Sherry R. v. State, Dept. of Health & Social Services, Office of Children's Services , 2014 Alas. LEXIS 182 ( 2014 )

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
SHERRY R., )
) Supreme Court No. S-15376
Appellant, )
) Superior Court No. 4FA-09-00122 CN
v. )
) OPINION
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & ) No. 6949 – August 29, 2014
SOCIAL SERVICES, OFFICE OF )
CHILDREN’S SERVICES, )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Michael A. MacDonald,
Judge.
Appearances: Dianne Olsen, Law Office of Diane Olsen,
Anchorage, for Appellant. David A. Wilkinson, Assistant
Attorney General, Fairbanks, and Michael C. Geraghty,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
Sherry R. appeals the termination of her parental rights to her son Jake.1
She challenges the superior court’s rulings that: (1) she failed to remedy the conduct that
1
Pseudonyms have been used to protect the privacy of the family members.
made Jake a child in need of aid (CINA); (2) the State of Alaska, Department of Health
and Social Services, Office of Children’s Services (OCS) made reasonable efforts to
reunify her with Jake; and (3) termination of her parental rights was in Jake’s best
interests.
The record amply supports the superior court’s decision to terminate
Sherry’s parental rights. We affirm.
II. FACTS AND PROCEEDINGS
Sherry is the mother of Jake and his twin sister Karen. We affirmed the
termination of Sherry’s parental rights to her four older children in 2003.2
A. The Prior Termination Proceeding Involving Sherry’s Four Older
Children
In the prior case we observed that Sherry had “struggled with drug and
alcohol abuse for many years,” participating in seven separate treatment programs
between 1996 and 2001 but completing just two.3 Sherry renewed her drinking and use
of crack cocaine following her successful completion of the first residential treatment
program in 1999.4 We observed that while Sherry “recognize[d] that she has had
problems with alcohol,” she continued to “relapse[] . . . a number of times.”5 We also
observed that Sherry’s sobriety was “a relatively new phenomenon in her life,” and while
we echoed the superior court’s commendation of Sherry’s progress, we affirmed that this
2
See Sherry R. v. State, Dep’t of Health & Soc. Servs., Div. of Family &
Youth Servs., 74 P.3d 896, 897 (Alaska 2003).
3
Id. at 898.
4
Id. at 899-900.
5
Id. at 902.
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progress was not sufficiently timely to demonstrate that Sherry remedied the conduct that
placed her children in need of aid.6
Substance abuse was only one of the many challenges Sherry faced
parenting her four older children.7 She had relationships with men who were abusive,
including with the father of her four older children, David E.8 When Sherry met Jerry
B., the father of Jake and Karen, he was a serious felony repeat-offender who had spent
30 years in and out of prison, including for sexually abusing a minor.9 Even after
learning of Jerry’s conviction for sexual abuse of a minor, Sherry was reluctant to sever
ties with him.10 Sherry also failed to demonstrate her acceptance or understanding of her
older children’s special needs and disabilities, in spite of being confronted with evidence
that three of them suffered from alcohol-affected diagnoses likely brought on by Sherry’s
consumption of alcohol during her pregnancies.11
B. The Current Termination Proceeding Involving Jake
This appeal challenges the termination of Sherry’s parental rights to Jake,
born July 19, 2003. Jake is now 11 years old and has been in and out of institutional
facilities since November 2009. OCS first took legal custody of Jake and his twin sister
Karen on March 1, 2004, when the children were close to a year old. According to
Sherry, Jerry called OCS because Sherry was “smoking crack”; but both children
6
Id. at 902-03.
7
Id. at 903.
8
Id. at 897, 900, 903.
9
Id. at 900.
10
Id.
11
Id. at 903.
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remained in Sherry’s home, and OCS provided substance abuse referrals, visits from a
public health nurse, and child protection day care. The twins were removed from
Sherry’s physical custody a month later after police were called to her home following
a domestic disturbance. Sherry had “blacked out” and later assaulted a police officer
who had arrived on the scene to assist; subsequent testing revealed Sherry had a blood
alcohol content of .354%.
