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Janice B. v. State

Supreme Court of Alaska
Jan 7, 2009
Supreme Court No. S-13054, No. 1325 (Alaska Jan. 7, 2009)

Opinion

Supreme Court No. S-13054, No. 1325.

January 7, 2009.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge., Superior Court Nos. 3AN-06-314/315 CN.

Appearances: Julie L. Webb, Anchorage, and Rachel Levitt, Director, Office of Public Advocacy, Juneau, for Appellant Janice B. G. Blair McCune, Anchorage, for Appellant Curtis B. Megan R. Webb, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.

Before: Fabe, Chief Justice, Eastaugh, Carpeneti, and Winfree, Justices. [Matthews, Justice, not participating.]


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

Janice and Curtis B. appeal the termination of their parental rights to two of their five children. They argue that the superior court erred in determining that the Alaska Office of Children's Services (OCS) made reasonable efforts to provide them with family support services, as required by the applicable Child In Need of Aid (CINA) statute, AS 47.10.086. OCS became involved with the family when their newborn twins tested positive for drugs. Eighteen months later OCS filed a petition to terminate Curtis and Janice's parental rights to the twins. The superior court granted the petition. Curtis and Janice appeal, arguing that OCS did not make reasonable efforts to provide family support services to enable the children's return to the family. Although OCS's efforts were deficient in some ways, the superior court did not err in finding that OCS's efforts overall were reasonable in light of the circumstances and that OCS satisfied its statutory duty. We therefore affirm the superior court's termination order.

We use pseudonyms to protect the privacy of the family members.

II. FACTS AND PROCEEDINGS

In mid-August 2006 Janice B. gave birth to twins at an Anchorage hospital. Curtis B. is the twins' father. The hospital contacted OCS when the twins tested positive at birth for opiates and cocaine. Both parents admitted to drug use when an OCS social worker met with Curtis and Janice in the hospital.

Eight days after the twins were born, OCS filed a non-emergency petition to adjudicate all five of Janice and Curtis's children as children in need of aid. The superior court granted OCS temporary legal custody of the children and ordered that the children and parents remain with Janice's father, with whom they had been residing. But on September 6, 2006, after police found Curtis and Janice with the twins in a vehicle containing drug paraphernalia, OCS removed all five children from their parents' physical custody and placed them with other relatives.

Over the course of the next eighteen months, three different OCS social workers worked with Janice and Curtis. OCS representatives met with both parents in person and talked with them by telephone; developed multiple case plans detailing steps the parents needed to take to maintain custody; and referred them to organizations for substance abuse treatment and urinalysis testing, as well as parenting and domestic violence classes. Curtis was incarcerated for at least ninety-one days during this eighteen-month period, and Janice was incarcerated for at least 268 days.

In October 2007 OCS filed a petition to terminate Janice and Curtis's parental rights to all five of their children. In February 2008 Janice and Curtis consented to the appointment of relatives as legal guardians of the three oldest children. OCS continued to seek termination of Janice and Curtis's parental rights to the twins so the twins could be adopted. Janice and Curtis contested termination.

At a two-day termination trial in February 2008, Janice and Curtis argued that OCS had not made reasonable efforts to offer and identify family support services as required by AS 47.10.086. Following the trial the superior court found by clear and convincing evidence that OCS had made reasonable efforts to reunify the family and entered an order terminating Curtis and Janice's parental rights to the twins on March 17, 2008.

Curtis and Janice each appeal. When Curtis filed an unopposed motion to consolidate the appeals, we ordered consolidation.

III. STANDARD OF REVIEW

Whether OCS made reasonable efforts to provide family support services is a mixed question of law and fact. We review questions of law de novo. We review the trial court's factual findings for clear error. A finding is clearly erroneous if a review of the entire record leaves us with the definite and firm conviction that the trial court made a mistake. We will ordinarily not overturn a superior court's findings based on conflicting evidence. We will not reverse the trial court's decision if the error was harmless.

Cf. N.A. v. State, 19 P.3d 597, 601 (Alaska 2001) ("Whether the state has complied with the `active efforts' requirement of the Indian Child Welfare Act (ICWA) presents a mixed question of law and fact.") (internal citations omitted).

Jeff A.C., Jr. v. State, 117 P.3d 697, 702 (Alaska 2005).

Brynna B. v. State, Dep't of Health Social Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (holding that superior court's factual finding was not clearly erroneous when state had "presented significant evidence" to support finding).

Id. at 529.

Id.

See Audrey H. v. State, Office of Children's Servs., 188 P.3d 668, 677 (Alaska 2008) (holding that superior court's error in making findings in written order instead of at permanency hearing was harmless because appellant did not establish that she was harmed by error, and because we could not "imagine any prejudice").

