from the Superior Court No. 3AN-15-00319 CN of the State of
Alaska, Third Judicial District, Anchorage, Eric A. Aarseth,
Adam Bartlett, Anchorage, for Appellant.
Fossum, Assistant Attorney General, Anchorage, and Kevin G.
Clarkson, Attorney General, Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
father appeals the superior court's decision terminating
his parental rights. He argues that the superior court
clearly erred in finding that he abandoned his son under the
Child in Need of Aid (CINA) statutes. He also argues that
there was insufficient evidence to support termination,
claiming that the record does not support the superior
court's findings that returning his son to his care would
risk emotional or physical harm and that termination was in
his son's best interests. Because the superior court did
not clearly err in making these findings, we affirm the
superior court's decision.
FACTS AND PROCEEDINGS
H. and Lucy A. are the parents of Donald, an Indian
child born in April 2013. By the time Donald was
born, Steve and Lucy were no longer in a relationship and
Steve no longer lived in Anchorage. Donald lived with Lucy
until the Office of Children's Services (OCS) assumed
emergency custody of him due to alcohol-related neglect
shortly after he was born. Although Steve knew that Lucy had
substance abuse problems, he left Donald in her care. When
OCS took emergency custody of Donald in June 2013, Steve was
"unreachable." Donald was placed in a foster home.
developed an initial case plan for the family. Steve was
directed to maintain housing, have consistent contact with
Donald, and participate in parenting classes. OCS returned
Donald to Lucy in September 2014 because she had made
significant progress in her case plan and was actively
participating in substance abuse treatment. But Lucy relapsed
after about 8 months.
2015 OCS received reports that Lucy was drinking while caring
for Donald, and that Donald was "dirty, hungry[,] and
upset." When OCS contacted Lucy about the reports, her
speech was slurred, her eyes were dilated, and she smelled of
alcohol. Lucy informed the OCS caseworker that she had been
drinking but that she was sobering up. She later admitted
that she had used cocaine as well. OCS took emergency custody
of Donald for the second time.
time Steve had returned to Anchorage. Steve acknowledged to
OCS that he knew Lucy had been drinking, but said that he had
not informed OCS or the police because he did not know where
she and Donald were. The day after removing Donald from Lucy,
OCS held a team decision meeting. Both parents participated,
but neither agreed to allow Donald to be placed with the
other. OCS was not willing to return Donald to Lucy, and
wanted to assess the safety of Steve's home before
deciding whether to place Donald there. In the meantime
Donald was placed with his previous foster parent.
concluded that Steve's home was not suitable for Donald.
Steve's housemate had a history of involvement with OCS
and Steve had a history of substance abuse. Because of this
history, OCS asked both Steve and his housemate to submit to
drug testing. Although he initially agreed, Steve changed his
mind and refused to provide a urine sample. Because this
raised concerns that Steve might be abusing substances, OCS
suggested a hair follicle sample instead of urinalysis (UA).
Steve again refused, this time stating that he could not
provide a hair sample because of his religion. Without a test
result to rule out substance abuse, OCS was unable to
determine that Steve's home was a safe environment for
the summer of 2015 OCS had difficulty contacting and staying
in touch with Steve. Steve later advised OCS that this was
because he had been in a car accident, which left him
"basically out of commission" and recovering from
injuries for a long time. After months without any contact, a
new OCS caseworker was finally able to meet with Steve in
September 2015. The caseworker assessed his home, and
determined the home was suitable for Donald despite
Steve's unwillingness to participate in a drug test. A
trial placement began in October 2015.
lasted less than a month. A few weeks after placing Donald
with Steve, OCS learned that the other children living in the
home with Steve and his housemate had tested positive for
cocaine. OCS removed all the children, including Donald, from
the home, but also tried to create a short-term safety plan
that would allow Donald to stay with Steve. OCS again asked
Steve to participate in drug testing as part of this safety
plan. Steve again refused to participate, even after OCS
offered to provide him transportation when he said he had no
way of getting to the appointments. Steve instead told OCS
"to just go ahead and have [Donald] moved from the
finally provided a UA in November 2015, which tested negative
for illegal substances. But he failed to show up for any of
the other 12 UA appointments scheduled between November 2015
and March 2016 that OCS required before it would consider
returning Donald to him. Steve and his housemate then left
Anchorage again, blaming OCS's removal of Donald and the
other children for causing them to lose their housing. Steve
informed OCS that his move was only temporary, but he
ultimately remained on the Kenai Peninsula for the majority
of 2016 because he found employment.
first several months of 2016 while Steve lived on the Kenai
Peninsula, OCS's contact with him was limited. The
caseworker testified that after Steve moved, "he fell
out of contact" with OCS. By August the case was
reassigned to a third caseworker who also had difficulty
contacting Steve. Because it was not in contact with Steve,
OCS updated his case plan without his participation in
September. The new case plan required Steve to contact OCS
every other week, meet in person with the OCS caseworker
monthly, regularly communicate and visit with Donald, and
participate in either a random UA program or hair follicle
caseworker testified that because Steve had advised that he
would not participate in a hair follicle test for religious
reasons, OCS requested that he provide 30 days of clean UAs
in lieu of the hair follicle test. But Steve provided only 12
clean UAs, claiming his work schedule prevented him from
making the random UA appointments. A total of 55 UAs were
scheduled for him between November 2015 and December
occasionally visited Donald during this time, but the visits
were sporadic. OCS worked with Steve to accommodate his
schedule, changing the location and time of the visits, but
he still missed visits.
made little progress maintaining communication with OCS in
2017. Steve testified that he had to travel because of deaths
in his family, yet provided no timelines for these absences.
He testified that he had to leave Alaska to manage both his
mother's and grandmother's affairs after their
deaths. But the OCS caseworker stated that Steve never told
her when he was leaving and never provided contact
information while he was gone.
time of the termination trial in early 2018, Steve was living
in Whittier. OCS continued struggling to maintain
communication with him because he did not provide updated
contact information or a current address. At trial the OCS
caseworker testified that she last spoke with Steve in
December 2017 to schedule a visit with Donald. She stated
that Steve visited Donald once between the trial dates, but
missed two other scheduled visits. She also testified that
before they spoke in December, it had been roughly six months
since she had any contact with Steve.
petitioned to terminate Steve's and Lucy's parental
rights in February 2017. Trial was held over three days in
January and February 2018. Three OCS caseworkers and an
expert witness testified for OCS. ...