OCS instituted a case plan for Sherry and attempted trial visits for her with
the twins; it provided substance abuse evaluations, substance abuse treatment,
counseling, random urinalysis, child care, and other services during this time. Two trial
visits in February 2005 and October 2005 resulted in the children’s removal — the first
time because Sherry tested positive for cocaine, and the second time because Jerry
returned home to find Sherry passed out drunk, Jake covered in feces, and Karen playing
with a crack pipe. Jake and Karen remained in OCS’s custody following this latest
removal until OCS inexplicably transferred physical custody to Jerry in December 2006,
despite his status as a convicted sex offender, and despite our prior opinion in Sherry R.
clearly faulting Sherry for exposing her older children to Jerry.12 In the words of the
OCS case worker, OCS made this placement decision because Sherry’s substance abuse
made Jerry look like “a better choice for placement.” OCS closed the original CINA
case in December 2006 after it transferred custody to Jerry.
Jerry sexually abused Karen over the three years the twins were placed in
his care, and currently is serving a long-term prison sentence for this crime. Six-year-old
Karen disclosed the sexual abuse to OCS, and that disclosure prompted a re-opening of
the twins’ CINA case in September 2009. Jerry also terrorized Jake while Jake was in
his care. Jerry hit Jake, grabbed him, swore at him unrelentingly, pushed him down
12
Id. at 900.
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stairs, and the superior court noted that it was “highly likely that [Jake] witnessed
some . . . sexual abuse” of Karen by Jerry, such that Jake was “irreparably traumatized.”
Despite witnessing Jerry abusing Jake, and suspecting that Jerry was sexually abusing
Karen as early as April 2009, Sherry did not report Jerry to OCS or law enforcement
personnel; instead, she moved in with him and the children in June 2009.
Sherry retained physical custody of the children following Jerry’s
incarceration, and she lived with them in the Interior Alaska Center for Non-Violent
Living shelter. In October 2009 OCS received a call from shelter personnel reporting
that Jake was “acting out.” OCS accompanied Sherry and Jake to the hospital, where she
refused further treatment for him because he eventually calmed down.
But OCS was contacted by shelter personnel just a month later, this time
because Jake was “out of control” with “some major behavioral issues.”13 Sherry
admitted that she could not meet Jake’s needs on her own. This time, Sherry chose not
to accompany six-year-old Jake to the hospital. Jake spent a night alone in the Fairbanks
hospital before being admitted to North Star Behavioral Health in Anchorage, where he
stayed for two months. OCS filed an emergency petition for adjudication and for
temporary custody upon Jake’s transfer to North Star. OCS also drafted a case plan that
required Sherry to complete urinalysis, attend therapy, engage in sober support systems
such as Alcoholics Anonymous, and undergo substance abuse evaluations.
At North Star Jake was diagnosed with “posttraumatic stress disorder,
attention deficit hyperactive disorder, oppositional defiant disorder, and pervasive
developmental disorder.” Jake continued to act out, including kicking and cursing at the
13
Although Jake was throwing furniture, running through the halls, yelling
profanity, hitting walls, ripping papers and brochures off the walls and tearing them up,
scratching and biting, and attacking Sherry and Karen, Sherry had to be “convinced” by
the shelter to call OCS.
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North Star staff, and he talked about killing himself. Sherry initially refused to approve
medication for Jake and blamed others for his misbehavior.
In January 2010 Jake was transferred to the Residential Diagnostic
Treatment Center in Fairbanks, and in March 2010 Sherry stipulated to Jake’s
adjudication and disposition as a child in need of aid due to abandonment, parental
incarceration, and neglect.14 Sherry also stipulated that OCS had been making
reasonable reunification efforts, that custody with OCS was in Jake’s best interests, and
that OCS’s case plan was appropriately tailored toward the reunification of the family.
OCS referred Sherry for psychological evaluation and updated her case plan
to reflect that evaluation. OCS also referred Sherry for weekly sessions with a therapist,
and encouraged her participation in the Resource Center for Parents and Children’s
family reunification programs. OCS continued to provide urinalysis for Sherry and refer
her to sobriety support groups, including Alcoholics Anonymous and Changing Patterns.
Sherry did not complete the Changing Patterns sobriety support group, and
she discontinued individual therapy after her first therapist moved away in June 2011
because she did not think the second OCS-referred therapist was “quite a good fit.”15
Sherry’s progress at the Resource Center for Parents and Children was slow, and OCS
was concerned that she was generally “overwhelmed” when it came to parenting her
children.
