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Casey K. v. State, Dept. of Health & Social Services

Supreme Court of Alaska

October 23, 2013

CASEY K., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Office Of Children's Services, Appellee.

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[Copyrighted Material Omitted]

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Janella Combs Kamai, Johnson & Combs, PC, Kodiak, for Appellant.

Laura Fox, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

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

OPINION

STOWERS, Justice.

I. INTRODUCTION

A mother appeals the termination of her parental rights to her child. She challenges the superior court's rulings that: (1) the child was a child in need of aid under AS 47.10.011; (2) she failed to remedy the conduct that placed the child in need of aid; (3) the Office of Children's Services (OCS) made reasonable efforts to reunify the family; and (4) termination of her parental rights was in the child's best interests.[1] Because all of the superior court's rulings are supported by the record, we affirm the court's decision to terminate the mother's parental rights.

II. FACTS AND PROCEEDINGS

Cheyenne C.[2] was born to Casey K. and Cash C. in May 2005. Cash was violent toward Casey; at least once during their relationship he was convicted of violating a domestic violence protective order. Casey and Cash initially tried to raise Cheyenne together, but they split up in 2009 or 2010 and began sharing custody of Cheyenne on an informal, unscheduled basis. Neither parent established a stable home, and Cheyenne

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moved frequently among temporary living situations.

On September 9, 2010, OCS received a report of concern involving " [a]llegations of parental substance abuse and neglect" of Cheyenne, but the report was screened out because the family could not be located. Less than two weeks later, OCS received another report that was similar in nature. This time, OCS was able to locate the family and opened an investigation.

OCS social worker Cathy Gray conducted interviews with Cheyenne, Cash, and Casey as part of OCS's investigation. Gray reported that Cheyenne " stated her mother smokes [marijuana] in front of her." Casey admitted to occasionally smoking marijuana but denied ever using in front of her daughter. Gray requested that Cash, Casey, and Casey's boyfriend (with whom she was living at the time) complete urinalysis (UA) tests, but none of them complied. OCS continued to receive reports that both parents were using drugs and that Cheyenne lacked a stable living situation.

In November 2010 Cash was arrested while Cheyenne was with him. The arresting officer contacted Casey's mother, Brenda, and one of Cash's friends dropped Cheyenne off at Brenda's house. Brenda tried to locate Casey but was unable to do so, and OCS was notified of Cash's arrest. Rather than take immediate legal custody of Cheyenne, OCS worked out a safety plan with Casey whereby Cheyenne would remain in Brenda's care and Casey would submit UA test results to verify her sobriety. Casey underwent four of the scheduled UAs: the first two did not produce a sample; the third tested positive for THC; and the fourth tested negative for all substances.

OCS took legal custody of Cheyenne on December 10, 2010, and Cheyenne remained in Brenda's care. At a contested probable cause hearing OCS explained why it had concluded that Cheyenne was a child in need of aid. OCS stated it was concerned about Casey's and Cash's drug use, their lack of stable housing, Casey's ongoing relationships with alleged drug dealers and perpetrators of domestic violence, and Cheyenne's possible exposure to domestic violence. OCS also asserted that Cheyenne had missed eight days of school by the third week of September while in Cash's and Casey's care, though it was unclear whether the missed days occurred when Cheyenne was with Cash or with Casey.

Brenda also testified that Cheyenne was exhibiting troubling behaviors. For example, soon after Cheyenne moved in with her, Brenda discovered that Cheyenne kept a bag under her bed with a change of clothes, stuffed animals, and food. Cheyenne referred to this bag as her " getaway bag" and explained to Brenda that she kept it in case she had to leave quickly, because when she was with Cash or Casey she sometimes had to leave places in the middle of the night and never knew whether she would return. Brenda also noted that Cheyenne was hoarding items, such as half-eaten candies and scraps of paper.

The superior court found that probable cause existed to believe Cheyenne was a child in need of aid under AS 47.10.011(8)(B)(ii) (domestic violence) and AS 47.10.011(9) (neglect) and granted OCS temporary custody.[3] Cheyenne stayed in Brenda's care, where she has remained ever since.

In January 2011 OCS established a case plan requiring Casey to complete random UAs twice a week, obtain a substance abuse assessment and follow treatment recommendations, enroll in a domestic violence program and follow all recommendations, visit Cheyenne regularly, and maintain safe and stable housing. OCS agreed to pay for UA testing, substance abuse assessments, all necessary referrals, and transportation costs.

OCS case worker Brooke Antonich, who was assigned to the case in March 2011, did not have contact information for Casey and " pretty much just didn't know where she was or how to get a hold of her." In May 2011 Casey visited the OCS office and left a note with a phone number, but Casey did not

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answer when Antonich tried to call, and the voice mailbox was full. Casey visited the office again the following month and left another note with a different phone number, and Antonich was able to make contact after leaving several messages.

Casey was incarcerated on criminal impersonation charges for just over a week in June and July 2011. Soon after her release she met with Antonich to discuss her case plan for the first time. After the meeting Casey set up an appointment for a substance abuse evaluation with a treatment program, but OCS failed to timely submit required collateral information to the assessor. Lacking the collateral information, the assessor relied exclusively on Casey's self-reporting during the evaluation and concluded that Casey did not need any substance abuse treatment. OCS sent the required collateral ...


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