BILL S. and CLARA B., Appellants,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
Appeal
from the Superior Court Nos. 3ST-15-00001/ 00002 CN of the
State of Alaska, Third Judicial District, Anchorage, William
F. Morse, Judge.
Alexander T. Foote, Assistant Public Advocate, and Chad Holt,
Public Advocate, Anchorage, for Appellant Bill S. Megan R.
Webb, Assistant Public Defender, and Quinlan Sterner, Public
Defender, Anchorage, for Appellant Clara B. Mary Ann
Lundquist, Senior Assistant Attorney General, Fairbanks, and
Jahna Lindemuth, Attorney General, Juneau, for Appellee.
Lisa
Wilson, Assistant Public Advocate, Anchorage, Guardian Ad
Litem.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
Carney, Justices.
OPINION
STOWERS, JUSTICE.
I.
INTRODUCTION
The
superior court terminated a mother's and a father's
parental rights to their two Indian children. The parents
appeal, arguing the superior court erred in finding, by clear
and convincing evidence, that OCS made active efforts to
prevent the breakup of the Indian family. Because there is
insufficient evidence to support an active efforts finding
under a clear and convincing evidence standard, we reverse
the superior court's active efforts finding, vacate the
termination order, and remand for further proceedings.
II.
FACTS AND PROCEEDINGS
A.
The Family And OCS Involvement
Bill
and Clara are the parents of Noah and Olwen, [1] ages 12 and 5 at
the time of the termination trial. Noah and Olwen are Indian
children within the meaning of the Indian Child Welfare Act
(ICWA) based on their affiliation with the Aleut Community of
St. Paul Island (the Tribe).[2] Bill and Clara have a lengthy
history of alcohol abuse and domestic violence. Noah and
Olwen have suffered primarily through neglect and mental
injury from exposure to their parents' conduct. While
Bill's and Clara's violence is typically directed at
each other or other family members, there are some reports of
alleged physical abuse of Noah.
The
family lived on St. Paul Island, a small, remote community in
the Bering Sea.[3] Noah and Olwen were removed from their
home in August 2015, and the Office of Children's
Services (OCS) filed an emergency petition to adjudicate them
as children in need of aid based on repeated violence and
alcohol abuse in the home. The Tribe supported OCS's
intervention. The children were first placed with a relative
on the island, in accordance with ICWA placement preferences,
[4] but
they were later moved to another relative's home in
Wasilla after the on-island placement was unsuccessful. Noah
and Olwen were adjudicated as children in need of aid in
February 2016 due to exposure to domestic violence and
substance abuse in the home.[5]
Prior
to the Child in Need of Aid (CINA) adjudication hearing, OCS
communicated with Clara regarding the changes she needed to
make to address her substance abuse and domestic violence
issues. But OCS did not finalize a case plan for the family
until two days before the hearing - more than five months
after the children were removed from the home. Clara
participated in a substance abuse assessment in October 2015,
but she did not actively engage in follow-up treatment. Bill
was incarcerated intermittently during this time, and it is
unclear if he ever completed a substance abuse
assessment.[6]
During
the adjudication hearing the superior court issued warnings
to both Clara and OCS regarding the inadequacy of their
actions to date. The court warned Clara that she needed to
"get alcohol treatment so that [she could] avoid
exposing [her] children to tremendous danger," and that
if she did not "get into treatment soon and begin it and
do well, . . . then it's entirely likely that [her]
parental rights [would] be terminated." The court told
OCS that it did not "see a whole lot of active
efforts" and it was "not all that impressed with
the quality of the efforts." While the court found
"by the slimmest of margins that [OCS]... made active
efforts," it made "clear that this is as little
over the line of active efforts as you can get while crossing
the line."
Despite
these warnings, none of the parties appear to have remedied
their efforts. For its part, OCS facilitated regular family
contact via phone calls and provided transportation and
lodging for in-person visits. OCS also provided mental health
services to Noah and Olwen[7] while they were placed in Wasilla, but
in January 2017 the children were placed with a different
relative in Juneau and did not receive services for almost a
year due to wait list issues. OCS contracted with the Tribe
to provide on-island services to Bill and Clara, but there is
no documentation in the record of how active or consistent
those services were.
Bill
and Clara, for their part, both attended "brain
trauma" and "healthy relationships" classes in
March 2016. Clara applied to one inpatient treatment
facility, but the facility deemed her to be inadequately
motivated and declined to accept her into the program. But
throughout the time period of their children's removal,
Bill and Clara continued to engage in significant domestic
violence and alcohol abuse. Accordingly, OCS petitioned to
terminate their parental rights in August 2017.
B.
