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Dena M. v. State

Supreme Court of Alaska

June 14, 2019

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

          Appeal from the Superior Court Nos. 4FA-16-00120/ 4FA-16-00121 CN of the State of Alaska, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.

          Emily L. Jura, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant

          Dena M. J. Adam Bartlett, Anchorage, for Appellant

          Dustin V. Rebecca Hattan and Laura E. Wolff, Assistant Attorneys General, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for Appellee.

          Lisa Wilson, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for Guardian Ad Litem.

          Before: Bolger, Chief Justice, Winfree, Stowers, and Maassen, Justices. [Carney, Justice, not participating.]

          OPINION

          WINFREE, JUSTICE.

         I. INTRODUCTION

         After a mother's and father's lengthy involvement with the Office of Children's Services (OCS), based primarily on alcohol abuse, their parental rights to their two minor children were terminated. Both parents appeal, challenging the superior court's admission of telephonic testimony and its perceived failure to consider guardianship as an alternative to termination. Because the parents were not prejudiced by the telephonic testimony and because there was no error in the court's consideration of a possible guardianship, we affirm the parental rights termination.

         II. FACTS AND PROCEEDINGS

         A. Early OCS Involvement

         Dena M. and Dustin V. are the biological parents of Kelly, Shannon, Molly, and Kelton, who, at the time of the termination order, were 20, 18, 12, and 4, respectively.[1] Shannon was 17 at the beginning of the termination trial but turned 18 and aged-out of OCS custody before the termination decision. Only the minor children, Molly and Kelton, are the subjects of this appeal. The family members are affiliated with Native Village of Eagle (the tribe), and Molly and Kelton are Indian children within the meaning of the Indian Child Welfare Act (ICWA).[2]

         OCS became actively involved with the family in 2006 after receiving a report about the parents' alcohol abuse. OCS received 15 reports of harm concerning alcohol abuse, domestic violence, and neglect prior to removing Kelly, Shannon, and Molly in 2008, before Kelton was born. A child in need of aid (CINA) adjudication was made based on risk of mental injury, neglect, and parental substance abuse.[3] Although Dena and Dustin "minimized" the severity of their issues with alcohol, they eventually completed the substance abuse component of their case plans and Dena completed an anger management course; based on this limited success, the couple regained custody of their children in mid-2011.

         About a year later, in May and June 2012, Alaska State Troopers twice were called to help Dena recover from excessive alcohol intake. Later that year the three older children again were removed from their parents' home and placed in OCS custody. And in December 2013 Kelton was placed in OCS custody after having alcohol in his system at birth.

         After this second removal Dena and Dustin moved frequently between Eagle and Fairbanks and were difficult to contact. Although they participated in substance abuse assessments, the OCS caseworker said that Dustin "laugh[ed] and sa[id] that he wouldn't pass a [urinalysis]." They eventually participated in a risk assessment with a licensed clinical social worker. Dena and Dustin acknowledged their "extensive history and use of alcohol and illegal substances" and history of being "mutually physically combative." About two years into this second removal, Dena began to engage in counseling. Following a trial home visit and Dena's limited engagement in treatment, the parents regained custody of the children in April 2016.

         B. Current Case Proceedings

         Just two months after Dena and Dustin regained custody, OCS learned that they had been drinking and that Dustin and Shannon had been in a physical altercation. When an OCS caseworker went to Eagle to assess the situation, Dena and Dustin admitted they had been drinking; OCS thereafter implemented a new care and safety plan. The plan anticipated Dena and Dustin traveling and the children staying in Eagle. But the children's placements proved unsafe, and, although OCS attempted to work with the tribe to create a new safety plan while Dena and Dustin were away, "the tribe felt that the parents' behaviors were out of control and they could not come up with a plan to keep the children safe." OCS again took emergency custody of the children.

         About a month later the tribe banished Dustin. The Eagle Village Council wrote in its banishment letter that Dustin had "broken trust and [his] word" by failing to be "on [his] best behavior and not involv[ing] [him]self in any activities that would cause [him] to lose custody of [his] children." Because OCS had removed the children "from [his] care twice in the past month and a half," the Council banished him "to ensure the health and safety of not only [his] children but Tribal members, Eagle Village Council members and Native Village of Eagle employees."

         Dena and Dustin moved to Northway and infrequently communicated with OCS and their children. An OCS caseworker developed case plans for each parent in September 2016, although the plans were difficult to implement due to sporadic contact. The case plans required the parents to obtain substance abuse and psychological assessments, attend Alcoholics Anonymous meetings, and provide OCS basic contact information.

         Dena and Dustin briefly returned to Eagle for the winter holiday season, but otherwise lived in Northway through summer 2017. They did not meaningfully engage in treatment during this time, but they did participate in visitation OCS arranged. After OCS filed a petition to terminate parental rights in June 2017, the parents returned to Eagle and began regularly attending counseling and treatment programs. The children's foster parent later testified that the parents attended informal visitation "[a]t least three to four times a week, some weeks more," and that they never visited while intoxicated. The foster parent testified to the "strong bond" between the children and parents.

         Although Dena and Dustin were sober during visitation, they continued to abuse substances leading up to the January 2018 termination trial. In December 2017 Dustin physically assaulted Shannon; Dena attempted to intervene, and Dustin kicked her. OCS then suspended visitation with Molly and Kelton. Visitation resumed in January 2018, twice-weekly and regulated to ensure the parents were "sober and appropriate."

         C. Termination Trial And Order

         The termination trial took place over six days in January and March 2018. Over the parents' objection, the superior court permitted four Eagle witnesses to testify telephonically: the tribe's designated ICWA expert; a safety plan participant and former foster parent; a former Eagle public safety officer; and Molly and Kelton's then-foster parent. The court initially overruled the objection because "no objection was made at the pretrial conference." Dena's attorney observed that OCS had not filed a motion for telephonic testimony and that there had been no prior opportunity to object. The court then stated that Dena could call the witnesses in person "in [her] case if [she] so choose[s]." The court broadly ruled that the "distances here make it implicit that the Eagle witnesses are beyond... what's contemplated by the rule."[4] The court ruled that the Eagle witnesses could testify telephonically and stated: "If the parties want to subpoena witnesses ...


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