Opinion
Supreme Court No. S-12997.
April 29, 2009.
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Superior Court No. 4FA-05-20 CN.
Appearances: James M. Hackett, Law Office of James M. Hackett, Fairbanks, for Appellant. Gayle L. Garrigues, Assistant Attorney General, Fairbanks, 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
The State of Alaska, Department of Health Social Services, Office of Children's Services (OCS) sought to terminate a mother's parental rights to her daughter. After the termination trial, the mother's rights were not terminated, but she appeals: (1) certain findings made at the conclusion of trial; (2) the extension of OCS's custody of her daughter for one year; (3) the denial of her subsequent motion to compel active efforts for reunification and for sanctions; and (4) the denial of her motion for an order that her daughter be immediately returned to her custody. Because the superior court did not err in its rulings, we affirm.
II. FACTS AND PROCEEDINGS
Danielle's youngest child, Roberta, was born in 1997 and is an "Indian child" within the meaning of the Indian Child Welfare Act of 1978 (ICWA). Roberta's father was never actively involved in her life, and his parental rights were terminated.
Pseudonyms are used for all family members.
See 25 U.S.C. § 1903(4) (2000).
25 U.S.C. §§ 1901- 1963 (2000). ICWA establishes "minimum Federal standards for the removal of Indian children from their families and [for] the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture." 25 U.S.C. § 1902 (2000).
Given the nature of this appeal we need not detail the history of OCS's involvement with Danielle and Roberta, but on March 1, 2005, OCS took then eight-year-old Roberta into emergency custody and placed her in foster care. In August 2005 the trial court concluded that Roberta was a child in need of aid under AS 47.10.011(1), (6), and (9), and granted OCS temporary custody. In December 2005 the trial court extended OCS's custody of Roberta for one year.
AS 47.10.011 provides in relevant part:
[T]he court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following:
(1) a parent or guardian has abandoned the child as described in AS 47.10.013, and the other parent is absent or has committed conduct or created conditions that cause the child to be a child in need of aid under this chapter;
. . . .
(6) the child has suffered substantial physical harm, or there is a substantial risk that the child will suffer substantial physical harm, as a result of conduct by or conditions created by the child's parent, guardian, or custodian or by the failure of the parent, guardian, or custodian to supervise the child adequately; [or]
. . . .
(9) conduct by or conditions created by the parent, guardian, or custodian have subjected the child or another child in the same household to neglect.
In November 2006 OCS filed a petition to terminate Danielle's parental rights to Roberta. Danielle responded with a combined motion for a directed verdict and an ICWA petition seeking alternative forms of relief (1) invalidating OCS's foster care placement and returning Roberta to Danielle, or (2) dismissing OCS's petition for termination of parental rights and extending OCS's custody of Roberta "under the terms of AS 47.10.080(c)(1)." Trial took place on November 14 and 21 and December 5, 2007. During closing arguments Danielle's attorney asked the court to "deny the petition for termination, extend [OCS] custody . . . under [AS] 47.10.080(c) . . . for up to a year . . . [a]nd give the mother a chance to . . . continue with reunifying with [Roberta]."
Under ICWA and relevant Alaska child in need of aid (CINA) statutes and rules, parental rights to an Indian child may only be terminated at trial if OCS shows:
(1) by clear and convincing evidence that:
(a) the child has been subjected to conduct or conditions enumerated in AS 47.10.011 (CINA Rule 18(c)(1)(A));
(b) the parent has not remedied the conduct or conditions that place the child at substantial risk of harm or has failed within a reasonable time to remedy the conduct or conditions so that the child would be at substantial risk of physical or mental injury if returned to the parent (CINA Rule 18(c)(1)(A)(i) — (ii)); and
(c) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family (CINA Rule 18(c)(2)(B)); and
(2) beyond a reasonable doubt, including qualified expert testimony, that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child (CINA Rule 18(c)(4)); and
(3) by a preponderance of the evidence that the child's best interests would be served by termination of parental rights (CINA Rule 18(c)(3)).
Under AS 47.10.080(c)(1)(A) if the court finds a child in need of aid, the court may grant "one-year extensions of commitment . . . if the extension is in the best interests of the child."
The trial court issued an oral ruling on December 5, 2007, denying OCS's petition to terminate Danielle's parental rights. The court found that Roberta remained a child in need of aid, but concluded that OCS had failed to make "active efforts . . . to provide services to prevent the breakup of the Indian family," and that OCS "did not provide proof beyond a reasonable doubt that leaving [Roberta] in [Danielle's] custody would be likely to result in serious emotional or physical damage to the child." The court found that it was in Roberta's best interests to be returned to Danielle and ordered that Roberta remain in OCS custody for up to an additional year pending reunification efforts.
