Opinion
Supreme Court No. S-11626.
August 24, 2005.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Dale O. Curda, Judge, Superior Court No. 4BE-02-00036/37 CP.
Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage, and David W. Marquez, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Jesse P. appeals the termination of his parental rights to his children, Alice and Stuart, arguing that the state failed to make active efforts to prevent the breakup of his family, as required under the Indian Child Welfare Act (ICWA). Because the record demonstrates that any violation of this ICWA requirement had no effect on the outcome of the termination proceedings, we affirm the superior court's decision.
See 25 U.S.C. § 1912(d) (2001); Child in Need of Aid (CINA) Rule 18(c)(1)(B).
II. FACTS AND PROCEEDINGS
Jesse P. and Lydia K. lived with each other for over two years in St. Mary's and had two children, Alice and Stuart. Jesse and Lydia are members of Indian tribes, so Alice and Stuart are Indian children under ICWA.
Pseudonyms have been used throughout this opinion to protect the identity of the family members involved.
Alice was born in June 2000. Approximately one month later, Jesse and Lydia were drinking together and began arguing. Jesse choked Lydia and when Lydia tried to call the police, Jesse ripped the phone cord out of the wall. St. Mary's police officers arrested Jesse and filed a report of harm with the department after Lydia contacted them from a neighbor's home. Jesse was charged with second degree criminal mischief, furnishing alcohol to a minor, reckless endangerment, and assault. He was convicted of fourth degree assault and spent about two weeks in jail.
The department received another report of harm in August 2000 because Lydia had been drinking in Alice's presence. Although it does not appear from the record that Alice was removed from the home during the July 2000 incident, the Algaaciq tribe, of which Jesse is a member, took tribal custody of Alice in August 2000 and placed her with Jesse's parents. The department also created a care and safety plan at this time that allowed Jesse to help his parents care for Alice and allowed Lydia visitation.
Due to the tribe's involvement in the case, the department closed its file on Jesse and Lydia on October 16, 2000. The following day, on October 17, 2000, the tribe returned Alice to Jesse and Lydia. But this stay for Alice was short-lived, as the tribe placed her back with Jesse's parents only three days later. The tribe again placed the children back with Jesse and Lydia sometime before November 2000. Based on its ongoing concerns, the department re-opened its file on Jesse and Lydia and created a new care and safety plan in November 2000. Although the care and safety plan required Jesse to remain sober around Alice, the department received another report of harm in January 2001 because Jesse was drinking in Alice's presence. As a result, the department referred the couple to alcohol treatment programs and wellness counselors.
The department began developing a case plan for Jesse and Lydia in December 2000 and reviewed the plan with the couple in March 2001. The plan required Jesse to attend alcohol and anger management classes in St. Mary's. Under the plan, a social worker agreed to offer support to Jesse, make treatment referrals, and monitor his treatment progress. Jesse started a treatment program in March 2001, but the counselor discharged him for noncompliance because he quit attending classes. Jesse's reason for quitting the classes was that he was fishing. The department also arranged for Lydia to attend a treatment program in May 2001, but she did not attend.
Stuart was born in October 2001. In April 2002 Jesse and Lydia got into another violent argument, in the children's presence, after drinking. Jesse dragged Lydia across the floor of their home, ripped her shirt, and threw her out of the house without shoes or a jacket. Police arrested Jesse and charged him with fourth degree assault and endangering the welfare of a child. He pled no contest to harassment and served ten days in jail. As a result of this incident, the department filed an emergency petition for temporary custody and to adjudicate the children as children in need of aid, again removed them from the home, and placed them with Jesse's sister and brother-in-law. The superior court granted temporary legal custody to the state pending an adjudication and disposition hearing.
