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Philip J. v. State, Dept. of Health & Social Services, Office of Children's Services

Supreme Court of Alaska

December 13, 2013

PHILIP J., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

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[Copyrighted Material Omitted]

Page 520

Randall S. Cavanaugh, Kalamarides & Lambert, Anchorage, for Appellant.

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

Carolyn Perkins, Assistant Public Advocate, Office of Public Advocacy, Anchorage, for Appellee Mother.

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

OPINION

FABE, Chief Justice.

I. INTRODUCTION

Philip J. is the father of nine children. The superior court terminated Philip's parental rights to his seven oldest children and then to his eighth child. Philip's appeals of the two separate termination orders (Case No. S-14810 and Case No. S-14994) were consolidated for consideration and decision. Philip maintains that the superior court erred in finding that active efforts were made to keep this Indian family together in both termination orders. He also argues that the superior court erred when it determined that his eighth child was a child in need of aid. We affirm both orders terminating Philip's parental rights.

II. FACTS AND PROCEEDINGS

Philip J. and Georgina J. are the biological parents of nine children: Sophie, Anne, John, Katherine, Nellie, Olivia, Alexandra, Alyssa, and Pete. [1] The children are members of the Asa'carsarmiut Tribe, and the Indian Child Welfare Act (ICWA) applies to this case.[2] These are the second and third child in need of aid (CINA) [3] appeals related

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to this family.[4] The superior court terminated parental rights as to the seven oldest children in a June 29, 2012 order and as to the eighth child, Alyssa, in a November 14, 2012 order.[5]

A. OCS Involvement 2004-2006

Philip and Georgina's history with OCS began in August 2004 when Philip and Georgina became " extremely intoxicated," and Philip " fired a rifle in the home and held the family hostage for three hours." [6] Philip was arrested for the offense.[7] OCS investigated the incident and developed a safety plan addressing Georgina's substance abuse and Philip's violent behavior, but Georgina did not complete any of the suggested steps.

One evening in April 2005, Philip assaulted Georgina while both were extremely intoxicated.[8] Philip also sexually assaulted a guest in the home. As a result of the incident, Philip was charged with and pleaded no contest to third-degree assault and the manufacture of alcoholic beverages without a license or permit in a local option area.[9] OCS initiated emergency removal proceedings, placing the children with Edna, Georgina's mother. The superior court adjudicated the children in need of aid.[10] The first case plan was developed in May 2005 and updated in July 2005.

The plans outlined services to address Georgina's substance abuse and the domestic violence perpetrated against her by Philip. Georgina began the recommended substance abuse counseling, but she quickly ceased participation. The case plan called for Philip to take classes at the Yukon Kuskokwim Correctional Center and meet with the Mountain Village ICWA staff. While Philip was incarcerated, OCS was in contact with Philip's probation officer, and Philip was provided with a copy of the case plan. Philip participated in several classes while incarcerated.[11]

The family's stability improved during the summer of 2006, and OCS returned the children. Philip was no longer incarcerated, and he engaged with services. Edna was involved with the children on a daily basis, and the Tribe was monitoring the family. But despite Philip's effort prior to the children's return, he quickly ceased his clinic attendance. And although not reported to OCS at the time, in December 2006, while children were present and Georgina was intoxicated, Philip tried to rape Georgina's sister.

B. OCS Involvement 2008-2010

In July 2008 OCS again became involved with the family.[12] Philip's sister Annika testified that Philip tried to force her to have sex with him.[13] And Philip ultimately fought with Annika's husband. The children were present during the incident. Philip was convicted of fourth-degree assault on his sister's husband and sentenced to 90 days in jail.

An OCS worker promptly investigated the incident, finding " parental substance abuse, lack of supervision by both parents, and exposure of the children to domestic violence." [14] After the investigation, OCS substantiated most of the report, finding that some of the children were neglected and

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some were exposed to mental injury from observing a fight between their father and uncle. OCS neither took custody at that time, nor did it develop a family case plan.

OCS received another report of harm in October 2008, this time from the Bethel Police.[15] OCS substantiated the report, finding that " the parents were abusing substances, exposing the children to the elements, and exposing the children to domestic violence." [16] The children were placed in a foster home for that night, and the case was referred to the OCS office in St. Mary's for case management.

