tests; she dropped off Jack at daycare inappropriately dressed and with a full diaper; she sent Jack to daycare without proper food that a child of his age could eat or without any food at all; she did not properly bathe Jack, but instead only got his head wet to make it appear that she had bathed him; and she did not attend process groups and healing circles and would often drop Jack off at daycare and go back to sleep. Lucy was discharged from Stepping Stones in mid-July for causing a security breach by providing the security code for the whole facility to a homeless man. As a result of the breach, all of the combination locks of the ...

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