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Christopher C. v. State, Department of Health & Social Services

Supreme Court of Alaska

June 28, 2013

CHRISTOPHER C., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee. THERESE C., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

Appeals from the Superior Court Nos. 4FA-07-00051 CN and 4FA-10-00020/00032/00033 CN of the State of Alaska, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.

Olena Kalytiak Davis, Anchorage, for Appellant Christopher C. Elizabeth Leduc and Rachel Cella, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for Appellant Therese C. Megan R.

Webb, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee, State of Alaska.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.

OPINION

MAASSEN, Justice.

I. INTRODUCTION

The superior court terminated the parental rights of Christopher and Therese C. to four of their children.[1] In doing so the court relied primarily on evidence that neither Christopher nor Therese had acquired the basic skills necessary to safely parent their children, despite more than a year of parenting training facilitated by the Alaska Department of Health & Social Services, Office of Children's Services (OCS). The superior court also relied on the fact that Therese, who had a history of substance abuse, had not maintained sobriety long enough to justify a finding that she was unlikely to relapse, adding to the dangers faced by children in her care. Christopher and Therese both appealed. Both challenge the superior court's findings that (1) they failed to remedy conduct that endangers their children; (2) OCS made active efforts to prevent the breakup of their family; (3) their children will likely suffer serious physical or emotional harm if returned to the parents' custody; and (4) termination of their parental rights is in their children's best interests. Each of these findings is supported by the evidence in the record. We therefore affirm the superior court's order terminating the parental rights of Christopher and Therese.

II. FACTS AND PROCEEDINGS

A. The Family

Christopher and Therese began dating as teenagers in 2001 or 2002. Over the next ten years they had six children together. At issue in this appeal are their parental rights to four of those children: Eric, Cal, Zander, and Chris, [2] all Indian children for purposes of the Indian Child Welfare Act (ICWA). [3] The oldest boy, Eric, was born in 2004. At the time of trial he was living in a therapeutic foster home in Fairbanks — a potentially permanent, adoptive placement — where he was participating in weekly therapy sessions. Cal was born in 2006, Zander in 2008, and Chris in 2010. These boys live in Nenana with their foster parents, Sofie Innis and Rita Olech. The home is a potentially permanent placement for the three boys, as Innis and Olech wish to adopt them.

B. OCS's Involvement With The Family Before July 2010

Between 2004 and May 2007 OCS received several reports alleging that Christopher and Therese were abusing substances and neglecting their children; these reports were not investigated, "screened out" for various reasons, or investigated and not substantiated. In May 2007 OCS received a report that Therese was passed out in her basement surrounded by garbage and beer bottles while the children played next to her, that Christopher was also high, that the basement smelled of methamphetamine, and that the house was being "used as a crash pad for other drug users." OCS investigated and asked the parents to submit to urinalysis testing, which came back positive for marijuana for both of them. When follow-up investigations revealed no further evidence of substance abuse, OCS closed its case, but it did refer the parents to a local Head Start program and to Denali Kid Care, and it provided information about other services as well.

The following month OCS received a report of domestic violence between Therese and Christopher and took Cal into emergency custody.[4] OCS placed the boy with Christopher's mother, who was already caring for Eric. OCS made referrals for Christopher and Therese for housing and medical services; provided them with case management services, food, and transportation; and contacted their relatives. The parents stipulated to Cal's adjudication as a child in need of aid and worked with OCS to develop a case plan. The plan called for Therese to participate in a substance abuse assessment and treatment, a parenting assessment, and domestic violence classes, and for Christopher to participate in parenting classes and an anger management assessment.

In late 2007 Therese attempted suicide, and OCS referred her to Maniilaq Counseling Center for a psychological assessment. She was accepted at the center for treatment, which OCS anticipated would address her substance abuse, mental health, and parenting issues, but Therese, who was pregnant with Zander, did not participate in the program. Instead she moved to Shungnak. Christopher, who had admitted having issues with anger control, participated in a behavioral assessment that recommended he complete an anger management program, and OCS referred him to the Alternatives to Violence program at LEAP. He had difficulty with attendance, but OCS intervened on his behalf and he eventually completed the program.

In May 2008, while OCS's permanency goal for Cal was the reunification of his family, OCS acted on a report that Christopher's mother was unable to care for Cal and Eric due to physical disabilities, and Cal was moved to foster care in the Innis and Olech home in Nenana.[5] Earlier in the year Therese had begun residential substance abuse treatment at Dena A Coy in Anchorage, and she successfully completed the program in July 2008. While in the program she gave birth to her fourth child, Zander. OCS did not take custody of Zander, but Therese was unable to keep him with her in treatment; she voluntarily placed him in the care of Innis and Olech, who were already caring for Cal.

After completing the treatment program at Dena A Coy, Therese returned to Shungnak, then moved back to Fairbanks. There, in November 2008, she was residing at the Interior Alaska Center for Non-Violent Living when OCS placed Cal with her for a trial home visit. But in January 2009 Therese was asked to leave the Center "after an incident of intoxication and assaultive behavior towards staff, " and Cal was returned to his foster home in Nenana. OCS then helped Therese transition to Our Grandmother's House, a Fairbanks domestic violence shelter serving Alaska Natives. In February 2009 Therese participated in a behavioral health evaluation, after which she entered a residential treatment program at the Women and Children's Center for Inner Healing in Fairbanks. But she left that program after just three days, and the next day, March 1, she was arrested for assaulting Christopher and his mother. Her blood-alcohol content on arrest was .198. Upon her release OCS helped her enter the Fairbanks Rescue Mission, but later in March she was arrested for violating probation conditions, including "drinking of a whole bottle of alcohol." She served 15 days in jail, returned to the Rescue Mission in May 2009, and was asked to leave in June. In September 2009 OCS paid for her and Zander to go to Anchorage so that she could once again enter residential treatment at Dena A Coy.

