Opinion
Supreme Court No. S-12342.
April 11, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge, Superior Court No. 3AN-04-00022 CN.
J. Stefan Otterson, Otterson Law Office, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and Carpeneti, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Tuck P. appeals the decision of the superior court terminating his parental rights to his son, Noah P. The Office of Children's Services (OCS) petitioned to terminate Tuck's parental rights because of his history of substance abuse and lack of progress on his case plan. Tuck appeals the superior court's finding that Tuck failed to remedy the conduct that placed Noah at risk within a reasonable time and argues that the superior court should have given him more time to remedy the conduct that placed Noah at risk. Tuck also appeals the finding that OCS made reasonable efforts to reunite Noah with Tuck. We affirm the decision of the superior court terminating Tuck's parental rights.
This memorandum uses pseudonyms for all family members.
II. FACTS AND PROCEEDINGS
Noah was born on May 26, 2002, and was removed from the home when he was nineteen months old, on January 7, 2004. OCS received the initial report of harm when paramedics found Tuck passed out, Noah holding a crack pipe, and an open bottle of prescription medication within the baby's reach. Noah was taken to the hospital, where he tested positive for cocaine. OCS originally placed Noah with his mother, but she was quickly found to be under the influence of drugs, and OCS was therefore forced to take Noah into custody only two weeks later. Noah was then placed in a foster home and has since stayed in that placement.
Tuck has a long history of substance abuse. Tuck started abusing pain pills and cocaine around the age of fifteen and admitted that he is addicted to both. Tuck also admitted to numerous visits to the emergency room for the purpose of seeking narcotics. Both Providence and Alaska Regional Hospitals' emergency rooms eventually stopped treating Tuck because of his narcotic-seeking behavior. When Noah was removed from Tuck's care in January 2004, Tuck attempted suicide. After he was treated, Tuck was released to the mental health ward of Providence Hospital, where he received psychiatric care. Tuck attempted to keep up with his psychiatrist visits after he was released, but was unable to pay the bills because he did not have insurance. Tuck called an OCS social worker on January 14, 2004 and told the social worker that he was at Providence Hospital for attempting suicide and that he had a problem with drugs. The OCS social worker told Tuck to follow through with a drug assessment and provided information as to where Tuck could get such an assessment. Starting in April 2004, Tuck was also required to participate in urinalysis screening, but he missed "quite a few" of the appointments, although some of the missed appointments were because Tuck was incarcerated.
Tuck tested positive for cocaine in September 2004, eight months after Noah's removal from the home. Tuck was then placed in a halfway house. In January 2005 Tuck got drunk and assaulted another resident of the halfway house. After this incident, Tuck departed the facility without permission, turning himself in the next day. Tuck was incarcerated following the incident and released on July 20, 2005. Tuck found a job within a week of his release in July. Although Tuck testified that he had not used drugs since testing positive for cocaine in September 2004, he did admit to sometimes taking pain pills for a leg injury.
While in prison, Tuck wrote to his social worker and to Noah, but was unable to phone his social worker due to issues with the telephone system at the prison. After his release from prison in July 2005, Tuck met with his new social worker, Rebecca Coates-Servin. She reviewed with him the case plan, which required that Tuck (1) obtain an alcohol and drug assessment and comply with the recommendations; (2) participate in random urinalysis; (3) obtain a mental health assessment and follow the recommended treatment; and (4) participate in approved OCS parenting classes. Although Tuck did participate in some parenting classes while incarcerated, he was told that the classes were not OCS-approved parenting classes. Coates-Servin provided Tuck with a list of approved parenting classes in Anchorage at the time of their meeting in August 2005, but Tuck did not attend any classes or attempt to contact any of the classes on the list to see if they would fit his work schedule. Tuck told the social worker that although he had an old drug assessment he would get a new one. But Tuck never obtained the required drug assessment, and he also admitted at trial that he had lied on his last drug assessment in the fall of 2004. Although Tuck's case plan stated that a missed urinalysis test would be considered a positive result, Tuck missed four scheduled urinalysis appointments after his release from prison in July 2005.
The termination trial was held on October 3, 2005. The court heard testimony from Tuck, two social workers involved in Tuck's case, and Tuck's probation officer. Tuck's probation officer testified that Tuck was doing much better than he had in the past, but that it was too early to tell if Tuck was stable. The probation officer thought it would take at least six months before he could make a determination as to whether Tuck was stable or not. Tuck's attorney asked the court to give Tuck an additional six months to address his drug problem before making a termination decision. The superior court declined to give Tuck additional time for treatment and concluded by clear and convincing evidence that Tuck had not remedied the conduct in the home that put Noah at substantial risk of harm within a reasonable time. The superior court based this decision on the fact that Tuck had not completed his case plan and remained untreated for his substance abuse problem. The superior court also determined that reasonable efforts were made by OCS to provide family support services to Noah and Tuck to enable the safe return of Noah to Tuck. The superior court noted that OCS provided a case plan for Tuck, set up visitation between Tuck and Noah, and made referrals for substance abuse assessments and parenting classes. The superior court then terminated Tuck's parental rights.
