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Sam M. v. State

Supreme Court of Alaska

June 7, 2019

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

          Appeal from the Superior Court No. 3AN-16-00433 CN of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge.

          Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, for Appellant.

          Erik Fossum, Assistant Attorney General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.

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

          OPINION

          STOWERS, JUSTICE.

         I. INTRODUCTION

         This case involves the termination of a father's parental rights to his only daughter. The father had not been a substantial part of his daughter's life when the Office of Children's Services (OCS) took custody of her from her mother. The father was coping with his own mental health, substance abuse, and post-traumatic stress disorder (PTSD) issues when this case began and was receiving services to address those issues. OCS facilitated some visitation between the father and the daughter, encouraged the father to continue participating in the services he was already receiving, and added parenting classes to the regimen. By all accounts, the father was making progress. But while the case was ongoing, OCS received a report that the father had sent nude photos of his genitals to a minor female. OCS referred the father for a sex offender assessment and his history of other sexual misconduct came to light. Upon receiving the assessing psychologist's conclusions that the father was a risk to his daughter's safety, OCS moved forward with terminating his parental rights. The superior court terminated the father's rights after a two-day trial. He appeals, arguing only that OCS failed to make active efforts. Because the record demonstrates OCS made active efforts to reunify the father and his daughter, we affirm the superior court's termination of the father's parental rights.

         II. FACTS AND PROCEEDINGS

         A. Background

         Sam M. and Julia J. are the biological parents of Lane J.[1] Lane is an Indian child as defined by the Indian Child Welfare Act (ICWA) based on Julia's affiliation with the Native Village of Kluti-Kaah.[2] Julia relinquished her parental rights to Lane and her two other children prior to the termination trial. This appeal only involves the termination of Sam's parental rights to his daughter Lane.

         Julia conceived in January 2010 after a single sexual encounter with Sam. Sam was unaware that he had a daughter until she was over a year old. After Sam learned about his daughter, he was able to see her every few months until she was three years old. At this point Sam and his father, with whom he lived at the time, filed for custody of Lane because Julia's stepmother informed Sam that Julia was taking drugs. Directly after Sam filed for custody, Julia left Alaska with the children and relocated to Washington for approximately three years. The custody case lapsed, and Sam did not see his daughter again until 2016, after Julia returned to Alaska.

         In August 2016 OCS responded to a report that Julia was neglecting Lane and her two other children and using methamphetamine. Julia admitted to using methamphetamine, and OCS took emergency custody of the children. OCS filed an emergency petition to adjudicate the children as children in need of aid (CINA) under AS 47.10.011(6) (risk of physical harm), (9) (neglect), and (10) (substance abuse). At the time OCS filed its emergency CINA petition, Julia was homeless and OCS had trouble getting contact information for Sam. The children were all placed with foster parents. Lane and her younger brother were placed with their maternal aunt, where they have remained since OCS took custody. Julia's stepmother contacted Sam on Facebook after OCS took custody of the kids and advised him that Julia and Lane had moved back to Alaska.

         Lane is currently eight years old. She has been diagnosed with autism and may suffer from other disabilities. According to Lane's guardian ad litem, "[Lane] is a sweet, somewhat shy little girl, who experiences a number of delays in her development." Lane has an individualized education plan at school and "has made progress . . . with support from her aunt" who is "an excellent advocate for [Lane]." Lane's aunt stated that she and her husband were interested in adopting Lane and her little brother.

         Prior to any contact with OCS, Sam was already taking advantage of services at Dena'ina Wellness Center in Kenai; he was attending PTSD support group meetings and seeing a behavioral health counselor to help with substance abuse issues and depression. Sam suffered from PTSD in part because he was sexually assaulted by a stranger when he was six. Early in 2016 Sam attempted suicide and was hospitalized at the Alaska Psychiatric Institute (API). According to API records, Sam had a history of suicide attempts and self-harming. Sam also had a history of seizures that caused him to lose a number of jobs. Sam's parents are divorced, and he has lived off and on with each of them. His father has provided him with financial support. At the time of the termination trial he was mostly living with his mother.

         B. Sam's Contact With OCS

         Sam's first contact with OCS was sometime between August and October 2016 with Hannah Gorman, the first of three caseworkers assigned to his case. Gorman was only on the case for about a month before she left OCS. During that time she spoke with Sam briefly about visiting with Lane. She was not interested in placing Lane with him because he was living with his mother, a convicted sex offender;[3] Gorman also had concerns about Sam's treatment needs and Lane's desire to avoid contact with him at the time. When Gorman left the case, Sam was set up with a case manager and counselor at the Dena'ina Wellness Center.

         In October the case was reassigned to OCS caseworker Chery Schaffan. She contacted Sam to schedule monthly meetings at OCS. She also sought to meet with him to develop a case plan. Schaffan testified that Sam disclosed mental health and substance abuse issues, a history of sexual abuse as a child, and a seizure disorder that affected his being able to maintain employment or drive. Sam reported not having been actively involved in Lane's life and not having seen her for the past couple of years. Schaffan arranged face-to-face contact between Sam and Lane. She described several visits that she supervised, and at each she characterized Sam as having difficulty engaging with Lane. Schaffan explained that visits ideally would have happened weekly, but because Sam lived in Soldotna and did not drive, transportation to Anchorage was a problem;[4] they tried to accomplish monthly visits instead. Schaffan stated that she saw improvement in the interactions between Sam and Lane throughout her time on the case. Sam disclosed his lack of prior experience parenting a child, specifically a child with special needs, and Schaffan spoke with him about taking parenting classes at the Dena'ina Wellness Center where he was already receiving other services.

         In April 2017 Sam's counselor reported to OCS that Sam had disclosed sending and receiving nude photos with a 16-year-old female.[5] After receiving this report, Schaffan referred Sam for a psychological evaluation, a sex offender assessment, and a parenting assessment with Dr. Paul Turner, a clinical psychologist. Schaffan stated that she had phone conversations with Sam ...


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