Alaska

CHILD ABUSE

HEARSAY

Davison v. State, 282 P.3d 1262 (Alaska 2012). In criminal child sexual abuse trial, victim’s statements were not admissible under hearsay exception for medical diagnosis or treatment because the circumstances would have led witness to believe exam was primarily for gathering evidence rather than medical purposes. Youth had already received medical treatment, state trooper and victim advocate were present during exam, trooper participated in questioning, and youth was old enough to understand the context.

SOLICITATION

Moore v. State, 298 P.3d 209 (Alaska Ct. App. 2013). State criminal statute which prohibited the use of a computer to “entice, solicit, or encourage” a person under 16 to engage in sexual activities was not constitutionally overbroad. Defendant’s hypotheticals, including a health care professional prescribing birth control to a teen, were not encouraging according to the intent of the statute which was meant to prohibit online behavior that would be illegal in person.

CUSTODY

BEST INTERESTS

Riggs v. Coonradt, 335 P.3d 1103 (Alaska 2014). Court affirmed decision that parents’ inability to communicate justified modifying existing joint-custody arrangement and that best interests of children favored awarding sole legal custody to father. Father’s clearer recognition of children’s educational and emotional needs and other factors outweighed mother’s greater availability.

DEPENDENCY

ACTIVE EFFORTS

Kyle S. v. Dep’t of Health & Soc. Servs., 309 P.3d 1262 (Alaska 2013). Agency made active efforts to keep the family together in dependency adjudication. Though father was correct that the agency had focused primarily on the child’s needs and services, this was not unreasonable since immediate threat to child’s safety was her repeated running away from father’s and half-sister’s homes. Further the state paid for father’s counseling but his remaining with the physically- abusive mother precluded father  using available services.

APPEALS

Simmonds v. Parks, 329 P.3d 995 (Alaska 2014). Tribal court had removed child based on mother’s and child’s tribal membership and residence on tribal land and later terminated father’s rights after he failed to make changes required by his case plan. Therfore, father’s appeal to state court had to be dismissed since he failed to exhaust his appellate opportunities in tribal court. 

FINDINGS

Martha S. v. Dep’t of Health & Social Servs., 268 P.3d 1066 (Alaska 2012). Trial court properly removed children on the ground that their father had a mental illness that put his children at a substantial risk of harm. Father’s personality disorder led him to threaten and try to kill professionals who were responding to abuse allegations. Contrary to the father’s claim that his personality disorder diagnosis was not a mental illness, the dependency ground encompasses a broad range including mental illness, serious emotional disturbance or mental deficiency, and expert testimony indicated it was a mental illness. Full summary

PLACEMENT PREFERENCES

In re Paula E., 276 P.3d 422 (Alaska 2012). Trial court properly determined good cause existed to deviate from the Indian Child Welfare Act’s placement preferences where children were removed from their grandmother at her request. Though she later wanted the children returned to her, fact that their emotional and behavior problems had improved dramatically in their new foster home and the agency continued to have concerns about the grandmother’s ability to care for the four children, supported finding.

Roy S. v. Dep’t of Health & Social Servs., 278 P.3d 886 (Alaska 2012). The Alaska Supreme Court found good cause to deviate from Indian Child Welfare Act’s placement preference where child had been with an unrelated foster family for two years at time of trial, the parents had failed to object over the course of three review hearings, and an expert witness testified that the proposed placement out-of-state was not in the child’s best interests.

PROBABLE CAUSE

Clementine F. v. State, Dep’t of Health & Soc. Servs., 2016 WL 3369219 (Alaska). Child welfare agency took emergency custody of child after reports that mother’s conduct had placed child at risk of harm. Agency investigated child’s out-of-state father and determined she would be safe in his care. Mother appealed decision to dismiss case and release child to father’s custody. Mother’s fundamental liberty interest in parenting child was not violated when trial court did not make probable cause findings related to initial allegations. Such findings were not required after court dismissed dependency petition.

REASONABLE EFFORTS

Kylie L. v. State, Dep’t of Health & Soc. Servs., 2017 WL 4558786 (Alaska). To excuse child welfare agency from making reasonable efforts to reunify mother and child, trial court was required to find by clear and convincing evidence that one of statutory bases applied. Court could not rely exclusively on its conviction that further efforts would be pointless, which was based on psychologist’s testimony that relationship between mother and child might have been irreparably harmed.