IV. DISCUSSION

A. Whether OCS Made Reasonable Efforts To Provide Family Support Services to Curtis and Janice

Curtis and Janice argue that the court erred in finding that OCS made reasonable efforts to provide their family with the support services required by AS 47.10.086(a). The statute requires that OCS make "timely, reasonable efforts to provide family support services to the child and to the parents . . . 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." This duty includes identifying and actively offering "services that will assist the parent . . . in remedying the conduct . . . that made the child a child in need of aid" and documenting those efforts.

AS 47.10.086(a) (2006).

Id.

AS 47.10.086(a)(1)-(3) (2006).

OCS's efforts do not have to be perfect, only reasonable in light of the circumstances. To determine whether OCS's efforts were reasonable, courts may properly consider "the entire history of the services that OCS has provided a parent." The scope of OCS's duty to make reasonable efforts is affected by a parent's willingness to cooperate with OCS's efforts and by a parent's incarceration.

Audrey H., 188 P.3d at 678; Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska 2005).

Burke v. State, Dep't of Health Social Servs., Office of Children's Servs., 162 P.3d 1239, 1245 (Alaska 2007).

Id. at 1246.

Cf. A.A. v. State, Dep't of Family Youth Servs., 982 P.2d 256, 261 (Alaska 1999). In this ICWA active efforts case, we held that

A parent's incarceration significantly affects the scope of the active efforts that the State must make to satisfy the statutory requirement. While "[n]either incarceration nor doubtful prospects for rehabilitation will relieve the State of its duty under ICWA to make active remedial efforts," the practical circumstances surrounding a parent's incarceration — the difficulty of providing resources to inmates generally, the unavailability of specific resources, and the length of incarceration — may have a direct bearing on what active remedial efforts are possible. Thus, while the State cannot ignore its ICWA duties merely because of [the parent's] incarceration, his incarceration is a significant factor in our evaluation of the adequacy of the State's efforts in this case.

(Internal citations omitted.)

The first step in evaluating OCS's efforts is identifying the problems that caused the children to be in need of aid. The primary problem here was the substance abuse of both parents. Janice's substance abuse during pregnancy triggered OCS's involvement with the twins, and the substance abuse of both parents formed the basis of the initial non-emergency petition for legal custody of the children.

The second step is determining whether OCS's efforts were reasonable in light of surrounding circumstances. Curtis argues that they were not, primarily because OCS only identified and offered him one residential substance abuse treatment program, and this program had a six-month waiting list. He also appears to makes a number of other less clear arguments. He seems to argue that OCS did not make reasonable efforts because, at his first meeting with a social worker, the social worker did not tell him how to get a substance abuse assessment; no social worker met with him while he was incarcerated in January 2007; the social worker did not distribute the results of his substance abuse assessment until almost a month after his March 2007 assessment meeting; and one social worker did not adequately document the efforts she claims she made on his behalf.

Id.

Likewise, Janice argues that OCS did not make reasonable efforts, primarily because it allegedly did not give her a written case plan "adequately early." She also appears to argue that OCS's efforts were not reasonable because its social workers did not meet in person with her often enough; one particular social worker did not meet in person with Janice before the worker filed her pre-disposition report; and social workers did not refer Janice to programs that were able to provide services to her.

1. OCS's failure to refer Curtis to an appropriate treatment program

Curtis's primary argument is that OCS failed to make reasonable efforts because the only residential treatment program it referred him to had a six-month waiting list. But OCS argues that in addition to referring Curtis to this program it discussed two other potential treatment programs with Curtis or with Curtis's mother. Furthermore, OCS referred Curtis to an outpatient treatment program, from which Curtis was discharged for failure to participate. Curtis argues that this referral was not sufficient because he needed a residential program, not outpatient treatment. But Curtis's substance abuse assessment recommended that he participate in an outpatient treatment program while waiting to begin a residential treatment program, and his case plan required that he comply with the assessment's recommendations. We hold that referring Curtis to two treatment programs and discussing two additional programs with Curtis and his mother satisfied OCS's duty to make reasonable efforts.

Curtis filed no reply brief, so does not dispute this argument.

2. OCS's failure to tell Curtis at the September 2006 meeting how to obtain a substance abuse assessment

Curtis argues that OCS's efforts were unreasonable because the social worker failed to tell him when he met with her in September 2006 how he could obtain a substance abuse assessment. OCS provided him with assessment information three months later, in December 2006, after which Curtis missed two scheduled assessment appointments. Curtis appears to have been incarcerated in January 2007 and for most of February 2007. He received an assessment in March 2007. The assessment recommended that he engage in a fifty-six day residential treatment program, for which there was a six-month waiting list, and that he participate in an outpatient treatment program in the meantime. Curtis missed several appointments with the outpatient treatment program and was discharged.

