Opinion
Supreme Court No. S-11974.
April 5, 2006
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Leonard R. Devaney, Judge, Superior Court No. 4BE-02-53 CP.
Kathleen Murphy, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney General, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Justice, Eastaugh, Fabe, and Carpeneti, Justices. [Matthews, Justice, not participating.]
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Nicole H. challenges the superior court's order terminating her parental ties to her son Rick P., arguing that the court erred in finding that the Office of Children's Services (OCS) made active efforts to prevent the breakup of Nicole's family. Specifically, Nicole contends that the superior court should have based its active-efforts finding on OCS's actions throughout the time the state had custody of Rick, instead of limiting its consideration to the time since Rick's most recent permanency hearing. According to Nicole, OCS violated its active-efforts duty early on, by ignoring her need for a psychological evaluation, as recommended in her original case plan. Had OCS promptly and actively followed this recommendation, Nicole maintains, she could have resolved her parenting problems by the time of the termination hearing. We agree with Nicole that the superior court had a duty to consider the entire history of her case in deciding the issue of active efforts. But because the record establishes that the steps OCS took during the entire time the case was pending amounted to active efforts, we affirm the superior court's decision.
We use pseudonyms for the individual family members involved in this case.
II. FACTS AND PROCEEDINGS
Rick P., an Indian child under the Indian Child Welfare Act (ICWA), was born in 2000 and was tribally adopted a short time later by his maternal aunt, Nicole H., a resident of Scammon Bay. Nicole and her long-time boyfriend Ralph J. have a lengthy history of substance abuse and domestic violence.
Rick first came into the custody of OCS in May 2002 after Bethel police found Ralph highly intoxicated while carrying Rick down the street with Nicole nowhere to be found. The police took Rick from Ralph and contacted OCS; OCS filed an emergency petition for Rick to be adjudicated a child in need of aid and for temporary custody. The superior court adjudicated Rick a child in need of aid according to a stipulation by Nicole, Ralph, and OCS in August 2002.
At about the same time, OCS created a case plan with the goal of returning Rick to Nicole and Ralph. The plan identified as its first concern "[s]ubstance [a]buse by [Ralph] and [Nicole] and how it impairs their ability to provide appropriate parenting for [Rick's] safety and well-being." The plan's primary objective was for "[Ralph] and [Nicole] to get substance abuse assessments and to follow all recommendations. [Ralph] and [Nicole] to live a life free of alcohol or substance abuse." The case plan identified as its second concern "[i]nappropriate parenting skills and inadequate caregivers for [Rick] by [Ralph] and [Nicole] which put [Rick] at risk of harm." The proposed secondary objective was for "[Ralph] and [Nicole] to get psychological evaluation to assess function ability to adequately parent [Rick] and to meet his physical and emotional needs." In the plan's "Activities/Task" list, the social worker agreed to "make referral for psychological evaluation for [Ralph] and [Nicole] and send referrals for recommended treatment from the evaluations." The social worker also agreed to "make travel arrangements for psychological evaluations." Nicole and Ralph agreed to "follow recommendations of psychological evaluation."
Nicole received her substance abuse assessment as required under the primary "Concern" of her August 2002 case plan; she entered a residential treatment program at the Phillips Ayagnirvik Treatment Center (PATC) in November 2002. Nicole graduated from that program in January 2003 and made progress for several months. Her April 2003 case plan stated that Nicole had remained sober since she returned to Scammon Bay in January. The social worker observed that "[Nicole] expresses the desire to spend more time in visiting with her son [Rick]. She is staying sober, and is not allowing any other family members who live with her to abuse substances in her home. She has the desire and ability to nurture and protect [Rick]." OCS monitored Nicole's progress in outpatient aftercare.
Five months after Nicole completed treatment at PATC she was drinking again in Bethel; OCS learned of her relapse and intervened. The June 2003 permanency hearing report — a report OCS is required to prepare before every permanency hearing — noted that "[a] referral was sen[t] to Dr. Paula MacIan, Psychologist with the Division for [Nicole] and [Ralph] to receive psychological evaluation and follow recommendation." Under a section describing Nicole's progress in implementing her case plan, the report noted that "[t]he psychological evaluation needs to be scheduled for [Nicole]."
