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Chloe W. v. State, Department of Health & Social Services, Office of Children's Services

Supreme Court of Alaska

November 7, 2014

CHLOE W., 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, First Judicial District, Juneau, Louis J. Menendez, Judge. Superior Court No. 1JU-10-00053 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.

OPINION

FABE, Chief Justice.

I. INTRODUCTION

Chloe W.[1] appeals the termination of parental rights to her three-year-old son Timothy, an "Indian child"[2] under the Indian Child Welfare Act of 1978 (ICWA). She claims the trial court erred by: (1) relying too heavily on a stipulation filed after the close of evidence, which Chloe contends was the result of ineffective assistance of counsel; (2) finding that Chloe had not remedied the conduct that placed Timothy at risk; (3) finding that OCS made active efforts to reunify the family; and (4) finding that terminating Chloe's parental rights was in Timothy's best interests. Because the trial court's findings are amply supported by the record and its legal rulings are correct, we affirm the trial court's order terminating Chloe's parental rights to Timothy.[3]

II. FACTS AND PROCEEDINGS

Chloe lives in Juneau and is a member of the Tlingit and Haida Tribes of Alaska. As a child she suffered physical, emotional, and sexual abuse, as well as abandonment. Chloe was reported to have learning disabilities at school, and she dropped out in the eleventh grade. She worked sporadically over the years but has been unemployed since 2004. At age 19 Chloe lost her first child shortly after his birth due to a congenital heart defect and premature lung development. She started to take Xanax in 2008, when she was prescribed a high dosage for anxiety, in addition to Abilify and Neurontin for mood stabilization. In August 2009 Chloe began treatment with psychiatrist Dr. Paul Topol, who diagnosed her with depression and substance abuse. Dr. Topol continued the Xanax prescription and, because Chloe told him she was addicted to "pain killers, " he prescribed Suboxone, an opiate maintenance drug. When Chloe became pregnant with Timothy, Dr. Topol continued her prescriptions to avoid serious health risks. Dr. Topol treated Chloe monthly until August 2013.

Timothy was born prematurely on August 1, 2010, at Alaska Native Medical Health Center in Anchorage. Timothy tested positive at birth for benzodiazepines, consistent with Xanax. When health professionals noticed that Chloe was lethargic and drowsy, they called OCS because they were concerned that she might drop the baby. Chloe signed an OCS Protective Action Plan. OCS contemplated placement of Timothy in a relative's home, and ultimately, Chloe and Timothy moved in with the Campbells, Chloe's aunt and uncle who live in Juneau.

On August 17 OCS filed a Petition for Adjudication of Child in Need of Aid and for Temporary Custody, based on reports that Chloe was uncooperative, heavily medicated, and unable to tend to Timothy's basic needs. Meanwhile, Timothy was experiencing symptoms of withdrawal, such as elevated respiration, high temperatures, and a mild increase in muscle tone. The court awarded OCS temporary custody of Timothy and continued his placement with the Campbells. But the relationship between Chloe and the Campbells became strained and adversarial, so Chloe moved into public housing.

On September 25 Juneau police responded to a report that Chloe was suicidal. Chloe's visitation was reduced due to further reports of drowsiness and impairment from Timothy's doctor, OCS workers, and Juneau police. OCS recommended medical detoxification, working with Dr. Topol on mental health alternatives to medication, and various outpatient counseling. On November 2, due to lack of progress, OCS changed Timothy's permanency plan to adoption. On December 14 Superior Court Judge Patricia A. Collins adjudicated Timothy a child in need of aid under AS 47.10.011(6), (9), and (10)[4] but concluded that adoption would not be appropriate as a permanency goal after only 90 days, so the goal was shifted to reunification.

At a disposition hearing on March 30, 2011, OCS stated that it had stopped receiving reports of drowsiness, and Chloe's attorney told the court that Chloe had weaned herself off Xanax and was following her case plan. The court continued the permanency goal of reunification and granted OCS continuing custody for up to two years. But in August and September Chloe again showed signs of being intoxicated or heavily medicated. OCS continued to work with Chloe to comply with her case plan. Concerned that Chloe's home was unsanitary, a social worker drove Chloe to pick up a carpet cleaner and purchased and delivered cleaning supplies to her home. Because Chloe would not allow OCS to inspect her home, OCS would not supervise in-home visits.[5]

On April 4, 2012, OCS filed a Petition for Termination of Parental Rights, alleging that Timothy was not safe with Chloe because of her recurrent, severe depression, borderline personality disorder, and pain-pill-seeking behavior. After the termination trial, held in August 2012, Superior Court Judge Louis J. Menendez denied the petition. The superior court found that Timothy remained a child in need of aid under AS 47.10.011(10) and AS 47.10.011(11).[6] But the superior court reasoned that termination was not in Timothy's best interests: Chloe had been a consistent part of Timothy's life, Timothy was a healthy child, and there was reason to believe that Chloe could continue to stabilize and grow as a parent and that with careful planning and counseling, Timothy could transition into Chloe's home. The superior court further found that OCS had not presented evidence beyond a reasonable doubt that Timothy was likely to suffer serious emotional or physical harm, and that "renewing in-home visitation and parenting instruction, continuing mental health therapy for [Chloe, ] and a gradual and specific transition plan towards reunification with [Timothy] may obviate the need for termination." The superior court fashioned another plan for the parties and committed to conducting monthly review hearings to monitor Chloe's progress in meeting the requirements of her detailed case plan.

