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Debra R. v. State, Department of Health & Social Services

Supreme Court of Alaska

July 2, 2014

DEBRA R., 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, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge. Superior Court No. 4FA-11-00101 CN

Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Appellant.

Jennifer A. Currie, 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 [*]

INTRODUCTION

Debra R.[1] appeals the trial court's termination of her parental rights to her daughter, an "Indian child"[2] under the Indian Child Welfare Act of 1978 (ICWA).[3]Debra primarily challenges the trial court's findings that: (1) she did not remedy within a reasonable time the conduct or conditions that led to the child being in need of aid, such that the child would be at substantial risk of physical or mental injury if returned to Debra; (2) the State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS) made active efforts to reunify the family; (3) Debra's continued custody of the child likely would result in serious emotional and physical harm to the child; and (4) it is in the child's best interests to terminate Debra's parental rights. After reviewing the record and considering the trial court's findings under the applicable standards of review, [4] we find no merit to Debra's challenges and therefore affirm the trial court's order terminating her parental rights to her daughter. We also conclude that Debra's challenge to the trial court's denial of her motion for post-trial visitation is moot.

DISCUSSION

Termination Order

Debra's challenge to the finding that she had not remedied within a reasonable time the conduct or conditions that rendered her daughter in need of aid is based primarily on her argument that OCS did not make active efforts to assist her in reunifying with her daughter. Accordingly, if the trial court did not err in finding that OCS made such efforts, then the trial court did not err in finding that Debra did not remedy within a reasonable time the conduct or conditions that led to her daughter being a child in need of aid. "In evaluating whether [OCS] has met its active efforts burden, we look to the state's involvement in its entirety."[5] "The parent's willingness to cooperate is relevant to determining whether [OCS] has met its active efforts burden . . . ."[6] And "a parent's demonstrated lack of willingness to participate in treatment may be considered in determining whether [OCS] has taken active efforts."[7]

Debra's daughter was deemed a child in need of aid under AS 47.10.011(10) because Debra's substance abuse placed her daughter at substantial risk of harm. Debra argues that OCS's efforts to reunify her with her daughter were not active, primarily because OCS did not help her secure placement in a substance abuse treatment facility, and that she could have remedied her substance abuse issues in a reasonable time had OCS made active efforts. The fundamental flaw in Debra's argument is that she refused to cooperate with OCS or make her own efforts to remedy her substance abuse issues until essentially the week before her parental rights termination trial. Given Debra's unwillingness to engage in treatment, the superior court did not err in determining that OCS's efforts were active.[8]

Debra also argues that because no expert witness testified that the child would be at risk of serious harm if returned to her, the trial court's finding to the contrary cannot stand as a matter of law. This is incorrect. The court's finding is supported by the opinions of two expert witnesses. Although neither expert stated explicitly that the child would be at risk if returned to Debra, the testimony as a whole supports the trial court's finding, based on all of the evidence presented, that Debra's substance abuse posed a substantial risk of harm to her child.

Finally, Debra argues that the trial court erred in finding that termination of her parental rights was in her daughter's best interest. But the evidence regarding Debra's conduct, history of substance abuse, and poor prospects for recovery demonstrates that reunifying Debra with her child is not in the child's best interests.[9]The court's finding was not clearly erroneous.

We affirm the trial court's findings underlying its termination order, and, therefore, the termination order.

Post-trial Visitation

The trial court did not enter an oral termination order at the trial's conclusion, but rather issued a written order about six months after the trial's conclusion. Three months after trial, Debra moved for a visitation review hearing under Alaska Child in Need of Aid Rule 19.1.[10] The court did not rule on her motion until after the final order terminating Debra's parental rights was issued. The court first terminated Debra's parental rights and then ruled the visitation motion was moot.

Debra argues the trial court erred by denying her the statutory right to a visitation review hearing.[11] But the court correctly determined that the visitation motion became moot once it issued a final order terminating Debra's parental rights: "[A] claim is moot where a decision on the issue is no longer relevant to resolving the litigation, or where it has lost its character as a present, live controversy, that is, where a party bringing the action would not be entitled to any relief even if he or she prevailed."[12]Even if the trial court erred by not earlier responding to or considering Debra's motion, no effective relief now could be ordered by this court; the issue is moot.[13]

CONCLUSION

Based on the foregoing, we AFFIRM the trial court's order terminating Debra's parental rights to her child.


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