In May 2002 the department developed a new case plan for Jesse with reunification as the ultimate goal. Jesse's new case plan required that he complete a substance abuse and mental health assessment, and take anger management and parenting skills classes. Jesse completed the required assessments and attended three treatment sessions in the summer of 2002 while waiting for an opening at a residential treatment center in Bethel. In July 2002, after both parents stipulated in the pending CINA proceeding that Alice and Stuart were children in need of aid, the superior court adjudicated the children as children in need of aid and placed them in state custody for a period not to exceed two years. The department allowed the children to remain with Jesse's sister and brother-in-law. But Jesse's sister notified the department in August 2002 that she was having difficulties taking care of the children, and the department then placed the children with a foster family in Bethel.
Jesse and Lydia separated during the summer of 2002. In September 2002 Jesse attended substance abuse and anger management classes at a residential treatment center in Bethel, completing the program the following month. He was directed to complete aftercare classes as part of his discharge from the treatment center. After he completed his treatment in Bethel, Jesse returned to St. Mary's. When Jesse returned to St. Mary's, the department referred him to a wellness counselor for aftercare, and informed him that he needed to remain sober for six months before it would reunify the children with him. Jesse understood this to mean that, if he stayed sober, the department would place the children back with him in April 2003. But Jesse did not remain sober; he had several drinks Christmas and New Year's holidays. Also, he completed only two of his required fourteen aftercare sessions with a wellness counselor — apparently because he claimed to be too busy working on a housing project. In addition, Jesse was discharged from parenting skills and anger management classes for missing the classes.
Jesse and Lydia reconciled in March 2003, and Lydia moved back into Jesse's home. On April 2, 2003, the department met with Jesse and updated his case plan, requiring him to continue with his aftercare treatment and various classes. Like his previous case plans, the updated plan stated that a social worker would offer Jesse support and monitor his compliance.
Eleven days after the April 2 meeting, Jesse and Lydia were at home drinking and began arguing. Jesse shot several rounds from a .22 caliber rifle at the area around Lydia's feet and over her head. Lydia was able to call the police and scream "he's going to shoot me" before Jesse pulled the phone cord out of the wall. Police arrived at Jesse's home, heard screaming and shouting, and arrested Jesse. Jesse was indicted for assault in the third degree but ultimately charged with fourth degree assault, fourth degree misconduct involving weapons, and interfering with a report of a crime involving domestic violence.
Shortly after being jailed, Jesse called his sister and told her that he wanted to give Alice and Stuart up for adoption. Jesse's sister contacted Jesse's social worker and informed her that Jesse would relinquish his parental rights and allow the children to be adopted. Jesse stayed in jail for two weeks before being released on third party custody to his mother so that he could fish for the summer. Upon being released, Jesse met with the department to discuss the children's situation. Jesse, his sister, a department social worker, and an ICWA worker from Jesse's tribe attended the meeting. The parties discussed the process for having Alice and Stuart adopted, and the ICWA worker stated that she was satisfied with the department's past efforts to reunify Jesse with his children. The social worker informed Jesse that the department would file a petition to terminate his parental rights so that the children could be adopted, but also emphasized that, if he wanted to, Jesse could continue to work on his case plan and change the permanent goal from adoption to reunification if he completed the plan's requirements. Jesse did not object to the department's plans.
In keeping with the plan, the department filed a petition to terminate Jesse and Lydia's parental rights in June 2003. The children had then been in state custody since April 2002, a period of about fourteen months. And in addition to those fourteen months, Alice had spent some time in the custody of other relatives as arranged by the tribe. In November 2003 Lydia voluntarily relinquished her parental rights; the superior court then entered a formal order of termination. The court set a trial date for March 2004 to hear Jesse's termination trial.
In July 2003, while still out on third party custody to fish for the summer, Jesse pled no contest to fourth degree assault and interfering with a report of a crime involving domestic violence for the April 2003 incident. The court sentenced Jesse to consecutive twelve-month sentences, with six months suspended on each count. It ordered him to begin serving his sentence in September 2003 and directed him to get an alcohol assessment before remanding himself to custody. Jesse did not get the court-ordered alcohol assessment and did not participate in any other treatment services before remanding himself.
