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Joy B. v. State, Department of Health & Social Services

Supreme Court of Alaska

October 26, 2016

JOY B., 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, Nos. 3AN-14-00082/83 CN Third Judicial District, Anchorage, Erin B. Marston, Judge.

          Olena Kalytiak Davis, Anchorage, for Appellant.

          Mary Ann Lundquist, Senior Assistant Attorney General, Fairbanks, and Craig W. Richards, Attorney General, Juneau, for Appellee.

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

          OPINION

          STOWERS, Chief Justice.

         I. INTRODUCTION

         A mother and her eight children were routinely and severely abused by the father of the younger children while living in another state. The mother fled to Alaska with four of her daughters in 2013. The family's life remained chaotic and sometimes violent, with frequent altercations in the home, and the daughters were often out of control. After the Office of Children's Services (OCS) obtained temporary custody of the children, the mother resisted OCS's efforts to reunify the family and refused to participate in supervised visits with her daughters. She left Alaska in October 2014, maintaining only sporadic contact with her daughters, and she has not returned.

         After a trial was held, the superior court terminated the mother's and father's parental rights with respect to the younger two daughters, finding that the children were in need of aid due to abandonment and other statutory factors, that the parents had not remedied the conduct that made the children in need of aid, that OCS had made reasonable efforts toward reunification, and that termination was in the daughters' best interests. The mother appeals the termination of her parental rights but does not appeal the superior court's finding that her children were initially in need of aid. We affirm.

         II. FACTS AND PROCEEDINGS

         A. History Of Extreme Domestic Violence Committed By Drake In Ohio

         Joy B.[1] was married to and lived with Drake B. in Ohio for over 20 years. During this time Joy and Drake had two sons and four daughters together. Joy also had at least two daughters from a previous relationship, who lived with the family for part of this time period. The parties to this case do not dispute the basic facts regarding the family's history while Joy and the children were living with Drake in Ohio.

         Drake routinely committed extreme torture and abuse against Joy and the children. For instance, Drake repeatedly used stun guns on the children. On one occasion Drake had to resuscitate one of the sons after he became unconscious from being shocked with a stun gun. Drake would also strip the children's clothes off and whip the children with ropes and extension cords, after rubbing them with oil to minimize scarring from the abuse. Drake would lock the children in their rooms or in confined spaces such as large cardboard boxes for up to a day at a time, with limited food and water, as a form of punishment. There was at least one instance when Joy tried to intervene to protect the children, when Drake had hung one of the sons up behind a door, but Drake threatened to make the situation "worse" if Joy did anything to protect the son. Drake also abused animals in front of the children.

         Drake regularly abused Joy, and the children witnessed much of this domestic violence. In addition to routine physical fighting between Drake and Joy, Drake engaged in extreme torture on several occasions. On one occasion, while Joy was pregnant, Drake handcuffed her in her room and starved her until she had a miscarriage. On another occasion, Joy was beaten severely in her room while the children were locked in another room listening to their parents' screams. Once the children were released, they witnessed Drake pouring lighter fluid on Joy and threatening to light her on fire. After the incident, one of the sons attempted to help Joy by bringing her pain relievers, and the father pulled and pinched his ears and threatened to kill him.

         Drake also taught the children to berate Joy and to treat her in the same way that he treated her. During some of this time, Drake was engaged sexually with Billie, one of Joy's daughters from a previous relationship. At times Billie appeared to act as the lead female in the household, and she sometimes helped Drake abuse Joy and the other children.

         Another one of Joy's daughters from a previous relationship, Tanya, also lived with the family for a time. When she was 11, Tanya reported to Ohio Child Protective Services that Drake had raped her. Child Protective Services removed Tanya from the home, and Joy relinquished her parental rights to Tanya. For the children who remained in the home, Tanya's removal was used as a cautionary example of what would happen if the children reported any of the abuse they were experiencing; the children were admonished not to break up the family by speaking to anyone about their abuse. Drake also expressly threatened to kill the children if they talked to Child Protective Services, and the children would hide when Child Protective Services came to the house. The children were forced into isolation in other ways as well: they were home-schooled, and they were not allowed to go anywhere or have friends outside the family.

         To protect her children from Drake's continuing abuse, Joy fled to Alaska in October 2013 with four of her daughters, Abby (age 16 at the time), Amy (age 14), Alyse (age 10), and Arianna (age 8). Joy left her two sons with Drake because she believed they were "too far gone" and had been trained to abuse her in the same way that Drake did.

         B. Continued "Chaos" At Joy's Home In Alaska

         The girls' lives improved once they arrived in Alaska, as they were no longer subjected to Drake's extreme physical abuse. Joy housed, fed, and clothed the girls. Yet their home life continued to be chaotic, with verbal and physical fights between some of the girls and Joy. And both Joy and her daughters experienced significant emotional and psychological challenges, including post-traumatic stress disorder (PTSD) and severe emotional disturbance, as a result of the trauma they had experienced.

