Appeal
from the Superior Court No. 3AN-13-00014 CN of the State of
Alaska, Third Judicial District, Anchorage, Andrew Guidi,
Judge.
J.
Adam Bartlett, Anchorage, for Appellant.
Aisha
Tinker Bray, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee.
Anita
L. Alves, Assistant Public Advocate, and Richard K. Allen,
Public Advocate, Anchorage, Guardian Ad Litem
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
BOLGER, Justice.
I.
INTRODUCTION
A
father appeals the superior court's order terminating his
parental rights to a daughter with sexualized and aggressive
behavior, arguing that he substantially remedied his prior
misconduct by completing outpatient treatment programs and
that the Office of Children's Services (OCS) violated its
obligation to provide active efforts to reunify the family by
discontinuing his visitation after his daughter returned from
an out-of-state treatment program. But the superior court
reasonably concluded that the visitation was not in the
child's best interest, that the father had failed to
comply with substance abuse testing and delayed a critical
sex offender risk assessment, and that it would cause serious
emotional damage to return the child to his home. We
therefore affirm the court's order terminating his
parental rights.
II.
FACTS AND PROCEEDINGS
A.
Background
Bob S.
is the father of Tonya, now ten.[1] Tonya is an Indian child as
defined by the Indian Child Welfare Act (ICWA) based on her
mother's affiliation with the Native Village of
Selawik.[2]
Tonya
was exposed to domestic violence at a very early age. She
lived with her parents and her mother's two young sons,
and the parents' relationship was abusive. In 2009 Bob
ended the relationship and moved into his own housing after
serving time for domestic violence against the mother. The
following year, three-year-old Tonya moved in with Bob
because her mother could no longer care for her.
Bob
enrolled Tonya in preschool in 2011. Her behavioral issues
appeared quickly. Tonya was hypersexualized and physically
violent; she was also defiant, and she made a teacher's
aide cry. She was kicked out of preschool and moved to
another program. She was referred to services and given daily
school monitoring and weekly counseling. But her sexualized
and aggressive behavior continued.
Tonya
later disclosed that her brothers had molested her when she
lived with her mother. Tonya's sexual reactivity was
further exacerbated by living with her father. Their
apartment had only one room, and Bob had sexual relations
with others in front of Tonya. Bob maintained that he thought
Tonya was asleep, but he later took responsibility and
apologized when Tonya brought the issue up repeatedly during
family therapy sessions.
B.
Initial OCS Involvement And Treatment
In
September 2012 OCS investigated a report of harm based on
Tonya's sexualized behavior at school. OCS's
involvement quickly escalated. In January 2013 OCS took
custody of Tonya after Bob left her with a neighbor and
disappeared. He later admitted that he had used crack cocaine
that evening and had continued to use until he resurfaced in
April 2013. OCS placed Tonya at a residential treatment
center in Oregon because in-state providers could not treat
her extreme behaviorial issues.
Tonya
stayed at the center from March 2013 to December 2014. Both
Tonya and eventually Bob made progress in their treatment
during this period. Tonya worked with therapist Kiva Michels
to address her rudeness, defiance, "poor boundaries,
" sexualized behavior, and reactivity to child abuse
trauma. She was eventually able to demonstrate long periods
of time with no sexualized behavior and no aggression.
Bob
completed the Father's Journey parenting course and
intensive outpatient substance abuse treatment. He also
completed urinalysis tests (UAs), moved into a two-bedroom
apartment, and sought support from his Father's Journey
case manager outside of class. After he relapsed on cocaine
partway through his treatment program, Bob completed an
additional therapy program as requested by OCS. He attended
weekly family therapy sessions via Skype, flew to Oregon for
quarterly visits, and spoke with Tonya on the phone.
During
the family sessions, Tonya was able to openly discuss her
father's behaviors that made her angry or anxious, and
Bob was able to openly discuss his treatment progress and
relapse. After observing them and establishing from Tonya
that Bob had never sexually touched her, Michels allowed
unsupervised visits and overnights at the center. But Michels
was concerned about Bob's ability to supervise Tonya
outside of a controlled environment. In August 2014 Michels
brought Tonya to Anchorage to visit Bob and noted several
instances where Bob missed a supervision issue. Tonya was
triggered into sexualized posturing by being around some of
the other neighborhood children, and twice Tonya and the
other children were alone in her room with the door shut.
Tonya
also had difficulty trusting Bob. Tonya had frightening
memories from when her parents were together, and she seemed
to worry that Bob's behavioral changes were not permanent
or that he might abandon her again if he found a girlfriend.