Upon remanding himself to jail in September 2003, Jesse wrote a letter to his ICWA worker, reiterating his desire to have Alice and Stuart adopted because he could not take care of them. Although he expressed a preference to have his sister's family adopt the children, Jesse stated that he was also willing to allow their adoption by a foster family that the children had previously stayed with.
From the time the department first learned in April 2003 that Jesse wanted to have Alice and Stuart adopted, through December 2003, the department ceased making active efforts to reunify Jesse with his children. But Jesse changed his mind in December 2003. On December 16, 2003, he wrote a letter to his tribal council indicating that he wanted to be reunified with Alice and Stuart after completing his sentence. The council informed the department of Jesse's decision on December 22, 2003, and indicated that it would no longer support a permanent goal of adoption for Alice and Stuart.
While Jesse was incarcerated at a halfway house in Fairbanks shortly thereafter, the department helped arrange his participation in an anger management course beginning in January 2004, and in Alcoholics Anonymous meetings. The department also worked in February and March 2004 to get Jesse a new alcohol assessment. In March 2004, while Jesse was still incarcerated, the department developed another case plan with Jesse's help. This case plan required Jesse to get a substance abuse assessment and enroll in parenting skills classes at the halfway house where he was serving his sentence. Upon his release in April 2004 the department referred Jesse to additional anger management classes, substance abuse classes, and parenting skills classes.
Despite the new case plan and these renewed reunification efforts, the state proceeded to trial on its June 2003 petition to terminate Jesse's parental rights. Beginning on March 8, 2004, while Jesse was still at the halfway house serving his sentence, the superior court held a nine-day hearing at which it heard from seven witnesses, including Jesse and Lydia. At the end of the hearing, the court entered findings of fact and conclusions of law, ordering Jesse's parental rights terminated. Jesse appeals.
Since Lydia had previously relinquished her parental rights, she does not dispute her termination and is not a party to this appeal.
III. DISCUSSION
To terminate parental rights to an Indian child the superior court must find: (1) by clear and convincing evidence that the child is in need of aid as described in AS 47.10.011 and that the parent has not remedied, within a reasonable time, the conduct or conditions that place the child at substantial risk of physical or mental injury; (2) by a preponderance of the evidence that the department has made active but unsuccessful efforts to provide services and programs designed to prevent the breakup of the family and that termination of parental rights is in the child's best interests; and, (3) beyond a reasonable doubt, including through qualified expert testimony, that continued parental custody is likely to cause serious emotional or physical damage to the child. The superior court made each of these findings.
See Carl N. v. State, Dep't of Health Soc. Servs., 102 P.3d 932, 935 (Alaska 2004); T.F. v. State, Dep't of Health Soc. Servs., 26 P.3d 1089, 1092 (Alaska 2001).
Jesse challenges the superior court's finding that the department proved that it made active but unsuccessful efforts to prevent the breakup of his family. Jesse does not challenge the department's efforts made before his April 2003 arrest. He argues, instead, that the department failed to make active efforts after his April 2003 arrest until he notified it that he no longer wanted to give his children up for adoption. Had the department continued its active efforts after this relapse, Jesse insists, it "may have been able to help him work through it in time to facilitate reunification." Jesse also argues that, given the background of his life at the time, the department should not have taken seriously his comments to his sister that he wanted Alice and Stuart to be adopted, but should instead have continued its active efforts despite his stated intent. Jesse further argues that the department's failure to update his case plan between April 2003 and March 2004, a total of eleven months, supports his contention that the department's efforts were merely passive, rather than active.
Whether the department complied with the "active efforts" requirements of the Indian Child Welfare Act is a mixed question of law and fact. We review the superior court's factual findings for clear error and review legal questions de novo. Whether the superior court's findings comport with the requirements of the Indian Child Welfare Act is a legal question that we review de novo.
A.A. v. State, Div. of Fam. Youth Servs., 982 P.2d 256, 259 (Alaska 1999).
T.F., 26 P.3d at 1092.
Id.
We have previously distinguished "passive efforts" from "active efforts." "Passive efforts are where a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition. Active efforts, the intent of the drafters of the Act, is where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own." We generally determine whether the state made active efforts on a case-by-case basis, because "`no pat formula' exists for distinguishing between active and passive efforts."
