Chloe O. v. State, Department of Health & Social Services, Office of Children's Services ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
CHLOE O., )
) Supreme Court No. S-14771
Appellant, )
) Superior Court No. 3AN-10-00232 CN
v. )
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 6828 – September 20, 2013
CHILDREN’S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Peter A. Michalski and
Catherine M. Easter, Judges.
Appearances: Marjorie K. Allard, Assistant Public Defender,
Renee McFarland, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for Appellant. Janell
M. Hafner, Assistant Attorney General, and Michael C.
Geraghty, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
I. INTRODUCTION
Chloe O.1 has a long history of substance abuse and mental health issues.
In August 2010, OCS took Chloe’s fifteen-month-old daughter, Ashanti, into emergency
custody because of Chloe’s drug abuse, suicide attempts, assaultive behaviors, and
affinity for unsafe people and situations. OCS made many unsuccessful attempts to
assist Chloe in obtaining treatment for her substance abuse issues and, eventually, for her
mental health issues.
Following a trial, the trial court terminated Chloe’s parental rights to
Ashanti. In doing so the trial court found that OCS made active efforts to reunify
Chloe’s family by a preponderance of the evidence, rather than by the proper clear and
convincing evidence standard.2 Chloe appealed the trial court’s termination order on
several grounds, one of which was a challenge to the trial court’s finding that OCS had
made active efforts to reunify her family. Before briefing was completed the parties
agreed that the case should be remanded to allow the trial court to reconsider the active
efforts question under the correct evidentiary standard. Superior Court Judge Catherine
Easter held an evidentiary hearing on the issue of reunification efforts because the
original trial judge, Superior Court Judge Peter Michalski, had retired in the interim.
Judge Easter found, by clear and convincing evidence, that OCS had made active efforts
to reunify Chloe’s family.
Chloe’s appeal requires us to address four issues. We first decide whether,
in reviewing Judge Easter’s ruling that OCS made active efforts to reunify Chloe with
Ashanti, we are limited to considering the evidence presented at the hearing on remand,
1
Pseudonyms are used throughout to protect the privacy of the parties.
2
OCS was required to make active reunification efforts because Chloe is an
Indian child for purposes of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963.
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or whether we may also consider evidence that was presented at the initial hearing before
Judge Michalski. We conclude that our review of this issue is limited to the evidence
presented to Judge Easter on remand.
Second, we conclude that the trial court’s finding that OCS provided Chloe
with active efforts to reunify her family is supported by clear and convincing evidence.
Third, we conclude that the trial court did not err when it found, beyond a reasonable
doubt, that Ashanti would likely suffer serious harm if she were returned to Chloe’s
custody. Finally, we conclude that we are not required to remand this matter to allow the
trial court to investigate whether Chloe’s attorney provided her with ineffective
assistance.
II. FACTS AND PROCEEDINGS
A. Ashanti Is Taken Into OCS’s Custody.
Chloe began using marijuana and alcohol in her pre-teen years, and by age
18 she was regularly using marijuana, alcohol, cocaine, and hallucinogens. She spent
most of her youth in foster care, in the custody of OCS and the Division of Juvenile
Justice (DJJ). She was institutionalized multiple times as a minor because of her mental
health and substance abuse issues, and by the time she reached adulthood she had been
prescribed antidepressant and antipsychotic medications; the record indicates that she
may suffer from bipolar disorder and fetal alcohol syndrome (FAS).
In May 2009, 18-year-old Chloe gave birth to Ashanti. While pregnant,
Chloe used cocaine, alcohol, and marijuana. When Ashanti was seven weeks old, Chloe
asked Autumn P. — a woman who had acted as Chloe’s foster mother when Chloe was
a teenager — to care for the baby while Chloe tended to pressing family matters. This
arrangement was originally to be for a matter of days, but when Chloe decided to enter
a substance abuse treatment program Autumn agreed to continue caring for Ashanti. The
record does not indicate that Chloe entered treatment; nonetheless, Ashanti remained in
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Autumn’s care. At the time, Autumn, a licensed DJJ foster parent, was also caring for
several teenage foster children and her own young daughter.
While Autumn was caring for Ashanti, Chloe sometimes took the child.
During such times OCS received reports concerning Ashanti’s safety. OCS investigated
reports concerning Chloe’s substance abuse, mental health, suicide attempts, and
exposure of Ashanti to unsafe situations.
