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Sean B. v. State, Dept. of Health and Social Services

Supreme Court of Alaska

January 21, 2011

SEAN B., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office of Children's Services, Appellee.

Rehearing Denied Feb. 16, 2011.

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[Copyrighted Material Omitted]

Page 332

Fleur L. Roberts, Fairbanks, for Appellant.

Megan R. Webb, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellee.

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

OPINION

CARPENETI, Chief Justice.

I. INTRODUCTION

A father appeals the superior court's termination of parental rights to his son, arguing that the court's conclusions were based on insufficient evidence and that the court made erroneous factual findings. Because the record supports the superior court's decision to terminate the father's parental rights, we affirm.

II. FACTS AND PROCEEDINGS

Josh [1] was born April 5, 2001. His biological parents Sean and Melanie were in an " off and on" relationship for close to two years. About six weeks after Josh was born, Melanie met Mason, and the two soon married. Melanie and Mason had three children together: Kate, born in July 2002; Leon, born in October 2003; and Mia, born in July 2005. Earlier in her relationship with Mason, Melanie at times returned to Sean when she and Mason fought.

Josh, Melanie, and Mason moved around Arkansas and Indiana several times during Josh's first five years. They lived on their own at times; at other times they lived with Melanie's, Mason's, or Sean's relatives. Sean did not pay formal child support. Sean's mother Sarah occasionally gave Sean money, which he gave to Melanie when she visited him to ask for financial help.

Mason joined the army in 2006. He was transferred to Alaska in the fall of 2006. Melanie and the four children lived with Sean's family briefly before moving to Alaska to join Mason. Sean testified that he gave permission for Josh to move to Alaska because he did not want Josh to be separated from his half-siblings.

Melanie, Mason, and the children had been living in Alaska for roughly a year when the Office of Children's Services (OCS) started to have contact with them. On August 3, 2007, OCS received a report of harm, which alleged that the children were neglected and Melanie, their primary caregiver, was abusing crack cocaine and alcohol. OCS did not assume custody of the children at that time. Two days later Mason was arrested for domestic violence after throwing Melanie against the garage, injuring her arm and

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wrist. As a result, the military ordered Mason not have contact with Melanie.

On August 6 and 7, 2007, OCS social worker Jamie Batten made contact with Sean and Sarah in Arkansas. Batten notified them of Josh's contact with OCS and gathered some information about Sean's relationships with Melanie and Josh. Sarah expressed a desire to maintain contact with Josh.

On August 14, Mason was found at home with Melanie and the children. He had left the military barracks without permission and was escorted back by state troopers. Mason was then confined to the barracks and unable to care for the children.

On August 20, Melanie was arrested and incarcerated for domestic violence against her sister. Melanie injured her sister while intoxicated and angry. Her sister lived with the family and helped take care of the children.

A visit to the home showed that there were dried feces and urine stains on the carpet, urine-soaked clothes in the laundry room, and toys and clothes scattered throughout the house. The children did not have clean clothes, were dirty, and smelled of urine. There was no food at home. Neither Josh nor Kate was enrolled in school. Josh needed a speech therapist. It was not clear when the children had last seen a doctor. OCS assumed emergency custody of six-and-a-half year-old Josh and his siblings. On August 21, Batten filed an Emergency Petition for Child in Need of Aid Adjudication and Temporary Custody.

The case was soon transferred from intake worker Jamie Batten to Merrie Tullar, who oversaw the case for roughly the next two years. Tullar, who made contact with Sean in September 2007, encouraged him to send letters and photographs to reconnect with Josh. Written case plans also instructed Sean to send weekly correspondence to Josh. When Tullar spoke with Sean over the phone, she reiterated the importance of sending letters to Josh.

Sean and Melanie stipulated that there was probable cause that Josh was a child in need of aid as a result of Melanie's conduct. In April 2008, Josh and his half-siblings were placed with Mason's parents in Arkansas. When Josh came to live with his step-grandparents Lois and Trevor, roughly eight months had passed since Batten had notified Sean of concerns about Josh's care. Tullar later testified that by this time, she had not received any letters from Sean.

Mason and Melanie soon relocated to Arkansas separately. Mason then sought to have the child protection proceedings in Alaska dismissed. OCS opposed the motion, arguing that keeping the case in Alaska would provide necessary continuity and benefit the children. Superior Court Judge Robert B. Downes denied the motion to dismiss.

Tullar made contact with social worker Phillip Williams of the Arkansas Department of Health and Human Services. Williams worked with OCS to administer Josh's case plan. During the summer of 2008, while Tullar was on leave, OCS social worker Rebecca Buckles was assigned to Josh's case. That summer OCS changed the permanency plan from reunification to adoption. According to OCS records, ...


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