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Larry T. v. State, Department of Health & Social Services

Supreme Court of Alaska

July 2, 2014

LARRY T., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Catherine M. Easter, Judge. Superior Court No. 3AN-11-00028 CN

Olena Kalytiak Davis, Anchorage, for Appellant.

David T. Jones, Senior Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

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

MEMORANDUM OPINION AND JUDGMENT [*]

I. INTRODUCTION

Larry T. is the father of Kevin, and has been incarcerated most of Kevin's life.[1] Kevin is an "Indian child" under the Indian Child Welfare Act of 1978 (ICWA). [2]Kevin's mother agreed to his adoption by her mother; the superior court later terminated Larry's parental rights, and he appealed pro se. After briefing was complete, Larry requested the appointment of counsel to represent him in the appeal. Counsel was appointed and requested an opportunity to re-brief the appeal; we granted that request. We limit our consideration to the new briefing, in which Larry contends the superior court erred by determining that Kevin was a child in need of aid, that the State of Alaska, Department of Health & Social Services, Office of Children's Services (OCS) made active efforts to avoid the breakup of the Indian family, and that it was in Kevin's best interests to terminate Larry's parental rights.

We affirm the superior court's findings and its termination of Larry's parental rights.[3]

II. FACTS AND PROCEEDINGS

OCS first became involved in Kevin's life in late 2010, when he was about one year old. Kevin's mother, Joy, was not providing him appropriate care and she tested positive for methamphetamine. OCS filed an emergency custody petition in January 2011, and Kevin was placed with Joy's mother, Evita. In April 2011 Joy stipulated that Kevin was a child in need of aid under AS 47.10.011(9) and (10), relating to neglect and drug or alcohol use by a parent.

About this time Larry, who was incarcerated, learned that he was Kevin's father. Larry was released shortly thereafter, but was arrested again in June. In July he was incarcerated on other charges pending a criminal trial that had been postponed 24 times by the time of the termination trial. According to Larry's testimony at the termination trial, if convicted of the criminal charges he could be sentenced for up to 99 years in prison.

Larry testified that during his incarceration he sometimes was in segregation and maximum segregation. One reason he was put into segregation was for smashing a typewriter; he testified that he smashed the typewriter in the law library. He estimated that about half of his time was in "open population, " the jail's general population.

After Larry's return to jail, his OCS case plans included having visits with Kevin at the jail, undergoing a mental health evaluation, completing a substance abuse assessment, and completing an intake for the Father's Journey program. Because Larry was incarcerated and often in segregation, he was unable to complete any goal except visiting with Kevin.

In June 2012 OCS moved to terminate Larry's parental rights and in September Joy consented to Evita's adoption of Kevin. Evita, like Joy and Kevin, is Inupiaq, so placement with Evita is highly preferred under ICWA;[4] their tribe, Native Village of Kotzebue, fully supported that placement. There was substantial trial testimony that Kevin was doing well living with Evita. Kevin was described as a "happy little guy." Evita was teaching Kevin about their culture and taking him to a Native dance group. The clinical psychologist who evaluated Kevin and his relationships found that Kevin saw Evita as his mother and was "thriving." The psychologist testified that Kevin knew Larry was "dad" but interacted with him as a "familiar playmate."

Trial was held in April 2013. The superior court found that: (1) by clear and convincing evidence, Kevin was a child in need of aid under AS 47.10.011(1) and (2) (abandonment and incarceration); (2) by clear and convincing evidence, Larry did not remedy the conduct that put Kevin at risk for substantial harm; (3) by clear and convincing evidence, OCS made active efforts to prevent the breakup of the family; (4) beyond a reasonable doubt, "continued custody of the child by [Larry] is likely to result in serious emotional or physical damage ...


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