         Testimony in the record indicated that there was general "chaos in the home" during this time, including "arguments [that] would . . . end in physical altercations." The children would sometimes "manhandle" their mother, and Joy acknowledged that they were out of control, especially the older two. The children apparently did not respond to Joy as an authority figure. The Anchorage Police Department was called to respond to altercations in the home on several occasions. In one of these, Amy was arrested for assaulting Alyse and was taken to a Division of Juvenile Justice facility for a time. Abby also reported that Joy grabbed and slapped her three or four times, generally in the presence of the younger girls.

         Although most of the reports of physical fighting involved the older two girls, Alyse and Arianna also struggled and exhibited disturbing behaviors. Testimony indicated that Alyse and Arianna sometimes watched pornography and engaged in inappropriate sexual behavior in the home. They engaged in animal abuse on several occasions, including intentionally killing their pet hermit crabs. Alyse and Arianna also continually witnessed the chaotic environment and abuse in the home.

         Joy was concerned about the level of stress the children were subjected to, and she initially sought treatment for one of the older daughters at North Star Hospital, a behavioral health facility. For a time, the entire family was voluntarily being seen by a counselor at Anchorage Community Mental Health. The older two daughters were frequently in and out of psychiatric treatment facilities, and Alyse also spent time at North Star Hospital in November 2013. Although Joy was initially supportive of some treatment options for her daughters, she later began to resist treatment for the girls and indicated that she did not believe in treatment or medication other than cannabis.

         In the intake interviews and ongoing counseling at many of these treatment facilities, the girls revealed their history of domestic violence and the continuing conflict in their home. These disclosures and some of the police calls triggered mandatory reporting requirements, and OCS ultimately received at least 14 reports relating to the family. OCS first became actively involved with the family in 2014.

         C. OCS Involvement And Probable Cause Hearings

         By early 2014 OCS had compiled a file and assigned a caseworker to the family. The OCS caseworker first interviewed juvenile probation officers who had come in contact with the family, and she began interviewing the girls directly in early February 2014. Also in early February 2014, Drake discovered that Joy and the daughters were in Alaska, and he filed a petition for custody of all six children in county court in Ohio.

         In response to Drake's petition and other concerns regarding the children's safety, OCS filed an emergency petition for temporary custody and adjudication of Child in Need of Aid status with respect to all four girls on February 27, 2014. OCS's petition recounted Abby and Amy's disclosures of severe abuse in Ohio as well as reports of ongoing turmoil in Joy's home in Alaska, discussing Abby and Amy's involvement with the Division of Juvenile Justice and noting that "the four girls are all out of control, always yelling, cursing and physically fighting with each other and the mother." The petition sought an order committing the four girls to State custody.

         The superior court held a hearing on the emergency petition on February 28, 2014. The court continued the temporary custody hearing but issued an interim order granting temporary State custody of Abby and Amy. The court did not grant temporary custody of Alyse and Arianna at that time. Accordingly, Abby and Amy were removed from Joy's home on February 28, while Alyse and Arianna remained in the home.

         As OCS became more involved with the family, Joy became increasingly antagonistic to OCS's efforts. In developing a case plan for the family, OCS requested that Joy complete a mental health assessment that would allow OCS to evaluate her needs and plan accordingly, but Joy refused to complete the assessment. Joy also repeatedly refused to allow OCS into her home to conduct safety checks on Alyse and Arianna, even after OCS obtained a court order requiring her to do so. Joy began blocking Amy's access to inpatient treatment at several behavioral health facilities. Altercations within the home continued, and at one point OCS received a report that Joy had hit Amy with a belt and a white board.

         In response to this incident and Joy's lack of cooperation, OCS filed an amended emergency petition on June 23, 2014, again seeking State custody of all four daughters. The petition recounted Joy's obstruction of OCS's efforts and the recent altercation with Amy. Regarding the younger daughters, the petition alleged that "[Alyse] and [Arianna] are the most vulnerable in the home. They b[ear] witness to the chaotic environment and ongoing abuse within the home. The violence in the home is unmanageable and the younger children are at significant risk of being injured themselves, if not already." The petition explained OCS's view that Joy was "not in a healthy position to make safe, reasonable parenting decisions for any of her children at this point" and that, in addition to refusing the mental health assessment, Joy "believe[d] parent coaching or instructions [were] meaningless for her." Finally, the petition noted that Joy had "declared to the court . . . that she would rather have OCS remove all of her children from her home, than . . . allow OCS into her home."

         As a result of this amended petition and evidence presented at the temporary custody hearing, the superior court issued a probable cause finding and temporary custody order effective June 23, 2014. The court concluded that probable cause existed to believe that all four daughters were children in need of aid under Alaska Statute 47.10.011. It also found that placement in Joy's home was "contrary to the welfare of each child, " finding that "[t]he children remain[ed] at risk of substantial physical abuse by their mother and by the failure of their mother to supervise them adequately." The court noted that Joy "used threats of sending the children back to their father and told [Abby] that the family would return to Ohio as soon as OCS was out of the picture." The court cited some of OCS's reunification efforts and found that these "efforts ha[d] been thwarted by the father's disappearance and the mother's stonewalling."