In May 2013 OCS social worker Carol Graham filed a Second Petition for Termination of Parental Rights, asserting that despite her sustained and concerted efforts to engage Chloe in the case plan to facilitate reunification, Chloe had not made sufficient progress. The petition alleged that Chloe continued to be evasive about which medications she was taking and to exhibit signs of drug-seeking behavior. OCS submitted evidence that Chloe lacked the skills necessary to parent adequately and had not participated in the recommended parenting classes. OCS submitted to the court a psychological evaluation of Chloe, prepared by clinical psychologist Dr. Elisa Youngblood, based on her meetings with Chloe in March 2013. Dr. Youngblood's report stated that Chloe was "likely to be irresponsible and engage in antisocial behavior" and "to rebel against authority, have turbulent family relationships, and blame others for her problems." It was Dr. Youngblood's impression that Chloe "ha[d] relapsed on taking too much prescribed medication to the point that her parenting would be significantly impaired and the safety of her son would be jeopardized." Dr. Youngblood recommended medical detoxification and then, due to the severity and complexity of Chloe's substance abuse history, full participation in an inpatient or residential treatment program for one year. Chloe did not participate in the recommended treatment.

The second termination trial took place in July 2013. The superior court incorporated the prior proceedings and heard additional testimony from a number of witnesses. Chloe testified about her desire to care for her son, her work with parenting coach Martin Tyska of Catholic Community Services, and the efforts she made to improve her life and make sacrifices for her son. She discussed her mental health treatment and medications, explaining that her speech sounds slurred when she is sleep deprived. Dr. Youngblood, Tyska, and OCS representatives Carol Graham and Kristina Weltzin testified about occasions in 2013 when Chloe was inappropriately hostile, appeared intoxicated, or otherwise showed signs of a dependence disorder.

Dr. Topol testified that he had treated Chloe continuously since 2009. He discussed Chloe's mental health issues, as well as her treatment and medication management. Dr. Topol stated that, if taken as prescribed, Chloe's medication would not cause someone to be overly sleepy or lethargic or to slur her speech. Dr. Topol testified that while Chloe was continuing to make progress as an outpatient, she still struggled with impulsivity and anxiety, and more intensive therapy would help.

In August 2013 OCS filed a motion to reopen the testimony under Alaska Civil Rules 59(a) and 60(b)(2), based on new evidence that Dr. Topol had discharged Chloe from treatment because she had been dishonest with him and was using duplicate prescriptions. Rather than taking live testimony from Dr. Topol, the parties entered a stipulation about Dr. Topol's new information, adding that Chloe denied any wrongdoing.

In September 2013 the trial court granted the second petition to terminate Chloe's parental rights to Timothy, based on its determination that Chloe was in relapse and thus presented a serious, substantial risk that Timothy would be exposed to danger. The superior court noted that multiple sources reported that Chloe continued to misuse her medications, missed numerous appointments, refused to attend the recommended treatment, and appeared to be receiving prescriptions from separate sources. The superior court emphasized that Chloe needed but refused inpatient treatment and that her personality disorder likely would interfere with her ability to meet Timothy's needs. The superior court remarked that it had been a close call whether termination would be in Timothy's best interests after the first trial, but it was no longer a close call. The superior court issued written findings and conclusions and ordered termination of Chloe's parental rights and responsibilities to Timothy. It found clear and convincing evidence that Timothy was a child in need of aid under AS 47.10.011(10) and AS 47.10.011(11), that Chloe had not remedied the conduct or conditions that put Timothy at substantial risk of harm, and that OCS had made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the family. The superior court further found beyond a reasonable doubt, relying on the testimony of qualified experts under ICWA, that returning Timothy to Chloe likely would result in serious damage to Timothy. The court concluded that Timothy's best interests would be promoted by terminating Chloe's parental rights because there was severe danger in moving him back and forth, and he needed and deserved a permanent and stable placement, which could not be achieved by continuing Chloe's parental rights. Chloe appeals.

III. STANDARD OF REVIEW

Before terminating parental rights under ICWA and the Child in Need of Aid (CINA) statutes and rules, the superior court must find by clear and convincing evidence that the child has been subjected to conduct or conditions described in AS 47.10.011;[7] that the parent has not remedied, or has not remedied within a reasonable time, the conduct or conditions in the home that place the child at substantial risk of physical or mental injury;[8] and in the case of an Indian child, that active but unsuccessful efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.[9] ICWA also requires that the trial court find, "by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent . . . is likely to result in serious ...


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