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

Supreme Court of Alaska

November 16, 2018

DUKE S., Appellant,

          Appeal from the Superior Court No. 3 AN-14-00311 CN of the State of Alaska, Third Judicial District, Anchorage, Gregory Miller, Judge.

          Olena Kalytiak Davis, Anchorage, for Appellant.

          David T. Jones, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Paul F. McDermott, Assistant Public Advocate, and Chad Holt, Public Advocate, Anchorage, for Guardian Ad Litem.

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




         The 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.

         We 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.


         A. Background

         Duke S. and Evangeline G. had an "on and off relationship for nearly a decade and are the parents of Darrence G., born in April 2014.[1] 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.

         Evangeline 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.

         After 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.

         OCS 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.

         Duke 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.

         Before 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."

         In 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 underlying proceedings.

         In 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.

         By this 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.

         Duke 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.

         The 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.

         B. The Adjudication Trial

         The 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.[2]

         OCS's 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.

         The 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.[3] 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.

         C. The Period Between Adjudication And Termination

         Over 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 [OCS]."

         In 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.

         In 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.

         After 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 foster home.

         During 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.

         A new 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.

         The record contains no case plan addressing Duke's potential reunification with Darrence.[4] 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 ...

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