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holding that the superior court did not err in finding that OCS had made active efforts toward the mother's youngest child in light of "the total history" of OCS's efforts during its fourteen-year involvement with her family
Summary of this case from Sandy v. Dept. of HealthOpinion
Supreme Court No. S-11426.
May 18, 2005.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge, Superior Court No. 3AN-00-65 Civil.
Sharon Barr, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Megan R. Webb, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Alaska Appellate Rule 214.
Kyra K. has had three children: Zelda K. (born January 1989), Art K. (born August 1995), and Gray M. (born January 2003). She appeals a March 2004 superior court order terminating her parental rights over Art and Gray, contending that the superior court erred in finding that the state made "reasonable efforts" and "active efforts" to provide remedial services to prevent the breakup of her family. Because the record shows that the state made such efforts over a fourteen-year period and that Kyra consistently failed to cooperate, we affirm the superior court's findings and the termination of her parental rights.
Pseudonyms have been used to protect the identity of family members.
Each child has a different father. The court has ruled that, of the three children, Gray is the only Native child. None of the fathers is party to this appeal.
Kyra's parental rights over Zelda were voluntarily relinquished by Kyra in June 2001, and are not at issue in this appeal.
Kyra has a long history of involvement with the Office of Children's Services. OCS assumed custody of Kyra's children, released them to her, and re-assumed custody of the children, as follows: OCS assumed custody of Zelda in 1990 due to Kyra's neglect and again in 1993 after an incident of abuse (for which Kyra was convicted). In 2000 OCS took custody of Zelda and Art for numerous reasons. OCS retook custody of Art in 2002 after domestic violence incidents. And in 2003, OCS assumed custody of Gray when he was one month old. Each assertion and extension of state custody was accompanied by a superior court order finding that the child was a child in need of aid. In March 2004 the superior court terminated Kyra's parental rights over Art and Gray. As Kyra challenges only those findings related to the state's efforts to provide remedial services to prevent the breakup of the family, we limit our inquiry to this subject.
The Office of Children's Services was formerly known as the Division of Family and Youth Services. We variously refer to this agency as "OCS" and "the state."
These reasons include: (1) an incident in which Kyra left the children with a babysitter for one night and failed to return, without notice, until ten days later; (2) Kyra's failure to provide proper education to Zelda; and (3) concern that Kyra left Zelda in charge of parenting Art.
In her briefing, Kyra does not challenge, for example, the findings that her conduct placed her children in need of aid, that she failed to remedy those conditions, or that the termination was in the best interests of the children.
We apply the clearly erroneous standard when we review factual findings of the superior court. Factual findings are clearly erroneous when a review of the entire record leaves us "with a definite and firm conviction" that the superior court has made a mistake. Whether the superior court's factual findings satisfy applicable Child in Need of Aid (CINA) rules and statutory requirements is a question of law subject to de novo review.
Erica A. v. State, Dep't of Health Soc. Servs., 66 P.3d 1, 6 (Alaska 2003).
Brynna B. v. State, Dep't of Health Soc. Servs., 88 P.3d 527, 529 (Alaska 2004) (quoting A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
Erica A., 66 P.3d at 6.
Did the superior court err in finding reasonable efforts for Art and active efforts for Gray?
The superior court concluded that Art was not a Native child and that Gray was a Native child. As such, the law places different burdens on the state with respect to each child in making its efforts to reunite the family.
Before a court may terminate parental rights over a non-Native child, it must find by a "preponderance of the evidence that the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts." Alaska Statute 47.10.086 requires the department to "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, when appropriate. . . ." The statute also places a duty on the department to: (1) "identify family support services that will assist the parent . . . in remedying the conduct or conditions in the home that made the child a child in need of aid . . ."; (2) "actively offer . . . and refer the parent" to such services; and (3) document its actions that are required under AS 47.10.086(a)(1) and (2).
AS 47.10.088(a)(2).
AS 47.10.086(a).
AS 47.10.086(a)(1)-(3).
Before a court can terminate parental rights over a Native child, under the Indian Child Welfare Act (ICWA), it must find by a preponderance of the evidence that the department has made active, but unsuccessful, efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the family. Active efforts occur "where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own." Whether the state's efforts were active efforts is determined on a case-by-case basis.