In August 2010, OCS took emergency custody of Ashanti after Chloe was
arrested and incarcerated following a violent altercation. The trial court adjudicated
Ashanti a child in need of aid and committed her to OCS’s temporary custody. OCS
placed Ashanti with Autumn, who had been the child’s main caregiver for more than a
year.
B. Chloe Declines To Participate In Mental Health Services; She Engages,
Unsuccessfully, In Substance Abuse Treatment.
Chloe’s OCS case plan called for her to participate in a substance abuse
assessment and treatment, urinalysis testing, a mental health evaluation, parenting
classes, and visitation with Ashanti, and it required her to acquire stable housing and
employment. According to social worker Jamie Kaufman-Bacher, who was responsible
for the case from April through September 2010, Chloe was not concerned about her use
of substances. She agreed to participate in substance abuse treatment, but she “outright
refused” to participate in mental health services. Kaufman-Bacher decided to focus her
initial efforts on Chloe’s substance abuse rather than her mental health issues. Kaufman-
Bacher testified that this decision was based on several factors: Chloe refused to
participate in a mental health assessment; it is not possible to force an unwilling client
to accept mental health treatment; substance abuse was an important issue that Chloe was
willing to work on; and Kaufman-Bacher did not want to overwhelm Chloe by involving
her in too many services at once.
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While drafting the case plan, Kaufman-Bacher consulted an OCS social
worker who had worked with Chloe’s family when Chloe was a minor. That worker told
Kaufman-Bacher that Chloe might have fetal alcohol syndrome. Kaufman-Bacher, who
was trained in FAS, testified that social workers and service providers interact in a
particular way with FAS clients, and she included the information about Chloe’s possible
FAS status in her referral for Chloe to participate in a substance abuse assessment.
Kaufman-Bacher transferred the case to social worker Toi Registe in September 2010.
At that time, Chloe had declined to fill out paperwork that was required for her to
participate in a substance abuse assessment through the Salvation Army Clitheroe
Center, and the assessment had been rescheduled.
Registe, who had the case from September 2010 through the termination
trial, met with Chloe monthly.3 At their first meeting Registe and Chloe discussed
Chloe’s need to participate in substance abuse and mental health services. Chloe
informed Registe that she would not participate in the mental health component of her
case plan, but she agreed to participate in substance abuse services. Registe, like
Kaufman-Bacher, felt that the best course was to focus initially on Chloe’s substance
abuse issues. Registe testified that she was aware of Chloe’s possible FAS status. She
testified that she routinely helps FAS clients fill out referral forms in her office, avoids
imposing too many case plan components on them at any point in time, writes reminder
notes for them, and provides them with reminder phone calls. As to Chloe, Registe
testified that “there were many . . . times that whatever referral we were doing, we did
3
Registe testified that she had difficulty meeting with Chloe because Chloe
missed appointments and did not show up when the appointments were rescheduled.
Registe also testified that she often met with Chloe before or after Chloe’s scheduled
visits with Ashanti at the OCS office.
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together. I would remind [her] of, you know, court reviews, her family contact, [and]
assessments. I’ve even offered to cab her to those.”
In October 2010 Chloe participated in a substance abuse assessment
through Clitheroe; the recommendation was for outpatient treatment. Chloe did not
follow through with the referral, nor did she participate in urinalysis to which both
Kaufman-Bacher and Registe had referred her, despite the social workers’ emphasis on
the importance of her participation and their explanation that missed urinalysis tests are
considered positive by OCS.4 When Chloe’s substance abuse assessment expired in
February 2011 Registe referred her to a case management and substance abuse program
at Alaska Women’s Resource Center. Chloe’s case manager at that program scheduled
weekly meetings with Chloe.5 Chloe missed numerous scheduled substance abuse
assessments at AWRC before finally completing an assessment on April 18, 2011,
when Registe arranged for a taxi to take her to the assessment.6
Shortly before this assessment, on April 12, 2011, Chloe gave birth to her
second daughter, Samara C., who quickly joined Ashanti in OCS’s custody. Also at
4
Over the course of the case Chloe was referred to participate in urinalysis
testing several times. She missed many more scheduled tests than she completed, and
every urinalysis she completed tested positive. Registe testified that Chloe missed 74
tests and tested positive 16 times. Chloe explained her reluctance to participate in
urinalysis by stating, “I didn’t agree with them at times and at times I just didn’t go.”
