Charles S. v. State

          Appeal from the Superior Court of the State of Alaska, Third Judicial District, Nos. 3VA-15-00001/ 00002/00003 CN Valdez, Daniel Schally, Judge pro tern.

          Carolyn Perkins, Salt Lake City, Utah, for Appellant Charles S. Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant Marian V. Kimberly D. Rodgers, Assistant Attorney General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.

          Anita L. Alves, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for Guardian Ad Litem.

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

          OPINION

          STOWERS, JUSTICE.

         I. INTRODUCTION

         In 2015 the Office of Children's Services (OCS) took custody of three children due to the father's substance abuse issues and the mother's mental health issues. Both parents failed to make any meaningful progress on their case plans in the first year of OCS's custody. But after moving to Washington in 2016, the parents made significant progress and actively engaged in a variety of services. At the time of the termination trial the father had been sober for two years, but OCS still had concerns regarding the mother's ability to manage her mental health and the parents' ability to safely co-parent all of their children at the same time. In June 2018 the superior court terminated the parents' rights to their three children. The parents appeal, arguing that the superior court erred by finding they failed to remedy the conduct that made their children in need of aid. They also argue that the court erred by finding that termination of their parental rights was in their children's best interests. And the father independently argues the court erred by finding that OCS made reasonable efforts to reunite him with his children.

         We conclude that the superior court's finding that the father failed to remedy his conduct is clearly erroneous. We therefore reverse the termination of his parental rights. Because our resolution of the father's parental rights may alter the superior court's best interests analysis with regard to the mother, we vacate the termination of the mother's parental rights and remand this case for further proceedings consistent with this opinion.

         II. FACTS AND PROCEEDINGS

         A. Facts

         Charles S. and Marian V. are the parents of Sierra, Chase, and Thomas, who were ages seven, three, and one at the time of the termination trial.^[1] Marian is also the mother of Maya (age nine at trial); although Charles is not Maya's biological father, he has raised her since she was an infant and she calls him "dad."^[2] Only the three oldest children - Maya, Sierra, and Chase - are the subj ects of this appeal.^[3] They have been in OCS custody since January 2015.

         1. Events leading to OCS custody

         Neither parent disputes that OCS's intervention was necessary due to Charles's substance abuse issues and Marian's mental health issues. Charles began using methamphetamine as a teenager and continued using, as well as selling, methamphetamine into his mid-3Os. Marian has been diagnosed with anxiety, attention deficit hyperactivity disorder, depression, post-traumatic stress disorder, and reactive attachment disorder. Many of these issues are related to Marian's own experiences in the foster care system and the physical and sexual abuse she suffered as an adolescent. Marian has taken a variety of prescription medications throughout her life. She struggles to regulate her emotional responses, and when overwhelmed she sometimes experiences "meltdowns" or "tantrums."

         Charles and Marian were living in Valdez when OCS took custody of Maya, Sierra, and Chase. From 2010 to 2014, OCS received ten reports related to neglect and parental substance abuse and created three out-of-home safety plans for the family. In December 2014 Marian admitted herself to the Alaska Psychiatric Institute (API) because she felt overwhelmed and was concerned she might be a danger to herself. While she was in protective custody at API, OCS received a report of neglect and safety concerns related to Charles's care of the children. OCS removed the children from the home and assumed emergency custody in January 2015, filing an emergency petition to adjudicate the children as in need of aid. In May 2015 the parents stipulated that the children were in need of aid due to Charles's substance abuse and Marian's mental health.

         2. OCS custody in 2015 - family remains in Valdez

         OCS developed the first case plan for the family in April 2015. OCS directed both parents to address their substance abuse issues, develop parenting skills to meet their children's developmental needs, and maintain contact with the children. Charles completed a mental health and substance abuse assessment in May 2015 and was recommended for inpatient treatment. But he did not attend inpatient treatment or engage in any other treatment until almost a year later, in part because there were no residential treatment centers in Valdez. He completed a few urinalysis tests that were positive for marijuana and eventually stopped attending his scheduled tests. Charles later reported that during this time he was using methamphetamine almost every day. Charles completed a six-week parenting course in 2015 and attended weekly visits with the children, but OCS reported that he did not consistently demonstrate adequate parenting skills during these visits.

         Marian was referred to a mental health and substance abuse assessment in January, but she did not complete the assessment until June. She spent six weeks in jail in spring 2015 after a fight with Charles led her to significantly damage his truck. Marian engaged in individual therapy and completed urinalysis tests intermittently throughout 2015. She also participated in the same parenting course as Charles, but she only completed a few of the classes before the family moved away from Valdez. Marian also attended the weekly visits with the children, and while OCS reported positive interactions, it also noted issues with Marian's ability to regulate her emotions.