25 U.S.C. § 1912(d) (2000); CINA Rule 18(c)(2); E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 989-90 (Alaska 2002).
N.A. v. State, Div. of Family Youth Servs., 19 P.3d 597, 602-03 (Alaska 2001) (citation omitted). We have distinguished "active efforts" from merely "passive efforts," which occur "where a plan is drawn up and the client must develop his or her own resources towards bringing it to fruition." A.A. v. State, Dep't of Family Youth Servs., 982 P.2d 256, 261 (Alaska 1999).
N.A., 19 P.3d at 603.
Findings of reasonable efforts or active efforts are required at all stages in a child dependency case. Whether the state's efforts were reasonable "must be viewed in light of the entire history of services that the state has already provided." Similarly, we have decided whether the state's efforts were active by examining the totality of the state's efforts offered to the parents and children.
See CINA Rules 10.1; 15(f); 17(c); 17.2(f); 18(c)(2).
See Erica A., 66 P.3d at 7-8.
See E.A., 46 P.3d at 990 (state's failure to offer active efforts over seven-month period was "insignificant in light of the extensive remedial efforts the state has provided throughout its involvement" with the family).
Since the department first took custody of Art in 2000, two different superior court judges have made findings on at least six separate occasions that the state made reasonable efforts. Since the department took custody of Gray in 2003, the superior court has made findings on at least three occasions that the state made active efforts. In making these findings, the superior court properly considered the total history of state efforts dating back to events in 1990 with Kyra's first child, Zelda. The superior court observed that the state "[bent] over backwards" to help Kyra by providing a "massive amount of services." At the termination hearing, the superior court concluded that active efforts had been made with regard to both Art and Gray, even though only a reasonable efforts finding was needed for Art.
These occasions include: July 2000 adjudication hearing, January 2001 disposition/permanency hearing, September 2002 hearing, January 2003 probable cause hearing, October 2003 placement/adjudication hearing, and February 2004 termination hearing.
These occasions include: January 2003 probable cause hearing, October 2003 placement/adjudication hearing, and February 2004 termination hearing.
These findings are amply supported by the record. Over a fourteen-year period, the department provided Kyra with a variety of services and made numerous resources available to her, including, for example: case plans, supervised visitation, therapy and counseling for Kyra and the children (including the initial referral and the payments for bus passes and the treatment itself), social services such as shelters and job placement assistance, two psychological examinations by Dr. Michael C. Rose, other assessments, and referrals for parenting and other classes. By providing these services and access to resources, the department met its obligation to make reasonable and active efforts to prevent the breakup of Kyra's family. The following lists some examples of the extent of the department's efforts:
(1) Between 1990 and 1997, the department provided Kyra and her family with services from no less than twenty-three doctors, counselors, organizations, and government agencies.
(2) The Division of Public Assistance estimated that between 1995 and 2000, it spent over $11,000 on services (including day care, transportation, work clothing, car repair, and medical services not covered by Medicaid) to help Kyra obtain stable employment, which Kyra ultimately failed to do.
(3) Although Kyra's social worker recommended that the department move towards termination after the department had assumed custody of Zelda and Art in 2000, the department convened a "multi-disciplinary team" of various professionals to "brainstorm" how Kyra might be helped to remedy her problems. Based on the team's expert conclusions, Kyra's existing case plan was amended.
(4) The department arranged for two psychological evaluations of Kyra by Dr. Rose, in 1994 and 2003. In 1994, Dr. Rose concluded that Kyra was "not psychologically stable nor strong enough at present to adequately protect and care for a child." In 2003, Dr. Rose found little improvement from the prior examination. He concluded that her psychological problems "speak against reunification in the foreseeable future."
(5) The department arranged for supervised visitation for Kyra while her children were in state custody, and often provided bus passes and other services to assist Kyra in attending the visitation. At one point, the department arranged 10.5 hours per week of supervised visitation between Kyra and Gray at the Little Red Schoolhouse. The social worker on this case later testified that she and another supervisor were not aware of any other case in which the department provided this level of supervised visitation to a parent.
This evidence supports the superior court's finding that the state met its dual obligation to make reasonable efforts on behalf of Art and active efforts on behalf of Gray to prevent the breakup of Kyra's family.
It is also notable that on three occasions (1992, 1997, and 2001), the department was satisfied with Kyra's progress on her case plan and returned Zelda or Art to Kyra's custody and continued to provide services. Shortly after each return, the department received a report of harm and resumed custody of the child.
