Opinion
Supreme Court No. S-13022.
January 28, 2009.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Kenai, William F. Morse, Judge, Superior Court No. 3KN-06-32/33 CP.
Suzanne Rapoza, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for Appellant. Joanne M. Grace, Assistant Attorney General, Talis J. Colberg, Attorney General, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Winfree, Justices. [Carpeneti, 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
M.B. (Marina) appeals from a decision of the superior court terminating her parental rights to two of her children, arguing that termination of her rights was improper because the Office of Children's Services (OCS) failed to make "reasonable" or "active efforts" to reunite her with her children. We affirm.
This opinion adopts the pseudonyms for the mother and children used in the parties' briefs.
II. FACTS AND PROCEEDINGS
In March 2006 Marina B. was living with five of her six children in Soldotna. It appears that Marina had a pattern of physically abusing her children. The authorities arrested Marina after her eldest daughter left Marina's home after a beating in early March. Marina later pled no contest to one charge of domestic violence assault and was sentenced to 120 days imprisonment with 110 days suspended and two years of probation. OCS took custody of three of Marina's children (Charlotte (sixteen), Tom (eleven), and Ernest (five)) after learning of the arrest. An OCS caseworker produced a case plan for Marina ten days after the children were removed from the home. Under the case plan Marina was to "[o]btain [a] mental health assessment at Nakenu Family Center and follow through with treatment recommendations." The case plan also provided for weekly visitation with the children.
Marina continues to deny that she has ever hit her children. At the termination hearings, however, Marina's counsel did not argue that Marina had not abused her children. Further, Marina's decision not to challenge the findings relating to harm and risk of harm suggest that a strong case against those findings cannot be made. In any event, the superior court found that physical abuse did occur and was likely to recur if the children were returned to the home at the time of the hearings. These factual findings are supported by the record and are not clearly erroneous.
The two youngest children stayed with their biological father — Marina's then-husband. This appeal concerns only Tom and Ernest, as Charlotte left state custody when she turned eighteen in July 2007.
The children were removed on March 11, 2006. The first case plan is dated March 21, 2006.
OCS initially placed the children with relatives, but they were moved to another foster home in May 2006. In April 2006 OCS had Tom and Ernest undergo mental health assessments, and Tom was evaluated again in October. Both boys reported significant physical abuse. Tom was diagnosed with adjustment disorder and as a victim of physical abuse as a child. Ernest was diagnosed with anxiety disorder, as a victim of physical abuse as a child, and with post-traumatic stress disorder. OCS facilitated individual therapy for both boys.
OCS also referred Charlotte for a mental health assessment and therapy.
Marina obtained a mental health assessment at the Nakenu Family Center in April 2006. She refused to discuss the allegations of child abuse on the advice of her public defender. Based in part on a personality inventory assessment, the clinician found "that [Marina] is unable or unwilling to recognize the full magnitude of the problems inherent in her family home environment." For that reason the clinician concluded that "[Marina]'s prognosis is poor at this time. . . . Therapeutic treatment and parental interventions cannot be meaningful or effective under the current circumstances." The clinician recommended that Marina "receive a complete psychological evaluation through a licensed psychologist and follow through with any recommendations for individual mental health treatment. At such time as the client is able to address parenting and family issues openly, she is recommended to attend parenting classes appropriate for the ages of her children."
An affidavit of an OCS caseworker suggests that between April 17 and May 5 (the date of the affidavit), the caseworker tried without success to get Marina to sign a release that would allow OCS to set up an appointment for Marina with a psychologist. Marina "repeatedly informed [the caseworker] that she is unwilling to sign until she discusses this with her attorney." By the end of May, OCS had assigned the case to a new caseworker, Karen Hummel. It seems that within roughly a week of taking on the case Hummel scheduled an appointment for Marina to see a psychologist — Dr. Paul Turner — in July. In early June Marina moved from Kenai to Anchorage. Due to concern that Dr. Turner would not be able to produce a timely report, and presumably because of Marina's move to Anchorage, the appointment with Dr. Turner was cancelled.
April 17 was less than a week after Marina participated in the mental health assessment at Nakenu Family Center.
Hummel testified that from the beginning of their interactions, Marina was "guarded" and refused to tell OCS or Hummel where she lived, even though this lack of cooperation threatened to prevent her from visiting her children.
This issue arose regarding visits in Kenai before Marina moved to Anchorage.
Up until the move to Anchorage, Marina had visited her children weekly at OCS in Kenai. After the move Marina's weekly visits were telephonic. It appears that Marina missed the majority of the telephonic visits during the seven-and-a-half-month period she was in Anchorage and her children were in Kenai; she made approximately ten calls over a thirty-two-week period. Supervisors reported that during the phone calls Marina made "inappropriate comments," ignored Ernest, and told the children they were wasting her cell phone minutes if they did not speak, even though OCS provided calling cards for the visits.