LIABILITY

AGENCIES

Tracy. v. Dep’t of Health & Social Servs., 279 P.3d 613 (Alaska 2012). Trial court properly dismissed grandparents’ negligence claim where child was removed from their care for suspected sexual abuse and later returned when it was determined that the abuse did not occur. Though state statute requires agency staff to undergo training on the legal rights of children and families, it also indicates that failure to meet that provision does not give rise to liability and the state owes no duty of care to parents, relatives, or foster parents.

MOOTNESS

Jennifer L. v. State, Dep’t of Health & Soc. Servs., 2015 WL 5062023 (Alaska). After child welfare agency took three children into emergency custody, standing master determined no probable cause existed and recommended children be returned to mother’s custody. Although trial court later dismissed underlying case after appeal was filed, question of whether child was to be promptly returned home upon recommendation of standing master was question important to public interest and likely to arise again. Standing master’s order that children should be returned to parents was not effective until judicially reviewed.

NEGLIGENT SUPERVISION

Reasner v. State, Dep’t of Health & Soc. Serv., 2017 WL 2209883 (Alaska). Alleged victim of sexual abuse by foster brother brought action against child welfare agency, claiming negligence in investigating reports of harm while agency had legal custody of her, supervising and monitoring her foster home, and failing to investigate reports after she was adopted by foster parents. Trial court erred in granting summary judgment to agency because genuine issue of fact about when victim discovered agency may have played role in allowing abuse and whether victim’s foster parents completed required training.

TERMINATION OF PARENTAL RIGHTS

ABANDONMENT

Sherman B. v. Dep’t of Health & Soc. Servs., 310 P.3d 943(Alaska 2013). Father constructively abandoned his child where he was evasive with the court and agency about his employment and housing as needed to fulfill any plan for reunification. While poverty alone should not be  basis for termination, here the agency had reasonable concern  father was supporting himself through drug dealing given his history with drugs and that he could not verify income or tax returns for many years.

 Sherman B. v. State, 290 P.3d 421 (Alaska). Superior court did not err in terminating father’s parental rights on abandonment ground, including where finding was based in part on financial and housing instability. Though state statute prohibits finding children neglected based solely on poverty, it was father’s failure to assume responsibility for child by refusing to disclose anything about his housing or financial situation to the agency, coupled with his lack of visitation, that led to abandonment finding.

ACTIVE EFFORTS

In re Darcy F., 252 P.3d 992 (Alaska 2011). In Indian Child Welfare Act case, child welfare agency made active efforts before termination of her parental rights; despite mother’s claim that state should have helped with chronic pain, which allegedly led to her substance abuse, state arranged substance abuse treatment and helped her get to appointments and could have offered more assistance had she maintained contact with the state and complied with services.

Iris R. v. State, 2011 WL 4715212 (Alaska).
Child welfare agency made active efforts to prevent breakup of Indian family, as required by the Indian Child Welfare Act, before moving to terminate rental rights. Agency developed a case plan that specified services for mother to help her address domestic violence, anger management, mental health, parenting, medical and mental health care, and preservation of native families. Mother’s failure to successfully complete any part of her service plan, her continued pattern of violence, and the child’s need for stability supported terminating her parental rights.

In re Josh L., 276 P.3d 457 (Alaska 2012). In termination of parental rights proceeding, trial court correctly found that state made active efforts to preserve Indian family under the Indian Child Welfare Act. Though the state did not fully investigate the father’s relatives, it did determine that each relative he offered was inappropriate due to having abusers in the homes or due to their inability to support the child with her special needs.

Lucy J. v. Dep’t of Health and Social Servs., 244 P.3d 1099 (Alaska 2010). Trial court correctly determined state made active efforts to reunify before terminating parental rights of Indian family because state assisted the mother with elements of the case plan; efforts by the state and tribe included multiple efforts to assist with housing and substance abuse, assistance with transportation, individual and group counseling, and Head Start.

BEST INTERESTS

Jamie H. v. State, Dep’t of Health & Soc. Servs., 336 P.3d 1253 (Alaska 2014). Termination of father’s parental rights was in best interests of child, regardless of whether Office of Children’s Services failed to identify permanent placement and despite decision by OCS not to pursue termination of mother’s parental rights. Father was unfit and caused serious harm to child, placing his health and safety at risk, while mother’s continued involvement could benefit the child’s therapeutic plan.