         3. OCS custody in 2016 - family moves to Washington

         In March 2016 OCS placed the three children with Charles's father and stepmother in Washington. Charles and Marian also moved to Washington to be closer to their children and to be better able to work on their case plan requirements. Charles completed a one-month inpatient treatment program in May and an intensive outpatient program in September. He testified at the termination trial that he had been sober since moving to Washington - two years by the time of the trial - and OCS confirmed that he had not had a positive urinalysis test result since completing treatment. When asked about his sobriety, Charles stated that he wants to be there for his children, he wants them to see their father be successful, and he wants them to be successful-"I know that my kids need a sober father."

         Marian also progressed after moving to Washington. In July 2016 she gave birth to Thomas, and because of the open case with OCS, Child Protective Services (CPS) in Washington initially monitored the parents' ability to care for Thomas. Marian participated in a three-month program that provided weekly at-home parenting classes, as well as weekly visits by a caseworker and a public health nurse. When Marian became pregnant with Thomas, she reportedly stopped taking all prescription medications. While she did not consult a doctor prior to stopping use of her prescriptions, she testified that she has since discussed the decision with her therapist.

         Although visitation with the children was inconsistent when the family first moved to Washington, it became more regular after Charles completed his inpatient treatment. Charles and Marian initially lived with Charles's mother, and she supervised overnight weekend visits with the children. Charles's mother testified that these visits were "wonderful," that the children were "extremely happy," that Charles and Marian co-parented well as a team, and that she did not have any safety concerns. But due in part to the parents being allowed unsupervised visitation, ^[4] OCS terminated the children's placement in Washington, and in April 2017 moved the children to a non-relative foster home in Valdez. Charles and Marian remained in Washington.

         4. OCS custody in 2017 - children return to Alaska, parents remain in Washington

         Charles's and Marian's engagement in services increased in 2017. In May OCS issued a new case plan for the family, noting that Marian had demonstrated "tremendous growth" in her parental resilience and had learned about parenting and child development through "extensive parenting education." Her goals were to stabilize her mental health by engaging in therapy, to improve her parenting knowledge by engaging in parenting education, and to maintain contact with OCS about case planning. OCS also noted in the case plan that Charles "engages appropriately with the children" but that he "has not demonstrated knowledge of basic or developmental needs." His goals were to identify triggers to his substance abuse by engaging in counseling, to improve his parenting knowledge through parenting education, and to maintain contact with OCS about case planning. OCS stopped requiring the parents to complete urinalysis tests at this time because their results had been consistently negative.

         Marian completed a parenting psychological assessment in January 2017; the psychologist recommended she engage in therapy, take parenting classes, and review her medications. She engaged in services at Comprehensive Life Resources (CLR), a community mental health facility, and began seeing an individual therapist. Marian's individual therapy focused on identifying triggers and developing coping skills to more effectively manage her emotional responses, including using dialectical behavior therapy, relaxation techniques, and practicing mindfulness. Marian testified at the termination trial that she had gone nearly two years without a "meltdown." Her therapist testified that Marian had "really decreased her emotional anxiety as regards to being overstressed and overtired," that "her level of speech and connectedness in therapy sessions ha[d] increased," and that "if she can put that to work, show some good strengths to her children, she could be a good mom."

         Beginning in August 2017, the CLR therapist also provided weekly family therapy and parenting classes to Charles and Marian. The therapist testified that the couple's relationship had improved through counseling: "[Charles] has been very supportive of [Marian].. .. I've never heard a mean word between them.. .. and they say that this time has made them grow closer." The therapist additionally testified that during parenting classes both parents "are very attentive and the other members of the group love them. And they were happy to be there and happy to learn, glad to have the services I've appreciated working with them and seeing them grow." And while the therapist never observed Charles and Marian parenting all four children, she testified that "this mom and dad put forth effort."

         In addition to the family therapy and parenting classes, Charles also enrolled in CLR's substance abuse program, attending Narcotics Anonymous-type meetings once every few weeks and seeing an individual therapist once a month. Charles completed a substance abuse assessment in November 2017, which included a finding that he was "in the action stage of change" and that no treatment services were recommended.