5
Registe testified that the AWRC case manager’s role was similar to any
case manager’s, which was “to help [Chloe] get any necessary assessments, treatment,
any other services that [Chloe] needed,” but the advantage of AWRC was that it provided
a case manager to meet with Chloe every week.
6
Registe testified that normally AWRC only allows three missed
appointments before terminating a client from the program but that they made an
exception for Chloe, due to Registe’s continual interactions with Chloe’s AWRC case
manager.
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about this time, Chloe tested positive for marijuana and methamphetamine. She admitted
using marijuana but denied knowingly using methamphetamine, speculating that her
marijuana may have been laced with it.
Chloe’s assessment recommended medium-intensity residential treatment.
She enrolled in a program at Stepping Stones, where OCS planned to have Samara
placed with her after a 30-day orientation period, but Chloe left the program after only
a few days, because, according to Registe, “[s]he did not like the people up in her
business.”7 After Registe and Chloe’s AWRC case manager intervened, Stepping Stones
agreed to allow Chloe to rejoin the program, but this time she left before completing the
intake process.
Chloe’s case managers continued to investigate treatment programs, but
with little success other than to have Chloe’s name added to months-long waiting lists
for several programs. Chloe, who continued to use drugs, was dismissed from the
AWRC program in May 2011 after not completing papers to allow her to be considered
for additional treatment programs.
On June 1, 2011, on a referral from OCS, Chloe participated in another
substance abuse assessment at Clitheroe. The assessor recommended a 90-to-120-day
residential treatment program, to be followed by 24 weeks of outpatient treatment, and
also recommended that Chloe follow up with a mental health provider. Registe
attempted to have Chloe admitted to a dual-diagnosis treatment program at the Ernie
Turner Center, but her criminal history rendered her ineligible for that program. Registe
7
The Stepping Stones program included a parenting class component.
Parenting classes were required by Chloe’s case plan. Registe testified that before
Chloe’s admission to Stepping Stones, Registe had referred her to a hands-on parenting
class but that Chloe had declined to participate.
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helped Chloe apply to a dual-diagnosis program at Clitheroe, where she was placed on
a waiting list.
Around this time, Chloe agreed to participate in a mental health assessment.
Registe referred Chloe for an assessment at Southcentral Foundation, which she
completed on June 30, 2011. Chloe’s diagnoses included posttraumatic stress disorder,
attention deficit/hyperactivity disorder, and mood disorder. The assessor recommended
that Chloe participate in intensive one-on-one therapy, which, according to Registe,
Chloe did “on and off for maybe a month or a month and a half.” Registe offered to help
Chloe obtain further mental health services but Chloe refused her offer.
In August 2011, when Chloe was about to begin treatment at Clitheroe, she
was arrested and charged with reckless endangerment for an incident in which she
caused a car accident. One of her resulting probation conditions was to complete a
substance abuse treatment program.
On September 13, 2011, Chloe entered the dual-diagnosis program at
Clitheroe. She was quickly placed on a behavior contract because of inappropriate
language, boundary violations, and missing or being late to treatment sessions. She was
discharged from the program after a few weeks.
By February 2012, when the termination trial was held, Chloe was in the
process of completing another substance abuse assessment. She began outpatient
treatment but participated sporadically and stopped attending in August 2012 after being
arrested for using drugs and failing to fulfill her probation requirements. She was
scheduled to participate in another substance abuse assessment in November 2012, but
she did not show up.
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C. The Trial Court Terminates Chloe’s Parental Rights To Ashanti, But
Employs An Incorrect Standard In Making A Required Finding.
In August 2011 OCS filed a petition to terminate Chloe’s parental rights to
Ashanti. Trial was held in February 2012. At the close of the trial the trial court judge,
Judge Michalski, made findings on the record that Ashanti was a child in need of aid,
Chloe had not remedied conditions that endangered Ashanti, and termination of Chloe’s
parental rights was in Ashanti’s best interests. The trial court also found — by an
incorrect standard of proof — that OCS had made active efforts to prevent the family’s
breakup.8
Chloe appealed, arguing in part that the trial court’s order was defective
because the court used an incorrect standard of proof in its decision. After briefing had
begun the parties agreed that the appeal should be remanded to allow the trial court to
determine the active-efforts issue under the correct standard of proof. We remanded the
case to the trial court for the limited purpose of determining, by the correct standard of
proof, whether OCS made active efforts to reunify the family.