Judith R. v. State, 289 P.3d 896 (Alaska 2012). Trial court did not err in failing to discuss child’s prospects for adoption in best interests portion of order where he had been recently removed from his preadoptive home. Though a child’s placement situation is a factor a court can consider, the court is not required to do so, and mother’s 10-year struggle with mental illness could have reasonably led court to determine that termination was in child’s best interests regardless of his current adoption prospects.

CONFIDENTIALITY

Simone H. v. Dep’t of Health & Soc. Servs., 320 P.3d 284 (Alaska 2014). Trial court properly denied biological mother access to child’s therapy records. Mother sought access to support her theory that the child had difficulty bonding with his foster parents. To release a child’s confidential communications, the trial court must consider the content and nature of the communication and if disclosure will outweigh any “potential injury” to the child’s relationship with his therapist. Trial court found the record did not provide any evidence to assist mother’s theory, but just highlighted the child’s need for permanency. 

FAILURE TO IMPROVE 

Amy M. v. State, 2013 WL 4768382 (Alaska). Where state took custody of mother’s fourth child, who tested positive for cocaine at birth, and filed for termination several months thereafter, trial court properly concluded that mother failed to remedy the conditions that led to care given within a reasonable time. Court’s finding that the short time period was reasonable was supported by the 10-year drug abuse history and multiple failed treatment attempts. 

Christopher C. v. State, 303 P.3d 465 (Alaska 2013). Termination was proper on ground that parents failed to remedy the conditions that led to removal and the agency made active efforts to reunify including assistance with food, transportation, substance abuse treatment, anger management, and weekly visits by a worker to coach them for a year. Even after intensive assistance, the parents continued to be unable to provide basic supervision.

Jordan J. v. State, Dep’t of Health & Soc. Servs., 2015 WL 1985060 (Alaska). Child welfare agency made reasonable efforts to reunite mother with children without success, and terminating mother’s parental rights was in children’s best interests. Mother did not adequately address behaviors that placed children at risk of harm and allowed registered sex offender to supervise them. Psychologist who evaluated mother identified mother’s lack of insight into her role in causing harm to children, and her continuing behavioral problems indicated children would not do well in her care.

INDIAN CHILD WELFARE ACT

Adina B. v. Dep’t of Health & Social Servs., 2012 WL 516007 (Alaska). Trial court properly terminated mother’s parental rights despite being unable to locate an Alaskan Native home for the child. Record showed good cause to deviate from Indian Child Welfare Act placement preferences in that the agency sought an Alaskan Native home but could not locate one that could meet the medically fragile child’s needs.

Bob S. v. State, Dep’t of Health & Soc. Serv., 2017 WL 3202761 (Alaska). Father appealed termination of his parental rights to child subject to Indian Child Welfare Act (ICWA). Appellate court found child welfare agency made active but unsuccessful efforts to prevent breakup of family, as required by ICWA. Agency provided out-of-state residential treatment and weekly cognitive behavioral therapy for child, developed multiple case plans for father, referred him to parenting classes and substance abuse treatment, and continued to work with him even after 

Chloe O. v. Dep’t of Health & Social Servs., 309 P.3d 850 (Alaska 2013). Trial court properly found active efforts were made to reunify in Indian Child Welfare Act case where mother refused to engage in mental health services. Mother was incorrect that the agency should have sought a court order to force her to attend treatment because witness testimony showed the likelihood of success in treatment with an unwilling participant was low.

Dirk H. v. State, Dep’t of Health & Soc. Servs., 2015 WL 1394581 (Alaska). Father appealed termination of parental rights to his Indian son. Father’s failure to comply with case plan and his inability to communicate with child welfare agency about his substance abuse and parenting classes demonstrated he had not sufficiently remedied his conduct to justify delaying child’s permanency. Court properly found agency made active but unsuccessful efforts to prevent breakup of Indian family. 

Julia D. v. State, 2014 WL 1357038 (Alaska). In case in which child was removed from mother’s care because both tested positive for opiates at time of birth, trial court properly found child was not an Indian child under the Indian Child Welfare Act. Child’s mother was not already a tribal member, regardless of the fact that child’s great-great grandmother’s lineage would make the child eligible for tribal membership. 