Nicole reentered in-patient substance abuse treatment later that year at Jake's Place and completed the program in November 2003. An OCS social worker arranged for that treatment, coordinated Nicole's care with the village aftercare counselor, arranged and paid for Nicole to travel between her village and the treatment facility, monitored her progress in treatment, and conducted home visits with Rick. The social worker also provided Nicole phone cards to keep in touch with Rick and arranged for Nicole to visit Rick outside of his foster home because Nicole felt uncomfortable there. In addition, the social worker asked Nicole to contact her whenever Nicole came to Bethel, and offered to pick Nicole up at the Bethel airport, take her to her Alcoholics Anonymous meetings, and give her any support she needed in Bethel.
Shortly after Nicole completed the Jake's Place program, OCS arranged for a trial home visit to bring Rick back to Nicole's home in Scammon Bay. Nicole's January 2004 case plan reported that Nicole "displayed the ability and desire to protect her son" and "has a positive support system to assist her in Scammon Bay." The plan made no mention of the previously recommended psychological evaluation. It listed as a secondary concern (after Nicole's substance abuse) that "[a]ll night visits and possible gambling activity place the child in an environment that is not appropriate and [Nicole] at risk for relapse." To combat this problem, Nicole agreed to limit such visits and to call her social worker twice a week to report her progress.
A permanency hearing was scheduled for Nicole in May 2004. OCS's pre-hearing report noted that Nicole's trips to Bethel seemed to trigger her relapses. To help Nicole overcome this problem, the agency had asked her to contact her social worker any time Nicole came to Bethel so that her social worker could provide supervision while Nicole was in town. The report also noted that OCS had addressed the all-night gambling in Nicole's home by discussing the issue with Nicole, setting rules to prevent it from happening, and conducting unannounced "walk-bys" to ensure compliance. Finally, the report noted that the problem of domestic discord between Nicole and Ralph was being addressed by counseling, and also observed that Nicole and Ralph were engaging in subsistence activities as a tool to avoid substance abuse. The pre-hearing report made no mention of OCS's original plan to provide Nicole with a psychological evaluation. At the permanency hearing OCS informed the court that Nicole was following her case plan and that she and Rick were doing well. Based on this information, the superior court's May 2004 permanency hearing order expressly found that OCS had made active efforts to reunite Rick and Nicole.
Shortly after the spring 2004 permanency hearing, Nicole and Ralph were reported to be drinking again in Bethel; Rick was with them. The social worker put Nicole and Rick on a plane back to Scammon Bay. OCS removed Rick from Nicole's home several weeks later, upon learning that Nicole had returned to Bethel and left Rick under Ralph's care in Scammon Bay while Ralph was drinking.
OCS created another case plan for Nicole in June 2004. This plan revived the original goal of providing Nicole with a psychological evaluation. Noting that "[s]ubstance abuse by [Nicole] subjected [Rick] to a neglectful environment and inappropriate child care," the plan indicated that Nicole's social worker would "make referrals to [a] psychologist for mental health evaluation and substance abuse assessment." In keeping with this goal, Nicole's social worker referred her to Anita Brashear, a Mental Health Clinician. Nicole's appointment was originally scheduled for August 2004. Despite receiving a reminder from her social worker, Nicole missed the appointment, so the evaluation was postponed until October.
Meanwhile, in September 2004, OCS changed its permanency goal to adoption and petitioned to terminate Nicole's parental rights to Rick, who had by then been in OCS's custody for twenty-eight months. The termination trial was scheduled for February 2005.
Dr. Brashear examined Nicole in October 2004. During the evaluation, Dr. Brashear interviewed Nicole and conducted several tests, including the Substance Abuse Subtle Screening Inventory-3 (SASSI-3) and the Millon Clinical Multiaxial Inventory-III (MCMI-III).