Cf. 25 U.S.C. § 1912(d); CINA R. 18(c)(2)(B); AS 47.10.086(a).
Cf. 25 U.S.C. § 1912(f); CINA R. 18(c)(4).
On December 10, 2007, Danielle filed a motion for reconsideration of the one-year custody extension. Danielle argued that CINA Rules 10.1(b)(2) and 17(c)(2) "expressly prohibit a final disposition order" given the court's December 5 "active efforts" finding. The motion for reconsideration was later denied.
CINA Rule 10.1(b)(2) provides as follows:
Effect of a Finding that Requirements Have Not Been Met. A finding that the requirements of 25 U.S.C. §§ 1912(d) or 1915(b) have not been met is not in itself a ground for restoring the child to the parent or Indian custodian or dismissing a petition and does not affect the court's ability to proceed to adjudication. However, the court cannot enter a disposition order if the court finds that the requirements of 25 U.S.C. § 1912(d) (active efforts) have not been met. In those circumstances, the court must postpone disposition until the court finds that active efforts have been made. On motion of a party or on its own motion, the court may order the Department to comply with 25 U.S.C. §§ 1912(d) or 1915(b) within a reasonable time. If the Department fails to comply with this order, the court may impose appropriate sanctions.
(Internal notations omitted.)
CINA Rule 17(c)(2) provides that a disposition order may not be entered if the court finds: "in cases involving an Indian child, that the requirements of 25 U.S.C. 1912(d) (active efforts) have not been met."
On December 12, 2007, Danielle filed a motion for an order: (1) directing OCS to comply with active efforts requirements under 25 U.S.C. § 1912(d); (2) imposing sanctions against OCS under CINA Rule 10.1(b)(2) for failing to make active efforts; and (3) entering a one-year supervision order in lieu of continued OCS custody of Roberta. In April 2008, after OCS placed Roberta in a new foster home because her previous foster family declined to continue caring for her, Danielle filed a motion to review OCS's placement decision.
The court held a hearing on April 23, 2008, but made no rulings regarding Roberta's placement or OCS's actions. The next day Danielle filed a motion for reconsideration of the court's failure to rule.
In June 2008 the trial court issued its written decision from the termination trial. Supervised visitation, unsupervised visitation, and OCS custody were ordered "until the transition is complete, or until December 4, 2008, whichever comes first." Several other transition terms were specified, including Danielle's compliance with court orders and OCS's treatment and reunification plan.
In October 2008 the court issued written orders denying Danielle's motion to compel active efforts, motion for reconsideration, motion to review OCS's placement decision, and request for a review hearing.
Danielle initially appealed the superior court's decisions extending OCS custody and denying her motion for reconsideration in January 2008. Danielle amended her appeal in July 2008 to include objections to the June 2008 written order and the superior court's failure to rule on both her petition to return custody of her daughter and her motion to compel active efforts. As noted earlier, the trial court denied the petition and motion in October 2008.
Appellate Rule 202(a) provides: "An appeal may be taken to the supreme court from a final judgment entered by the superior court." Here, Danielle did not wait for a ruling on her petition and motion, but instead appealed the trial court's failure to issue an order. We have explained that "[t]o preserve a claim based on a [trial] court's failure to rule on a motion, a party must make every effort to request and obtain a ruling before proceeding to trial." Taylor v. Johnston, 985 P.2d 460, 467 (Alaska 1999).
The trial court subsequently denied the petition and motion in its October 2008 orders. We have shown a willingness to hear appeals when final judgment is entered subsequent to appeal but before we hear the case. See Williams v. City of Valdez, 603 P.2d 483, 488 n. 13 (Alaska 1979) ("[S]ince Williams amended his notice of appeal to reflect the subsequent entry of a final judgment by the superior court . . ., and the parties have addressed the issues raised by that judgment, we will treat this appeal as properly taken from that final judgment."); Alaska Nat'l Bank v. Linck, 559 P.2d 1049, 1051 (Alaska 1977) ("[T]he appeal was technically premature. However, the scope of the issues on appeal is clear to both parties, appellee has not raised this point, and no injustice will result from our treating this appeal as properly taken. . . . Hence we so consider it.").
Because we have an interest in the speedy resolution of CINA cases, we will review the October 2008 orders.
