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

Supreme Court of Alaska

October 11, 2013

SHERMAN B., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Office Of Children's Services, Appellee.

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Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for Appellant.

Julia B. Bockmon, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

Lisa Wilson, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, Guardian Ad Litem.

Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN and BOLGER, Justices.

OPINION

MAASSEN, Justice.

I. INTRODUCTION

The subject of this appeal is the termination of Sherman B.'s parental rights to his son Kadin M.[1] The Office of Children's Services (OCS) took Kadin into custody soon after his birth because he and his mother, Amy M., both tested positive for cocaine, and because of concerns about both parents' ability to care for the child. OCS had already been involved with Sherman for several years because of concerns with his other three children. The superior court terminated both Sherman's and Amy's parental rights to Kadin in October 2012. Sherman appeals, contesting the court's findings that he abandoned Kadin, that he failed to remedy the conduct that caused Kadin to be a child in need of aid, that OCS made reasonable efforts to reunify the family, and that termination of his parental rights is in Kadin's best interests. We affirm.

II. FACTS AND PROCEEDINGS

A. OCS's Involvement With Sherman's Parenting Of His Other Children

Sherman and Amy had an on-and-off relationship for a number of years. Their daughter Georgina was born cocaine-positive in 2007. OCS became involved with the family as a result and created a parenting plan, which required, among other things, that Sherman not leave Georgina alone with Amy. Sherman appears to have been Georgina's primary caregiver initially, as Amy was often using drugs. But when Georgina was somewhere between eight and fourteen months old, Sherman left her in Atlanta with relatives, who eventually moved her to New York to live with Sherman's aunt. Sherman did not visit Georgina between December 2008 and March 2011, and their contact was limited to phone calls.

Amy gave birth to another child, Darcy, in 2009. Although Amy told Sherman she was pregnant and that he might be the father, he was uninvolved during the pregnancy and was working in Whittier when Darcy was born. When Darcy tested positive for cocaine, OCS took custody of her and placed her with Amy's mother. Sherman became involved in Darcy's life only after OCS facilitated a paternity test that confirmed he was her father. He visited her on a weekly basis, but his relationship with her remained somewhat distant, and he voiced his preference that she live with his aunt and Georgina in New York.

In 2010 Sherman had another child, Khloe, with a different woman. OCS immediately opened a child-in-need-of-aid (CINA) case for Khloe and placed her with foster parents.

OCS identified a number of concerns with Sherman's parenting of both Darcy and Khloe, including his ability to maintain housing and to provide financial support through either employment or public assistance. OCS had reservations as well about his ability to understand child development sufficiently

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to act as a responsible parent. Also of concern to OCS was the fact that he had been arrested twice, in 2009 and 2010, on drug-related charges, though neither arrest resulted in a conviction.

Sherman completed a parenting class at Fathers Insync in July 2010. During the fall of 2010 OCS started unsupervised visits with Darcy and Khloe in Sherman's home and was considering reunification. Sherman was showing improvement. A Team Decision Meeting was planned for March 2011 to discuss a trial home visit with Darcy. But the situation changed in mid-March after Sherman's aunt in New York filed for custody of Georgina, and Sherman traveled to New York, where a court hearing had been scheduled to consider his aunt's petition. Sherman appeared unannounced at his aunt's home and over her objections took Georgina away, though Georgina had not seen him for several years and did not recognize him. He returned Georgina two days later pursuant to a court order.

Sherman was in New York for about five weeks, and during that time he lost his housing in Anchorage. While he was gone, OCS discovered that he had been allowing Khloe's mother, who had untreated substance abuse issues, to attend the unsupervised visits with Khloe and Darcy. OCS accordingly switched back to supervised visits once Sherman returned to Alaska. The visits did not go well. OCS caseworker Leslie Johnston later testified that Khloe would cry and scream throughout the visits and Sherman would not accept any help in dealing with her distress. Sherman partly blamed the OCS workers, who he claimed aggravated the situation by yelling at him to make Khloe stop crying.

Sherman went back to New York in August 2011 for Georgina's custody trial. The New York court found that Sherman had " demonstrated a complete insensitivity" to Georgina's needs by forcibly removing her from his aunt's home after not having seen the child for years. The court concluded that Sherman's behavior " demonstrated such incredibly poor parental judgment as to have the court question his fitness to be responsible for any child." The New York court granted sole legal and physical custody of Georgina to Sherman's aunt.

Around the time that Sherman made this second trip to New York, OCS moved visitation with Darcy and Khloe to Cook Inlet Tribal Council at Sherman's request. But visitation with Khloe continued to be difficult in the new setting. During one visit, according to the visitation supervisor's paraphrase of Sherman's remarks, Sherman thought that an inconsolable Khloe " just needs to cry until she breaks" and " just needs to be broke." In the fall of 2011 the superior court ordered that Sherman's visitation with Khloe be halted ...


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