Opinion
Supreme Court No. S-12569.
December 26, 2007.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge, Superior Court No. 3AN-04-0165 CN.
Randall S. Cavanaugh, Kalamarides Lambert, Anchorage, for Appellant. Michael G. Hotchkin, Assistant Attorney General, Talis J. Colberg, Attorney General, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, and Carpeneti, Justices. [Bryner, 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.
A father appeals from a judgment terminating his parental rights. Finding no substantial error, we affirm.
I. FACTS AND PROCEEDINGS
Marshall S. and Teena K. are the parents of Aster K. (born in 2002). A s te r is an Alaska Native child protected by the Indian Child Welfare Act (ICWA).
We use pseudonyms for all family members to protect their privacy.
In fall 2001, while pregnant, Teena told Marshall that he was one of three likely fathers. Marshall left Alaska before Aster was born. He never learned that she was born, never met her, and knew "absolutely nothing" about her until he became involved in these proceedings.
In May 2004 the Office of Children's Services (OCS) took Aster into emergency custody and initiated child in need of aid (CINA) proceedings against Teena and an unknown father. OCS intervened after a concerned individual brought Aster to the Alaska Native Medical Center because Aster was living in a crack house and was not receiving proper care.
By the end of 2004 OCS had conducted paternity tests on the two potential fathers it could locate. The tests showed that neither individual was the father. These results did not establish Marshall's paternity via a process of elimination, however, because Teena had also had sex with a number of unknown men.
In February 2006, after failing to comply with her OCS case plan by relapsing into substance abuse, Teena consented to the termination of her parental rights and approved plans for a particular family to adopt Aster. Aster has been living with this family as a foster child since March 2005.
OCS began its first of two attempts to find Marshall soon after it took Aster into emergency custody in May 2004. In June 2004 Teena gave OCS a description of Marshall and the names of two of his relatives in Anchorage. One of these relatives, an aunt, told OCS that she would try to locate Marshall and would contact OCS if she was successful. In June and July 2004 OCS spoke with Marshall's cousin. In total, OCS contacted two of Marshall's aunts, his cousin, and a friend.
Later in June 2004 OCS discovered that Marshall used a handful of aliases. In July 2004 OCS, with the help of a detective, learned that Marshall might be in Boise, Idaho. OCS contacted a few leads in Boise, but was unable to find Marshall.
By November 2004 OCS determined that Marshall had left Idaho and moved to Kentucky to live with an aunt. OCS was again too late. Marshall was no longer living with the aunt. The trial court found that Marshall "was probably making efforts . . . not to be located, and certainly moving from jurisdiction to jurisdiction to avoid the legal problems and criminal cases that were trailing him." OCS ended its first search in November 2004. By then OCS believed that most of Marshall's family members knew that OCS was trying to contact him.
From 2004 through much of 2005 OCS relied on the Department of Revenue's Child Support Services Division's (CSSD) continuing efforts to find Marshall. Nothing in the transcript or record suggests what CSSD was doing to locate Marshall.
Formerly known as the Child Support Enforcement Division.
OCS initiated its second search for Marshall in late 2005 or early 2006 when it began planning for a hearing to terminate the unknown father's parental rights. In February 2006 OCS found Marshall, who was then an inmate at the Santa Cruz County Jail in California. On March 8, 2006, testing established Marshall's paternity. Marshall received court-appointed counsel on April 26, 2006.
Marshall knew about Aster before OCS successfully located him. In fall 2001 Marshall knew that Teena was pregnant; Teena told him that he might be the father. In August 2005 Marshall's cousin told him that Teena had had a child and that the child looked like him. His cousin also told him that Aster was in foster care and that OCS was looking for him. The superior court found that, "[d]espite this knowledge, [Marshall] did not contact OCS, [Aster], or [Teena] since he was planning a life with another woman and her child, which [Marshall] mistakenly thought was his child."
OCS attempted to provide some services to Marshall after his paternity was established. OCS contacted the prison and instructed Marshall to attend the prison's alcoholics anonymous, narcotics anonymous, and batterer intervention classes. OCS also told Marshall that he would need a substance abuse assessment after his release. OCS sent Marshall a copy of his case plan in early May.
