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Payton S. v. State, Department of Health & Social Services

Supreme Court of Alaska

May 1, 2015

PAYTON S. and EFFIE B., Appellants,

Page 163

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Dwayne W. McConnell, Judge. Superior Court Nos. 4BE-10-00046/00047 CN and 4BE-13-00011 CN.

Hanley Robinson, Assistant Public Defender, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

Payton S. Whitney A. Power, Power & Brown, LLC, B ethel, for Appellant.

Effie B. David T. Jones, Senior Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

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


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MAASSEN, Justice.


The Office of Children's Services (OCS) took custody of two young girls because of their parents' substance abuse and neglect. OCS took custody of the parents' son shortly after his birth for the same reasons. The trial court terminated the parents' rights to all three children, who are Indian children as defined by the Indian Child Welfare Act (ICWA).[1]

The parents appeal. They argue that the trial court violated due process when it entered an adjudication and disposition order on the basis of OCS's offer of proof before the parents had received proper notice or been appointed counsel. They also argue that the trial court erred at the termination trial when it found that (1) the children were in need of aid; (2) the parents failed to timely remedy the conduct or conditions that placed the children at risk of harm; (3) OCS's expert witnesses qualified as experts for purposes of ICWA; (4) the parents' continued custody of the children would likely result in serious emotional or physical harm to the children; and (5) termination of parental rights was in the children's best interests. We affirm, concluding that the lack of proper notice at the adjudication and disposition stage did not affect the outcome of this proceeding (and therefore did not deprive the parents of due process) and that the trial court's decision at the termination stage was supported by the evidence.


A. OCS's Involvement With The Family; Pretrial Proceedings

This case involves Payton and Effie and three of their children: Adelaide, born in 2007; Angelica, born in 2009; and Payton Jr., born in 2013.[2] Both parents have histories of alcohol abuse. OCS employee Venissa Wynn went to the family home in August 2010 to investigate a report that the two girls were home with Payton and another man, who were both intoxicated, while Effie " was nowhere to be found." OCS took custody of the children for the night. When Wynn returned the next day, Payton was intoxicated again. Effie was home, but she told Wynn that " she just came home to wash her hair and change her clothes, and she was leaving again," and she asked if OCS could keep the children another day.

OCS filed an emergency petition asking that the trial court adjudicate Adelaide and Angelica as children in need of aid under AS 47.10.011(1) (abandonment), (9) (neglect), and (10) (substance abuse).[3] OCS had difficulty maintaining contact with the parents during the months that followed, and they were not served with a copy of the petition until the day of the combined adjudication and disposition hearing, November 4, 2010.[4] OCS does

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not dispute that this notice did not satisfy the requirements of ICWA and CINA rules.[5] The parents did not attend the hearing.

OCS submitted an offer of proof at the hearing that listed the witnesses it intended to call and identified the testimony that supported adjudicating the girls to be children in need of aid and retaining them in OCS custody. Reciting the incorrect assertion by OCS's counsel that the parents had been served with notice, the trial court found the children to be children in need of aid under AS 47.10.011(1), (9), and (10), " based on the offer of proof that conditions leading to removal have definitely not been corrected." Adelaide and Angelica were placed with Xandy, their maternal grandmother, who had a licensed foster home in the village of Eek. A few weeks later Payton and Effie were appointed counsel and, with their counsel, they attended a number of other hearings over the next several years.

In August 2012 OCS petitioned to terminate Payton's and Effie's parental rights to Adelaide and Angelica. In November, the parties stipulated to stay termination proceedings while the Native Village of Eek Tribal Court explored the possibility that Xandy would culturally adopt the girls. Payton and Effie stipulated that the children continued to be children in need of aid and that they had failed to make substantial progress to remedy their conduct and the conditions in their home that placed their daughters at risk of harm.

In the years following adjudication, the parents' problems with substance abuse did not improve; neither parent successfully completed treatment despite OCS's efforts. OCS family services supervisor Katherine Cramer testified at the termination trial about her difficulty locating Payton and Effie to work on their case plan. She " basically begged" them to help her build a positive parenting record by doing sober check-ins twice a week and by not giving up. She arranged and paid for the parents to travel for substance abuse assessments at the Phillips Ayagnirvik Treatment Center (PATC) in Bethel, but Payton went fishing instead and Effie started the program but left without completing it.

An OCS protective services specialist, Patsy Bowen, substantiated reports of Effie's drinking during her pregnancy with Payton Jr. While visiting Effie in the Bethel jail,[6] Bowen helped her fill out an application for treatment at the Women and Children's Center in Fairbanks. Effie eventually was assessed for and diagnosed with alcohol dependency, but again she did not complete the recommended treatment. On a number of occasions Payton and Effie failed to take advantage of travel OCS arranged for them; for example, when Bowen arranged for them to travel to a parenting class, they used their tickets but did not attend the class. On another occasion Payton began treatment at PATC but after three days climbed out a window and never returned.

Both parents admitted to heavy drinking. During an assessment at PATC in June 2011, Payton reported that the longest period of sobriety he had that year was four days. Effie reported during a July 2012 alcohol screening that she was 13 weeks pregnant, drank four or more times a week, and typically had ten or more drinks at a time. In a March 2013 assessment Payton reported that he was unable to regulate his alcohol intake and would go on three-week drinking binges. In April 2013 Effie reported that it was

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difficult for her to control her drinking when she was in Bethel, and that she blacked out almost every time she drank.

Cramer testified that by the time of trial Payton and Effie had still not addressed their alcohol problems, continued to leave their children without appropriate care, and failed to ...

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