D. On Remand The Trial Court Finds, By Clear And Convincing
Evidence, That OCS Made Active Efforts To Reunify Chloe With
Ashanti.
Since issuing his decision Judge Michalski had retired, and the case was
reassigned to Judge Easter. On January 11, 2013, Judge Easter held an evidentiary
hearing “limited for the purpose of the state showing or attempting to show by clear and
convincing evidence that they made active efforts to reunify the family.” Social workers
Kaufman-Bacher and Registe testified at the hearing, as did Chloe.
8
CINA Rule 18(c)(2)(B) requires this finding to be made by clear and
convincing evidence, but the trial court made the finding by a preponderance of
evidence.
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At the close of the hearing the trial court found, by clear and convincing
evidence, that OCS had made active but unsuccessful efforts to reunify the family.
According to the trial court the case was not close; the court found that OCS’s efforts had
been “pretty extraordinary,” and it stated “the evidence is overwhelming that the state
by clear and convincing evidence made active efforts to reunify this family.” The trial
court found that OCS’s initial focus on Chloe’s substance abuse was “clearly indicated
. . . because of the mother’s resistance to address the mental health issues at that time.”
It noted with approval OCS’s intent to keep Chloe’s case plan simple so as not to
overwhelm her. The trial court also found that OCS “went above and beyond the call of
duty” in providing visitation between Chloe and Ashanti.
The court concluded:
Quite frankly, I don’t know what more the department
could’ve done in this case. And as I said, I think they went
beyond the call of duty in trying desperately to get [Chloe]
some help so that she could be reunified with [Ashanti] and
unfortunately [Chloe] just simply didn’t take advantage of the
opportunities that were given to her. There’s only so much
you can do unless a person wants to help themselves and for
whatever reason, [Chloe] just simply didn’t take advantage of
the opportunities that the department gave her such that she
could be reunified with her daughter.
The appeal then returned to this court.
III. STANDARD OF REVIEW
In CINA cases, we review the trial court’s factual findings for clear error
and its legal determinations de novo.9 Factual findings are clearly erroneous if, after
reviewing the record in the light most favorable to the prevailing party, we are left with
9
Sherman B. v. State, Dep’t of Health & Soc. Servs., 290 P.3d 421, 427-28
(Alaska 2012) (citing Christina J. v. State, Dep’t of Health & Soc. Servs., 254 P.3d 1095,
1103-04 (Alaska 2011)).
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a definite and firm conviction that the trial court’s decision was mistaken.10 Conflicting
evidence is generally not sufficient to overturn a trial court’s factual findings, and we
will not reweigh evidence when the record provides clear support for a trial court’s
ruling.11
Whether OCS made active efforts to provide remedial and rehabilitative
services designed to prevent the breakup of the Indian family is a mixed question of fact
and law.12 Whether a parent’s due process right to receive effective assistance of counsel
was violated is a question of law.13 Whether a child would likely suffer serious physical
or emotional harm if returned to a parent’s custody is a question of fact.14
IV. DISCUSSION
A. Our Review Of The Trial Court’s Active Efforts Finding Is Limited To
Evidence Presented At The Hearing On Remand.
Chloe’s argument that OCS did not provide her with active reunification
efforts is based in large part on the testimony of Rose Sandhofer, a witness called by
OCS at the initial termination trial. During the hearing on remand, however, Chloe
insisted that Judge Easter should not base her decision on a review of the evidence
10
Id. (quoting Barbara P. v. State, Dep’t of Health & Soc. Servs., 234 P.3d
1245, 1253 (Alaska 2010)).
11
Id. at 428 (quoting Maisy W. v. State, Dep’t of Health & Soc. Servs., 175
P.3d 1263, 1267 (Alaska 2008)).
12
Pravat P. v. State, Dep’t of Health & Soc. Servs., 249 P.3d 264, 270
(Alaska 2011) (quoting Dale H. v. State, Dep’t of Health & Soc. Servs., 235 P.3d 203,
210 (Alaska 2010)).