OCS's contact with Marshall was flawed. The OCS caseworker wrote that she would call Marshall at the end of May to discuss his progress. The call never happened. Likewise, a new caseworker was assigned to Marshall's case toward the end of August. The new caseworker never sent Marshall a letter indicating a change in caseworkers. She did almost nothing with regard to Marshall from the time she took the case file at the end of August until the termination trial in early October.
After Marshall's release from jail in mid-September, OCS attempted to contact him but had little success. OCS tried using the cell phone number that Marshall provided, but it did not work. In an exchange of voice mails with Marshall's probation officer, OCS learned that Marshall did not have a land-line telephone. However, OCS first asked for Marshall's new address during the termination trial. As a result, Marshall first received a mailing describing the post-incarceration services that OCS could provide to him during the trial.
Soon after Marshall received his court-appointed attorney, he moved for an order that OCS produce all of Aster's medical records and for an order allowing telephonic visitation with Aster. The superior court denied discovery because OCS had already divulged all medical records it controlled and it denied telephonic visitation because it was not in Aster's best interests. Marshall challenges both decisions.
After trial, the superior court ordered the termination of Marshall's parental rights. The court found that Marshall had abandoned Aster and failed to remedy his abandonment in a timely manner. Marshall takes issue with this determination. He also challenges the court's finding that OCS was diligent in its attempts to find Marshall and that OCS made sufficient efforts at reunification before seeking the termination of his parental rights.
II. DISCUSSION
A. The Superior Court Correctly Determined that OCS Made Adequate Efforts To Locate and Provide Services to Marshall.
We will sustain the superior court's findings of fact unless those findings are clearly erroneous. We apply our independent judgment to questions of law, including the interpretation of the constitution and statutes and the determination of whether the superior court's factual findings satisfy applicable statutory provisions. Based on our review of the record, we conclude that OCS's efforts were adequate.
A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000).
L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 950 (Alaska 2000); D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 207 (Alaska 2000).
1. OCS gave Marshall sufficient notice of the proceedings.
Marshall argues that OCS did not use sufficient diligence in its efforts to locate him after Aster's initial CINA proceeding in May 2004. He claims that OCS violated his procedural due process rights and the CINA Rules of Procedure.
Due process under the Alaska Constitution "requires, at a minimum, that parties be notified of the subject of proceedings concerning them so that they will have a reasonable opportunity to be heard." CINA Rules 7(b) and 15(b) similarly require that a parent be given notice of a hearing within a reasonable time prior to the hearing, if the parent can be found after diligent efforts.
Potter v. Potter, 55 P.3d 726, 728 (Alaska 2002) (child support case); see also D.M., 995 P.2d at 212 (citing Mathews v. Eldridge, 424 U.S. 319 (1976)).
Marshall's due process claim is without merit because he received adequate notice of the termination hearing. He had a court-appointed lawyer beginning April 26, 2006. The hearing was on October 11, 2006. The superior court found that Marshall was "ably represented by counsel" at the hearing.
Marshall's argument based on the CINA Rules is similarly unavailing. Marshall had notice of the proceeding ever since OCS located him in February 2006. Moreover OCS attempted to contact Marshall soon after the May 2004 CINA proceedings. It contacted Marshall's family and friends, enlisted the services of a detective, and tracked Marshall to Idaho, then Kentucky, and then to California. As the superior court noted, Marshall apparently did not want to be found.
2. OCS used "active efforts" within the meaning of ICWA.
Marshall argues that OCS did not comply with ICWA's active efforts requirement. ICWA requires evidence that "active efforts have been made . . . designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." Active efforts need not be perfect efforts.
25 U.S.C. § 1912(d) (2001); CINA Rule 18(c)(2)(B).
See Winston J. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 134 P.3d 343, 347 (Alaska 2006) (CINA case).
ICWA's active efforts requirement does not apply until paternity is established. Any delay in determining paternity is irrelevant because "until paternity was established, the State had no active efforts duty." Accordingly the active efforts analysis encompasses the time period from March 2006, when Marshall's paternity was established, through October 2006, when his parental rights were terminated.