Between mid-July and mid-September Marina participated in group parenting classes at Southcentral Foundation. It seems attendance was a condition of her criminal sentence. OCS does not appear to have been involved.
Hummel wrote a referral for Marina to Dr. Michael Rose on August 7, 2006. Dr. Rose saw Marina on September 25, 2006. Dr. Rose's findings echoed those of the Nakenu Family Center. Dr. Rose found that Marina had an elevated score for "faking good," indicating that she was concealing her problems in an attempt to appear normal and not in need of help. Marina continued to deny that she abused her children. Dr. Rose concluded that Marina "does not believe she has psychological problems," and that this denial would "significantly interfere with positive treatment." Dr. Rose also concluded that Marina lacked insight into the extent to which she bore responsibility for problems that arose in her life, and the extent to which her actions detrimentally affected her children and her ability to parent. Dr. Rose's impression was that Marina sincerely wanted her children back, but that her motivation seemed to be a desire for vindication, rather than to have the children themselves. Dr. Rose recommended first individual therapy "to help her understand she has problems [that] contribute to relationship, family and parenting difficulties." If that therapy proved successful, Dr. Rose recommended parenting training.
The state does not argue that the appointment was scheduled before this time.
On October 24, 2006, Marina stipulated that OCS had been making active efforts to reunite her with her children.
Marina visited with Tom and Ernest at a Chuck E. Cheese's in Anchorage in October 2006. The visit supervisor reported that Marina ignored Ernest and inappropriately spent time during the visit complaining to the boys' foster mother about her parenting. Marina also visited Kenai for a few days in October. Hummel made "many attempts" to set up a meeting between Marina and the boys during this time, but Marina would not agree to any of the initial suggestions. Eventually Hummel agreed to stay at OCS after hours and supervise a visitation at the office in the evening. Marina again ignored Ernest at the meeting. Later, Hummel arranged for the boys to travel to Anchorage and stay with relatives there over the Thanksgiving weekend. Marina was not informed in advance about this plan, and she reacted negatively when the boys and their relatives surprised her at work. Because Marina became upset, that interaction was short. Marina did not spend any other time with the boys during the Thanksgiving weekend, nor did she call them. The boys traveled to Anchorage again in December for the Christmas break and saw their mother on three occasions. Apparently the boys felt their mother did not welcome their presence during these visits.
Over the course of this time period, Marina grew to distrust Hummel. In January 2007 Marina told Hummel not to contact her directly anymore or Marina would file harassment charges against Hummel.
OCS received a written copy of Dr. Rose's evaluation in early December 2006. On February 2, 2007, Hummel and Nicole Walters (a secondary OCS caseworker assigned to Marina's case and based in Anchorage) met with Marina to discuss case planning and visitation. At the meeting Hummel discussed the need for Marina to enter individual therapy. Marina told the OCS caseworkers that she was on a wait list at Southcentral Foundation for counseling. Marina completed a psychiatric intake with Southcentral on March 28, but did not notify OCS.
Based on testimony at the hearing, it appears that Dr. Rose did not release the evaluation until some time in November 2006.
In January 2007 the boys moved to Anchorage to live with their aunt and uncle. Marina's schedule apparently precluded face-to-face visits, so OCS set up weekly telephonic visitation. Because the boys' new foster parents (their aunt and uncle) felt that Marina had made several harassing phone calls to them after the boys moved in with them, the telephonic visitation was set up so that Marina would call OCS and OCS would then connect her through to the boys in their foster home. Apparently this arrangement was not acceptable to Marina, as she did not call in for any of the telephonic visits.
In an attempt to remedy the situation OCS referred the matter of visitation to the Eklutna Child Advocacy Center. At Marina's request, the Eklutna Center set up supervised face-to-face visitation at the Dimond Mall food court, which occurred in April. According to Devon Urquhart, who supervised the visitation on behalf of the Eklutna Center, Marina again focused on Tom at the expense of Ernest and made inappropriate comments to the boys. Marina continued to favor Tom and ignore Ernest at the second visit at the Dimond Mall food court. After the second visit at the Dimond Mall the visitation supervisor from the Eklutna Center decided that further visitation should take place at the center in order to allow Marina to "engage" with Ernest more. Marina refused to participate in visitation at the center unless she was provided with vouchers for cab fare. The Eklutna Center refused to comply with Marina's demand because it is located a five to ten minute bus ride away from Marina's place of employment and Marina already had a bus pass. The Eklutna Center refused to supervise visitation any longer, transferring the duty back to OCS after only a few weeks.
