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

          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 ...