A.A. v. State, Dep't of Family Youth Servs., 982 P.2d 256, 261-62 (Alaska 1999); see also 25 U.S.C. § 1903(9) (defining "parent").
T.F. v. State, Dep't of Health Soc. Servs., 26 P.3d 1089, 1095 (Alaska 2001) (emphasis in original); accord A.A., 982 P.2d at 261-62.
While Marshall was in jail the OCS social worker contacted the prison to see what services were available to Marshall. OCS instructed Marshall to take a substance abuse assessment and participate in the prison's alcoholics anonymous, narcotics anonymous, and batterer intervention classes. This instruction was the most OCS could do for Marshall. We have recognized that "the practical circumstances surrounding a parent's incarceration — the difficulty of providing resources to inmates generally, the unavailability of specific resources, and the length of incarceration — may have a direct bearing on what active remedial efforts are possible." While OCS can be faulted for some lapses in communication, these do not affect our determination that OCS complied with its obligations while Marshall was incarcerated.
A.A., 982 P.2d at 261.
After Marshall's release from jail, OCS attempted to contact him but had little success. OCS tried using the cell phone number that Marshall provided, but it did not work. Marshall did not have a land-line telephone. Marshall complains that OCS could have determined his address earlier than it did but he ignores that, as a parent, he had an obligation to stay in contact with OCS.
See Rick P. v. State, Office of Children's Servs., 109 P.3d 950, 957 (Alaska 2005).
Finally Marshall argues that OCS did not demonstrate that its active efforts had "proved unsuccessful" before proceeding with the termination hearing. T.F. v. State, Department of Health Social Services controls this claim. The T.F. court declined to extend ICWA's "proved unsuccessful" language to situations where putative fathers could "avoid both testing and engagement with their children until the eve of trial, then trigger a new and potentially lengthy round of [OCS] active efforts obligations by confirming paternity." As was the child in T.F., Aster is a young child in need of permanent placement. Moreover Marshall had almost five months between the judicial finding of paternity and trial; in similar circumstances the T.F. court found that six weeks of OCS services were sufficient. 3. OCS used reasonable efforts to prevent out-of-home placement.
26 P.3d 1089 (Alaska 2001).
Id. at 1094.
Id.
Id.
Marshall argues that OCS did not comply with the CINA requirement that OCS use reasonable efforts designed to prevent a child's out-of-home placement. We agree with the superior court's conclusion that OCS used reasonable efforts.
AS 47.10.086. We have suggested without deciding that reasonable efforts might not be owed to a parent whose rights have been terminated on the grounds of abandonment. C.W. v. State, Dep't of Health Soc. Servs., 23 P.3d 52, 54-55 n. 9 (Alaska 2001) (considering AS 47.10.086(c)). However OCS does not raise this argument.
We have not yet determined whether the reasonable efforts requirement applies to a father before paternity is established. We do not need to answer this question in this case. As discussed above, OCS used reasonable efforts to track and locate Marshall.
See Winston J. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 134 P.3d 343, 346 (Alaska 2006) (noting the ambiguity but declining to resolve the issue).
See supra Part II.A.1. Marshall asserts that OCS was obligated to continuously search for him and that OCS impermissibly coordinated its search with CSSD. We have never recognized either requirement and decline Marshall's invitation to create such requirements. The statutory reasonable efforts standard, as elucidated by our case law, provides sufficient guidance.
Moreover OCS provided Marshall with adequate services after they located him. OCS did almost everything that it could do for him while he was incarcerated. OCS's lack of communication with Marshall after his release was in large part Marshall's fault because he failed to provide OCS with accurate contact information.
Finally, OCS, in its provision of reasonable efforts, can "consider the `amount of time available' for reunification, considering 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." Aster, a young child, had been in foster care for almost two years before Marshall was located. She had bonded with her foster parents. The superior court determined that it was in Aster's best interests to avoid delay and move toward adoption. We find no reason to upset this determination.
Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska 2005) (quoting G.C. v. State, Dep't of Health Soc. Servs., 67 P.3d 648, 653 (Alaska 2003)).
