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Pravat P v. State of Alaska

February 18, 2011

PRAVAT P., APPELLANT,
v.
STATE OF ALASKA,
DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF
CHILDREN'S SERVICES,
APPELLEE.



Superior Court Nos.3AN-06-00225/00226/00227 CP Supreme Court No. S-13798 Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Sharon Gleason, Judge.

The opinion of the court was delivered by: Carpeneti, Chief Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.

OPINION

Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers, Justices. [Christen, Justice, not participating.]

I. INTRODUCTION

A Laotian father challenges the termination of his parental rights to his three boys who qualify for protection under the Indian Child Welfare Act. The superior court found the children to be in need of aid due to a history of domestic violence and neglect.

It found (1) that the father had not remedied his conduct, (2) that returning the children to the father's custody would likely result in serious emotional or physical damage, (3) that termination of parental rights would be in the best interests of the children, and (4) that the State made active efforts to reunify the family. Because on appeal the father has not shown clear error in the superior court's factual findings, and because these findings meet the evidentiary thresholds required by Indian Child Welfare Act and Alaska's Child in Need of Aid statutes and rules, we affirm the superior court's termination of the father's parental rights.

II. FACTS AND PROCEEDINGS

A. Facts

Pravat*fn1 was born in Laos in 1957 and immigrated to the United States in 1981. He is the father of three boys who are "Indian children" under the terms of the Indian Child Welfare Act (ICWA).*fn2 Mark and Jung were born in 2001 and 2002, respectively, to Molly, a Native Alaskan who died in 2007. Reese was born in 2006 to Stella, a Native Alaskan who relinquished her parental rights in 2008. Only Pravat's parental rights are at issue in the present case.

All three of the children have experienced serious developmental delays and other health problems. Molly, who died of alcohol poisoning in 2007, used alcohol and drugs while she was pregnant with Mark and Jung. Mark has been diagnosed with static encephalopathy, a non-progressive brain dysfunction which impairs his cognitive and motor functions. He also has Post-traumatic Stress Disorder and Oppositional Defiance Disorder. He has a history of intestinal blockages, possibly due to poor nutrition while in his father's care. He has trouble sleeping, and his doctor's testimony suggested that Mark hallucinates. He also has a history of sexually acting out, including inappropriate behavior with his foster parents' pets, his brothers, and other children. Like Mark, Jung has static encephalopathy, various behavioral disorders, and bowel problems. There is also evidence in the record of Jung grabbing women's breasts, smearing feces on the wall, exposing his genitals, and placing his finger in Mark's bottom.

Stella, Reese's mother, was also diagnosed with Fetal Alcohol Spectrum Disorder. She was a teenage babysitter when Pravat impregnated her. She has admitted to a problem with alcohol and cocaine, and Pravat stated to Cook Inlet Tribal Council that he cut crack cocaine for her. But it is unclear whether she exposed Reese to alcohol or drugs in utero. When Reese was first removed from Pravat's custody in 2006, he showed "obvious signs of neglect." The back of his head was flat from lying on his back much of the time rather than being held. The shape of Reese's head began to improve during his time in foster care. Reese also has been diagnosed with Oppositional Defiant Disorder and Attention Deficit Hyperactivity Disorder. All three boys have Individualized Education Plans in their respective schools to address their special needs.

Pravat's children have a long history of involvement with the Office of Children's Services (OCS). Shortly after Jung's birth in 2002, Pravat came home to find that Molly was drunk and had severely beaten Mark and Jung. Pravat then hit her. The children were hospitalized for several days due to head injuries. Jung had suffered multiple facial lacerations, contusions on his face and scalp, a retinal hemorrhage, and a subdural hematoma. The children were released to Pravat's sole physical custody, although OCS continued to supervise the family until 2004. Once OCS closed the case, government services were discontinued because of Pravat's failure to follow through with efforts to improve his children's home environment.

In May 2005 OCS received a report alleging that "the living conditions of [Pravat's] home were unsuitable for children." The report stated that the home "did not have a working toilet and the children are frequently sick." In February 2006 OCS received a "Child at Risk" report from the Alaska Native Medical Center. The report stated that Mark and Jung were dirty, with a "breakdown to skin due to prolonged contact [with] stool." It also stated that the "father [is] unable to care for children appropriately."