The parental rights of the mother were also terminated at this time, but she has not appealed the termination.
Tuck appealed the termination decision. Following Tuck's notice of appeal in this case, OCS filed a motion with the superior court asking for supplemental findings in response to the legislature's 2006 amendments to AS 47.10.088. That amendment increased the standard for finding reasonable efforts from a preponderance of the evidence to clear and convincing evidence. We stayed proceedings in this case and remanded for the limited purpose of allowing the superior court to address OCS's motion for supplemental findings. The superior court reviewed the evidence presented at the termination trial, including Tuck's lack of participation in his case plan and OCS's efforts to help him accomplish the case plan, and determined that OCS had proved by clear and convincing evidence that it had made reasonable efforts, allowing its earlier termination order to stand. We now review those supplemental findings.
III. DISCUSSION
A. Standard of Review
A superior court's findings of fact underlying a termination decision are reviewed for clear error. "Clear error exists when we are left with a definite and firm conviction that the superior court has made a mistake." Whether the superior court's factual findings are sufficient to meet the child in need of aid (CINA) statutes and rules is a question of law that is reviewed de novo. B. The Superior Court Did Not Err in Finding that Tuck Had Not Remedied the Conditions that Led to Removal of Noah.
Winston J. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 134 P.3d 343, 345-46 (Alaska 2006).
Id. at 346 (internal quotations omitted).
Wendell C. II v. State, 5 Office of Children's Servs., 118 P.3d 1, 2 (Alaska 2005).
In order to terminate parental rights, the superior court must find by clear and convincing evidence that: (1) the child is a child in need of aid as defined by AS 47.10.011; (2) the parent "has not remedied the conduct or conditions in the home that place the child at substantial risk of harm" or has failed to remedy the conduct or conditions that place the child at harm within a reasonable time; and (3) the department has made reasonable efforts under AS 47.10.086. Tuck challenges the trial court's determination that Tuck had not remedied the conduct that put Noah at risk within a reasonable period of time, as well as its finding that OCS had made reasonable efforts to reunite Tuck and Noah.
AS 47.10.088(a).
AS 47.10.088(a)(1).
AS 47.10.088(a)(2)(A).
AS 47.10.088(a)(2)(B).
AS 47.10.088(a)(3).
The superior court's finding that Tuck had not remedied his conduct that placed Noah at risk within a reasonable time finds ample support in the record. Noah was removed from the home in January 2004 because of Tuck's drug use. Tuck was told a week after Noah's removal that he must obtain a drug assessment, yet Tuck failed to obtain a drug assessment for nine or ten months and he tested positive for cocaine in September 2004. Tuck was sent to a halfway house following the positive test for cocaine, and, while in the halfway house, Tuck assaulted another resident and then left the program. Although Tuck obtained a drug assessment in either October or November 2004, he admitted at trial that he lied on that assessment. In July 2005, after his release from prison, Tuck was again told by a social worker that he needed to get a drug assessment and follow any treatment recommendations. But Tuck failed to obtain a second drug assessment. Tuck also missed four urinalysis appointments despite being warned that a missed appointment would be counted as a "dirty" urinalysis test. Although he was provided with a list of approved parenting classes, he did not call any of them. While Tuck's lifestyle at the time of the termination trial might have been better than it had been previously, his lack of participation in the case plan over a period of almost two years at the time of the termination trial demonstrates that he did not remedy the conduct that put Noah at risk within a reasonable amount of time.
We have held that a parent's recent sobriety right before the termination trial is not necessarily sufficient to show that the parent remedied the conduct that led to the child's risk within a reasonable amount of time. In Sherry R. v. State, Department of Health Social Services, Division of Family Youth Services, the mother had been sober for approximately a year before the termination trial, had been regularly attending AA meetings, and had maintained clean urinalysis results during that time period. We concluded, however, that even though Sherry had made progress in treating her alcohol addiction, the trial court could properly find that she did not remedy her conduct within a reasonable time and that the trial court properly relied on Sherry's past conduct as a predictor of her future behavior. In S.H. v. State, Department of Health Social Services, Division of Family Youth Services, R.H., the father, had completed parenting classes in prison and had signed up for a residential drug treatment program that would not start until after the termination trial. R.H. testified that he would be prepared to assume parental responsibilities eighteen months after the time of the termination trial. We held that given the long history of substance abuse on R.H.'s part, it was not error for the trial court to find that R.H. had not remedied his conduct within a reasonable time.