B. The Superior Court Properly Found that Marshall Abandoned Aster.
We use a two part test for abandonment: "(1) whether the parent's conduct evidenced a disregard for his or her parental obligations, and (2) whether that disregard led to a destruction of the parent-child relationship." The test is objective; it does not examine a parent's "subjective intent or `wishful thoughts and hopes for the child.'" In analyzing the superior court's abandonment determination, we use clear error review for the superior court's factual findings and de novo review for the legal conclusions that the superior court drew from the facts. 1. Marshall's conduct evidenced a willful disregard for his parental obligations.
Id. at 704 (quoting G.C., 67 P.3d at 651). This test was derived from AS 47.10.013.
Id. (quoting G.C., 67 P.3d at 652).
Rick P. v. State, Office of Children's Servs., 109 P.3d 950, 954-55 (Alaska 2005).
"[A] parent has an `affirmative duty . . . [to show] continuing interest in the child and [to make] a genuine effort to maintain communication and association[.]'" After an examination of Marshall's conduct toward Aster throughout the course of her life we find the first element of the abandonment test satisfied.
Jeff A.C., Jr., 117 P.3d at 704-05 (quoting In re H.C., 956 P.2d 477, 481 (Alaska 1998)).
Marshall contends that he could not have abandoned Aster at the time of her birth because he did not know that she existed. The trial court found to the contrary, noting that Teena told Marshall of his potential fatherhood before Aster was born and before Marshall left Alaska. To the extent that Marshall claims that his obligation to seek Aster was triggered only after his paternity was established, his argument is contrary to Jeff A.C., Jr. v. State, which regarded the father's lack of "effort to determine whether he had in fact fathered a child" as a sign of abandonment. Marshall quotes language from Jeff A.C. stating that "a person cannot abandon a person or relationship the person does not know exists." The Jeff A.C. court called this "generally" true, but rejected the proposition in a case, like this one, in which the father was informed of his potential paternity during the pregnancy. Marshall's failure to seek Aster, while not dispositive of abandonment, supports the trial court's findings.
117 P.3d 697 (Alaska 2005).
Id. at 705.
Id.
Id.
Marshall argues that Jeff A.C. should be limited because he believes that it triggers a father's duty to seek a potential child at a time when the father has too little information to reasonably be expected to do so. Apart from this assertion, he provides no reasons for overturning Jeff A.C. Furthermore the superior court probed Marshall's argument and found it lacking, noting that the Jeff A.C. rule benefits the timely and efficient administration of the courts by encouraging early participation by potential parents in judicial proceedings.
The superior court found that Marshall did not demonstrate an immediate interest in Aster after his cousin told him that Teena had had a child and that OCS was looking for him. At the time Marshall believed he was the father of his then-girlfriend's child. It was only after a paternity test demonstrated that this belief was mistaken that he displayed an interest in being Aster's father.
Marshall suggests that he could not have been expected to contact Aster because he did not know how to contact Teena. But he knew how to contact Teena's mother. Moreover, Marshall could have contacted OCS. Marshall also suggests that Teena was at fault because she never attempted to contact him. However Teena's decision did not relieve Marshall of his own obligations as a parent.
Marshall argues that he showed sufficient interest in Aster after his paternity was established. He wrote Aster letters. He sought medical records and telephonic visitation. He claims that he followed his case plan. The trial court found otherwise. The court noted that Marshall had written Aster just three letters between March and September 2006. The court also found that Marshall refused a substance abuse assessment and broke off a court-ordered psychological examination after he became frustrated. Further, Marshall's telephonic presence at the termination trial ended with little warning. While the trial court accepted Marshall's explanation that he ran out of minutes on his calling card, it properly noted that Marshall was responsible for his presence at trial and that he was not present for the majority of his termination hearing. The superior court's assessment in these respects is not clearly erroneous.