In her report, Dr. Brashear noted "a slight elevation with the bipolar scales that may be reflective of the Histrionic features [in Nicole's personality]." Based on her evaluation, Dr. Brashear recommended placing Nicole in a "Dual Diagnosis Enhanced" program. Dr. Brashear also noted a need for additional testing to rule out the possibility of bipolar disorder. She further recommended that Nicole be monitored "for medication needs, should clinical symptoms surface as treatment of substance abuse and behavioral issues progress." The evaluation also identified Nicole's "Substance Abuse Placement" level as indicating that she needed medium intensity residential treatment, and listed Nicole's overall prognosis as "Guarded."
A dual diagnosis is given to a patient who has both mental illness and a substance abuse problem; a dual diagnosis program is designed to provide treatment addressing both problems.
As Dr. Brashear later explained in her testimony at the termination trial, she was not ready to diagnose Nicole as bipolar at the time she conducted her evaluation, but, because Nicole exhibited signs of being bipolar, believed that "[s]omebody needs to do some more testing to either make [the diagnosis of bipolarity] or rule it out."
Based on Nicole's psychological evaluation, her social worker arranged for her to enter a third in-patient alcohol treatment program at the Clitheroe Center in Anchorage. While Nicole was undergoing treatment she left the center to attend her grandson's funeral; during her absence from Clitheroe she smoked marijuana. Nicole completed the Clitheroe program in February 2005, just two days before her termination trial was scheduled to begin.
The superior court held a trial on the state's petition to terminate Nicole's parental rights in Bethel on February 22-23 and April 25-27, 2005. OCS social workers visited Nicole during the break in the trial and found signs that she had been drinking again.
The superior court issued an order terminating Nicole's parental rights in June 2005. The court's order concluded that all of the requirements for terminating Nicole's parental rights had been met and expressly found that OCS had made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of Nicole's family. In making this finding, however, the superior court noted that it had already found that OCS made active efforts in May 2004. Relying on its earlier finding, the trial court limited the scope of its active-efforts inquiry, commenting that "[the court] now decides whether active efforts have been made since that time." The court then proceeded to address that issue.
At trial, Nicole had argued that OCS failed to make active efforts to help Nicole and Rick because Nicole had been "bounced from social worker to social worker, and . . . [her] treatment plan lacked any continuity." Addressing this point in its order, the court found:
OCS has created case plans with reunification as the goal. It helped [Nicole] get into treatment. It paid to fly her to treatment and encouraged her participation in aftercare programs (e.g., meetings with wellness counselor and AA). [The social worker] gave [Nicole] her work and home phone numbers and offered to help [Nicole] with rides and other things when [Nicole] was in Bethel. She also helped [Nicole] complete her application for treatment at Clitheroe. [Another social worker] helped set up visitation with [Rick] and kept in contact with [Nicole] while she was at Clitheroe. She gave [Nicole] a calling card so she could call [Rick] while she was there. She encouraged [Nicole] to be involved in after care and phoned [Nicole's] aftercare provider to get the aftercare set up for her. [The social worker] also encouraged [Nicole] to participate in AA meetings, document them, and meet with her wellness counselor in Scammon Bay.
In the trial court's view, these efforts satisfied OCS's ICWA duty to make active efforts to provide remedial services and rehabilitative programs to prevent the breakup of Rick's family; it was Nicole's relapses that prevented reunification.
Nicole appeals.
III. DISCUSSION
On appeal, Nicole challenges the superior court's finding that OCS made active efforts to save her family. She maintains that OCS made only passive efforts because it failed to provide a psychological evaluation for her until October 2004, even though her original case plan called for such an evaluation in August 2002. OCS responds that Nicole is barred from challenging the adequacy of any OCS efforts occurring before May 2004 because she failed to raise a timely challenge to the superior court's May 2004 active-efforts finding. According to OCS, its efforts to assess Nicole's mental health and provide treatment for her after the May 2004 hearing easily qualify as active efforts. Alternatively, the state argues, when these efforts are viewed in conjunction with its efforts before the May 2004 permanency hearing, they support the conclusion that it made active efforts over the entire history of Rick's case.