         Alyse and Arianna were removed from Joy's home on June 23, 2014, the final day of the temporary custody hearing. Amy, Alyse, and Arianna were initially placed in a foster home together. Abby already was living in a therapeutic foster home and would continue to live in foster care through the termination trial, by which time she had turned 18. OCS developed a case plan for the family, but Joy did not want to participate in the case plan. Joy also continued to refuse a mental health assessment, which OCS maintained would allow the department to adjust the case plan according to her needs.

         OCS nonetheless continued to reach out to Joy in numerous ways. As part of its efforts to improve her parenting capacity in the wake of the trauma she had suffered, OCS provided Joy with therapeutic recommendations including counseling services and parenting classes. OCS gave Joy a copy of the case plan for the family, which included addresses and phone numbers for specific service providers. The case plan stated that the permanency goal for each child was reunification with Joy. OCS did not specifically refer Joy to a domestic violence victims assistance program, but according to OCS, other recommended therapeutic options, such as Anchorage Community Health Services, offer domestic violence victims services; Joy refused to engage with them.

         OCS held an estimated 40 to 50 team decision meetings with Joy and her daughters in an effort to implement the case plan and help the family make progress toward reunification. Joy usually attended telephonically rather than in person, even when she was in Anchorage. Joy frequently yelled at the OCS representatives during these meetings and refused to cooperate with the case plan; by one caseworker's estimate, Joy yelled roughly 70% of the time during her interactions with OCS. Joy repeatedly indicated that she would rather relinquish her rights to her children than work with OCS.

         Although Joy was prohibited from having unsupervised contact with the girls, she sometimes spoke with the girls on the phone without OCS supervision. In July 2014, the girls secretly arranged to meet Joy at the library after their foster mother dropped them off there. There was a confrontation between Joy and the foster mother, and when the foster mother got the girls in the car and drove away, the girls jumped out of the car. Alyse and Amy were found and brought to North Star Hospital, where they remained for about a month. Although Abby visited her sisters in the hospital, Joy did not visit them during the time they were there because she refused to have her visits supervised. After this incident, OCS decided that Amy, Alyse, and Arianna should no longer be placed in the same foster home, so OCS found new foster homes for Alyse and Amy.

         In October 2014 Joy left the state; she has not returned, nor has she seen her children since she left. Joy initially told her daughters that she was leaving to attend a family gathering and would be returning to Alaska, but she later told them that she would not be returning. Joy did not tell OCS that she was leaving. Joy left her home in the care of a man who contacted the girls and threatened to kill their pet rabbit if they did not obey him, although the girls were living in foster homes at the time. Also in October 2014, OCS obtained a court order to compel Joy to comply with the psychological evaluation that OCS had requested, but Joy had already left the state by the time the order was issued.

         OCS made an effort to stay in contact with Joy after she left the state. At first Joy lived with family and friends, and occasionally in hotels, in several different states. By the fall of 2015 Joy was homeless. Although she was hard to get in touch with, the family's OCS caseworker continued to talk with Joy by phone when possible. In addition to keeping Joy up to date on her daughters' placements and treatments, the caseworker also tried to "problem solve" with Joy to help her get housing. OCS learned that Joy had completed a psychological evaluation in another state as part of the process of seeking shelter, but OCS was unable to obtain a copy of this evaluation until Joy's lawyer provided it roughly a month before the termination hearing. According to OCS, this evaluation was quite different from the mental health assessment that OCS had requested while Joy was in Alaska, as it did not address her parenting capacity, the children's family history, or OCS's involvement with the family.

         At one point after Joy had left the state, the OCS caseworker talked with Joy about trying to find a way for her to see her children. Although OCS could not pay for Joy's permanent relocation to Alaska, OCS took the unusual step of purchasing plane tickets for Joy so that she could come visit her daughters here. Joy initially confirmed that she wanted the tickets, but once OCS had purchased them, Joy's lawyer contacted OCS to say that the dates would not work for Joy. Neither Joy nor her lawyer responded to OCS's subsequent request that Joy provide different dates so that OCS could change the tickets and allow Joy to visit her children.

         Meanwhile, the girls were somewhat more stable after Joy left Alaska. Although Joy initially had occasional supervised telephonic visits and some unsupervised contact with her daughters, by the summer of 2015 she was hard to get in touch with and had less frequent contact with the girls. Amy continued to struggle more than the other girls, but both Alyse and Arianna were making significant improvements and were doing well in their foster homes. Alyse indicated that she wanted to be adopted by her foster mother. Although Arianna's foster home was not considered a potential adoptive home, Arianna was doing well there, and she had not talked to Joy for several months by the time of the termination hearing in fall 2015. There remained a strong bond between the sisters; the girls indicated that they missed their family and still loved their mother, but they could also articulate to OCS caseworkers and other counselors "why it[ was] not safe to be in their parents' home."

         D.Termination ...


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