In a similar case we held that OCS's six-month delay in finalizing a case plan was acceptable because the parent still had "a reasonable opportunity to show improvement" despite OCS's initial delay. Here OCS's three-month delay in telling Curtis how to get an assessment left him with fifteen months in which to show improvement before the termination hearing ultimately took place. In those fifteen months Curtis received his assessment, but then failed to follow its recommendations. Despite OCS's delay, Curtis had a reasonable opportunity to get an assessment and engage in treatment. The delay therefore does not render OCS's efforts unreasonable.

Burke, 162 P.3d at 1247 (holding that six-month delay in finalizing case plan did not render OCS's efforts unreasonable when parent still had reasonable opportunity to show improvement after case plan was completed).

3. OCS's failure to meet with Curtis while he was incarcerated in January 2007

Curtis argues that OCS's efforts were unreasonable because no social worker met with him while he was incarcerated in January 2007. There was no contact between OCS and Curtis from December 4, 2006, when a social worker met with him to discuss his case plan, until March 9, 2007, when Curtis telephoned OCS to schedule a substance abuse assessment. The social worker learned on January 14 that Curtis was incarcerated, but did not visit him in custody. We have held in similar cases that OCS made reasonable efforts overall even when its efforts were not reasonable during a particular period of time. Given that OCS worked with Curtis for a total of eighteen months before termination and given that when contact resumed upon his release, almost a year remained until the termination proceedings ultimately took place, this three-month period of no contact does not render OCS's efforts unreasonable.

Audrey H. v. State, Office of Children's Servs., 188 P.3d 668, 678 (Alaska 2008) (holding that OCS's failure to make reasonable efforts over nine-month period did not render its efforts unreasonable "[w]hen considered in the context of the full history of its involvement with [the parent]") (citing Frank E. v. State, 77 P.3d 715, 720 (Alaska 2003)).

4. The twenty-seven day lapse between Curtis's substance abuse assessment and his receipt of the results

Curtis argues that OCS's efforts were unreasonable because OCS did not give him the results of his substance abuse assessment until almost one month after the assessment was conducted. OCS asserts that "[t]here is nothing in the record to indicate that the delay in completing the assessment was either atypical or somehow attributable to OCS."

Any argument that the delay may have been typical would not be persuasive — evidence that OCS repeatedly fails to make sufficient efforts would not resolve a contention that its efforts in a particular case were insufficient. But we hold that the delay does not render OCS's efforts unreasonable in this case because there is no indication that the delay was attributable to OCS. Curtis completed his substance abuse assessment at a private substance abuse treatment center on March 15, 2007. On April 9 the OCS social worker noted that the results of the assessment were still pending. The assessment counselor at the treatment center signed the assessment on April 10 and sent Curtis a letter on April 11. Any possible excessive delay appears to have been attributable to the treatment center that administered and processed his assessment, not OCS.

5. OCS's failure to document two telephone calls made on Curtis's behalf

Finally, Curtis argues that OCS did not adequately document the efforts it claims it made on his behalf. He refers to the testimony of an OCS social worker who admitted that she did not document two telephone calls. But he does not argue, and it does not appear from the record, that the failure to document these calls harmed him. One of the calls was to a treatment center to help Curtis enroll in its program after Curtis told the OCS social worker that they had been playing "phone tag." Whether or not she made this call, Curtis was enrolled in the program two weeks later.

The second call was to Curtis's mother in an attempt to tell Curtis that a letter from the outpatient treatment program stated that Curtis would be discharged from the program if he did not re-engage within ten days. The program sent OCS the letter because Curtis had missed several appointments. Curtis does not argue that he did not receive the message conveyed by this call. Nor does he claim that he would have reengaged in treatment had he known about the letter or if the call had been documented. We look to whether this failure to document rendered OCS's efforts unreasonable in light of the surrounding circumstances.

Given the harmlessness of OCS's failure to document these two calls, as well as the totality of OCS's other efforts in this case — and in particular its apparently complete documentation of its other efforts made over the course of eighteen months — we hold that the superior court did not err in holding that OCS's efforts were reasonable despite this failure to document.

6. OCS's delay in giving Janice a written copy of her case plan

Janice argues that OCS's efforts were unreasonable because it did not give her a written copy of her case plan "adequately early." She contends that OCS did not give her a copy of the plan until October 15, 2007. But the trial court found that, at Janice's request, OCS had faxed her criminal defense attorney a copy of the plan on December 19, 2006. Janice does not contest this finding and we will not overturn findings of fact unless they are clearly erroneous. The social worker testified that Janice asked OCS to fax the plan, that the social worker sent it, and that Janice told her that the attorney had received it. This evidence was sufficient to support the trial court's finding.