A. Standard of Review
Whether OCS made active efforts to reunite Rick and Nicole is a mixed question of law and fact. We review the superior court's factual findings for clear error. Factual findings are clearly erroneous if a review of the entire record in the light most favorable to the prevailing party leaves us with a definite and firm conviction that a mistake has been made. Whether the superior court's factual findings satisfy the requirements of Alaska law and ICWA is a question of law, which we review de novo. B. Active-Efforts Requirement
See E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986 (Alaska 2002).
Brynna B. v. State, Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004).
E.A., 46 P.3d at 989.
Before a court can terminate parental rights in the case of an Indian child, OCS must demonstrate by a preponderance of the evidence that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." 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." We review OCS's efforts on a case-by-case basis; "no pat formula exists for distinguishing between active and passive efforts." 1. Reliance on earlier active-efforts findings
CINA Rule 18(c); 25 U.S.C. § 1912(d).
A.A. v. State, 982 P.2d 256, 261 (Alaska 1999).
Id. at 261.
In its termination order, the superior court noted that it had already found at the May 2004 permanency hearing that OCS had complied with its duty to make active efforts as of that time; the court implicitly concluded that it could rely on this finding to establish OCS's compliance with the active-efforts requirement through May 2004, so the court only needed to update its findings by considering OCS's compliance from May 2004 to the time of the trial. The court appears to have addressed this point because OCS's attorney had notified the court and Nicole at the beginning of the trial that, in presenting its case, OCS generally intended "to rely on the court's previous findings" as evidence of the agency's active efforts through May 2004. Nicole had voiced no objection. In arguing the active-efforts issue to the court at the conclusion of the trial, OCS's attorney specifically noted that "[t]he last finding of active efforts was made in May of 2004, so we'd like to rely upon that finding of active efforts." Nicole again voiced no objection to reliance on the prior finding, but argued nonetheless that OCS's remedial efforts throughout the case did not comply with the active-efforts requirement:
Active efforts have not been made, because [Nicole] has been bounced from social worker to social worker, and that treatment plan lacked any continuity. That may be the reason that any difficulties or limitations that [Nicole] may have were not identified until this fall, because there is a lack of continuity.
Nicole renews her challenge to the active-efforts finding here but shifts her focus to OCS's failure to make prompt arrangements for a psychological evaluation; Nicole also claims that the active-efforts inquiry must address the entire history of her case, not just the period since May 2004, when the trial court made its last active-efforts finding. The state counters that, because Nicole did not contest the issue of active efforts at the permanency hearing and had failed to seek appellate review of the May 2004 permanency order, by the time of the termination trial the court's earlier active-efforts finding had become final, so the superior court was required to treat them as binding.
Although we think that both parties advance some strong points, we conclude that neither party's position is completely correct. At the outset, we disagree with the state's position that the May 2004 findings were binding and precluded Nicole as a matter of law from contesting OCS's pre-permanency-hearing compliance with its duty to make active efforts. When a parent participating in the pre-termination phases of a CINA proceeding stipulates to accept as established, or simply declines to contest, an element of the state's case, it does not seem fair to assume that this willingness to go along for the time being was meant to preclude the parent from contesting the issue if it later becomes important at a termination hearing — a stage of proceedings when the ultimate threat of permanently losing parental ties is directly raised.
In such cases, preclusion at later stages of the CINA/termination proceeding would ordinarily be justified only by an on-record stipulation establishing the parent's personal, knowing, and voluntary desire to permanently abandon the issue.
