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Steve H. v. State, Department of Health & Social Services

Supreme Court of Alaska

June 14, 2019

STEVE H., Appellant,

          Appeal from the Superior Court No. 3AN-15-00319 CN of the State of Alaska, Third Judicial District, Anchorage, Eric A. Aarseth, Judge.

          J. Adam Bartlett, Anchorage, 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.


          CARNEY, JUSTICE.


         A 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.


         A. Facts

         Steve H. and Lucy A. are the parents of Donald,[1] an Indian child[2] 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.

         OCS 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.

         In May 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.

         By this 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.

         OCS 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 Donald.

         Throughout 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.

         It 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 home."

         Steve 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.

         In the 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 testing.

         The 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 2016.[3]

         Steve 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.

         Steve 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.

         By the 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.

         B. Proceedings

         OCS 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. ...

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