from the Superior Court No. 3 AN-14-00311 CN of the State of
Alaska, Third Judicial District, Anchorage, Gregory Miller,
Kalytiak Davis, Anchorage, for Appellant.
T. Jones, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellee.
F. McDermott, Assistant Public Advocate, and Chad Holt,
Public Advocate, Anchorage, for Guardian Ad Litem.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
superior court terminated a father's parental rights to
his son, finding that the child was in need of aid because of
abandonment, neglect, and the father's incarceration and
that the Office of Children's Services (OCS) had
satisfied its statutory obligation to make reasonable efforts
to reunify parent and child. The father appeals the
termination decision, arguing that these findings are
unsupported by the evidence.
agree with the father. The record shows that he initiated
efforts to visit the child, who was already in OCS custody,
as soon as he learned of his possible paternity; that during
the father's subsequent incarceration he had visitation
as often as OCS was able to provide it; and that OCS never
created a case plan to direct the father's efforts toward
reunification. We conclude that it was clear error to find
that the child was in need of aid and that OCS made
reasonable efforts toward reunification, and we therefore
reverse the termination decision.
FACTS AND PROCEEDINGS
and Evangeline G. had an "on and off relationship for
nearly a decade and are the parents of Darrence G., born in
April 2014. OCS's concerns about Darrence began
before he was born: a hospital social worker contacted OCS in
January 2014 when Evangeline, then pregnant, tested positive
for cocaine and THC. On the day Darrence was born,
Evangeline, against medical advice, took him from the
hospital after refusing any laboratory work on herself or the
baby. But the hospital tested the umbilical cord blood and
found it positive for cocaine and THC. These test results,
and Evangeline's failure to return for scheduled
pediatric appointments, prompted the hospital to contact OCS.
resisted OCS's efforts to investigate its concerns, but
OCS prepared a series of safety plans that required, among
other things, that Evangeline submit to random urinalysis
(UA) testing. She failed to cooperate during her first UA
appointment and missed the next two months of appointments.
She did, however, bring Darrence in for a hair follicle test
in June, which was positive for methamphetamine.
receiving the test results, OCS attempted to take emergency
custody of Darrence. But Evangeline refused to disclose the
child's whereabouts despite a search warrant, a court
order, and a writ of assistance. It was about ten days later
that the police found Darrence and arrested Evangeline on
charges of custodial interference. OCS authorized both a UA
and a hair follicle test on the child, getting positive
results for a variety of illegal substances.
developed a case plan for Evangeline, but she failed to
follow it. In September she was sentenced on a theft charge
and served time in prison and a halfway house; she was
released in early December 2014.
had been unaware of Evangeline's pregnancy until that
September. He found out about Darrence's existence after
seeing Evangeline on television and talking with her mother.
At the time, Duke was a single father and the primary
caregiver for four of his eight children, three of whom had
been born prematurely and had special needs. In September,
"trying to get involved immediately," Duke went to
the OCS office, announced that he could be Darrence's
father, and asked for paternity testing. He later testified
that he sat in OCS's lobby with his daughter for three or
four hours before he left, "went to the child support
office," and "ask[ed] for a DNA test" there.
OCS later sent Duke the paternity paperwork.
taking the paternity test, Duke met with Evangeline to
"talk about the child" and the ongoing OCS
proceedings. When Evangeline showed him pictures of Darrence,
Duke felt immediately that "[t]his is one of my
children." He and Evangeline went to the Bureau of Vital
Statistics and "created [Darrence's] birth
certificate together ... [b]ecause [Duke] knew that
[Darrence] was [his] son."
October OCS placed Darrence with Siri M. Evangeline knew Siri
before OCS took custody, and it was at her request that,
after OCS took custody, Siri got an emergency foster care
license so she could be considered as a placement for
Darrence. Darrence remained in Siri's care throughout the
early November Duke went to OCS's offices and completed
the paternity testing. Two weeks later, the test results
confirmed he was Darrence's father.
time OCS had received at least two protective services
reports involving Duke and his other children, in October and
November 2014, and OCS was conducting a safety assessment of
his home. As of January 2015, OCS had received five
protective services reports concerning Duke and three of his
children, had "had at least five to ten
conversations" with Duke about them, and was still
gathering information about Duke's family. The protective
services reports involved possible educational neglect,
medical neglect, Duke's angry outbursts with school
staff, and one child's behavior in school. While the
reports were never substantiated and OCS did not have any
CINA cases involving Duke's other children, OCS put off
deciding whether to place Darrence in Duke's care.
asked OCS for visitation with Darrence for Thanksgiving 2014.