See Sherry R. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 74 P.3d 896, 902-03 (Alaska 2003).
Id. at 902.
Id. at 902-03.
42 P.3d 1119, 1126 (Alaska 2002).
Id.
Id.
Here, Tuck abused cocaine for approximately eight months after Noah was removed from Tuck's care and failed to obtain the required drug assessment during that period. After Tuck's release from prison in July 2005, Tuck made little progress on his case plan. By the time of the termination trial, Noah had been out of Tuck's care for almost two years. Given Tuck's long history of substance abuse, his relatively short period of sobriety, and his lack of progress on his case plan during the period of sobriety, it was not clear error for the trial court to find that Tuck had failed to remedy the conduct that put Noah at risk within a reasonable time.
C. The Court Did Not Err in Finding by Clear and Convincing Evidence that OCS Had Made Reasonable Efforts as Required Under AS 47.10.086.
On remand, the superior court found by clear and convincing evidence that OCS had made reasonable efforts to provide Tuck with services as required by AS 47.10.086. The trial court found that while OCS had identified the services Tuck needed, Tuck had refused to take advantage of the opportunities offered to him and that OCS was not required to force Tuck to pursue his treatment plan.
The relevant portions of AS 47.10.086 state:
(a) Except as provided in (b) and (c) of this section, the department shall make timely, reasonable efforts to provide family support services to the child and to the parents or guardian of the child that are designed to prevent out-of-home placement of the child or to enable the safe return of the child to the family home, when appropriate, if the child is in an out-of-home placement. The department's duty to make reasonable efforts under this subsection includes the duty to
(1) identify family support services that will assist the parent or guardian in remedying the conduct or conditions in the home that made the child a child in need of aid;
(2) actively offer the parent or guardian, and refer the parent or guardian to, the services identified under (1) of this subsection; the department shall refer the parent or guardian to community-based family support services whenever community-based services are available and desired by the parent or guardian; and
(3) document the department's actions that are taken under (1) and (2) of this subsection.
Tuck argues that the record does not support a finding by clear and convincing evidence that OCS made reasonable efforts as required by the statute. Tuck points to the fact that while he was incarcerated OCS provided no services at all and that the Department of Corrections did not offer substance abuse treatment or OCS-approved parenting classes while he was in custody.
In determining whether OCS made reasonable efforts, we review the entirety of the state's reunification efforts. When Noah was first removed from the home, OCS was initially unable to contact Tuck and first heard from him about a week later when Tuck was in Providence Hospital after the suicide attempt. The OCS social worker told Tuck that he needed a substance abuse assessment and informed him of a place where he could get the assessment. In April 2004 Tuck was also told that he needed to participate in random urinalysis tests. He missed "quite a few" of the scheduled urinalysis appointments. After Tuck tested positive for cocaine in September 2004, Tuck's probation officer sent Tuck to a halfway house. In January 2005 Tuck got drunk and assaulted another resident of the halfway house. Following this incident, Tuck was incarcerated. Tuck contacted his social worker from jail through letters and also wrote to Noah through his social worker. Tuck did participate in parenting classes that were offered in prison, but these classes were not OCS-approved. Tuck also started a family violence intervention program, but stopped attending the class once he was released because the class was in Wasilla. As a result, Tuck only completed fifteen weeks of the thirty-six-week program. When Tuck was released from prison in July 2005, his social worker went over his case plan requirements with him "in detail." The social worker told him he needed to complete parenting classes and provided him with a list of OCS-approved classes. The social worker also told Tuck that he needed to complete a substance abuse and mental health assessment. Tuck was also required to again submit to urinalysis testing, but he missed four of the appointments in the two and a half month period between his release from prison and the termination trial. While OCS's efforts during Tuck's imprisonment were not extensive, once Tuck was released, OCS informed Tuck of all the requirements of his case plan and provided references for parenting classes. And although Tuck told the social worker that he would obtain another substance abuse assessment, he failed to follow through. Tuck admitted during the termination trial that he knew of all of the requirements of his case plan but that he had not made any progress on any of the elements. Given Tuck's failure to make any meaningful progress on his case plan despite the entirety of these rehabilitation efforts, we conclude that the superior court's reasonable efforts finding on remand was not clearly erroneous.
Frank E. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 77 P.3d 715, 720 (Alaska 2003).
IV. CONCLUSION
For the reasons stated above, the decision of the superior court is AFFIRMED.