Also in April 2007, Marina began a weekly group anger management class at Southcentral. Marina denied ever getting angry and initially denied having any problems that she could address in the class. After the second meeting, the leader recommended to Marina that she participate in individual therapy instead because she was not focusing on her own problems in the group setting. Marina refused. In a later session, Marina identified something she wanted to change: "She wanted to stop spending all of her time and her energy taking care of other people and to focus on her self-care." Marina completed the class on June 13.
Donna Lee Horton, the anger management class leader, explained that sometimes people who respond to anger by holding it in have to begin to address their anger management issues by working on "self-care."
Nicole Walters of OCS apparently called Southcentral in mid-April to inquire as to Marina's place on the waiting list and was told that Southcentral could not give any information because Marina had not signed a release. This appears to have been a mistake on the part of Southcentral: Marina had signed the necessary release in March. Hummel learned of the problem from Walters on April 20 and spoke with Marina's attorney about it on April 23. Hummel emailed Marina's lawyer on May 3 to clarify the issue. Marina's attorney told Hummel that Marina had signed a release and that she was participating in an anger management class at Southcentral. In late May Marina's attorney told Hummel not to contact Marina directly, but to channel all communication through the attorney.
On June 12, 2007, Hummel called Marina with Vide Van Velzor of the Kenaitze Indian Tribe on the phone, hoping that Van Velzor's presence would help Marina engage more. They discussed visitation and the importance of Marina participating in individual therapy. Marina said she was participating in anger management group therapy and under Southcentral's policies she could not begin individual therapy while she was in group therapy. Marina also reiterated that she had signed a release. Hummel and Van Velzor then called Southcentral (also on June 12) and were again told that no release was on file.
On July 16, 2007, Hummel met with Marina at the Dimond Mall. Hummel attempted to discuss the case plan and how Marina could progress on it, but Marina was only interested in discussing her contention that her daughter had fabricated the story of abuse, and her concern that Charlotte had become intimately involved with Marina's ex-husband. Hummel tried to turn the conversation back to the case plan. Marina became increasingly angry, raising her voice and eventually becoming red in the face and spitting. Hummel ended the meeting.
Marina was referring to the man with whom she was living at the time of her arrest for assault against Charlotte. This man is the father of Marina's two youngest children, but not the father of Charlotte, Tom, or Ernest.
Hummel called Southcentral again on August 1, 2007, and only then learned that a release was on file, and that Marina was not on a wait list for individual therapy and was not scheduled for it. Hummel called Southcentral again on August 20 and left a voice message for Marina's case manager, inquiring about setting up individual therapy for Marina. At no time did Hummel send a written request for information about Marina's enrollment in counseling, either to Marina or Southcentral.
In late August, Karlisa Hicks took over from Nicole Walters as the Anchorage-based secondary caseworker on Marina's case. She attempted to schedule visitation between Marina and the boys, but Marina could not visit during normal hours because of her work schedule and refused to come downtown to OCS because of safety concerns. Hicks scheduled a telephonic visitation for after hours, staying late at OCS to facilitate it, but Marina did not call in because she was "running late." Hicks set up a face-to-face visit on a Saturday, coming in to OCS to supervise the visit on her day off. Marina did not come because she "spaced it out" and "just completely forgot about it." Marina did participate in an in-person visit in early November, days before the superior court's hearings on termination of Marina's parental rights.
On September 11, 2007, Marina began individual therapy at Southcentral with Barbara Baum. Baum did not initially have a copy of Dr. Rose's evaluation, but she obtained one, thereafter structuring the therapy to address the issues Dr. Rose had identified. At the time of the superior court hearings regarding this case (November 13 and 14, 2007), Baum had seen Marina six times. Baum explained that she would probably not extend the sessions beyond Southcentral's typical eight weeks because it was unlikely that Marina would benefit from further therapy. Baum explained to the court that Marina had "little insight into her role in how she had arrived at this point in her life, and I . . . don't think that further sessions would . . . help her to glean more insight." During therapy, Marina "had a tendency to talk at length about different things, such as . . . being a good mother, and it was difficult to really redirect and get back to the main point." Baum felt that no progress had been made in individual therapy.
As of November 2007 both Tom and Ernest had shown marked improvements in therapy. Ernest's therapist testified that Ernest's continued improvement was dependent on a stable, supportive home environment. It appears that as of November 2007 the permanency plan for Tom and Ernest was adoption by their aunt and uncle with whom they had been living and doing well.
OCS filed a petition to terminate Marina's parental rights to Tom and Ernest on August 29, 2007. The superior court held evidentiary hearings in the case on November 13 and 14. The superior court orally terminated Marina's parental rights at the close of the hearings on November 14 and issued a written order on February 11, 2008. Marina appeals.