III. STANDARD OF REVIEW
We affirm a trial court's findings of fact in a CINA case unless they are clearly erroneous. When we interpret CINA statutes, "we apply our independent judgment, adopting the rule of law that is most persuasive in light of precedent, reason, and policy." We review de novo the question of "[w]hether the superior court's findings comport with the requirements of ICWA or the CINA statutes and rules." The trial court's finding of compliance or non-compliance with ICWA's active efforts requirement "presents both a question of law and fact."
Brynna B. v. State, Dep't of Health Soc. Servs., 88 P.3d 527, 529 (Alaska 2004).
Id.
Carl N. v. State, Dep't of Health Soc. Servs., 102 P.3d 932, 935 (Alaska 2004).
A.M. v. State, 945 P.2d 296, 304 n. 10 (Alaska 1997) (citations omitted).
IV. DISCUSSION
Danielle asserts that the superior court: (1) entered erroneous findings in its June 2008 written decision; (2) failed to make certain findings required by the CINA Rules; (3) erred in extending OCS custody; (4) erred by denying Danielle's ICWA petition for the immediate return of her daughter; and (5) erred by denying Danielle's motion to compel active efforts. We address each assertion of error in turn.
A. The Written Findings
Danielle challenges two of the findings in the superior court's June 2008 order. Danielle asserts that the court erred by finding OCS placed Roberta in appropriate foster care and by finding it was in Roberta's best interests to extend OCS's custody for an additional year.
1. Foster care placement
The written finding reads: "The court finds that the Office of Children's Services has complied with the placement preferences of 25 U.S.C. 1915(b). [Roberta] is currently placed with a licensed Alaska Native extended family foster home." It is uncontested that this was untrue in June 2008 when the written decision was issued. OCS asserts that this finding was correct when the court made its oral rulings in December 2007, and Danielle does not contest this assertion in her reply brief.
Alaska Rule of Civil Procedure 58.1(a) provides that the effective date of an oral order is "the date the order is put on the official electronic record by the judge," even if the oral order is later reduced to writing. The oral order became part of the official electronic record on December 5, 2007. Though not reduced to writing until June 20, 2008, the effective date still is December 5, 2007. Because the finding was correct as of the effective date, it is not clearly erroneous. 2. Extension of OCS custody
Alaska R. Civ. P. 58.1(a)(1) specifies that when an oral order is reduced to writing, the written order shall include the effective date. We note that the written order here does not include the effective date, but it does clearly indicate the written findings are based on "reasons more fully explained on the record at a hearing held December 5, 2007." We thus consider the written decision nunc pro tunc to December 5, 2007.
Danielle also challenges two related orders in the written decision. Because we conclude that this decision was not clearly erroneous, those challenges fail.
Danielle challenges the written finding that: "as noted by mother's counsel . . . and as provided by AS 47.10.080(c) the best interests of [Roberta] will be best served by extending the custody of [Roberta] with the Department for one additional year, through December 4, 2008, unless she is earlier fully transitioned to return to her Mother's home." Danielle argues that it was error for the court to make this finding because (1) her attorney never conceded that Roberta's best interests would be served by another year in OCS custody and (2) the written June 2008 findings were contrary to the December 2007 oral findings of Roberta's best interests.
Danielle's attorney filed a motion for a directed trial verdict asking for alternative relief, including extension of custody with OCS under AS 47.10.080(c)(1). This statutory provision expressly provides for a one-year extension of OCS's custody of a child in need of aid "if the extension is in the best interests of the child." When asked at trial what remedy Danielle wanted, her attorney responded: "basically what I would want the court to do is deny the petition for termination, extend the custody — and the court has, under 47.10.080(c), the court can do that for up to a year." In light of the attorney's specific requests for a one-year extension of OCS's custody under AS 47.10.080(c)(1)(A), the trial court's finding that Danielle's counsel noted such an extension would be in the best interests of the child is not clearly erroneous.
AS 47.10.080(c)(1)(A).
The trial court's December 5, 2007, oral findings that (1) it was in Roberta's best interests to be returned to Danielle and (2) Roberta would remain in OCS custody until the transition was complete or December 4, 2008, do not preclude its June 2008 written finding that the additional year of OCS custody, during which OCS was to transition Roberta back into Danielle's custody, was in Roberta's best interest. At the December 2007 hearing the court discussed steps Danielle and OCS would have to take during the following year to complete Roberta's transition back into Danielle's care. The context of the hearing discussion shows that the court considered a return to Danielle's care to be in Roberta's long-term best interests. The court also recognized that work needed to be done for reunification efforts to succeed. The court found that it was not in Roberta's best interests to be immediately returned to Danielle, and that finding is more than adequately supported by the evidence in the record. B. Compliance with CINA Rules 10 and 17
Because the trial court did not err in extending OCS's custody of Roberta for one year under AS 47.10.080(c)(1)(A), we need not address OCS's argument that Danielle invited any error in that ruling or Danielle's assertion that OCS was estopped from raising that argument due to "unclean hands."
