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

Supreme Court of Alaska

August 30, 2019

ANNETTE H., Appellant,

          Appeal from the Superior Court No. 3 AN-16-00615 CN of the State of Alaska, Third Judicial District, Anchorage, Andrew Peterson, Judge.

          J. Adam Bartlett, Anchorage, for Appellant.

          Laura E. Wolff, 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 mother appeals the termination of her parental rights to her son, who was found to be a child in need of aid based on a hair follicle test positive for controlled substances. She argues that without proof that her drug use caused the child's exposure, there is no causal link between her conduct and any circumstances that may have endangered the child. She also argues that the Office of Children's Services (OCS) did not make reasonable efforts to reunify the family because it failed to adequately accommodate her mental health issues. Because the record supports the superior court's finding that the child was in need of aid, and because OCS's efforts were reasonable under the circumstances, we affirm the termination of the mother's parental rights.


         A. Removal And Emergency Petition

         Annette H. is the mother of Justin H., who was born in March 2014.[1]Justin's biological father is unknown; DNA paternity tests excluded both the individual listed on Justin's birth certificate and Annette's partner Matthew. Annette and Matthew live together and had been the subjects of a number of reports to OCS, none of which were substantiated before October 2016.

         In October 2016 OCS received a report alleging that Annette, Matthew, and possibly guests in their home were using and exposing Justin to methamphetamine. Two OCS workers went to their home that day. They saw Annette and Matthew through a window, but Annette and Matthew did not let them inside; the OCS workers did not see Justin. Later attempts to contact Annette and Matthew, including a welfare check by the police, were unsuccessful.

         OCS obtained and executed a writ of assistance to gain access to the house and to Justin. According to one of the OCS workers, Annette and Matthew were uncooperative: Matthew was reluctant to let them into the house, and Annette was "screaming, yelling, [and] not letting go of the child." Police officers accompanying the OCS workers found a number of guests in the home, including a convicted sex offender not in compliance with registration requirements. Annette and Matthew stated that they were unaware of their guest's sex offense conviction. OCS found no evidence of drugs or paraphernalia in the house, and Annette and Matthew both declined hair follicle screening.

         The OCS workers took Justin for a physical exam, which revealed no evidence of physical abuse, and a hair follicle test; OCS returned Justin to Annette pending the hair follicle results. Annette and Matthew agreed to OCS's request that they participate in 30 days of random urinalysis (UA) screening and obtained bus passes from OCS for transportation to the UAs. After they both missed their first two UAs an OCS worker visited them and persuaded them to allow oral swabs to test for drugs. Annette's test was negative; Matthew's was initially positive for amphetamines, but further testing revealed this to be a false positive. During the visit the OCS worker observed a bag of marijuana on a table but no other evidence that either of them was using drugs. Based on Matthew's apparent positive test result, OCS implemented a safety plan, placing Justin with Matthew's parents and allowing Annette and Matthew to have supervised visitation.

         In early November 2016 OCS received Justin's hair follicle test results, which were positive for marijuana and methamphetamine. Annette and Matthew denied using methamphetamine but acknowledged that they sometimes allowed friends to stay with them; they suggested that one or more of their guests might have exposed Justin to methamphetamine.

         OCS took emergency custody of Justin and filed an emergency Child In Need of Aid (CINA) petition the next day to adjudicate him as a child in need of aid and for temporary custody.[2] The petition alleged that Justin was a child in need of aid based on neglect, parental substance abuse, and parental mental illness.[3] OCS placed Justin in a foster home and arranged visitation for both Annette and Matthew. Annette stipulated to probable cause without admitting any of the allegations; the court adjudicated Justin a child in need of aid on all three alleged bases and awarded OCS temporary custody pending disposition.

         B. OCS Caseworkers' Efforts

         1. First caseworker

         OCS assigned the first of three caseworkers to Justin's case soon after taking custody of Justin. That caseworker met with Annette to draft a case plan. The case plan listed as a "protective factor[]" that Annette loved Justin and could "take really good care of him" but included her acknowledgment that she could not "talk so well sometimes" and tended to "get overwhelmed." The case plan required her to obtain a substance abuse assessment and to follow its recommendations, obtain a mental health assessment, complete parenting courses, and comply with the visitation schedule set up for her and Justin. It noted that she was not willing to consider medication despite "admitting] that she has mental health issues." OCS referred Annette to programs for the substance abuse and mental health assessments as well as for other parenting, peer support, and education services. The caseworker gave both Annette and Matthew bus passes for transportation to visits and other appointments.