Kent K. v. State, Dep’t of Health & Soc. Servs., 2016 WL 483254 (Alaska).Father appealed termination of his parental rights to children who were Indian children under Indian Child Welfare Act (ICWA). Witness was not required to be member of tribe or have experience or expertise providing tribal services to qualify as expert witness under ICWA when basis for termination did not implicate cultural bias. Expert witness’s testimony was based on sufficient case-specific facts, including father’s problems with anger and domestic violence, and risk that abuse would continue. There was no contrary evidence that the witness disregarded.

Larry T. v. State, 2014 WL 3039123 (Alaska). Lower court properly terminated father’s parental rights, finding the agency made efforts to help him reunite with his son. Father was incarcerated when he learned of son and was unable to complete his court-ordered plan due to going in and out of solitary confinement for various prison disobediences. Agency did their best to assist father with plan, including facilitating visits while he was in jail, but mother ultimately consented to minor’s adoption by maternal grandparents because they were from the same tribe as minor and could connect him with his culture.

Philip J. v. Dep’t of Health & Social Servs., 314 P.3d 518 (Alaska 2013). In terminating father’s parental rights, trial court properly found his lack of cooperation with services indicated that further active efforts under the Indian Child Welfare Act would be futile. Though father completed some services while incarcerated and upon his release, that was not enough to overturn the trial court, which had found he failed to comply with the agency many times. 

Pravat P. v. Dep’t of Health & Social Servs., 249 P.3d 264 (Alaska 2011). Superior court correctly found that agency made active efforts to reunify Indian child with father by actively assisting him, including providing a hearing aid, visitation support, therapy, an interpreter,  assisting with potential cultural differences, providing a class on fetal alcohol exposure, and arranging psychological evaluations.

Ray R. v. State, Dep’t of Health & Soc. Servs., 2016 WL 7494856 (Alaska). Trial court did not err in terminating parental rights to child subject to Indian Child Welfare Act (ICWA). Father failed to remedy his heroin abuse despite substantial efforts by child welfare agency to provide remedial services and rehabilitative programs. Father also spent time in jail both before agency took custody of child and while agency worked with father on substance abuse issues.

Sadie D. v. State, Dep’t of Health & Soc. Servs., 2014 WL 4536352 (Alaska). Termination of mother’s parental rights was affirmed based on evidence the Office of Children’s Services made active efforts to prevent the breakup of mother’s Indian family, referred her for mental health and substance abuse assessments, scheduled weekly meetings, and arranged for visitation with child. Evidence also supported finding that mother’s continued custody of Indian child was likely to cause him serious emotional or physical damage.  

Sylvia L. v. State, Dep’t of Health & Soc. Servs., 2015 WL 720524 (Alaska). In proceeding to terminate mother’s rights to two non-Indian and one Indian child, ICWA-qualified expert’s testimony was sufficiently grounded in facts and issues of case to be admissible, regardless of expert’s status as employee of child welfare agency. Expert’s testimony considered mother’s history of trauma, substance abuse, underlying mental health issues, and likelihood that mental health issues would not resolve without professional intervention.

Thea G. v. State, 291 P.3d 957 (Alaska 2013). State’s delay in arranging paternity testing, such that state would have been delayed in potentially placing child with paternal relatives, did not undermine trial court’s finding that active efforts were made in Indian Child Welfare Act case. Absent the delay, children likely would have remained placed with mother’s neighbors to facilitate frequent visitation.

REASONABLE EFFORTS

Darwin B. v. State, Dep’t of Health & Soc. Servs., 2017 WL 65547 (Alaska). Father appealed termination of his parental rights, arguing child welfare agency failed to make reasonable efforts to reunify him with son. Court found agency’s consistent reunification efforts for about 25 months sufficiently remedied early failure to make reasonable efforts. Father was diagnosed with at least three different mental disorders, did not follow up with treatment referrals, and was hostile to agency workers. Father’s refusal to acknowledge mental health issues prevented success of reunification efforts.

Joy B. v. State, Dep’t of Health & Soc. Servs., 2016 WL 6310769 (Alaska). Child welfare agency made reasonable efforts to reunite family as required for termination of mother’s parental rights to younger two daughters. Agency created case plan and attempted to involve mother in plan, held numerous team decision meetings with mother and daughters, and offered mother services to help improve relationship with daughters. Mother argued she required specific services for victims of domestic violence but refused to complete psychological evaluation to assess needs.

Ralph H. v. Dep’t of Health and Social Servs., 246 P.3d 916 (Alaska 2011). In termination trial, superior court properly found the agency made reasonable efforts to preserve the family through numerous referrals made to several service providers; court could consider efforts made before removal in analysis of reasonable efforts by the agency to preserve the family.