III. DISCUSSION
A. Standard of Review
We have said:
In a child in need of aid case, we will sustain a superior court's findings of fact unless they are clearly erroneous. Findings of fact are clearly erroneous if a review of the entire record in the light most favorable to the party prevailing below leaves us "with a definite and firm conviction that a mistake has been made."[]
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth 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)) (footnotes omitted).
We review de novo "[t]he issue of whether a trial court's findings [of fact] satisfy the relevant statutory requirements." "In interpreting child in need of aid statutes . . . we apply our independent judgment, adopting the rule of law that is most persuasive in light of precedent, reason, and policy." "Whether [OCS] complied with the `active efforts' requirement of the Indian Child Welfare Act (ICWA) is a mixed question of fact and law." There is "no pat formula for distinguishing between `active efforts' and `passive efforts.'" Instead, "[t]he issue of whether OCS made active efforts is determined on a case-by-case basis." B. The Only Issue in this Case Is the Sufficiency of OCS's Efforts To Reunify the Family.
Id.
Id.
E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 989 (Alaska 2002).
A.M. v. State, 945 P.2d 296, 306 (Alaska 1997).
Wilson W. v. State, 185 P.3d 94, 101 (Alaska 2008).
Child In Need of Aid Rule 18 encapsulates the requirements under state and federal law pertaining to involuntary termination of parental rights. In general, there are three requirements: (1) "the child has been subjected to conduct or conditions described in AS 47.10.011," (2) "the parent has not remedied" the problem, and (3) the state agency has made reasonable efforts as defined in AS 47.10.086, or active efforts, in the case of an Indian child, to reunite the child with the parent(s), and such efforts have proved unsuccessful. Additionally, the state agency must show that termination is in the best interests of the child and, in the case of an Indian child, that "continued custody of the child by the parents . . . is likely to result in serious [harm] to the child."
CINA R. 18(c).
CINA R. 18(c)(4).
The superior court found that Tom was a child in need of aid under AS 47.10.011(6) and that Ernest was a child in need of aid under AS 47.10.011(6) and (8). These findings are supported by the record and are not disputed by Marina.
Subsection (6) relates to having suffered or been at risk of suffering physical harm, and (8) relates to mental harm. AS 47.10.011.
The superior court found that Marina had not remedied the problem that put Tom and Ernest at risk — Marina's own propensity to abuse her children. This finding is supported by the record and Marina does not dispute it here.
The superior court found that termination was in the best interests of the children and that continued custody by Marina would likely result in serious harm to them both. These findings are supported by the record and Marina does not dispute them here.
The only issue is whether OCS made sufficient efforts to reunite Marina with her children. To answer this question we must first determine the standard to which OCS should be held. In all cases, OCS must make "reasonable efforts" to reunite the family. If a child qualifies as an Indian child under federal law, the state must make "active efforts" to reunite the family and may terminate parental rights only if those active efforts "have proved unsuccessful."
See AS 47.10.086; AS 47.10.088(a)(3).
CINA R. 18(c)(2)(B); 25 U.S.C. § 1912(d) (2006).
It is not clear whether Tom or Ernest is an Indian child. To be an Indian child, each boy must either be "(a) a member of an Indian tribe or (b) . . . eligible for membership in an Indian tribe and . . . the biological child of a member of an Indian tribe." Initially, Tom was recognized as an Indian child because he was a registered member of the Kenaitze Indian Tribe. The Kenaitze Indian Tribe intervened in the proceedings below on Tom's behalf. However, it now seems that the basis for Tom's membership was mistaken. Tom and Charlotte were believed to share the same father, who is a member of the Kenaitze Indian Tribe. Tom was enrolled as a member of the tribe on the basis of his father's membership. It has since been established that this man is not Tom's biological father. As a result, the Kenaitze Indian Tribe withdrew from the proceedings. Neither Tom nor Ernest's biological fathers is a member of an Indian tribe. Marina is an Alaska Native, but the record does not reflect whether she is a member of an Indian tribe.
The record suggests she is Inupiaq (Inupiat) and may be affiliated with the Nome Eskimo Community. In her brief, Marina claims that she is not currently a member of a tribe, but that Tom is.
The superior court found that Tom was an Indian child and that Ernest was not. The superior court seems to have based its finding that Tom was an Indian child on the affidavit filed by the Kenaitze Indian Tribe in support of their motion to intervene. The superior court did not cite to any other authority, nor did it further explain its findings.
Because we find that OCS's efforts meet both the "reasonable efforts" and "active efforts" standards, we need not address the sufficiency of these findings.
C. OCS Made Active Efforts To Reunify the Family that Have Proven Unsuccessful.
If either boy is an Indian child, termination of Marina's parental rights as to that boy is proper if OCS shows, by clear and convincing evidence, that it has made active efforts to unify the family that have proved unsuccessful. As a general matter, "[a]ctive 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 find it a close case whether OCS's efforts here amount to "active efforts." OCS made affirmative attempts to help Marina achieve the goals of her case plan but was thwarted to some degree by Marina's hostile and obstructive behavior. OCS's attempts, however, were not as timely and persistent as they should have been.