2. Marshall's disregard led to the destruction of the parent-child relationship.
The superior court determined that Marshall's attempt to become involved in Aster's life came too late and that Aster had bonded with her foster parents. The superior court's findings are supported by the record. Marshall had never met Aster before the termination hearing. He admitted that he knew "absolutely nothing" about her. There was no parent-child relationship. However, Marshall argues that his attempts to form a parent-child bond were cut short by the superior court's termination of his parental rights. He suggests that, given more time, he could have formed a relationship with Aster.
Parents must be given a reasonable time to remedy the problem placing their child in need of aid before a superior court can terminate parental rights. Less time is permitted when young children are involved due to legislative findings indicating "the importance of expediting the placement process for children under six years of age." The superior court took Aster's age into account, noting that Marshall could take a few years to become a capable parent and that plans for Aster could not be delayed this long.
AS 47.10.088(a)(2)(B).
M.W. v. State, Dep't of Health Soc. Servs., 20 P.3d 1141, 1145 (Alaska 2001) (citing AS 47.05.065(5)).
See In re H.C., 956 P.2d 477, 483 (Alaska 1998) ("It is not relevant whether [the parent] might someday develop a parent-child relationship with [the child]. What is relevant is the relationship between the parent and the child at the time of the hearing. . . .").
The superior court determined that Aster's best interests would be served by terminating Marshall's parental rights. The court properly considered the fact that Aster had bonded with her foster family. The court permissibly credited expert testimony stating that Aster would likely face serious emotional or physical injury if placed with Marshall and suggesting that Marshall was not ready to be a parent. C. The Superior Court Did Not Abuse Its Discretion when It Denied Marshall's Pre-Trial Motions.
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 56-57 (Alaska 2003); M.W., 20 P.3d at 1147.
See Rick P. v. State, Office of Children's Servs., 109 P.3d 950, 958 (Alaska 2005).
Marshall argues that the superior court erred in its rulings on two pre-trial motions: one for OCS to produce all of Aster's medical records and the other for telephonic visitation with Aster. He asserts that the denial of both motions created a court-imposed information vacuum that contributed to the court's finding on abandonment.
We review the denial of pre-trial discovery motions for an abuse of discretion but use our independent judgment in interpreting relevant legal standards. We review a superior court's decision affirming OCS's denial of parental visitation for an abuse of discretion. 1. Marshall's discovery motion
See Gibson v. GEICO Gen. Ins. Co., 153 P.3d 312, 316 (Alaska 2007).
K.T.E. v. State, 689 P.2d 472, 478 n. 12 (Alaska 1984).
Marshall claims that OCS should have been required to locate and produce all of Aster's medical records. But because there is no indication that the production of these records could have affected the result of the termination trial, any error in this respect is harmless and must be disregarded. 2. Marshall's motion for telephonic visitation
OCS had already produced records pursuant to CINA Rule 8(c)(1) and the guardian ad litem sent all Program for Infants and Children information to the parties.
Marshall contends that the superior court's denial of his motion for an order compelling OCS to allow telephonic visitation with Aster violated his parental rights guaranteed by the residual rights statute. The superior court's denial of Marshall's motion left Marshall with no visitation. When parental visitation is completely denied OCS must show by clear and convincing evidence that the denial is in the child's best interests.
AS 47.10.084(c).
K.T.E., 689 P.2d at 478 n. 11. We only evaluate the superior court's decision for an abuse of discretion in light of the best interests of the child standard. Marshall's assertions about the harm the superior court's decision caused to his case are therefore irrelevant.
The statutory right to reasonable visitation "does not imply an absolute right to visitation. Subsection .084(c) should be read in conjunction with the rest of the chapter to allow parental visits to be barred when the visits are not in the best interests of the child." The superior court found clear and convincing evidence that telephonic visitation was not in Aster's best interests. Specifically, it found that the then nearly four-year-old Aster had never met Marshall, did not know who he was, had identified her foster parents as her family, and would be confused by Marshall's phone calls.
Id. at 477.
While Marshall disputes the trial court's factual findings, he does not demonstrate that the superior court abused its discretion. Rather than crediting Marshall's arguments, the court agreed with the arguments of OCS and the guardian ad litem. We find no reason to upset this determination.
III. CONCLUSION
The superior court's decision terminating Marshall's parental rights is AFFIRMED.