OCS also became concerned that Bob had started a relationship
with a woman with extreme anger issues and alcoholism who
posed a high risk to children. OCS warned Bob against having
unsafe people in his home, but Bob continued to contact
her.[3]
C.
Return To Alaska
Tonya
returned to Alaska in December 2014. OCS placed her with a
therapeutic foster parent and granted Bob unsupervised
visitation twice a week and on four holidays. The transition
went poorly.
Tonya's
behavior quickly escalated, and she made alarming statements
about the visits. She engaged in sexual and aggressive
behavior around other children and teachers, such as
inappropriate touching, grinding, and sexual remarks. She
"pretend[ed] to . . . pimp[] out her friends, " and
she was assaultive on the school bus. Tonya made excuses not
to visit Bob and disclosed that Bob left her in her room with
another child unsupervised, that "things needed to be
secret and kept in the family, " that Bob had people at
the house who were not supposed to be there, and that Bob was
having parties.
In late
January Tonya began to see Tracie Weeks for weekly cognitive
behaviorial therapy. Weeks also supervised two family therapy
sessions with Bob and Tonya before reporting that the family
sessions weren't going well and recommending that OCS
terminate Bob's visitation. Bob's final unsupervised
visit was in February. OCS supervised two more visits and
then cut off all contact based on Weeks's recommendation
and other concerns. Based on Tonya's disclosures, OCS
substantiated sexual abuse centered around Bob exposing her
to pornography.
OCS
considered returning Tonya to the Oregon treatment center,
but her behavior improved and she stayed in Alaska.
Tonya's behaviorial issues escalated later when the FBI
began meeting with her as part of an investigation into
possible human trafficking by Bob, but ceased after the
investigation ended.[4] By summer Tonya was able to attend a
normal summer camp without supervision. OCS case worker
Heather Rough spoke with Bob about completing a sex offender
risk assessment, and she grew concerned that he might have
resumed using drugs when she could not contact him to
schedule it. In June 2015 OCS changed the permanency plan to
adoption.
D.
Visitation Hearing
That
summer the court held a three-day hearing on OCS's denial
of visitation pursuant to Child in Need of Aid (CINA) Rule
19.1(a).[5] The court heard testimony from Michels,
Weeks, Rough, and two other witnesses and in October 2015
denied Bob's motion for visitation.
Michels
explained that Tonya used her behavior as her language, and
her behavior signaled that she did not feel safe. Although
Tonya and Bob had a clear bond, Tonya still had trust issues
with Bob, and Tonya didn't feel safe when she was left
alone with Bob without anybody close by. Michels thought that
Tonya's behavior might be related to the visits, not
necessarily because anything bad was happening, but because
Tonya had ongoing anxiety about being with her dad. Michels
thought it would be a "devastating setback" for
Tonya if she had to be hospitalized again, as Tonya would
think that she had failed.
Weeks
was qualified as "a[n] expert in counseling with
children and trauma victims" over Bob's objection to
her credentials. Weeks disagreed that there was a
"strong bond" between Bob and Tonya and testified
that Tonya did not express any deep emotion about missing
Bob. Based on Tonya's statements and Bob's alleged
sexual abuse, Weeks thought that Tonya's safety was in
question until the FBI investigation was complete. She
explained that Tonya could be triggered just by Bob's
presence.
Rough
explained that OCS's decision to terminate visitation was
not necessarily permanent, but she saw the "drastic
difference in [Tonya's] behaviors after the visitation
stopped." Still, OCS was making efforts towards
reunification by working on the sex offender assessment and
substance abuse concerns.
Pursuant
to CINA Rule 19.1(a), the superior court found that OCS
proved, by clear and convincing evidence, that contact with
Bob was not in Tonya's best interests. The court
explained that it "does not make this finding lightly,
" but it could not ignore Tonya's extreme behavior
and its correlation with Bob's visitation. It was
"remarkabl[e]" that after six months of no contact,
Tonya was able to attend summer camp without supervision. The
court thought there was no doubt that Bob and Tonya loved
each other, and "[a]t some point, contact will likely
resume." But Weeks would be the best person to make that
recommendation.
E.
Termination Trial
Contact
never resumed. Tonya asked her treatment team what was going
on and why had the visits stopped, but the FBI instructed
them not to discuss Bob with her, and she eventually stopped
asking about her father. Meanwhile, Bob made little progress
on his case plan. He was noncompliant with UAs. He started
the sex offender risk assessment paperwork in November 2015
and did not complete it until April 2016. The evaluator
concluded that sex offender treatment was not ...