         The first caseworker later testified that, although she "worked really well" with Annette, and although Annette was willing to work on her case plan, "her anxiety really made it difficult." To try to ease Annette's anxiety, the caseworker accompanied Annette to schedule a substance abuse assessment, but Annette did not return for the assessment because she did not want to go alone, and confidentiality requirements prevented Matthew from accompanying her. The caseworker next found a place where Annette could do a walk-in assessment to avoid having to schedule an appointment in advance, but Annette again did not complete the assessment because Matthew could not come with her. Annette declined the caseworker's offer to accompany her in Matthew's place to a meeting with a substance abuse treatment provider.[4]

         2. Second caseworker

         In April 2017 the case was assigned to another caseworker. That caseworker had difficulty establishing a relationship with Annette or engaging her in completing the tasks listed in the case plan, though Annette continued to consistently attend visits with Justin. The second caseworker later testified that she was unable to schedule appointments for assessments for Annette because Annette and Matthew would only meet with her for "about 15 minutes" before they would "walk out." At one point Matthew indicated that he would schedule the assessments without OCS's assistance, but the record does not indicate that he ever did so.

         An adjudication trial was held over two days in late July 2017.[5] The court heard testimony from an OCS worker who had investigated an earlier unsubstantiated report of harm concerning Annette and Matthew, the OCS worker who had filed the emergency petition, and both caseworkers who had been assigned to Justin's case. They testified that Matthew had completed a substance abuse assessment but not followed up with treatment and that Annette had not begun any of the required substance abuse or mental health services, largely because she refused to attend appointments without Matthew. Annette continued to visit weekly with Justin, often without Matthew because OCS had limited his visits after DNA testing excluded him as Justin's biological father.

         The superior court found that Justin was a child in need of aid based on neglect, [6] rejecting Annette's argument that a visitor to their home "inadvertently exposed" Justin to methamphetamine. The court stated that "if you're a parent, ... [y]ou keep your kids away from people who are smoking meth[amphetamine] . . . [and] marijuana." The court also found that Justin was a child in need of aid based on parental substance abuse, [7] pointing to Annette's and Matthew's acknowledged past use of methamphetamine and marijuana and their refusal to participate in UAs, although the court acknowledged it was "unclear whether it's the parents who are using [methamphetamine] or whether there[] [are] other people who have been using it." Finally, as to parental mental health, [8] the court stated that "there's no evidence that it creates harm to [Justin]" but nevertheless found that Justin's developmental delays and exposure to drugs, along with Annette and Matthew's "lack of awareness of bringing... people into the home" who might endanger Justin, "could be indicative of mental illness." The court further found that OCS had made reasonable efforts to offer services to Annette and Matthew, including providing them with bus passes and referring them for assessments, mental health services, and UAs.[9] The court emphasized Annette's and Matthew's lack of engagement, suggesting that OCS might not have needed to remove Justin "had the parents cooperated, done the UAs, proven that it was someone else" who exposed Justin to drugs, and "tightened up their home policy."

         OCS filed a predisposition report in October 2017 requesting custody of Justin for up to two years based on what it characterized as Annette's "untreated mental health issues, unstable finances, possible substance use, unstable home, and unsafe environment." The report stated that Annette "continued to refuse to meet with" the assigned caseworker or accept OCS's help with completing her case plan, though she regularly attended her visits with Justin, and that Matthew had stopped "actively engaging with OCS."

         In early November 2017 the second caseworker updated Annette's case plan without Annette. The caseworker testified that she contacted Annette approximately one to three times per month, usually after her visits with Justin, to try to get her to work on her case plan, but that Annette was not engaged. The updated plan remained largely unchanged, requiring Annette to obtain substance abuse and mental health assessments, participate in UAs, and visit regularly with Justin.

         Following a combined disposition and permanency hearing later that month, [10] the court committed Justin to OCS's custody for up to two years, finding that Justin remained a child in need of aid, that OCS had made reasonable efforts to provide support services, and that these efforts had been unsuccessful.

         3. Third caseworker

         In December 2017 Justin's case was transferred to a third caseworker, who met with Annette soon afterward. He later testified that because Annette did not agree with her case plan, she "refused to actually comply with [it]."

         In January 2018 OCS filed a permanency report changing the primary goal from reunification to adoption because Annette was "not engaged in any services ... to address any substance abuse or mental health issues." The court approved the permanency plan in February but, because Annette and Matthew had re-engaged with OCS shortly before the permanency hearing, the court did not require OCS to file a termination petition.[11]

         The new caseworker did not alter Annette's case plan, but he referred her to additional agencies to obtain services because she had not gone to the agencies to which previous caseworkers had referred her. Because he believed that Annette's mental health issues likely would prevent her from attending a pre-scheduled appointment, he helped her find walk-in options for substance abuse and mental health assessments and provided her with bus passes. Even though Annette generally wanted to confer with Matthew before following up on referrals, the caseworker testified that she agreed to go to the new walk-in referrals without consulting Matthew. But she did not do so; she would "come up with reasons" why she had not completed the assessments, such as having to clean the house or Matthew's being busy.

         This caseworker also attempted to assist Annette and Matthew with parenting courses they could complete at home with a booklet or online, as well as in person, but they never completed the courses. He also testified that, with Annette's permission, he at first involved Matthew in their meetings because of the "supportive role" Matthew played for her. But he testified that Matthew later became "aggressive towards ...

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