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Bob S. v. State, Department of Health & Social Services

Supreme Court of Alaska

July 28, 2017

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

         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 ...


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