Brynna B. v. State, 88 P.3d 527, 529 (Alaska 2004).

This raises the question whether December 19, 2006 was too late. A lack of effort during a specific period of time does not necessarily render OCS's efforts as a whole unreasonable, and delay in finalizing a case plan does not make OCS's efforts unreasonable if the parent still has a reasonable opportunity to follow the plan. Janice had nearly fifteen months from the time she received a copy of the plan until the time the termination hearing began. Janice could have shown improvement during those fifteen months by following the plan's recommendations, including participating in random urinalysis testing or attending domestic violence or parenting classes. Despite OCS's initial two-month delay in giving her the plan, Janice still had a reasonable opportunity to show improvement.

Audrey H., 188 P.3d at 679.

Also, the trial court found that case workers discussed the plan with Janice several times before giving her a copy and that Janice understood its requirements. Given her familiarity with the plan, we are not persuaded, absent evidence supporting such a conclusion, that Janice's efforts to comply would have been different had she received a written copy of the plan two months earlier. OCS's delay in giving Janice a written copy of her case plan does not make its efforts unreasonable.

7. OCS's failure to meet in person with Janice more often

Janice argues that OCS's efforts were unreasonable because social workers did not meet in person with her often enough. Similarly, she argues that one social worker did not meet in person with her at all before the worker filed her pre-disposition report in April 2007. The record shows that although that social worker did not meet in person with Janice before filing her report, that social worker did hold at least one telephonic administrative review meeting with Janice in March 2007 and tried to meet in person with her three times in December 2006. Likewise, the trial court found that there were "very few face-to-face meetings," but that the case plans were still "suitable" and that Janice and Curtis were both "aware of the nature of the caseplans." Given the totality of OCS's efforts to contact Janice telephonically and in person, OCS's failure to meet in person with her more often does not render its efforts unreasonable.

OCS canceled one meeting because the social worker was ill; Janice canceled the other two.

8. OCS's failure to refer Janice to programs that were able to provide services to her

Janice argues that OCS's efforts were unreasonable because OCS did not refer her to programs that could provide services to her. OCS helped her complete the paperwork needed for a substance abuse assessment at a privately run substance abuse program, but the program could not conduct the assessment because Janice was incarcerated and had not yet been sentenced. OCS also referred her to services at the facility where she was incarcerated for much of the time OCS was involved in the case. But Janice could not participate in that program because she had not been sentenced, and the program required that participants be incarcerated for at least six months so they could complete the entire program.

This is apparently because assessments are only valid for a limited time; because Janice had not been sentenced, there was no way to determine whether the assessment would still be valid at the time of her release.

We have held that the scope of OCS's duty to make reasonable efforts is affected by a parent's incarceration. Janice's incarceration directly limited the substance abuse services available to her. Her pre-sentencing incarceration kept her from completing an assessment at either the private substance abuse center or the facility where she was incarcerated. The record does not indicate that there were other treatment programs in which Janice could have participated. Under these circumstances, OCS's failure to refer Janice to programs that could serve her does not make its efforts unreasonable.

Cf. A.A. v. State, Dep't of Family Youth Servs., 982 P.2d 256, 261 (Alaska 1999).

Under the circumstances, none of Curtis or Janice's arguments persuades us that OCS's efforts, viewed as a whole, were inadequate, and therefore that the superior court erred in determining that OCS made reasonable efforts to provide family support services.

B. Whether It Was Harmless Error To Find that Curtis "Failed To Engage in Treatment"

The trial court found that Curtis had been assessed as "need[ing] lengthy residential treatment but he failed to engage in treatment or was discharged." Curtis argues that this finding is clearly erroneous because the residential treatment he needed was never offered to him and he therefore could not have failed to "engage in" that treatment. We agree that the finding is erroneous, but we hold that the error was harmless. Instead of finding that Curtis failed to engage in residential treatment, it would have been more accurate to find that Curtis failed to engage in the outpatient treatment he was referred to while waiting to begin the residential treatment program. As we noted in Part IV.A.1 in resolving Curtis's first argument, this outpatient treatment program was recommended by his substance abuse assessment, and Curtis was required by his case plan to participate in it.

V. CONCLUSION

We therefore AFFIRM the termination order.


Summaries of

Janice B. v. State

Supreme Court of Alaska
Jan 7, 2009
Supreme Court No. S-13054, No. 1325 (Alaska Jan. 7, 2009)
Case details for

Janice B. v. State

Case Details

Full title:JANICE B., Appellant v. STATE OF ALASKA, DEPARTMENT OF HEALTH AND SOCIAL…

Court:Supreme Court of Alaska

Date published: Jan 7, 2009

Citations

Supreme Court No. S-13054, No. 1325 (Alaska Jan. 7, 2009)