In 2006 Mark underwent a psychological assessment following an OCS referral. The examiner reported:

[Pravat] reports experiencing a significant amount of stress in parenting [Mark]. Nothing about this child was noted to be positive. Instead, his father is feeling trapped by parenting responsibilities, cut off from access to friends and adult social activities, and generally "not very good at being a parent." . . . This level of distress indicates a significant Parent-Child Relational Problem.

Reports from Cook Inlet Tribal Council confirmed that Pravat lacked parenting skills and was overwhelmed as the primary caregiver.

In the months after Reese's birth in January 2006, police responded to multiple reports of domestic violence in the home. In February 2006, Pravat alleged that Stella broke into his home wielding a knife and attempted to take Reese away. Police were called again to the home a few days later. Pravat claimed Stella threatened to kill herself, and he had restrained her to prevent her from doing so. Stella claimed she had wanted to leave, but Pravat grabbed her to stop her. All three children were present during the incident. Pravat received a protective order against Stella, which Stella violated.

On June 20, 2006, police were called to Pravat's home once again. Officers found Stella tied up on the floor, her wrists and ankles bound by belts, and her overalls pushed down to her thighs. Pravat was sitting on the couch and Reese was in a car seat next to him. Jung and Mark were also at home. Pravat claimed that Stella had been drinking and became violent, kicked one of the children in the head, threw things around the house, and at one point tried to run away. He stated that he had dragged her back into the home and tied her up to prevent her from harming the children. Stella claimed Pravat had forced her into his car with the children inside, drove her to his home, and began giving her alcohol and saying he wanted to have sex with her. According to Stella, when she tried to leave, Pravat dragged her back into the apartment and told her he was going to rape her. A neighbor witnessed Pravat pulling Stella back into the apartment by her feet and heard her scream, "Let me go."

Pravat was arrested and charged with kidnaping, assault in the fourth degree, and interfering with a report of a crime involving domestic violence. He pled guilty to the charges of coercion and assault in the fourth degree and was incarcerated from June 2006 until March 2007. OCS contacted Pravat while he was at a pretrial detention facility, but it did not initially engage him in a case plan. As reasons for its delay, OCS cited both communication barriers as well as its practice of deferring work on case plans until incarcerated parents are out of jail or transferred to their long-term prison. A number of barriers made communication with Pravat difficult, including his limited English, bilateral hearing loss, and a diagnosed panic disorder.

Once OCS began visitations between the children and Pravat, the boys were so aggressive that the guardian ad litem asked OCS to get an opinion on whether visits should be discontinued. The clinician felt that stopping visits would harm the children even more, so visits continued.

Cook Inlet Pre-trial Facility obtained a hearing aid for Pravat while he was incarcerated, but he did not wear it. Sandra Dehart, Pravat's caseworker, met with him in September 2006 to explain his case plan. In December Dehart returned with an interpreter to discuss the case plan again. In February 2007 Dehart mailed a letter to Pravat containing his case plan and a list of referral agencies. After his release from prison, Pravat met with Dehart again to discuss the case plan and visitation schedule. In May 2007 OCS created a new case plan for Pravat. OCS also created a simplified, one-page, bulleted version that would be easier for Pravat to understand. OCS continued to work with Pravat to assist with his communication needs, including trying to obtain a second hearing aid for him. Weekly visits between Pravat and the children originally took place at OCS. During these visits, the boys continued to display hyperactivity and aggressiveness, hitting Pravat and not listening to him. Pravat often did not intervene to stop them. In July 2007 OCS changed the location of the visits to the Eklutna Child Advocacy Center (Eklutna Center).

In September 2007 OCS filed a permanency plan with the court. In this plan, Pravat's social worker referred to the difficulties she faced discussing his case plan with him due to the communication barriers. OCS's reunification efforts were delayed due to Pravat's incarceration and hearing issues. In particular, OCS deferred "almost everything in the case plan" until Pravat could be given a ...


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