To treat a parent's non-oppositional behavior as preclusive in such cases would, in our view, be unrealistic. And it would only invite unnecessary and resource-draining adversity at the early stages of CINA cases, in which no permanent loss of parental ties is immediately threatened and a prompt disposition involving temporary state custody usually serves the best interests of all parties — parents, children, and the state alike. Nor can preclusion be justified by a parent's failure to seek appellate review of a permanency hearing order's findings. Because permanency hearings commonly resolve interlocutory issues, orders resulting from such hearings typically cannot be appealed as a matter of right. And it is well established that a party's failure to seek discretionary appellate review of an interlocutory ruling cannot be construed as a waiver or concession. To be sure, a parent can waive the right to dispute a point by failing to raise it in a timely manner; and a parent's affirmative stance on an issue can sometimes result in estopping the parent from asserting a conflicting position. But claims of waiver and estoppel present fact-specific questions that must be addressed on a case-by-case basis. They cannot be resolved by recourse to a general rule of preclusion that would attach as a matter of law and would automatically bar an essential element of the state's case from all further consideration.
But see Erica A. v. State, Dep't of Health Soc. Servs., 66 P.3d 1, 10 (Alaska 2003) (recognizing that placement decisions in CINA proceedings are appealable as a matter of right and that the right to contest placement can be lost by failing to file a timely appeal).
See, e.g., Estate of McCoy, 844 P.2d 1131, 1137 n. 6 (Alaska 1993).
Hence, we reject the state's contention that the superior court was bound by its May 2004 active-efforts finding that Nicole was precluded from disputing that finding at her termination trial. And we agree with Nicole that, in deciding whether to terminate her parental rights, the superior court's findings on the issue of active efforts should have encompassed the appropriateness of OCS's efforts to reunite Nicole's family during the entire time that her case was pending.
Yet our conclusion on these points falls far short of agreeing with Nicole's contention that the superior court erred by considering and relying on its prior active-efforts findings. After all, the prior findings were properly entered and did not rely solely on Nicole's non-opposition; to the contrary, they were supported by strong record evidence. Moreover, the trial court had no obligation to give Nicole free reign at the termination trial to relitigate issues and reargue points that had already been fully heard and decided. It was well within the trial court's discretion, then, to treat its earlier findings as being at least presumptively binding. So long as the superior court did not unreasonably preclude Nicole from presenting new evidence and arguments that might have had a material bearing on the active-efforts issues the court had previously considered, and so long as the court did not categorically refuse to rethink its original findings to the extent that they no longer seemed tenable in light of the new information, we think that the court cannot be faulted for relying on its permanency hearing findings.
In her briefing on appeal, Nicole points to nothing in the record suggesting that the superior court's willingness to rely on its prior active-efforts findings precluded her from presenting additional evidence or argument on the issue at her termination hearing. And the record of the termination hearing confirms that Nicole remained free to present evidence covering the entire history of her case. Indeed, the court heard active-efforts testimony describing events reaching back to the social worker who helped create Nicole's first case plan, Kimberly Weston-Smith. Nor does Nicole point to anything suggesting that the superior court simply ignored Nicole's new evidence and arguments on the active-efforts issue. And although the trial court's reliance on its earlier findings probably did result in a lack of findings specifically addressing Nicole's newly raised active-efforts claim — her theory that OCS's early failure to arrange a prompt psychological evaluation ultimately hampered her ability to resolve her substance abuse problem before the termination hearing — any such deficiency in the court's findings would amount to harmless error unless the record revealed substantial evidence to support Nicole's new theory suggesting a need for additional findings.
Ultimately then, we must consider whether the superior court's active-efforts findings are supported by substantial evidence; and we must also consider whether they overlook any substantial evidence supporting Nicole's position. We turn to this issue.
2. Evidence of active efforts by OCS
Even considering the entire history of OCS's involvement with Nicole and Rick, the record strongly supports the superior court's finding that OCS made active efforts to prevent the breakup of Nicole's and Rick's family; conversely, substantial evidence fails to support Nicole's claim that an earlier psychological evaluation would have enabled her to resolve her substance-abuse and parenting problems within a reasonable time.