Danielle argues that it was error for the trial court not to make removal findings required by CINA Rules 10(c)(3) and 17(d)(2) at the conclusion of the December 2007 trial, at the April 2008 hearing, and in its June 2008 written order.
CINA Rule 10(c)(3) provides:
The court may approve the removal of the child from the child's home only if the court finds that continued placement in the home is contrary to the welfare of the child; and, in cases involving an Indian child, either: (A) that removal from the child's parent or Indian custodian is necessary to prevent imminent physical damage or harm to the child; or (B) that there is clear and convincing evidence, including testimony of qualified expert witnesses, that the child is likely to suffer serious emotional or physical damage if left in the custody of the parent or Indian custodian.
CINA Rule 17(d)(2) provides:
The court may approve the removal of the child from the child's home only if the court finds that continued placement in the home is contrary to the welfare of the child; and, in cases involving an Indian child, that there is clear and convincing evidence, including the testimony of qualified expert witnesses, that custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
In her reply brief Danielle also argues that CINA Rules 10.1(b) and 17(c) required the trial court to make removal findings under 25 U.S.C. § 1912(e). By failing to raise these issues in her opening brief, Danielle waived her claim that the trial court did not make the required findings under these rules. Maines v. Kenworth Alaska, Inc., 155 P.3d 318, 326 (Alaska 2007) ("[A]n issue raised for the first time in a reply brief is deemed to have been waived."); see also Alaska R. App. P. 212(c)(3). We thus do not address whether findings were required under CINA Rules 10.1 and 17(c).
CINA Rule 10 applies only to temporary custody hearings. Neither the December 2007 hearing, the April 2008 hearing, nor the June 2008 order constituted a temporary custody hearing. We therefore find no error with respect to CINA Rule 10.
See D.H. v. State, Dep't of Health Soc. Servs., 929 P.2d 650, 654 n. 12 (Alaska 1996).
CINA Rule 17 applies to disposition hearings. We have said that "[t]ermination of parental rights is a question generally decided at dispositional hearings." Because the December 2007 hearing (and related June 2008 order) was to determine termination of parental rights, it was a dispositional hearing and CINA Rule 17 applied. CINA Rule 17 did not apply to the April hearing on the motion to compel active efforts because it was not a dispositional hearing.
In re J.L.F., 912 P.2d 1255, 1264 (Alaska 1996).
Although CINA Rule 17 generally applies to the December 2007 hearing and the related June 2008 order, section (d)(2) of that rule does not apply. The trial and related decision did not involve Roberta's removal from Danielle's home, as she had long since been removed. The trial concerned termination of Roberta's parental rights, and Rule 17(d)(2) does not impose any requirements upon the trial court in that context. We therefore find no error with respect to CINA Rule 17(d)(2).
C. The ICWA Petition
Danielle asserts that the trial court's failure to grant her ICWA petition and reconsideration motion, and the later denials of these motions, was reversible error and violated ICWA provisions 25 U.S.C. §§ 1914 and 1920.
25 U.S.C. § 1914 allows children or parents to "petition any court of competent jurisdiction to invalidate [placement or termination] action[s] upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title." The United States Supreme Court has held that § 1914 requires a court to invalidate an action violating ICWA's substantive protections. However § 1914 provides only for invalidation of the underlying action as a remedy. Here the underlying action was OCS's petition to terminate parental rights. Even if there had been a violation of relevant ICWA provisions, the requirements of 25 U.S.C. § 1914 were fulfilled when the court denied the petition to terminate parental rights.
25 U.S.C. § 1914 (2006).
Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 53 (1989) (noting that because "for purposes of the ICWA, the twin babies in this case were domiciled on the reservation when adoption proceedings were begun, the Choctaw tribal court possessed exclusive jurisdiction pursuant to 25 U.S.C. § 1911(a). The Chancery Court of Harrison County was, accordingly, without jurisdiction to enter a decree of adoption; under ICWA § 104, 25 U.S.C. § 1914, its decree of January 28, 1986, must be vacated.").
Danielle seems to argue in her reply brief that once OCS's petition for termination was denied, the trial court was required to make ICWA removal findings under 25 U.S.C. § 1912(e) in order to retain Roberta in OCS custody, and that its failure to do so is an ICWA violation giving Danielle the power under § 1914 to invalidate OCS's retention of custody. [At. R. Br. 3-7] Because she did not raise this particular argument in her opening brief, it is waived and we do not consider it. Maines, 155 P.3d at 326; Alaska R. App. P. 212(c)(3).
