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

Supreme Court of Alaska

August 29, 2014

SHERRY 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, Michael A. MacDonald, Judge. Superior Court No. 4FA-09-00122 CN.

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

David A. Wilkinson, Assistant Attorney General, Fairbanks, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

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

OPINION

Page 1269

STOWERS, Justice.

I. INTRODUCTION

Sherry R. appeals the termination of her parental rights to her son Jake.[1] She challenges the superior court's rulings that: (1) she failed to remedy the conduct that made Jake a child in need of aid (CINA); (2) the State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS) made reasonable efforts to reunify her with Jake; and (3) termination of her parental rights was in Jake's best interests.

The record amply supports the superior court's decision to terminate Sherry's parental rights. We affirm.

II. FACTS AND PROCEEDINGS

Sherry is the mother of Jake and his twin sister Karen. We affirmed the termination of Sherry's parental rights to her four older children in 2003.[2]

A. The Prior Termination Proceeding Involving Sherry's Four Older Children

In the prior case we observed that Sherry had " struggled with drug and alcohol abuse for many years," participating in seven separate treatment programs between 1996 and 2001 but completing just two.[3] Sherry renewed her drinking and use of crack cocaine following her successful completion of the first residential treatment program in 1999.[4] We observed that while Sherry " recognize[d] that she has had problems with alcohol," she continued to " relapse[] . . . a number of times." [5] We also observed that Sherry's sobriety was " a relatively new phenomenon in her life," and while we echoed the superior court's commendation of Sherry's progress, we affirmed that this progress was not sufficiently timely to demonstrate that Sherry remedied the conduct that placed her children in need of aid.[6]

Substance abuse was only one of the many challenges Sherry faced parenting her four older children.[7] She had relationships with men who were abusive, including with the father of her four older children, David E.[8] When Sherry met Jerry B., the father of Jake and Karen, he was a serious felony repeat-offender who had spent 30 years in and out of prison, including for sexually abusing

Page 1270

a minor.[9] Even after learning of Jerry's conviction for sexual abuse of a minor, Sherry was reluctant to sever ties with him.[10] Sherry also failed to demonstrate her acceptance or understanding of her older children's special needs and disabilities, in spite of being confronted with evidence that three of them suffered from alcohol-affected diagnoses likely brought on by Sherry's consumption of alcohol during her pregnancies.[11]

B. The Current Termination Proceeding Involving Jake

This appeal challenges the termination of Sherry's parental rights to Jake, born July 19, 2003. Jake is now 11 years old and has been in and out of institutional facilities since November 2009. OCS first took legal custody of Jake and his twin sister Karen on March 1, 2004, when the children were close to a year old. According to Sherry, Jerry called OCS because Sherry was " smoking crack" ; but both children remained in Sherry's home, and OCS provided substance abuse referrals, visits from a public health nurse, and child protection day care. The twins were removed from Sherry's physical custody a month later after police were called to her home following a domestic disturbance. Sherry had " blacked out" and later assaulted a police officer who had arrived on the scene to assist; subsequent testing revealed Sherry had a blood alcohol content of .354%.

OCS instituted a case plan for Sherry and attempted trial visits for her with the twins; it provided substance abuse evaluations, substance abuse treatment, counseling, random urinalysis, child care, and other services during this time. Two trial visits in February 2005 and October 2005 resulted in the children's removal -- the first time because Sherry tested positive for cocaine, and the second time because Jerry returned home to find Sherry passed out drunk, Jake covered in feces, and Karen playing with a crack pipe. Jake and Karen remained in OCS's custody following this latest removal until OCS inexplicably transferred physical custody to Jerry in December 2006, despite his status as a convicted sex offender, and despite our prior opinion in Sherry R. clearly faulting Sherry for exposing her older children to Jerry.[12] In the words of the OCS case worker, OCS made this placement decision because Sherry's substance abuse made Jerry look like " a better choice for placement." OCS closed the original CINA case in December 2006 after it transferred custody to Jerry.

Jerry sexually abused Karen over the three years the twins were placed in his care, and currently is serving a long-term prison sentence for this crime. Six-year-old Karen disclosed the sexual abuse to OCS, and that disclosure prompted a re-opening of the twins' CINA case in September 2009. Jerry also terrorized Jake while Jake was in his care. Jerry hit Jake, grabbed him, swore at him unrelentingly, pushed him down stairs, and the superior court noted that it was " highly likely that [Jake] witnessed some . . . sexual abuse" of Karen by Jerry, such that Jake was " irreparably traumatized." Despite witnessing Jerry abusing Jake, and suspecting that Jerry was sexually abusing Karen as early as April 2009, Sherry did not report Jerry to OCS or law enforcement personnel; instead, she moved in with him and the children in June 2009.

Sherry retained physical custody of the children following Jerry's incarceration, and she lived with them in the Interior Alaska Center for Non-Violent Living shelter. In October 2009 OCS received a call from shelter personnel reporting that Jake was " acting out." OCS accompanied Sherry and Jake to the hospital, where she refused further treatment for him because he eventually calmed down.

But OCS was contacted by shelter personnel just a month later, this time because Jake was " out of control" with " some major behavioral issues." [13] Sherry admitted that she

Page 1271

could not meet Jake's needs on her own. This time, Sherry chose not to accompany six-year-old Jake to the hospital. Jake spent a night alone in the Fairbanks hospital before being admitted to North Star Behavioral Health in Anchorage, where he stayed for two months. OCS filed an emergency petition for adjudication and for temporary custody upon Jake's transfer to North Star. OCS also drafted a case plan that required Sherry to complete urinalysis, attend therapy, engage in sober support systems such as Alcoholics Anonymous, and undergo substance abuse evaluations.

At North Star Jake was diagnosed with " posttraumatic stress disorder, attention deficit hyperactive disorder, oppositional defiant disorder, and pervasive developmental disorder." Jake continued to act out, including kicking and cursing at the North Star staff, and he talked about killing himself. Sherry initially refused to approve medication for Jake and blamed others for his misbehavior.

In January 2010 Jake was transferred to the Residential Diagnostic Treatment Center in Fairbanks, and in March 2010 Sherry stipulated to Jake's adjudication and disposition as a child in need of aid due to abandonment, parental incarceration, and neglect.[14] Sherry also stipulated that OCS had been making reasonable reunification efforts, that custody with OCS was in Jake's best ...


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