13
Stanley B. v. State, DFYS, 93 P.3d 403, 408-09 (Alaska 2004) (citing S.B.
v. State, Dep’t of Health & Soc. Servs., 61 P.3d 6, 10 (Alaska 2002)).
14
Pravat P., 249 P.3d at 270 (citing Barbara P., 234 P.3d at 1253).
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presented to Judge Michalski at the original hearing; instead Chloe asked Judge Easter
to hold a new evidentiary hearing and decide the active-efforts issue after “observ[ing]
the live testimony of the relevant witnesses.” At the hearing on remand, neither OCS nor
Chloe called Sandhofer to testify, nor did either party ask the trial court to take notice of
Sandhofer’s earlier testimony. The record does not indicate that Judge Easter reviewed
the earlier evidence, nor does Judge Easter’s decision make any mention of Sandhofer’s
testimony.
Nevertheless, Chloe argues that we should consider Sandhofer’s testimony
when reviewing Judge Easter’s finding, on remand, that OCS made active reunification
efforts. We find no merit to this argument. On appeal, we review a trial court’s decision
in light of the evidence presented to that court.15 Because Sandhofer’s testimony was not
before the trial court when it made its finding on remand, we do not include Sandhofer’s
testimony in our review of that finding.
B. The Trial Court Did Not Err In Finding, By Clear And Convincing
Evidence, That OCS Made Active Efforts To Prevent The Breakup Of
The Indian Family.
25 U.S.C. §1912 (d) and Alaska Child in Need of Aid Rule 18(c)(2) require
a trial court to find, by clear and convincing evidence, that the State made active but
unsuccessful efforts to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family before the court may terminate a parent’s
parental rights to an Indian child. Courts review OCS’s reunification efforts on a case-
by-case basis because “no pat formula exists for distinguishing between active and
15
Cf. Paula E. v. State, Dep’t of Health & Soc. Servs., 276 P.3d 422, 430
(Alaska 2012) (“[W]e will consider only the evidence that was admitted at the hearing.”).
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passive efforts.”16 Generally, active efforts entail a social worker taking a parent through
the steps of a reunification case plan, rather than simply devising a plan and requiring the
parent to develop his or her own resources.17 In determining whether active efforts have
been made, a court may consider all services provided during the family’s involvement
with OCS, rather than focus on a distinct period of time.18 A parent’s demonstrated lack
of willingness to participate in services may be considered in determining whether the
State’s efforts were adequate.19
Chloe argues that OCS’s efforts to provide her with reunification services
were flawed in two ways. First, she claims OCS erred in focusing on her substance
abuse issues early in the case, rather than simultaneously working to address her mental
health issues.20 Second, she claims that once she agreed to participate in mental health
services, OCS did not provide her with adequate services.
As to her first argument, Chloe’s social workers focused on her substance
abuse issues early in the case because substance abuse was a serious issue that Chloe was
16
A.A. v. State, Dep’t of Family & Youth Servs., 982 P.2d 256, 261 (Alaska
1999) (quoting A.M. v. State, 945 P.2d 296, 306 (Alaska 1997)) (internal quotation
marks omitted).
17
Lucy J. v. State, Dep’t of Health & Soc. Servs., 244 P.3d 1099, 1114
(Alaska 2010) (quoting Wilson W. v. State, Office of Children’s Servs., 185 P.3d 94, 101
(Alaska 2008)).
18
Maisy W., 175 P.3d at 1268-69 (quoting E.A. v. State, Div. of Family &
Youth Servs., 46 P.3d 986, 990 (Alaska 2002)).
19
N.A. v. State, DFYS, 19 P.3d 597, 603 (Alaska 2001) (citing A.M., 945 P.2d
at 306).
20
Chloe does not challenge the adequacy of the efforts OCS provided in
helping her address her substance abuse issues. The record is clear that those efforts
were active, but that Chloe did not succeed in the treatment provided.
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willing to address, and she flatly refused to participate in mental health services. We
agree with the trial court that this approach was sound. As the trial court noted, both
substance abuse and mental health issues were “clearly indicated” as areas of concern for
Chloe, but “because of the mother’s resistance to address the mental health issues at that
time . . . the department did the right thing” in initially focusing on Chloe’s substance
abuse.