In October 2009 OCS placed Cal with Christopher for a trial home visit. Christopher was then living with and caring for his mother, who was confined to a wheelchair, and had Eric in the household as well.

In December 2009 Therese left Dena A Coy without completing treatment and entered another treatment program at Stepping Stones Treatment Center in Anchorage; she left that program the following month. Homeless and unable to care for Zander, she asked the foster parents, Innis and Olech, to take him in again, which they did. In February 2010 Therese returned to Our Grandmother's House for sober living support, testing positive for marijuana and cocaine upon admission; later that month she gave birth to her fifth child, Chris, and both she and the baby tested positive for marijuana. OCS took Chris into its custody and placed him in foster care in Fairbanks. OCS hoped that placing Chris locally rather than in Nenana, with Innis and Olech, would help him bond with his parents and would help Christopher and Therese in their efforts toward unification with the baby.

On March 1, 2010, Therese completed another substance abuse assessment, which recommended that she participate in a "high intensive" residential treatment program. Later that month she was asked to leave Our Grandmother's House for violating its rules, and the following month she was arrested for committing an assault while intoxicated. She pleaded no contest to two counts of assault in the fourth degree and was placed on probation for 18 months; a condition of her probation was that she not use alcohol. She then entered a residential treatment program at the Women and Children's Center, which she successfully completed in October 2010.

Sometime before March 2010 Zander left the care of Innis and Olech and joined his brothers Eric and Cal in Christopher's home. In early March 2010 Christopher told an OCS representative that he was willing to work with a family support worker to improve his ability to care for his children and to develop plans to address his children's health and educational needs.

Several days later OCS filed a non-emergency petition for temporary custody of Eric and Zander. The petition was based on concerns about domestic violence, neglect, Therese's mental condition and substance abuse issues, and Christopher's failure to protect the children from Therese's endangering behaviors. The children remained in Christopher's care subject to monthly visits by OCS. A Court-Appointed Special Advocate also visited the home regularly, as did staff from the Resource Center for Parents and Children (Resource Center), which had been referred by OCS to provide services as part of an intensive parenting program for Christopher, Therese, and their children. OCS also provided Christopher with daycare assistance, transportation, food, a referral for drug testing, and help with applying for public assistance, enrolling the children in school, and establishing his paternity of Zander and Chris. In addition, OCS helped Christopher obtain new birth certificates for the children that listed him as their father. With these in hand Christopher could obtain cards for the children from the Bureau of Indian Affairs (BIA), which would entitle them to medical care at Chief Andrew Isaac Health Center.[6]

C. OCS's Involvement With The Family From July 2010 Until The Termination Of Parental Rights In 2012

In early July 2010 OCS social worker Justin Heminger visited Christopher' s home, saw that the children were sick, and asked Christopher whether he had taken them to the doctor. Christopher responded that he had and had been given prescriptions to treat ear infections. Heminger concluded that Christopher had not filled the prescriptions, however, because he had lost one and the boys tore up the other, and he had not tried to get new ones.[7]

On July 16, 2010, OCS investigated a report that the children were again ill and uncared for and that Christopher's home was unsanitary. A social worker found that Christopher and his mother had gone berry picking and had left the children in the care of two teenagers, ages 14 and 15. The home was filthy, with garbage on the floor, dirty dishes in the sink, spoiled food in the refrigerator, and kitchen knives within the children's reach. The boys were sharing a mattress on the floor, with no bedding, despite the fact that Zander had an "extremely contagious" staph infection. The social worker took Zander to the emergency room, where he was treated for the staph infection, a severe ear infection, and flu. Zander's diaper had not been changed in so long that the feces in it were decomposing. His skin was so encrusted with feces and mucus that he bled when hospital staff cleaned him. His clothing was too filthy to be returned to him, so he left the hospital in a gown. OCS placed him with Innis and Olech.

OCS removed Eric and Cal from Christopher's home shortly thereafter. Eric's mouth was infected and he needed dental work, including removal of some teeth, and Cal, like Zander, had a staph infection. OCS placed both boys with Innis and Olech, who reported that the boys hoarded food and hid it in their beds. Heminger, an expert in assessing risk and safety threats in this context, testified that such behavior is typical of children who have been deprived of food.

Following the July 2010 removals, Christopher proposed a safety plan under which the boys would be returned to his home and cared for, in his absence, by his pregnant 17-year-old sister. OCS had serious reservations about this plan, as did the superior court. The court found that Christopher's plan — expecting a teenager to care for herself as well as six-year-old, four-year-old, and two-year-old children, all while recovering from childbirth and caring for her own first-born child — was unrealistic.

OCS was troubled by the pattern into which Christopher and Therese appeared to have fallen: OCS removed their children, the parents worked on a case plan, and OCS returned the children only to have to remove them again. OCS arranged for Christopher and Therese to participate in psychological testing. Kevin Lankford, a psychological associate, examined them in August 2010, prepared reports for OCS, and testified at the termination trial as an expert in administering psychological evaluations and making treatment recommendations. According to Lankford, Christopher had borderline verbal comprehension, weakness in his working memory, and poor insight and judgment. Lankford recommended that Christopher complete another parenting class and noted that Christopher would benefit from having material repeatedly modeled for him. He also recommended that Christopher receive counseling to improve his social skills.

Lankford reported that Therese had borderline intellectual ability, demonstrated poor insight and judgment, and had difficulty controlling her anger. He identified important strategies for counselors working with Therese: ...


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