In April 2011 OCS filed a petition to terminate Sherry’s parental rights on
the basis of her inconsistent attendance at Alcoholics Anonymous meetings, little
progress in the reunification program at the Resource Center for Parents and Children,
and her persistent failure to take responsibility for Jake coming into OCS custody. OCS
14
See AS 47.10.011(1), (2), (9).
15
This second therapist, Cathy Weeg, specialized in personality disorders.
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held that petition in abeyance, however, because at that time Jake’s behavioral problems
were so severe that a skilled “[a]doption [placement] wasn’t viable, placement . . . with
[Sherry] wasn’t viable, [and] guardianship wasn’t viable.”
Jake remained at the Residential Diagnostic Treatment Center until June or
July of 2011. Sherry and Karen visited him about three to four times per week, but
Sherry became “extremely frustrated” with the staff at the Center because, in her own
words, “there are certain [staff there] . . . that don’t deserve to have their jobs.” Jake had
periodic outbursts during Sherry’s visits, and following one particularly bad visit Jake
was so out of control he had to be sent back to North Star until his behavior and mood
stabilized. Sherry did not agree with Jake’s course of treatment at the Center, claiming
that Jake was placed in a small room and locked up, and she didn’t believe “that’s ok at
all to do to a child” because it “traumatize[d] him more” and added “insult to injury”
being in a “seclusion room.”
Jake was ultimately transferred to Jasper Mountain, a residential treatment
center in Oregon. Sherry called Jake twice per week and had a weekly family therapy
session via Skype; she received email feedback from Jake’s therapist, Ryan Adams,
following these sessions on how to effectively communicate and intervene to prevent
Jake’s meltdowns.16 OCS also facilitated Sherry’s participation in monthly team
meetings on Jake’s progress, either in-person at Jasper Mountain, or over the phone. In
her emails to Adams, Sherry lamented that Jake “is never going to be a perfect child” and
asserted that Jake was “tired of watching other children go home [while] he is still there.”
Sherry shared with Adams that she thought the Residential Diagnostic Treatment Center
(Jake’s last placement site) “used [all kinds] of stuff to keep him there seemingly
16
Sherry alleges that she was not aware these video conferencing sessions
were family therapy with specific goals in mind. Adams testified that he could not “think
of a reason why [Sherry] would think that she [hadn’t] been involved in family therapy.”
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forever . . . punish[ing] him for days.” Adams later testified that Sherry was
“inconsisten[t]” in her support of the adults in Jake’s life — e.g. Jake’s therapeutic foster
family and the staff at Jasper Mountain — and Adams opined that this contributed to
Jake not feeling “safe” and progressing slowly in his treatment. Adams testified that,
despite Sherry’s good intentions for Jake, she was “unpredictable with her mood,” and
often sided with Jake when he conflicted with authority figures, thus “unintentionally
validat[ing] that [Jake] can act out with adults and not listen to their directions.” In
Adams’s professional opinion, Sherry’s inability to consistently “encourage [Jake] to
follow directions from all the adults in his life” meant that she could not provide him
with the emotional support he needed to move forward with treatment.
In August 2011, shortly after Jake was admitted to Jasper Mountain, Sherry
took a hair strand test that was positive for cocaine and cocaethylene. Around this time
the Resource Center for Parents and Children discontinued reunification services with
Sherry. Sherry alleged that she and the Resource Center mutually agreed to discontinue
services, but OCS was informed that Sherry was noncompliant, not making any progress,
and didn’t feel like “she was getting anything out of it.”
In October 2011 OCS updated Sherry’s case plan and referred her to a
therapist, Cathy Weeg, who specialized in personality disorders. Sherry was also
required to continue with her substance abuse services and to seek out permanent
housing, as she had been living in the Center For Non-Violent Living shelter for over a
year. As discussed previously, Sherry did not believe Cathy Weeg “was quite a good fit”
and stopped attending sessions. And in February 2012 Sherry again tested positive for
cocaine and cocaethylene; following this second positive test result Karen was removed
from Sherry’s physical custody. Sherry told nine-year-old Jake that Karen was removed
because Sherry “had a test done and it said that [she] had been using drugs, so [OCS] put
[Karen] with somebody to make sure that she’s safe.” Sherry was allegedly “baffled”
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by these test results, told Jake she didn’t “know how [the test results] happened,” and
continues to argue in the present appeal that she never stipulated to the reliability or
accuracy of the results.