Chloe argues that OCS cannot “passively accept a parent’s reluctance to
participate in a mental health evaluation,” but her argument is contradicted by the social
worker’s testimony that it is not possible to force an unwilling client to participate in
mental health treatment. Chloe’s assertion that OCS should have obtained a court order
requiring her to participate in mental health services is also unavailing. We have stated
that “[e]ven putting aside our precedent which excuses further active efforts once the
parent expresses an unwillingness to participate, requiring OCS to seek court orders for
every uncooperative parent would put a huge and pointless burden on the department and
the court system.”21 Thus, the trial court’s finding that OCS’s action in initially focusing
on Chloe’s substance abuse issues was appropriate and is adequately supported by the
record.
Chloe’s second argument, that OCS failed to provide her with adequate
mental health services, also fails. OCS referred Chloe for a mental health assessment,
which called for her to participate in intensive one-on-one therapy. Chloe began
participating in therapy, but she stopped after a few sessions. She then refused her social
worker’s offer to help her reengage in mental health services. Chloe accepted the social
worker’s assistance in entering a dual-diagnosis treatment program at Clitheroe, but she
was discharged from the program because of her inappropriate behaviors. Given this
21
Wilson W., 185 P.3d at 102.
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record, the trial court’s finding that OCS made active but unsuccessful efforts to provide
services to reunite Chloe with Ashanti is not in error.
C. The Trial Court Did Not Err In Finding That Ashanti Would Likely
Suffer Serious Harm If Returned To Chloe’s Custody.
Before terminating a parent’s parental rights to an Indian child, a trial court
must find, beyond a reasonable doubt, that returning the child to the parent would likely
result in the child suffering serious physical or emotional damage.22 This finding must
be supported by expert testimony.23 The trial court must find that the parent has engaged
in conduct that is likely to harm the child and that the harmful conduct is likely to
continue.24
Chloe asserts that the trial court’s finding that Ashanti would likely suffer
serious harm if returned to her custody is not supported by expert testimony. But Rose
Sandhofer, an expert in child protection, testified that Ashanti needs the security of a
permanent placement and cannot afford to wait for Chloe to resolve the issues that
prevent her from acting as Ashanti’s parent.25 Sandhofer testified that Chloe’s
unresolved substance abuse and mental health issues “would be very concerning to a
child of two and a half that is totally dependent on their care provider,” and that placing
Ashanti with Chloe would be “asking for disaster” and would be “devastating” to
Ashanti. Sandhofer’s testimony is consistent with the remaining evidence presented to
the trial court. We thus find no error in the trial court’s finding that continued custody
22
Pravat P., 249 P.3d at 274 (quoting Ben M. v. State, Dep’t of Health & Soc.
Servs., 204 P.3d 1013, 1019-20 (Alaska 2009)).
23
Id. (citing Ben M., 204 P.3d at 1020).
24
Id.
25
Sandhofer’s testimony is properly before us on this point as this finding was
made by Judge Michalski in the original hearing, at which Sandhofer testified.
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of Ashanti by Chloe would likely result in Ashanti suffering serious emotional or
physical damage.
D. We Do Not Remand This Appeal To Allow The Trial Court To
Determine Whether Chloe Received Ineffective Assistance Of Counsel.
Finally, Chloe argues that if we determine that we cannot consider Rose
Sandhofer’s testimony in our review of the trial court’s active-efforts finding, we must
remand this matter to the trial court for consideration of whether Chloe received
ineffective assistance of counsel during the proceeding on remand. She argues that her
attorney’s failure to call Sandhofer to testify about OCS’s reunification efforts on remand
may have constituted ineffective assistance.26
Chloe is not arguing that she did receive ineffective assistance during the
remand hearing, but she is asking us to send the matter back to the trial court for
consideration of the issue.27 We note that a second remand of this appeal would result
in a significant additional delay in Ashanti attaining permanency. Our statutes make
clear that children’s proceedings are to be expeditiously resolved. AS 47.05.065(5)
stresses the importance of expeditious placement of children in state custody. AS
47.10.088(k) requires a trial court to rule on a termination petition within 90 days after
26
During the initial hearing Sandhofer, a social worker employed by OCS
who was qualified to testify as an expert in matters related to child protection, testified
that if she had been assigned to Chloe’s case she would have done certain things
differently in regard to Chloe’s mental health issues. But, ultimately, when asked
whether, considering her misgivings about certain aspects of Chloe’s case and looking
at the case as a whole, she believed OCS had made active efforts to help Chloe,
Sandhofer replied, “Absolutely. Without a doubt, no question.”