CINA R. 18(c)(2)(B); see also Maisy W. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008) (citing CINA R. 18).
N.A. v. State, 19 P.3d 597, 602-03 (Alaska 2001) (quoting A.A. v. State, Dep't of Family Youth Servs., 982 P.2d 256, 261 (Alaska 1999)).
In deciding whether OCS has made active efforts, we look at the record as a whole, rather than focusing on any particular time period or service requested. The question of whether active efforts were provided is "determined on a case-by-case basis." 1. OCS's efforts
See E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 990 (Alaska 2002) (upholding finding of active efforts despite seven-month period of inactivity because inactivity was insignificant in context of entire history of state's efforts); N.A. v. State, 19 P.3d 597, 603-04 (Alaska 2001) (rejecting argument that failure to provide specific service barred finding of active efforts).
Wilson W. v. State, 185 P.3d 94, 101 (Alaska 2008).
In OCS's favor, Hummel and other OCS workers made numerous efforts, often despite uncooperative and hostile behavior from Marina, to help Marina progress on her case plan. OCS created a case plan within days after its initial intervention, and within a month Marina had been assessed at the Nakenu Family Center pursuant to that plan. The Nakenu assessment identified one major preliminary service Marina would need to be reunited with the boys: a psychological evaluation. OCS promptly scheduled such an evaluation for Marina. Seemingly due to factors outside of OCS's control, that evaluation had to be cancelled. Eventually it was rescheduled. The evaluation identified further services Marina would need to be reunited with the boys.
Up until it received the evaluation in December 2006, OCS's efforts seem to have been active. Two months after receiving the evaluation an OCS worker met with Marina and discussed the need for her to engage in the services identified in the evaluation — particularly individual therapy. Marina told the worker that she was already on a wait list for counseling at Southcentral Foundation. From that point on, OCS's efforts regarding Marina's therapeutic services consisted of sporadic attempts to establish communication with Southcentral, which OCS believed was providing the proper services to Marina.
In an October 24, 2006 stipulation Marina conceded that OCS had been making active efforts up until that date. At that time Marina had seen Dr. Rose and further treatment waited on his evaluation. OCS received his evaluation in early December 2006.
Throughout the twenty months between OCS's initial intervention and the termination hearing in mid-November 2007, OCS caseworkers tried to arrange visitation between Marina and the boys. OCS also arranged for services for the boys, including initial mental health assessments in April 2006 and later therapy for both.
2. OCS's delays
OCS seems not to have caused delays prior to December 2006. In early December OCS received Dr. Rose's report, but apparently no caseworker discussed the next step with Marina until February 2, 2007 — a delay of two months. At the February meeting, Hummel emphasized to Marina the importance of individual therapy and Marina said she was on a wait list at Southcentral for counseling. Hummel agreed that OCS would forward the relevant referrals to Southcentral. It appears that OCS did not take any action until mid-April, by which time Marina had already begun anger management classes. Over the next few months OCS continued to make sporadic attempts to resolve the confusion over whether Marina had signed a release, but never again scheduled any services on Marina's behalf.
Marina argues that OCS delayed four months in scheduling her psychological evaluation after she was assessed at Nakenu Family Center. We think this assertion mischaracterizes the facts. Nakenu's assessment is dated April 19, 2006. An OCS caseworker stated in an affidavit that between April 17 and May 5 she asked Marina three times to sign a release that would allow OCS to schedule an evaluation, but each time Marina declined to do so. Hummel testified that she took on Marina's case at the end of May and shortly thereafter scheduled a psychological evaluation with Dr. Turner for July. Marina then moved to Anchorage, and her attorney expressed concern about the timeliness of Dr. Turner's evaluation, so the appointment with Dr. Turner was cancelled — seemingly in early June. Hummel sent a referral to Dr. Rose on August 7, 2006, and Marina met with Dr. Rose on September 25, 2006. It seems the delay was caused by the need to cancel the initial appointment. We do not think this can be blamed on OCS. It is not clear why two months elapsed between the cancellation and the scheduling of the new appointment. However, even if OCS was fully responsible for this two-month delay, the delay would have been avoided had the first appointment not been cancelled. The record suggests that the cancellation was due to Marina's attorney's concerns about timeliness and Marina's move to Anchorage.
Dr. Rose saw Marina on September 25, 2006, but seems not to have produced a report until two months or more later. We see no reason to attribute this delay to OCS.
OCS continued during this time to work actively to provide visitation. See supra Part III.C.1.