In March 2012 OCS referred Sherry to Dr. Marti Cranor for a psychological
evaluation and parenting-capacity assessment. Dr. Cranor had evaluated Sherry in the
prior CINA case involving her four oldest children. Dr. Cranor concluded that Sherry
was highly deficient in the psychological and emotional characteristics required to parent
her children, noting that she was highly emotional, demanding, distrustful, and brash.
Dr. Cranor was concerned with Sherry’s substance abuse, her tendency to relapse after
months or years of sobriety, and her “entrenched denial” of her problems. Dr. Cranor
estimated it would take approximately nine-and-a-half to thirteen years of treatment for
Sherry to overcome her parenting deficiencies. At the time of the assessment Jake was
nine; thus, assuming the lowest estimate was accurate, Jake would reach majority before
Sherry would be deemed (in Dr. Cranor’s assessment) competent to parent him,
assuming Sherry participated in treatment.
OCS updated Sherry’s case plan following Dr. Cranor’s assessment; the
update required Sherry to complete ongoing drug testing, family therapy, individual
therapy, Alcoholics Anonymous meetings, and outpatient substance abuse treatment.
Sherry was referred to outpatient substance abuse treatment at Hope Counseling, and she
began attending individual therapy there with Valerie Gifford in August 2012. Gifford
testified regarding Sherry’s consistent attendance at, and admirable progress in,
individual therapy, but admitted numerous times that she had never spoken directly to
Jake’s therapist, and had not worked with Sherry on how to adequately respond to and
support Jake’s treatment. Sherry began outpatient substance abuse treatment at Hope
Counseling and was mostly consistent in her attendance at Alcoholics Anonymous
meetings during this period.
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In July 2012 OCS filed a second termination petition, citing Dr. Cranor’s
assessment, Sherry’s inability to learn appropriate parenting skills, her ongoing substance
abuse as evidenced by her recent positive drug test results, her confrontations with Jake’s
treatment staff at Jasper Mountain, and the disruptions her visits to Jasper Mountain
caused Jake. In October 2012 OCS requested that Dr. Cranor provide an addendum to
the March 2012 psychological evaluation and parenting-capacity assessment based on
more updated information regarding the services provided to Sherry, her progress, and
Jake’s treatment. None of this additional information changed Dr. Cranor’s opinion of
Sherry’s ability to parent Jake, because in her view Sherry “was not making progress in
her therapy . . . in terms of being able to more effectively intervene with [Jake] when
[his] behavior got out of control.” In November 2012 another hair strand test
administered on Sherry was positive for cocaine.
A termination trial was scheduled for January 2013, but the superior court
continued the proceedings for two more months at Sherry’s counsel’s request. During
this period, Sherry completed two parenting classes, and Karen was returned to Sherry’s
physical custody on a trial basis. Sherry also completed vocational rehabilitation and
started a scrap metal salvaging business.
The termination trial took place in June 2013. The superior court found that
Sherry’s consistent positive drug test results and interference with Jake’s treatment
demonstrated her failure to remedy the conduct and conditions that made Jake a child in
need of aid. The court found that OCS had provided years of counseling, parenting
education, case planning, visitation, and encouragement and support — yet Sherry
continued her drug use and angry and disruptive outbursts in spite of these reasonable
efforts. Finally, the court found by clear and convincing evidence that termination was
in Jake’s best interests.
Sherry appeals.
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III. STANDARD OF REVIEW
In a CINA termination proceeding we review a superior court’s factual
findings for clear error.17 Factual findings “are clearly erroneous if review of the entire
record leaves us with a definite and firm conviction that a mistake has been made.”18
“Conflicting evidence is generally insufficient to overturn the superior court, and we will
not reweigh evidence when the record provides clear support for the superior court’s
ruling.”19 “Whether a child is in need of aid and whether the parent failed to remedy the
‘conduct or the conditions that placed the child at substantial risk’ of harm are factual
findings reviewed for clear error.”20 Best interests findings are also factual findings
reviewed for clear error.21 “Whether OCS made reasonable efforts to reunify the family
is a mixed question of law and fact.22 “When reviewing mixed questions of law and fact,
17
Christina J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 254 P.3d 1095, 1103 (Alaska 2011) (citing Maisy W. v. State, Dep’t of Health &
Soc. Servs., Office of Children’s Servs., 175 P.3d 1263, 1267 (Alaska 2008)).
