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Moira M. v. State

Supreme Court of Alaska

March 18, 2016

MOIRA M., Appellant,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

Appeal from the Superior Court No. 3PA-13-00106 CN of the State of Alaska, Third Judicial District, Palmer, Vanessa White, Judge.

Rachel Cella, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

Kathryn R. Vogel, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee.

Rachel Levitt, Assistant Public Advocate, Palmer, and Richard Allen, Public Advocate, Anchorage, Guardian Ad Litem.

Before: Stowers, Chief Justice, Fabe, Maassen, and Bolger, Justices. Winfree, Justice, not participating.

OPINION

BOLGER, Justice.

I. INTRODUCTION

The superior court terminated a mother's parental rights based on evidence that she failed to remedy her substance abuse and the danger this conduct posed to her child. On appeal the mother first argues that the superior court erred when, prior to the termination trial, it denied her request for a visitation review hearing. She also argues that, at the termination trial, the superior court erroneously reduced the Office of Children's Services's (OCS) burden to make reasonable reunification efforts after she moved out of state. But the record and our case law support the superior court's decisions. The superior court denied the visitation review hearing because OCS responded to the mother's motion for a hearing by issuing a family contact plan that appeared to fully address her concerns. And the superior court's analysis of OCS's efforts properly considered the specific facts of her case. Accordingly we affirm the superior court's decision to terminate parental rights.

II. FACTS AND PROCEEDINGS

A. Facts

Abel, born in September 2012, is the son of Moira and Sam.[1] Sam died when Abel was three months old. After Sam's death, Moira and Abel moved to Alaska with Moira's boyfriend, Jarvis.

In the early morning hours of August 29, 2013, Palmer police officer James Gipson noticed Moira walking alone along the road. After Moira declined Gipson's offer of a ride, Gipson continued driving until he noticed a car parked in a gravel lot. Gipson approached the car, discovered it was unlocked, and found an unattended infant in the back seat. While Gipson was waiting for backup assistance, Moira entered the lot and identified the car as belonging to her and the infant as her child. Gipson noticed signs of impairment in Moira's behavior and notified another officer to contact Moira while Gipson remained with the infant. Moira was taken into custody, and while in custody she admitted to using cannabis, asserted that she had used methamphetamine for the first time the night before, [2] and admitted that she had driven with Abel after using these drugs. Moira was ultimately charged with endangering the welfare of a child in the first degree, driving on a suspended license, driving under the influence, and misconduct involving a controlled substance.[3] After taking Moira into custody, the police released Abel into the custody of Jarvis's mother.

Based on this incident, the police sent OCS a protective services report regarding Abel, and OCS immediately began an investigation. OCS was initially unable to locate Moira or Abel for several days. Upon finding them, OCS took Abel into emergency custody, and the superior court granted OCS temporary custody. Because Moira did not want Abel placed with relatives outside of Alaska, Abel was placed in a foster home with a non-relative. OCS immediately began offering services to Moira: it scheduled urinalyses (UAs) and hair follicle tests for controlled substances for both Moira and Abel, arranged visitation, and offered to provide transportation to these services. Though Moira missed her first visit with Abel, she did meet with an OCS caseworker and submitted to UAs. The UAs came back positive for marijuana once in September 2013 and twice in October 2013.

OCS also referred Moira to the Akeela Assessment Center where she took a substance abuse assessment in September 2013. Moira reported that she had a history of using alcohol, marijuana, hallucinogens, amphetamines, and opiates. The substance abuse assessment concluded that Moira "exhibited a maladaptive behavioral pattern of dependence for cannabis, leading to clinically significant impairment or distress, " and recommended outpatient services and ongoing UAs.

In October 2013 Moira was admitted to the Akeela Family Program, an outpatient counseling program. About one month later, OCS and Moira developed a case plan that required Moira to comply with the recommendations of her substance abuse assessment, submit to UA testing, participate in a psychological evaluation, attend parenting classes, and follow the visitation plan developed by Alaska Family Services. Moira participated in the Akeela Family Programuntil January 2014. During this period, she attended regular counseling sessions at Akeela, complied with regular UA testing, took parenting classes, and took a behavioral health assessment at Mat-Su Health Services. Moira also consistently visited Abel, generally multiple times per week, through March 2014. During these visits Moira exhibited many positive parenting attributes and few negative attributes, and she was able to meet many of the assigned parenting goals.

Despite Moira's initial progress toward her case plan goals, she also struggled. She admitted to using spice during this time, and she tested positive for opiates in November 2013 and for both methamphetamine and opiates in December 2013. As a result, her recommended drug treatment gradually increased from outpatient services to residential care. But after late December 2013, Moira failed to return to treatment at Akeela, and the next month she was discharged after reporting that she would seek outpatient treatment with Alaska Family Services.

Moira also began failing to maintain regular visitation with Abel. In spring 2014 she began attending fewer visits with him. Because Moira did not inform Alaska Family Services about her absences ahead of time, it periodically had to stop and re-start visitations. OCS also struggled to maintain contact with Moira, despite attempts to visit Moira's residence, calls to different phone numbers, and visits to her boyfriend's residence.

Moira's problems with law enforcement also continued. As a result of her August 2013 arrest, Moira was sentenced to 15 days in jail with three years probation and was ordered to participate in the Alcohol Safety Action Program as a probation condition. But she failed to complete that program, and the State accordingly moved to revoke her probation. In June 2014 she was arrested for shoplifting. The next month she was arrested on an outstanding warrant for violating her probation ...


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