CHARLES S. and MARIAN V., Appellants,
v.
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
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 ...