18
Sherman B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 290 P.3d 421, 427-28 (Alaska 2012) (quoting Barbara P. v. State, Dep’t of
Health & Soc. Servs., Office of Children’s Servs., 234 P.3d 1245, 1253 (Alaska 2010))
(internal quotation marks omitted).
19
Id. at 428 (quoting Maisy W., 175 P.3d at 1267) (internal quotation marks
omitted).
20
Id. (quoting Pravat P. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 249 P.3d 264, 270 (Alaska 2011)) (internal quotation marks omitted).
21
Id. (citing Christina J., 254 P.3d at 1104).
22
Id. (citation omitted).
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we review factual questions under the clearly erroneous standard and legal questions
using our independent judgment.”23
IV. DISCUSSION
In order to terminate parental rights under AS 47.10.088, a superior court
must find by clear and convincing evidence that: (1) a child is in need of aid under at
least one of the subsections listed in AS 47.10.011; (2) the parent has not remedied the
conduct or conditions that caused the child to be in need of aid or that returning the child
to the parent would put the child at substantial risk of physical or mental injury; and (3)
OCS has made reasonable efforts to provide family support services to the child and to
the parent.24 The court must also find by a preponderance of the evidence that
termination is in the child’s best interests.25
Sherry does not challenge on appeal that Jake is a child in need of aid.
Thus, we only address the superior court’s findings and conclusions on Sherry’s failure
to timely remedy her conduct, OCS’s reasonable efforts, and Jake’s best interests.
A. The Superior Court Did Not Err In Finding That Sherry Failed To
Remedy The Conduct And Conditions That Made Jake A Child In
Need Of Aid.
In order to terminate parental rights, the superior court must find by clear
and convincing evidence that the parent has failed, within a reasonable time, to remedy
the conduct that placed the child at substantial risk of harm.26 In making this
determination, the court may consider “any fact relating to the best interests of the child,”
23
Ben M. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
204 P.3d 1013, 1018 (Alaska 2009).
24
AS 47.10.088(a).
25
AS 47.10.088(c); CINA Rule 18(c)(3).
26
AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(ii).
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including: (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.27 “The superior court is entitled to rely on a parent’s documented
history of conduct as a predictor of future behavior.”28
The superior court found by clear and convincing evidence that Sherry had
not timely remedied the conduct or conditions that made Jake a child in need of aid. The
court found that: (1) there were “not enough years left in [Jake]’s minority for [Sherry]
to learn the skills necessary to become even a minimally adequate parent”; (2) the
testimony of Sherry’s treatment providers was not helpful because they were unaware
of Jake’s needs, her continued drug use, and her consistent undermining of Jake’s
treatment; (3) Sherry neglected Jake and continued to present a risk to his achieving
adequate care due to her “antiauthority, disruptive personality” that had “interfered with
[Jake]’s treatment throughout this case”; (4) this conduct would continue because Sherry
had not remedied her drug abuse and her behavioral deficiencies, and thus could not
handle the stresses of raising Jake as a special needs child; and (5) Sherry was
“deeply . . . trapped” in a substance abuse cycle as evidenced by the history of the case.
Sherry argues that the superior court erred because it faulted her for not
having “extraordinary parenting skills[] for a child that nobody was going to be able to
parent without significant challenges.” She asserts that, as a matter of constitutional law,
her parental rights cannot be terminated without a finding of her unfitness at the time of
27
AS 47.10.088(b).
28
Sherry R. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 74 P.3d 896, 903 (Alaska 2003).
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the termination trial, and that termination cannot be solely based on her child’s needs.
She argues that the court “ignored” the testimony of her treatment providers and
erroneously relied upon events that occurred subsequent to the termination trial. Finally,
Sherry avers that she had remedied her substance abuse at the time of trial, and “[e]ven
if the [hair follicle test] results did accurately demonstrate drug use, the last positive test
was on November 21, 2012, [and would] have reflected use no later than August
2012 . . . reflecting a substantial period of sobriety prior to the termination decision of
November 5, 2013.”
1. Sherry failed to timely remedy her persistent and active
interference with Jake’s treatment as a child with special needs.