OCS denied his request, apparently because of the outstanding
protective services reports. Duke met Darrence for the first
time in December, when he accompanied Evangeline to one of
her scheduled visits at OCS's offices.
adjudication trial for Darrence was initially set for
December 2, 2014, but the court granted a brief continuance
at Evangeline's request. Duke appeared in court that day;
he acknowledged receiving OCS's amended petition for
adjudication, said he intended to participate in the
proceedings, declined representation, and said he was
prepared to go forward.
The Adjudication Trial
adjudication trial occurred over six days between December
2014 and February 2015. Both Evangeline and Duke represented
themselves. Duke attended only four days of the trial,
showing up late each time; he concedes that he "took a
back seat" role during this proceeding.
evidence at the adjudication trial mostly concerned
Evangeline. She called Duke as a witness, however, and he
testified that OCS had ignored his overtures, that
Darrence's caseworker failed to contact him after
confirming his paternity or establish a visitation plan
despite promising to work on it, and that he believed OCS had
no intention of reunifying him with his son.
superior court found by clear and convincing evidence that
Darrence was a child in need of aid due to abandonment,
physical harm, neglect, and substance abuse. The court also
found that OCS had made reasonable but unsuccessful efforts
to prevent Darrence's removal from the family home.
Though stating that OCS's efforts had been unsuccessful
"through no fault of OCS but rather through
[Evangeline's] and [Duke's] actions and
inactions," the court made no specific findings about
Duke; its findings focused on the conduct of Evangeline.
The Period Between Adjudication And Termination
the next few months, Duke was able to visit with Darrence
several times. While only one visitation was "sanctioned
and coordinated via OCS," Duke had at least two others
in December and January, when he accompanied Evangeline to
her scheduled visits at OCS's offices. In February 2015
Duke asked Siri if he could have an in-home visit, but Siri
told him he would "have to coordinate that with
April 2015 Duke was arrested on charges of first-degree
sexual assault stemming from a 2011 accusation by the sister
of his deceased fiancee. OCS took custody of the four
children who were then living with him. Unable to make bail,
Duke remained incarcerated until after his trial in April
2018, when he was acquitted.
March 2016 Darrence received a neurodevelopmental evaluation
which indicated that he was autistic; delayed in his verbal,
social, and fine motor skills; and needed "a stable,
able, attentive, long-term home environment." It is
uncontested that Darrence had significant needs and that his
foster mother Siri and her family provided him with more than
adequate care during his placement with them.
his arrest Duke asked OCS to place Darrence and the four
children in his household with his sister, Natalya S., who at
the time was a licensed foster care provider. OCS denied the
request as to Duke's other four children but did not
address it as to Darrence until over a year later, when it
denied the request on the same ground: that Natalya first
needed to "demonstrate that she could meet
[Darrence's] specialized needs by attending his weekly
therapy sessions." Natalya apparently did not follow up.
The mother of Duke's eldest son took him to her home out
of state, and OCS placed the other two boys with their
maternal grandmother and placed Duke's daughter in a
Duke's incarceration he had perhaps five visits with
Darrence, spread out from August 2016 to September 2017. Siri
also made efforts to maintain familial bonds between Darrence
and Duke's other children. She informed OCS of her
efforts but did not know what became of the information.
OCS caseworker took over Darrence's case in August 2016.
Asked about her efforts to work with Duke, she testified that
she "communicated with [OCS's] family contact team
to ensure that he was getting his quarterly visits with
[Darrence]"; sent Duke "some correspondence
regarding [Darrence]'s needs," including a medical
consent form for the anesthesia required for a "special
hearing test"; and "had one in-person meeting ...
at the Anchorage jail" on February 3, 2017, when she
brought Darrence for a visit. She testified that during the
visit she and Duke talked about Darrence and the services
Darrence was getting but "didn't really talk a whole
lot about" Duke's case plan or its objectives. She
testified that quarterly visits were all OCS could offer
incarcerated parents "based on the staff we have"
and that an incarcerated parent's frequent moves between
correctional facilities "could be a barrier to getting
[visitation]." She testified that OCS attempted
quarterly visits for Duke with Darrence and that she
"believe[d] [Duke had] been receiving [visits]
quarterly"; however, she could personally identify only
two visitation dates and conceded that she did not "have
concrete proof that quarterly visits otherwise occurred. Duke
denied that he received quarterly visits.
record contains no case plan addressing Duke's potential
reunification with Darrence. The caseworker testified about
her concerns with Duke's parenting and what would
be in Duke's case plan if he had one. She testified
that she and Duke "would need to case plan
together" and that she "would definitely recommend
on his case plan that [Duke] cooperate with a psychological
assessment," "that he engage fully with
[Darrence's] services," and that he have "a
parent coach." When Duke asked the caseworker whether
she thought he was "ready, willing, and able to ... do
the case plan and reunite with [his] son," she replied,
"That is something ...