27
Chloe is represented on appeal by the state public defender’s office, the
same agency that represented her during the proceeding on remand. As Chloe notes in
her brief, any claim of ineffective assistance of counsel should be prosecuted by conflict-
free counsel.
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the last day of the termination trial. AS 47.10.080(i) imposes a similar 90-day limit for
an appeal to be decided. A remand for potentially lengthy litigation of a claim of
ineffective assistance of counsel would contravene the language and spirit of these
statutes.
In addition, our review of the record convinces us that Chloe’s proposed
attack on the representation she received during the remand proceeding would not
succeed. In order to succeed in an ineffective assistance challenge, a litigant must
demonstrate two things. First, she must show that her attorney’s performance was below
a level that any reasonably competent attorney would provide.28 An “attorney’s
reasonable tactical decisions are virtually immune from subsequent challenge even if, in
hindsight, better approaches could have been taken.”29 Second, the litigant must then
demonstrate that “an improved . . . performance would have made a difference in the
outcome of [the] case.”30 Chloe’s challenge could not pass either aspect of this test.
First, it is probable that Chloe’s attorney made a reasonable tactical choice
in deciding not to call Sandhofer to testify on remand. While Sandhofer criticized
aspects of the assigned social workers’ approach to Chloe’s case, her testimony generally
supported OCS’s actions, and she ultimately testified that there was “no question” that
OCS made active efforts to reunify the family.
Second, it is unlikely that Sandhofer’s testimony would have affected the
outcome of the case. Chloe points to several of Sandhofer’s statements that she feels
28
David S. v. State, Dep’t of Health & Soc. Servs., 270 P.3d 767, 785-86
(Alaska 2012) (quoting State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988)).
29
Alexander v. State, 838 P.2d 269, 273 (Alaska App. 1992) (citing Jones,
759 P.2d at 569-70).
30
David S., 270 P.3d at 786.
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could have influenced the trial court’s determination that OCS provided Chloe with
active efforts at reunification. The statements may be summarized as follows: (1) given
Chloe’s history in OCS custody and her potentially serious mental health issues,
addressing her mental health issues should have been a priority for her social workers;
(2) the social workers should have tried to convince Chloe to participate in mental health
services; (3) OCS should have pursued a diagnosis of FAS for Chloe; (4) Chloe should
have received a psychiatric assessment rather than a mental health evaluation; and (5)
Chloe’s abuse of substances may have been an attempt to self-medicate her mental health
problems.
However, social workers Kaufman-Bacher and Registe were clearly aware
of Chloe’s mental health issues and her history with OCS. They each testified that Chloe
categorically refused to participate in the mental health portion of her case plan.
Sandhofer’s testimony does not contradict or diminish Kaufman-Bacher’s testimony that
it is impossible to force an unwilling client to accept mental health treatment. And
Sandhofer testified that it made sense to work with Chloe on issues on which she was
willing to work rather than not to work a plan with her at all. Nothing in the record
indicates that Chloe’s social workers did not try to convince her to accept mental health
services. And both Kaufman and Registe testified that they dealt with Chloe as if she
had FAS, so a formal diagnosis would have had no bearing on how the social workers
approached the case.
Sandhofer also testified Chloe should have received a psychiatric
assessment. But the record suggests that Chloe did receive a psychiatric assessment.
The assessment Chloe received at Southcentral — which the lawyers and social workers
referred to as a mental health assessment — was titled “Intake/Psychiatric Assessment,”
and it contained a “psychiatric problem list, plan & specific recommendation.” The
record does not indicate whether Sandhofer ever considered this assessment.
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Sandhofer did not testify that Chloe’s mental health issues were the cause
of her substance abuse issues. She simply “wonder[ed] if the substance abuse is not self-
medicating.” That speculation provides scant support for Chloe’s claims.
Finally, when asked directly whether Sandhofer believed that OCS had
made active efforts to reunify Chloe with Ashanti, her response was unequivocal:
“Absolutely. Without a doubt, no question.” Given this conclusion, we find it extremely
unlikely the trial court’s decision on remand would have been different had Sandhofer’s
testimony been before the court.
V. CONCLUSION
We AFFIRM the trial court’s order terminating Chloe’s parental rights to
Ashanti.
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