         Despite the parents' progress at CLR, OCS continued to note struggles during the parents' visitation with the children. After the children were moved to the Valdez foster home, OCS flew the parents to Valdez each month for visitation. In May 2017 OCS provided intermittent supervision during the visits, and in June the visit was unsupervised. But due to concerns with the June visit, visitation with the children transitioned to full supervision. Specifically, OCS had concerns that the parents did not provide sufficient meals for the children; that the children were returned very dirty; that Chase had a small candy in his mouth that OCS thought was a choking hazard, a bruise on his face, and very bad diaper rash; and that the parents transported the children in a car lacking sufficient seats and seatbelts. Visitation from July 2017 forward was limited to monthly supervised visits for one or two days for about two hours at a time. The parents also had weekly phone calls with the children.

         OCS's concerns continued with supervised visitation. The OCS caseworker who monitored the visits noted that Marian struggled to divide her attention among all four children and to adequately supervise them; she would fixate on the craft activities she had prepared and struggled to adapt when the children became disinterested; she would snap at the children if they acted out or things did not go exactly as planned; and she would often shut down and mentally disengage by the end of the visits. The caseworker testified that the visits were generally better when both parents were present but that Marian's issues still existed; Marian would sometimes snap at Charles, and Charles would often fail to support Marian. The caseworker met with the parents before visits to discuss what to work on, expectations, and strategies to prepare for the visits. After visits, Marian would typically email the caseworker asking for feedback, and the caseworker would provide her a list of issues to work on. Marian would then share this feedback with her therapist, and they would work on ways to improve during counseling sessions.

         In December 2017 the children were moved to a new foster home in Wasilla, and subsequent visits were supervised by Alaska Family Services instead of OCS. The supervisor for the first three visits noted no concerns and reported that the parents did "wonderfully" and did not require intervention or support; she requested that the visits transition from moderate to intermittent supervision. But after supervising additional visits, the supervisor informed OCS that there was more evidence to support its decision to keep visitation at the moderate supervision level.

         The OCS caseworker testified that "overall, the visits are a mix of positives. The parents have shining moments, you know, where [Marian] is praising the children, and complimenting the artwork, or complimenting the kind words that they're using." But the caseworker explained there also are struggles, including "the disconnect between the two parents and in their parenting - the snapping at each other, the snapping at the children, especially for [Marian]. And then almost across the board, we see this point where [Marian] isn't able to tolerate the visits anymore."

         5. The children's issues and challenges

         Throughout their time in OCS custody Maya, Sierra, and Chase displayed a variety of developmental and behavioral issues. Maya was described as parentified and preoccupied with watching over the other children. She also had difficulty establishing appropriate social boundaries; in particular, she had developed an interest in teenage boys and would try to touch, follow, and flirt with them. Sierra was described as defiant; she would push boundaries, act out, and require a lot of redirection. In 2017 she began to wet herself before and after visits and phone calls with her parents. Sierra also required an Individualized Education Program at school and speech therapy. Chase had issues with impulse control and physical aggression, especially with younger children, including Thomas, and Chase would hurt himself when he was upset. Chase also had developmental delays related to his language and social skills.

         The children's foster mother from April to December 2017 testified that parenting the three children "was absolutely exhausting . . . [t]hey were very high maintenance," and that it was "just more than [the foster parents] could physically handle." She described having to constantly supervise the children "[a]ll the time." She also testified that the children had night terrors that correlated with visits with their parents, though the night terrors subsided over time. The OCS caseworker testified that "when you put all three of the children together, it can be chaos if there is not firm structure for them, parents who follow through, parents who are able to set boundaries." But she emphasized that this also meant "not snapping at them or triggering their mental health issues, and being able to be sensitive and firm at the same time, which is a fine balance. And each of the children have different needs that kind of need different styles of parenting, so that flexibility really comes in."

         6. Events prior to termination

         In August 2017 Charles and Marian requested that OCS submit their case to CPS in Washington to conduct a home study under the Interstate Compact on the Placement of Children (ICPC).^[5] Charles had returned home early from commercial fishing so that the study could be completed, but OCS delayed initiating the ICPC process until late January 2018. In an internal email in August 2017, an OCS supervisor stated:

I really think we have what we need to move forward with termination without asking [Washington] to do a study. And, honestly, I think asking them to do a study could potentially hurt our case because whoever goes out to do that study won't have all the information we have We could end up with an approved placement study that we disagree with.

         The ICPC process eventually moved forward, however, and in February 2018 a home study was conducted. The Washington CPS worker who conducted the home study noted no concerning conditions and described the home as small but organized by the parents in a way to provide space for the children.

         In connection with the ICPC process, Charles and Marian took a number of steps to prepare for reunification with their children. Charles's mother described how the parents had baby-proofed the apartment and set up the bedrooms with bunk beds for the girls and a toddler bed for Chase, and they had toys, bikes, and crafts ready for the children. Marian had a sticker chart set up in the home, which she planned to use to reward and incentivize ...