N.A. v. State, Div. of Fam. Youth Servs., 19 P.3d 597, 602-03 (Alaska 2001); A.A., 982 P.2d at 261.
A.A., 982 P.2d at 261.
Id.
Here, even assuming that the department should have continued to make active efforts after Jesse informed it that he wanted to relinquish his parental rights, the record would nonetheless show that its failure to do so was inconsequential. We have previously recognized that a parent's lack of willingness to participate in treatment may be considered in determining whether the state made active efforts. Jesse acknowledged at trial that once he informed the department that he wanted to give Alice and Stuart up for adoption, he no longer would have accepted services under his case plan. Given this testimony, we find no basis for concluding that Jesse suffered any prejudice from the department's failure to make active efforts between April and December of 2003 — the period during which Jesse said that he wanted to relinquish his parental rights.
N.A., 19 P.3d at 603-04; A.M. v. State, ( A.M. II), 945 P.2d 296, 304 (Alaska 1997).
Jesse's argument that the department should not have taken him seriously when he told his sister that he wanted his children adopted similarly fails. After talking to his sister about giving the children up, Jesse learned about adoption procedures in person with the department at their May 2003 meeting. At trial, Jesse testified that he was "under a lot of stress [at] that time" and just wanted to find a stable home for the children. We see no reason why Jesse's wishes should not have been taken seriously.
Jesse's lack of willingness to engage in services to reunite the family during this time frame is further corroborated by his testimony that he was often too busy to engage in services. In the summer of 2003, Jesse was out of jail on third party custody so that he could fish for the summer. Jesse had been required to participate in treatment programs the two previous summers, but had failed to complete any programs then because he was "too busy." When reviewed in conjunction with Jesse's stated and repeated desire to have Alice and Stuart adopted, these circumstances strongly support the conclusion that any failure to make active efforts between April and December 2003 had no bearing on the ultimate outcome of Jesse's case.
In 2001 Jesse was discharged from a treatment program for noncompliance. Jesse testified that the counselor informed him that he had been discharged, and he "told her [he] was fishing." Jesse was also supposed to participate in treatment programs during the summer of 2002, but failed to complete a program because he was "too busy" and "tired." Jesse testified that he missed several of his treatment classes in 2002 because "that was kind of a busy" time for fishing.
Jesse additionally argues that the department failed to provide active efforts after he informed it in December 2003 that he no longer wanted to have his children adopted. But Jesse was incarcerated at this time. We have held that although a parent's incarceration does not relieve the department of its duty to make active efforts under ICWA, the scope of its duty can change because the incarceration "may have a direct bearing on what active remedial efforts are possible." Here, once the department received notice that Jesse no longer wanted his children adopted, it helped Jesse enroll in treatment programs even while in custody. Jesse participated in anger management classes, parenting classes, and AA meetings while at the halfway house. The department also provided Jesse with referrals for additional classes once he was released in April 2004. In short, there is ample evidence to support a finding that the department resumed making active efforts after December 2003.
A.A., 982 P.2d at 261.
Finally, Jesse points to the department's failure to update his case plan between April 2003 and March 2004 as proof of its failure to comply with the active-efforts requirement. But the record shows that an updated case plan would not have substantially altered the previous plan. Jesse's May 2002 case plan required Jesse to undergo an alcohol assessment and participate in alcohol education, anger management classes, and parenting skills classes; his April 2003 case plan required Jesse to continue with substance abuse treatment, parenting skills classes, and anger management classes; and when Jesse was released from custody in April 2004, the department continued to make referrals for anger management classes, substance abuse treatment, and parenting classes. Thus, the fact that the department failed to update Jesse's case plan on a six-month basis, as a social worker testified is normally done, was harmless error at most.
The superior court's finding that the department made active efforts to reunify Jesse with his children is not clearly erroneous.
IV. CONCLUSION
We AFFIRM the superior court's decision.