Marjorie K. Allard, Assistant Public Defender, Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.
Janell M. Hafner, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.
Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.
Chloe O. has a long history of substance abuse and mental health issues. In August 2010, OCS took Chloe's fifteen-month-old daughter, Ashanti, into emergency custody because of Chloe's drug abuse, suicide attempts, assaultive behaviors, and affinity for unsafe people and situations. OCS made many unsuccessful attempts to assist Chloe in obtaining treatment for her substance
abuse issues and, eventually, for her mental health issues.
Following a trial, the trial court terminated Chloe's parental rights to Ashanti. In doing so the trial court found that OCS made active efforts to reunify Chloe's family by a preponderance of the evidence, rather than by the proper clear and convincing evidence standard. Chloe appealed the trial court's termination order on several grounds, one of which was a challenge to the trial court's finding that OCS had made active efforts to reunify her family. Before briefing was completed the parties agreed that the case should be remanded to allow the trial court to reconsider the active efforts question under the correct evidentiary standard. Superior Court Judge Catherine Easter held an evidentiary hearing on the issue of reunification efforts because the original trial judge, Superior Court Judge Peter Michalski, had retired in the interim. Judge Easter found, by clear and convincing evidence, that OCS had made active efforts to reunify Chloe's family.
Chloe's appeal requires us to address four issues. We first decide whether, in reviewing Judge Easter's ruling that OCS made active efforts to reunify Chloe with Ashanti, we are limited to considering the evidence presented at the hearing on remand, or whether we may also consider evidence that was presented at the initial hearing before Judge Michalski. We conclude that our review of this issue is limited to the evidence presented to Judge Easter on remand.
Second, we conclude that the trial court's finding that OCS provided Chloe with active efforts to reunify her family is supported by clear and convincing evidence. Third, we conclude that the trial court did not err when it found, beyond a reasonable doubt, that Ashanti would likely suffer serious harm if she were returned to Chloe's custody. Finally, we conclude that we are not required to remand this matter to allow the trial court to investigate whether Chloe's attorney provided her with ineffective assistance.
II. FACTS AND PROCEEDINGS
A. Ashanti Is Taken Into OCS's Custody.
Chloe began using marijuana and alcohol in her pre-teen years, and by age 18 she was regularly using marijuana, alcohol, cocaine, and hallucinogens. She spent most of her youth in foster care, in the custody of OCS and the Division of Juvenile Justice (DJJ). She was institutionalized multiple times as a minor because of her mental health and substance abuse issues, and by the time she reached adulthood she had been prescribed antidepressant and antipsychotic medications; the record indicates that she may suffer from bipolar disorder and fetal alcohol syndrome (FAS).
In May 2009, 18-year-old Chloe gave birth to Ashanti. While pregnant, Chloe used cocaine, alcohol, and marijuana. When Ashanti was seven weeks old, Chloe asked Autumn P.— a woman who had acted as Chloe's foster mother when Chloe was a teenager— to care for the baby while Chloe tended to pressing family matters. This arrangement was originally to be for a matter of days, but when Chloe decided to enter a substance abuse treatment program Autumn agreed to continue caring for Ashanti. The record does not indicate that Chloe entered treatment; nonetheless, Ashanti remained in Autumn's care. At the time, Autumn, a licensed DJJ foster parent, was also caring for several teenage foster children and her own young daughter.
While Autumn was caring for Ashanti, Chloe sometimes took the child. During such times OCS received reports concerning Ashanti's safety. OCS investigated reports concerning Chloe's substance abuse, mental health, suicide attempts, and exposure of Ashanti to unsafe situations.
In August 2010, OCS took emergency custody of Ashanti after Chloe was arrested and incarcerated following a violent altercation. The trial court adjudicated Ashanti a child in need of aid and committed her to OCS's temporary custody. OCS placed Ashanti with Autumn, who had been the child's main caregiver for more than a year.
B. Chloe Declines To Participate In Mental Health Services; She Engages, Unsuccessfully, In Substance Abuse Treatment.
Chloe's OCS case plan called for her to participate in a substance abuse assessment and treatment, urinalysis testing, a mental health evaluation, parenting classes, and visitation with Ashanti, and it required her to acquire stable housing and employment. According to social worker Jamie Kaufman-Bacher, who was responsible for the case from April through September 2010, Chloe was not concerned about her use of substances. She agreed to participate in substance abuse treatment, but she " outright refused" to participate in mental health services. Kaufman-Bacher decided to focus her initial efforts on Chloe's substance abuse rather than her mental health issues. Kaufman-Bacher testified that this decision was based on several factors: Chloe refused to participate in a mental health assessment; it is not possible to force an unwilling client to accept mental health treatment; substance abuse was an important issue that Chloe was willing to work on; and Kaufman-Bacher did not want to overwhelm Chloe by involving her in too many services at once.
While drafting the case plan, Kaufman-Bacher consulted an OCS social worker who had worked with Chloe's family when Chloe was a minor. That worker told Kaufman-Bacher that Chloe might have fetal alcohol syndrome. Kaufman-Bacher, who was trained in FAS, testified that social workers and service providers interact in a particular way with FAS clients, and she included the information about Chloe's possible FAS status in her referral for Chloe to participate in a substance abuse assessment. Kaufman-Bacher transferred the case to social worker Toi Registe in September 2010. At that time, Chloe had declined to fill out paperwork that was required for her to participate in a substance abuse assessment through the Salvation Army Clitheroe Center, and the assessment had been rescheduled.
Registe, who had the case from September 2010 through the termination trial, met with Chloe monthly. At their first meeting Registe and Chloe discussed Chloe's need to participate in substance abuse and mental health services. Chloe informed Registe that she would not participate in the mental health component of her case plan, but she agreed to participate in substance abuse services. Registe, like Kaufman-Bacher, felt that the best course was to focus initially on Chloe's substance abuse issues. Registe testified that she was aware of Chloe's possible FAS status. She testified that she routinely helps FAS clients fill out referral forms in her office, avoids imposing too many case plan components on them at any point in time, writes reminder notes for them, and provides them with reminder phone calls. As to Chloe, Registe testified that " there were many ... times that whatever referral we were doing, we did together. I would remind [her] of, you know, court reviews, her family contact, [and] assessments. I've even offered to cab her to those."
In October 2010 Chloe participated in a substance abuse assessment through Clitheroe; the recommendation was for outpatient treatment. Chloe did not follow through with the referral, nor did she participate in urinalysis to which both Kaufman-Bacher and Registe had referred her, despite the social workers' emphasis on the importance of her participation and their explanation that missed urinalysis tests are considered positive by OCS. When Chloe's substance abuse assessment expired in February 2011 Registe referred her to ...