The two-month delay does not, by itself, resolve the question of active efforts. In Maisy W. v. State, Department of Health Social Services, Office of Children's Services, we upheld a finding of active efforts despite the state's concession that "it failed to take active efforts for three months" during the three-year period in question, because looking at "the entirety of the state's efforts" we found them to be active. OCS's delay between December 2006 and February 2007 amounts to roughly two months of inactivity out of the twenty months between OCS's initial intervention and the termination hearings. We think that, as in Maisy W., the delay is not dispositive when viewed in the context of "the entirety of the state's efforts."
175 P.3d 1263 (Alaska 2008).
Id. at 1269.
OCS should have taken a more active role in scheduling services with Southcentral after Marina indicated a preference for that institution at the February meeting. Up until that point, however, Marina had demonstrated competence, organization, and a desire to fulfill the requirements of her case plan, attending the services that OCS had scheduled. Though we cannot condone the low level of OCS's efforts after this point, given the agency's prior experience with Marina we think it is at least understandable that OCS caseworkers trusted Marina's representations that she was on a waiting list for counseling at Southcentral, and that she would attend counseling once Southcentral was able to schedule her for visits. OCS's intervention after that time was sporadic, but it did not cease.
3. Need for OCS intervention
OCS argues that to the extent it failed to actively push Marina forward on her case plan, such failure is not relevant because Marina did not need OCS's help. OCS describes Marina as someone who "understood exactly what programs she needed to successfully complete" and "who was willing to get treatment, but only on her own terms."
Comparing Marina's situation with that in A.M. v State offers some guidance on this point. In A.M. we held that OCS was not obligated to arrange treatment for a parent who was enrolled in appropriate treatment through the prison in which he was incarcerated. We upheld the superior court's termination of parental rights against A.M.'s argument that the Department of Family and Youth Services did not make "active efforts" to reunify him with his children. We explained that "[w]e need not speculate what active reunification efforts DFYS might have been required to make if A.M. had not actually enrolled in appropriate DOC treatment programs." Our conclusion in A.M. seems just as applicable here: if a parent is already in treatment, "additional [OCS] efforts [to secure that treatment] would have been superfluous."
945 P.2d 296 (Alaska 1997).
Id. at 305-06.
Id. at 305-06.
Id. at 306.
Because Marina required treatment for which she did not promptly enroll herself, the logic of A.M. does not absolve OCS entirely of its obligation to schedule therapy and other services for Marina. She eventually scheduled and participated in individual therapy on her own, but it is possible that OCS could have scheduled individual therapy and persuaded Marina to participate in it sooner.
4. Marina's failure to make progress
OCS seems to argue that Marina's lack of progress in therapy and in her visits with the boys demonstrates that further efforts would be fruitless. OCS seems to imply that the futility of further efforts demonstrates that efforts foregone as a result of OCS's delay would likewise have been futile, and thus OCS's delay should be considered the equivalent of harmless error.
Marina argues that using this logic to mitigate OCS's duties is barred by our admonition in A.M. v. State that "[w]e have never suggested that the scope of the State's duty to make active remedial efforts should be affected by a parent's motivation or prognosis before remedial efforts have commenced." The full record of that case, however, lends only equivocal support to Marina's position. In A.M. we were concerned that the superior court had terminated parental rights on the basis of conduct occurring before OCS's intervention. Accordingly, we reversed the termination of parental rights and remanded. By the time the case returned to us on a second appeal, however, A.M. had participated in several treatment programs and had been discharged from them all "for failure to comply with treatment requirements." A treatment supervisor had testified that A.M. had "no real interest in treatment, but was only going through the motions." On the basis of this additional record, we affirmed the superior court's termination. As we later explained, we "affirmed . . . in part because of A.M.'s failure to participate meaningfully in treatment." Since that time, we have repeatedly affirmed that "a parent's demonstrated lack of willingness to participate in treatment may be considered in determining whether the state has taken active efforts." Under this rule, a court may consider a demonstrated lack of willingness to participate in treatment after OCS becomes involved, but not uncooperative behavior occurring before OCS becomes involved.
891 P.2d 815 (Alaska 1995), overruled on an unrelated issue by In re S.A., 912 P.2d 1235 (Alaska 1996).
Id. at 827.
See id. at 823.
Id. at 828.
A.M. v. State, 945 P.2d 296, 305 (Alaska 1997).
Id.
Id. at 307.
A.A. v. State, Dep't of Family Youth Servs., 982 P.2d 256, 262-63 (Alaska 1999) (citing A.M., 945 P.2d at 306) (discussing A.M. in holding that OCS "fulfilled its duty under ICWA to make active remedial efforts," despite OCS's "relatively passive" efforts, because the Department of Corrections offered treatment to the father, the father "demonstrated a lack of willingness to participate in treatment," and the father's prison sentence was "lengthy").