The Termination Trial And The Superior Court's
Decision
The
termination trial was held in October 2017. To demonstrate
its efforts at family reunification, OCS presented testimony
from the OCS supervisor for St. Paul Island, who also worked
intermittently as the primary caseworker for the family.
Philip Kaufman testified as an ICWA expert witness in support
of OCS's position that "continued custody of the
child by the parent... is likely to result in serious
emotional or physical damage to the
child."[8] The court also heard testimony from the
chief of police for St. Paul Island, one of the
children's foster parents, and from Bill and Clara. OCS
admitted into evidence the family case plan and contact plan,
criminal and medical records for Bill and Clara, and medical
and mental health records for Olwen.
After
hearing witness testimony, the superior court found
"that neither parent had remedied the conduct that
placed each child at substantial risk of harm[, ]... that
termination of parental rights was in the best interest of
each child[, ]... [and] that continued custody of either
child by either parent was likely to result in serious
emotional damage to the child." The superior court
deferred making a finding on OCS's active efforts to
"prevent the breakup of the Indian family," instead
opting to further review the evidence and the parties'
arguments before reaching a decision.
In
January 2018 the superior court issued a written order
concluding that active efforts had been made and granting the
petitions to terminate the parental rights of both parents.
The court made a number of findings related to active efforts
by OCS and the Tribe:
From the initial removal both parents exhibited serious
problems with alcohol, marked by regular episodes of mutual
domestic violence, nearly always when intoxicated. [Clara]
and [Bill] would occasionally superficially acknowledge their
problems, but would soon return to longer periods of denial
and relapse.
Both parents lived in St. Paul for most of the period of
removal, although [Bill] was incarcerated off island
intermittently. At the insistence of [OCS], and with the help
of tribal representatives, both [parents] obtained alcohol
assessments on St. Paul. But there are only limited treatment
resources on the island. There is only an outpatient program
available. Each parent would attend sessions [of the
outpatient program] intermittently. Neither parent completed
the program and the sessions that each did attend had little
impact on either parent.
Although no assessment called for in patient treatment, the
OCS social worker tried to convince [Clara] that outpatient
treatment was not sufficient. [Clara] would occasionally
express a willingness to enter residential treatment. She did
apply to one residential program (Old Minto); however, she
told the provider that she was only willing to enter the
program to satisfy OCS. The program found her to be
inadequately motivated. At other times she conditioned her
enrollment in residential treatment on [Bill] or the children
attending with her. [OCS] reasonably was unwilling to pull
the children from their foster homes or disrupt their ongoing
schooling.
While [Bill] was incarcerated he was given opportunities to
obtain treatment for alcohol abuse. He would either decline
or put forth so little effort that the treatment had little
impact. Both OCS and tribal authorities visited [Bill] while
he was incarcerated in hopes of convincing him to engage in
needed and available treatment while in jail. Those efforts
were fruitless. They offered to have [Bill] assessed while in
jail. He declined.
OCS and tribal authorities encouraged both parents and
especially [Clara] to attend counseling regarding the impact
of domestic violence on children. There were limited classes
available on St. Paul. However, both parents continued to
deny that domestic violence was a problem in their
relationship or that either child might be at risk of
physical or emotional harm from being the target of such
violence or witnessing it.
Neither parent was willing to move from St. Paul despite OCS
and tribal authorities recommending that each do so in order
to gain access to greater rehabilitative resources elsewhere.
The children were placed with relatives in Wasilla and Juneau
after OCS removed them from the parental homes. OCS flew each
parent to visit the children. For periods [Clara] was
visiting monthly. At one point while the children were in
Wasilla, the parents were so intoxicated at a hotel that
in-person visits were suspended.
Both OCS and the tribe had worked with both parents to get
them to stop or reduce their drinking "for years"
even before the removal in 2015. Although [the caseworker]
could not identify exact dates, she recalled OCS and tribal
involvement with the parents for alcohol abuse and domestic
violence since [Noah] was a toddler and during the pregnancy
with [Olwen] in 2012.
The
superior court also expressed serious doubt about OCS's
case and noted it "left the [termination] hearing
concerned that it would not be able to find that [OCS] had
proven active efforts." The court was "underwhelmed
by the quality of testimony . . . offered about the efforts
that OCS and the tribe had made to help the parents."
The court explained there was "very little detail about
when those efforts were made" and there were "only
vague descriptions of what the tribal authorities had
done." Recognizing the difficulty of remotely
supervising OCS efforts in St. Paul and the "limited
services" available on the island, the court noted it is
therefore "particularly important that the witness [for
OCS] has researched the OCS records and thus [is] prepared to
describe the services that were offered." The court
...