Sean B. v. State, 251 P.3d 330 (Alaska 2011). In determining if terminating father’s parental rights was warranted, clear and convincing evidence supported finding that child welfare agency had made reasonable efforts to reunify father with child by crafting three reunification plans that facilitated contact between father and child, arranging meetings with a counselor, maintaining contact with father, and helping father navigate child welfare system.

Tim H. v. Alaska, 2014 WL 1887724 (Alaska). The lower court properly terminated father’s parental rights and found the agency made reasonable efforts to support him in completing his case plan. The two caseworkers involved in father’s case both made several attempts to connect father with effective therapists to complete his plan, however, father declined all assistance and found his own therapist, who did not want to learn about children’s relationship with father or receive any previous psychological evaluations about father and whose testimony was found not credible by the lower court.

RELATIVES

Claudio P. v. Dep’t of Health & Human Servs., 309 P.3d 860 (Alaska 2013). Trial court properly decided not to place child with incarcerated father’s relatives as an alternative to termination where there had been delays in his request and his mother could not serve as a placement due to moving to different states. Though relatives had positive home studies, court had sufficient evidence to show child’s strong bond with foster parents weighed against moving her. 

Shirley M. v. State, 2015 WL 122378 (Alaska). Record supported decision to place child with foster family rather than with great-grandmother after mother’s parental rights were terminated. Great-grandmother had been previously considered for placement of mother’s other children and was denied based on home safety concerns, which were ongoing. Great-grandmother also did not recognize extent of child’s special needs or mother’s limitations as a parent.

REPRESENTATION

Payton S. v. State, Dep’t of Health & Soc. Servs., 2015 WL 1958674 (Alaska).Juvenile court’s error in entering adjudication and disposition order when parents lacked notice of hearing did not violate their due process rights because it did not affect case outcome. Both parents were appointed counsel soon after adjudication, had benefit of counsel at every later proceeding, and had ample opportunity to correct any claimed prejudice due to lack of notice. Parents had notice of termination hearing, and findings at termination were made under higher standard of proof.

SUBSTANCE ABUSE

Amy M. v. Office of Children’s Servs., 320 P.3d 253 (Alaska 2013). Trial court properly terminated mother’s parental rights, even though petition was filed after child was in care for only three months. Mother had a 10-year history of substance abuse, had lost custody of another child, child was born drug addicted, and mother failed in those three months to obtain a substance abuse assessment or enter treatment. 

Ava T. v. State, Dep’t of Health & Soc. Servs., 2016 WL 5335673 (Alaska). In termination of parental rights case involving Indian mother and child, juvenile court correctly found mother’s conduct would likely seriously harm daughter if she regained custody. Expert psychologist outlined what mother needed to do to address her continuing substance abuse problems. Mother did not make efforts to achieve goals until late in case, and her five months of possible sobriety did not overcome past substance abuse. Child was well-bonded with family who wished to adopt her.

Casey K. v. Office of Children’s Servs., 311 P.3d 637 (Alaska 2013). Trial court properly concluded agency made reasonable efforts to reunify before terminating mother’s parental rights. Though agency should have provided information to substance abuse provider that would have allowed an accurate assessment, fact that mother was not initially recommended for substance abuse treatment did not undermine finding because assessment would have been accurate had mother provided candid answers herself. Further, she continued to fail to take advantage of services for many months.

TESTIMONY

Remy M. v. State, Dep’t of Health & Soc. Servs., 2015 WL 4774390 (Alaska). Father appealed termination of parental rights to daughter, claiming trial court violated his due process rights when it allowed trial to conclude in his absence without asking directly if he wished to testify. Nothing in record indicated father wanted to testify despite ample opportunity to do so. Court declined to create new rule prohibiting trial court from concluding termination trial without first notifying parents of right to testify and precluding parents’ counsel from expressing client’s waiver of that right.

VISITATION

In re William S., 2014 WL 2835196 (Alaska). Trial court properly found parental visitation with eldest son would not be in son’s best interests. Eldest son and sister were placed separately in foster care; son, then 12 years old, asked trial court for post-termination visitation with both parents. Though weight was given to son’s opinion, it was not the determinative factor; there was sufficient evidence given by minor’s counselors that visits would negatively impact son’s emotional stability and progress, as father often would encourage minor to run away from his treatment.