Danielle also argues that 25 U.S.C. § 1920 provides parents with "the right to have an Indian child returned when a petitioner in a state court child custody proceeding improperly removes or retains custody of the child, unless the child would be endangered." Nothing in the record indicates that Roberta's initial removal from Danielle's care was improper, nor does this case involve improper retention of custody by OCS — i.e. "without the sanction of law." We have previously quoted, with approval, legislative history establishing that this provision of ICWA was intended to create a statutory" `clean hands' doctrine with respect to petitions in State court for the custody of an Indian child by a person who improperly has such child in physical custody."
The section, in its entirety, reads:
Where any petitioner in an Indian child custody proceeding before a State court has improperly removed the child from custody of the parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over such petition and shall forthwith return the child to his parent or Indian custodian unless returning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.
Pam R. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 185 P.3d 67, 69 n. 6 (Alaska 2008).
See D.E.D. v. State, 704 P.2d 774, 782 (Alaska 1985) (clarifying that 25 U.S.C. § 1920 is intended to divest the state of custody when that custody was taken without sanction of law).
Id.
Danielle argues that the trial court violated 25 U.S.C. § 1920 because there was evidence that OCS had violated provisions of 25 U.S.C. § 1912(d)-(f) relating to: (1) active efforts (§ 1912(d)); (2) the requirement that foster care placements be made after expert witness testimony that further custody with the parent will "result in serious emotional or physical damage to the child" (§ 1912(e)); and (3) the requirement that, before terminating parental rights, the court must hear expert witness testimony that further custody with the parent will "result in serious emotional or physical damage to the child" (§ 1912(f)). Grave though they may be, these are not the violations that 25 U.S.C. § 1920 was intended to correct — namely the taking or retaining of an Indian child "without the sanction of law." We therefore find no basis for immediately returning Roberta to Danielle's custody under 25 U.S.C. § 1920.
Id.
D. The Motion to Compel Active Efforts and Order Sanctions
At the December 5, 2007, hearing the trial court found that OCS had not made active efforts, noting that OCS "didn't do as much as [it] should have, but some of it's justified because [Danielle] got resentful and . . . angry . . . instead of cooperating." Within a week of this ruling, Danielle asked the court to order specific activities by OCS to fulfill its active effort duties, and for sanctions as well. But orders compelling active efforts and orders imposing sanctions for failure to comply are measures committed to the trial court's discretion. Danielle has not shown that the trial court abused its discretion by declining to issue the requested order or impose the requested sanctions, and the record provides no evidence that the trial court's actions were "clearly untenable and unreasonable." We do not address OCS's argument that the requested order for active efforts would have violated the separation of powers because we affirm the denial of the motion as within the trial court's discretion.
Danielle sought an order directing OCS to comply with the active efforts requirement and mandating regular supervised and unsupervised visitation, including: (1) an unsupervised visit on Christmas of 2007; (2) joint counseling; and (3) a meeting among the foster parents, Danielle, and the guardian ad litem.
Danielle requested sanctions against OCS for its insufficient efforts and "a one[-]year supervision order, instead of a one[-]year continued custody order, following a reasonable period of temporary custody pursuant to CINA Rule 17(c)."
See CINA R. 10.1(b)(2) ("On a motion of a party or its own motion, the court may order the Department to comply with 25 U.S.C. §§ 1912(d) or 1915(b) within a reasonable time. If the Department fails to comply with this order, the court may impose appropriate sanctions.") (emphasis added).
L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 950 (Alaska 2000) (describing the abuse of discretion standard).
Danielle also asserts that under CINA Rule 10.1(b)(2), "the court must postpone disposition until the court finds that active efforts have been made," and it was thus error for the trial court not to alter the custody order to return Roberta to Danielle under a supervisory order. But the CINA rules make clear that "a finding that the [active efforts] requirements . . . have not been met is not in itself a ground for restoring the child to the parent . . . or dismissing a petition." The trial court therefore did not err by refusing to return Roberta to Danielle under a supervisory order on the basis of the December 2007 finding regarding active efforts.
CINA R. 10.1(b)(2).
V. CONCLUSION
For the foregoing reasons, we AFFIRM the trial court's extension of OCS custody, we AFFIRM the trial court's decision not to grant the ICWA petition, and we AFFIRM the trial court's denial of the motion to compel active efforts and for sanctions.