Moreover, we have also held that "a parent's demonstrated lack of willingness to participate in treatment may be considered" in determining whether the state has taken reasonable or active efforts. Throughout the case history, the superior court regularly found that Kyra was obstructive toward the department and unwilling to participate in proposed treatment. The record amply supports these findings. For example, there was evidence that she refused or delayed participation in recommended treatment, refused to sign releases to help secure treatment, and missed visitation or therapy without explanation. There are numerous other examples of Kyra's inappropriate behavior:
E.A., 46 P.3d at 991 (citations omitted) (active efforts); see also M.W. v. State, Dep't of Health Soc. Servs., 20 P.3d 1141, 1146 (Alaska 2001) ("[I]n making its reasonable efforts finding, the superior court could consider [parent's] unwillingness to engage in his case plan.").
(1) After the creation of her case plan in 2000, Kyra stubbornly resisted undergoing a second psychological evaluation. In September 2002, the superior court ordered Kyra to promptly complete the evaluation. The evaluation did not take place until late February 2003. An affidavit later filed by the social worker, which the superior court found persuasive, lists in detail the almost daily efforts made by the department between September 2002 and February 2003 to arrange the evaluation. The affidavit describes much obstructive and stalling behavior by Kyra.
(2) Kyra's extensive supervised visitation with Gray at the Little Red Schoolhouse, as described above, was cancelled by the Little Red Schoolhouse due to Kyra's inappropriate behavior and violations of house rules. Visitation then continued on a weekly basis at the Cook Inlet Tribal Center, but this arrangement ended after Kyra failed to appear, without explanation, on multiple occasions.
(3) In July 2003 Kyra revoked all releases of information to the department, which left the department unable to monitor Kyra's compliance with her case plan.
In light of the amount of services given to Kyra and her children over a fourteen-year period, and considering Kyra's consistent refusals to cooperate, we conclude that the superior court's findings of reasonable and active efforts were not erroneous.
Kyra also argues that reasonable and active efforts were not provided because she did not receive therapeutic visitation or enrollment in a twenty-four-hour "shared family care" living center. This argument fails for two reasons. First, the law asks the superior court to consider the context of the state's total historical efforts. Thus, in considering efforts, we do not look at one particular service, but rather at the totality of services provided over the period in which the children were children in need of aid. For example, we have held that the failure to provide a psychological evaluation or to make active efforts over a seven-month period was "insignificant in light of the extensive remedial efforts the state has provided throughout its involvement with [the] children." Similarly, we have held that the failure to provide a mother with a specific dual-treatment service was not fatal to the active efforts finding given the "exemplary efforts" by the department in providing other services. In short, the department's substantial and comprehensive historical services in this case did not somehow become deficient by the absence of one particular type of service.
See Erica A., 66 P.3d at 7-8 (for reasonable efforts); E.A., 46 P.3d at 990 (for active efforts).
E.A., 46 P.3d at 990-91.
N.A. v. State, Div. of Family Youth Servs., 19 P.3d 597, 602-03 (Alaska 2001).
Second, this conclusion is strengthened by the superior court's findings regarding these services. The services of therapeutic visitation or family therapy were deemed either inappropriate or unavailable due to Kyra's actions. There was evidence that the department contacted several providers in an attempt to arrange for these services, but that it was unable to find a doctor "willing to do it" because of the unusual circumstances. The court also accepted testimony that such visitation or therapy would have been harmful to Zelda at the time it was proposed, and that Kyra had made insufficient progress in her own therapy.
Similarly, the superior court found that a twenty-four-hour "shared family care" program would have been an "extraordinary effort," beyond what is demanded by the active efforts standard. The department would have been required to put forth "extraordinary funding," and the foster parents would have risked losing subsidies. The court also found that it had never "been done in this state before and there are no provisions for such services," and that it may not have even been available for Kyra, as it is usually "provided to people who are either disabled or minors and not to adults" such as Kyra. These findings were not clearly erroneous.
In conclusion, even though these specific services were not offered, the court's findings of reasonable efforts (for Art) and active efforts (for Gray) based on the fourteen-year history of the department's efforts were not erroneous. We accordingly AFFIRM the superior court's termination of Kyra's parental rights over Art and Gray.