In September 2009 OCS received two more reports indicating that the children had been neglected and exposed to domestic violence.[17] And in November 2009 an Alaska State trooper conducted a welfare check based on a school report that Katherine had a severe bruise. Katherine reported that she felt scared to go home, and when the trooper investigated, he found Philip in a " highly intoxicated" state. Eight days later, the troopers received another report in which Katherine reported intoxication and domestic violence. An OCS social worker investigated and substantiated the reports in December 2009. Philip " denied anything having to do with domestic violence" and " said everything was fine." OCS took no additional action in 2009.

OCS received additional reports of harm from the Tribe in early 2010, alleging that Philip had sexually assaulted his daughter Anne and possibly his daughters Sophie and Nellie.[18] The Tribe's reports indicated that Philip repeatedly vaginally penetrated Anne. When Georgina tried to intervene, Philip beat her.[19] Anne reported that her little sisters witnessed the alleged sexual assault and domestic violence.

A trooper interviewed Georgina four days after the incident, and she reported that Philip " went after" two of the children. Georgina indicated that she confronted Philip to protect the other children, despite having an infant in her arms and that Philip hit her in the head and sides and kicked her in the legs.[20] Georgina reported that she was very afraid of Philip and that he had threatened to kill her and her children.[21] She also reported an earlier incident when Philip struck her with a table leg while he was intoxicated. Philip was convicted of assault in the fourth degree and incarcerated until April 2010.[22]

After the trooper met with Georgina, she sought medical care from the Yukon-Kuskokwim Health Corporation in Bethel, where an x-ray showed evidence of healing fractures in her ribs. OCS offered to take Georgina and her children to the Emmonak Women's Shelter to protect them from domestic violence, but Georgina declined the offer.

In February 2010, while Philip was incarcerated, Edna and Georgina petitioned the Asa'carsarmiut Tribal Court in Mountain Village for an emergency protective order and a long-term protective order, attesting that Philip was " always drinking almost every other day and he [was] always beating on his wife and picking on his children" and that the children were often scared to go home. They further alleged that Philip " even point[ed] a gun at Georgina and her kids and sa[id] he could kill them." The Tribal Court issued the emergency protective order against Philip to protect both Georgina and

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the children.[23]

On February 25, 2010, an OCS worker investigated the reports of sexual assault. The OCS worker substantiated the report of harm based on physical and sexual abuse as well as mental injury to the children. The OCS worker concluded that because Philip was in jail, there was no immediate safety threat, and OCS did not take custody at that time.

The next month another OCS worker met with Georgina. The OCS case worker discussed counseling services and the children's educational needs. At the time, OCS efforts primarily targeted the needs of Georgina and the children. Georgina agreed to have Sophie and Anne participate in assessments and meet with the behavioral health aide in the village, but she was not receptive to any other options.[24] The OCS worker suggested that the family work with the Tribal elder council to improve school attendance, made referrals for the family to see the behavioral health aide in Mountain Village, and provided assessment referrals to the Yukon-Kuskokwim Health Corporation in Bethel.

Clinic staff at the Yukon-Kuskokwim Health Corporation received referrals from OCS for the children, and the clinic was willing to provide family counseling. Georgina attended an initial screening but did not participate in an assessment, and family counseling did not begin. The conditions of Philip's release mandated that he complete " [i]ntegrated treatment, mental health, [and] alcohol counseling" starting no more than 48 hours from release. And although Philip set up an appointment, he did not attend the appointment or get an assessment.

C. The Seven Oldest Children Are Removed

In April 2010 the Tribe informed OCS that Philip had returned to Mountain Village, in violation of the Tribal Court protective order. An OCS family services supervisor went to Mountain Village to meet with the family. The supervisor spoke with Georgina and identified domestic violence, sexual abuse, and substance abuse as safety threats. The supervisor explained that OCS would remove the children if Georgina stayed with Philip and offered to take Georgina and the children to a domestic violence shelter in Emmonak,[25] but Georgina said she " wasn't going anywhere." Instead, Georgina packed clothing for the children and handed one of the babies to the supervisor.[26] OCS took custody of the seven children, eventually placing them with their grandmother, Edna, in Mountain Village.

In May 2010 OCS specialist Iura Leahu was assigned to the family's case. At this time, the children were still living with Edna. Leahu met with and observed most of the children, discussed case planning with Georgina, and worked with ...


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