N.A. v. State, 19 P.3d 597, 603 (Alaska 2001) (citing A.M., 945 P.2d at 306); see also Maisy W. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008) ("We have stated that `a parent's demon strated lack of willingness to participate in treatment may be considered in determining whether the state has taken active efforts.'" (quoting N.A., 19 P.3d at 603)); E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 991 (Alaska 2002) ("We have consistently held that `[a] parent's demonstrated lack of willingness to participate in treatment may be considered in determining whether the state has taken active efforts.'" (quoting N.A., 19 P.3d at 603-04) (alteration in original)); A.H. v. State, Dep't of Health Soc. Servs., 10 P.3d 1156, 1164 (Alaska 2000) ("We have recognized that `a demonstrated lack of willingness to participate in treatment [is a] relevant factor[] in determining the reasonableness of the State's remedial efforts.'" (quoting A.M., 945 P.2d at 304 (alteration in original)).
See A.M. v. State, 891 P.2d 815, 827 (Alaska 1995).
Like A.M., Marina has demonstrated an unwillingness to participate in treatment, though Marina was not prematurely removed from her classes for failing to comply with requirements. She successfully completed a group anger management class and had nearly completed an eight-week program of individual therapy at the time of the termination hearings. It appears, however, that Marina did not make substantive progress in dealing with her own anger management issues in her anger management class and did not make progress in individual therapy. Like A.M., Marina attended classes and therapy pursuant to her case plan but did not demonstrate a "real interest" in working through the issues the services were intended to address. Marina never admitted to abusing her children, never accepted responsibility for her actions and their consequences, and did not demonstrate the insight necessary to progress in therapy. Instead she seems to have been merely "going through the motions." Additionally, after she moved to Anchorage in June 2006 she did not participate regularly or constructively in visitation with the boys.
Marina did complete an "anger management relapse prevention plan," in which she "demonstrated . . . knowledge of [certain anger management] skills and [that she] had the working ability to master [those skills]." At no time during the anger management classes did Marina admit to having a problem managing her anger or mention a need to "make changes about herself in order to care for her children." The woman who ran the class testified there was "no way for us to know" whether Marina was able to transfer the skills studied in the classes to her outside life. In any event, Marina's intransigence in individual therapy with Baum strongly suggests that no significant progress had been made on the issue of her abuse of her children.
As in A.M., Marina's demonstrated unwillingness to engage with the services provided to her mitigates, to some degree, the gravity of OCS's failings.
5. Marina's obstructive behavior when dealing with OCS
OCS argues that the delays were caused by Marina's consistent refusal to cooperate with OCS. It is evident that had Marina been fully cooperative and forthcoming with OCS the delays could have been avoided. The superior court, however, noted that it is perhaps precisely because some parents are obstructive or uncooperative that OCS is required to make "active efforts" to reunify them with their children and admonished OCS for its subpar performance. The superior court also acknowledged the difficulty in providing services to someone who "[wasn't] ready for the help yet" and was "aggressively pushing away." Nonetheless, the superior court seems to have lowered the threshold for active efforts because of Marina's obstructive behavior, finding that "the . . . efforts to bring her to treatment, given her resistance, just barely met the standard of active efforts."
We think Marina's situation is somewhat like the situation we addressed in Maisy W. In Maisy W. we considered the parent's obstructive and hostile behavior as a factor in determining whether the state had met its obligations. Marina's obstructive behavior is similar to Maisy's: both were confrontational when speaking with OCS workers, tried to avoid giving OCS their contact information, and on at least one occasion threatened to invoke legal process against a caseworker for trying to contact them.
175 P.2d at 1269 ("The state tried to help Maisy even though she moved on several occasions and refused to give OCS her contact information, and even though she acted belligerently toward social workers and tried to have police remove them from her property.").
As in Maisy W., we think that Marina's obstructive and hostile behavior excuses, to some degree, OCS's shortcomings.
6. Conclusion as to active efforts
Looking at the state's efforts, Marina's obstructive and hostile behavior, and Marina's failure to make progress in treatment, we agree with the superior court's finding that OCS's efforts "just barely met the standard of active efforts."
D. OCS Made Reasonable Efforts To Reunify the Family
If either boy is not an Indian child, termination of Marina's parental rights as to that boy is proper if OCS made "timely, reasonable efforts" to reunify the family, including (1) "identify[ing] family support services that will assist the parent in remedying the conduct" that made the child one in need of aid, (2) "actively offer[ing]" the services so identified to the parent, and (3) "document[ing] the department's actions." We have said that "in determining reasonable efforts," we will consider "the `amount of time available' for reunification, . . . how long the child has been in foster care[,] and whether allowing more time for reunification would not be in the child's best interests." 1. OCS made sufficient efforts
AS 47.10.086(a).
Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska 2005).
In Frank E. v. State, Department of Health Social Services we explained that "the requirement that the state offer reunification services is fulfilled by setting out the types of services that a parent should avail himself or herself of in a manner that allows the parent to utilize the services." In this case, OCS identified services that would assist Marina and made them available to her. Marina's actions demonstrate that she understood what was required of her and how to obtain it, and that she was capable of doing so. Under the logic of Frank E., OCS's efforts were "reasonable."
77 P.3d 715 (Alaska 2003).
Id. at 720.
2. OCS's actions were not unreasonable because untimely
Marina argues that OCS's efforts were not timely. Starting in December 2006, OCS could have intervened more actively than it did. Marina's actions, however, demonstrate that she already understood what was required of her and how to obtain it. If Marina already knew what she had to do, arguments as to the timeliness of OCS's efforts are unavailing. The only time that Marina might plausibly not have known what to do was between the psychological evaluation and the February meeting with Hummel. As we have explained, two months of delay is not dispositive in the context of the entire history of services provided by OCS in this case. 3. Termination is in the children's best interests
We put great emphasis on the best interests of the child when determining whether "reasonable efforts" were made. Alaska Statute 47.10.088(b) defines "best interests" as including:
See Jeff A.C., Jr., 117 P.3d at 706 ("[W]hen `making determinations and reasonable efforts under this section, the primary consideration is the child's best interests.'" (quoting AS 47.10.086(f)) (emphasis in original)).
(1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs;
(2) the amount of effort by the parent to remedy the conduct or the conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the parent.
In this case the superior court found that termination was in Tom and Ernest's best interests "so that they can be adopted by their current relative placement (maternal aunt and uncle)." The court explained:
The court notes its belief that [Marina] would need approximately one and a half more years to "fix" these issues. Given the length of time the mother has had to remedy her conduct or conditions in the home in order to be reunified with her children, the children's ages, and the length of time and effort necessary for the mother to work on remedying the conduct from this point forward, it is in the children's best interests that [Marina's] parental rights be terminated allowing [Tom] and [Ernest] to be adopted by their current relative foster family.
This finding addresses the statutory criteria and is amply supported by the record. It is therefore not clearly erroneous. Given the potential for harm to the children and the weakness of Marina's arguments as to reasonableness and timeliness, we agree with the superior court's finding that reasonable efforts were made.
Cf. D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 207 (Alaska 2000) ("We review the factual findings underlying the superior court's termination [of parental rights] decision for clear error.").
E. We Reject Marina's Other Arguments
Marina argues that "active efforts require that OCS identify for Marina native support and counseling services available in her community." Marina seems to rely on Iowa law for this proposition. We have not adopted such a rule. Given the multiple Native support organizations that have provided services to Marina during the history of this case, we are skeptical that Marina would prevail on this claim were we to adopt such a rule now.
Marina argues that OCS's failure to provide a primary caseworker located in Anchorage (Hummel works in Kenai) was incompatible with providing "active efforts" in this case. Marina argues that "[a]ctive efforts simply cannot be made from that geographical distance." We are not persuaded by this argument.
In her reply brief, Marina argues that OCS's failure to incorporate individual psychotherapy into an official case plan is incompatible with "active efforts." Because all parties were aware that individual psychotherapy was a necessary step in Marina's treatment, we find this argument unpersuasive. The issue in this case is whether OCS made sufficient efforts to bring Marina to treatment, not whether OCS memorialized its understanding of what treatment was necessary in a particular manner.
In her reply brief, Marina argues that only OCS's efforts to provide treatment to Marina are to be considered in evaluating whether OCS has made "reasonable" or "active efforts" to reunite the family — efforts to provide services to the children or to provide visitation are not relevant. The sources Marina cites to support this argument do not support it, and we find the argument unpersuasive on its own merits.
Marina argues that OCS also failed by not informing her therapist of her issues and goals with "a written referral" or "verbally." We find these arguments unpersuasive. Baum did begin Marina's individual therapy without a copy of Dr. Rose's evaluation, but she requested and obtained one from Hummel apparently promptly. We do not think Baum needed additional guidance — written or verbal — from OCS.
Marina also argues that OCS's failure to obtain a release from Marina and OCS's subsequent inability to communicate effectively with Southcentral deprived Marina of "a consistent, timely message from both that she must work on the identified problem or lose her children." Marina implies that this failure contributed to her resistance to entering individual therapy, and therefore her own delay in that matter is attributable to OCS. This may be true, but we do not think that providing a coordinated "message" is part of the duty of "active efforts" owed by OCS.
IV. CONCLUSION
For the reasons stated above, we AFFIRM the superior court's decision to terminate Marina's parental rights.