Soon after OCS first took Rick into emergency custody in 2002, Nicole stipulated that he was a child in need of aid. An OCS caseworker crafted a case plan for the family in August 2002 with the goal of reuniting Rick with Nicole. That plan identified as its first concern Nicole's substance abuse. The plan stated that Nicole's substance abuse "impair[ed her] ability to provide appropriate parenting for [Rick's] safety and well-being." The plan also listed as a second concern that Nicole had "inappropriate parenting skills" and was an inadequate caregiver for Rick. In connection with this secondary issue, the plan suggested that Nicole should be psychologically evaluated to assess her ability to adequately parent Rick. So although the original case plan did call for a psychological evaluation, it recommended that evaluation as a tool to improve Nicole's parenting skills, a secondary concern. The original case plan identified substance abuse as the main factor detracting from Nicole's ability to care for Rick; and the plan unequivocally adopted substance abuse treatment as the proper way to address this problem. The recommendation for a psychological evaluation aimed at determining whether Nicole had secondary, parenting-skills problems that she would need to address if she managed to control her substance abuse problem. In light of this case plan, OCS could reasonably proceed as it did, by acting first to aggressively treat Nicole for her substance abuse.
Notably, everyone involved in Nicole's case, including Nicole and her counsel, appears to have shared the view that sobriety should be Nicole's top priority. OCS actively pursued efforts to address this priority; indeed the agency made extraordinary efforts to assist Nicole in both implementing and following her plan. Nicole twice appeared to make good progress in her substance abuse treatment programs; but each time, she eventually relapsed. During this period, OCS received no information suggesting that Nicole's efforts to address her substance abuse problem might not succeed unless she received psychological treatment. So as long as Nicole pursued her efforts to address her main problem, OCS had no particular reason to attach priority to arranging a psychological evaluation for purposes of addressing the plan's secondary goal.
This situation changed in May 2004, when a caseworker identified a seasonal pattern in Nicole's drinking and, for the first time, recommended a psychological evaluation to aid in Nicole's substance abuse treatment. From that point onward, as the superior court found in its termination order, OCS made active efforts to arrange a psychological evaluation and to place Nicole in a program that was appropriate in light of her evaluation.
Moreover, the record further reveals that once Nicole received a psychological evaluation, it revealed no clear evidence indicating that she would have benefited from an earlier diagnosis. Dr. Brashear noted in her October 2004 examination that Nicole might be bipolar and suggested tests to rule out that diagnosis. But Dr. Brashear also testified that the personality features she identified as suggesting bipolar disorder might slowly fade away as Nicole got sober. In Dr. Brashear's view, then, one acceptable alternative might be to continue with substance abuse treatment, while monitoring Nicole's personality features. Dr. Brashear found no severe psychological problems that seemed to explain Nicole's failure to be a good parent or to overcome her substance abuse problem. Even after Dr. Brashear evaluated Nicole, treatment to achieve sobriety remained an appropriate goal.
As for OCS's efforts to help Nicole obtain substance abuse treatment, the record overwhelmingly establishes that OCS remained actively engaged with Nicole's treatment from the time it took Rick into custody to the time of the trial. OCS case workers referred Nicole to treatment, provided her transportation, stayed in contact with her to support her sobriety, gave her phone cards to keep in touch with Rick, and even tried sending Rick home for a trial visit. The agency's failure to psychologically evaluate Nicole earlier in this process does not alter the fact that OCS reached out to Nicole with the help that reasonably seemed most appropriate given that her primary problem was substance abuse.
Absent any evidence suggesting that the originally recommended psychological evaluation might have played a critical role in Nicole's treatment — or at least that it might have appeared to deserve earlier and greater priority — OCS's failure to actively pursue that goal earlier cannot reasonably be seen as a material failure in the active efforts that it actually made. In short, substantial evidence supports the superior court's determination that OCS made active efforts; and we find no substantial evidence suggesting any material flaw in those efforts.
IV. CONCLUSION
Because the record supports the superior court's finding that OCS made active efforts to prevent the breakup of Nicole H.'s family, we AFFIRM its order terminating Nicole's parental rights to Rick P.