A child’s special needs, and the harm caused by a parent’s failure to timely
address those needs, have weighed heavily in our analysis of whether termination is in
the child’s best interests.29 Jake unquestionably suffers from a host of psychiatric issues
that require a high level of care — including “posttraumatic stress disorder, attention
deficit hyperactive disorder, oppositional defiant disorder, and pervasive developmental
disorder.” The superior court did not solely focus on Jake’s special needs when it
discussed why Sherry had not timely remedied her conduct that made Jake a child in
need of aid. The superior court carefully considered Sherry’s “antiauthority, disruptive
personality”; how she “interfered with Jake’s treatment throughout this case”; and how
this conduct prevented Jake from adequately progressing in treatment and trusting the
highly trained professionals that provided him with round-the-clock care.
29
See, e.g., Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 244 P.3d 1099, 1119 (Alaska 2010) (finding that a mother’s
prioritization of her own needs before her children’s needs, and her inability to provide
the kind of consistent home that her children with special needs require, was sufficient
evidence to support the trial court’s holding that returning the children to the mother’s
care was likely to result in serious emotional or physical harm).
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The record in this case thoroughly supports these findings. The termination
petition cited Sherry’s “defiant, disruptive, and disrespectful . . . conduct at [Jake’s
treatment facility] . . . [where] her presence . . . is detrimental not only to [Jake]’s
ongoing treatment, but also for the ongoing treatment of other children at the facility.”
This echoes the testimony of Dr. Cranor, who twice met with Sherry to perform, and then
update, a parenting-capacity assessment, and observed that Sherry had “a lot of problems
managing [Jake’s] behavior . . . during [her] visits.” Dr. Cranor noted that Sherry
“tended to blame either other residents of the program or . . . [Jake’s] treatment providers
for his misbehavior.” Dr. Cranor also discussed how Sherry is “a person who needs a
lot of attention[,] . . . [is] pretty emotional[,] . . . . [and] doesn’t tolerate criticism very
well.” Finally, Jake’s therapist Ryan Adams testified at trial that Sherry was
“inconsisten[t]” in her support of the adults in Jake’s life, and this contributed to Jake not
feeling “safe” and progressing slowly in his treatment. Adams testified that, despite
Sherry’s good intentions for Jake, she was “unpredictable with her mood,” and often
sided with Jake when he conflicted with authority figures, thus “unintentionally
validat[ing] that [Jake] can act out with adults and not listen to their directions.” In
Adams’s professional opinion, Sherry’s inability to consistently “encourage Jake to
follow directions from all the adults in his life” meant that she could not provide him
with the emotional support he needed to move forward with treatment. We observe that
Sherry exhibited similar behavior in her previous CINA case when she failed to
demonstrate her acceptance or understanding of her older children’s special needs and
disabilities.30
Sherry’s active undermining of the professionals who aimed to provide
much-needed therapeutic care to Jake demonstrates a significant lack of insight into what
30
Sherry R., 74 P.3d at 903.
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is required to parent a special needs child.31 We agree with the superior court’s analysis
that Sherry’s own treatment providers could not assist the court in determining whether
Sherry had ameliorated this harmful conduct.32 As the superior court noted, these
individual care providers “were unaware of [Jake]’s needs[, and] they were unaware of
[Sherry]’s consistently undermining [Jake]’s treatment.”
2. Sherry failed to timely remedy her substance abuse issues.
In the prior CINA case involving Sherry’s four older children, she argued
that “because she had been sober for approximately one year prior to the termination
trial, she ha[d] remedied, within a reasonable time, the conduct or conditions that put her
children at risk of harm.”33 In the present case she advances essentially the same
argument: that she remedied her substance abuse by the time of trial, and “[e]ven if the
[hair follicle test] results did accurately demonstrate drug use” they also “reflect[] a
substantial period of sobriety prior to the termination decision of November 5, 2013.”
31
See In re B.W., 651 S.E.2d 332, 341 (Ga. App. 2007) (discussing how a
mother’s drug addiction and lack of parenting training negatively affected her special
needs son’s need for permanency); Matter of Welfare of D.D.K., 376 N.W.2d 717, 722
(Minn. App. 1985) (discussing how a father’s chronic unemployment problem,
insufficient maturity, and poor parenting skills would likely “prevent his being
considered for custody of even an average child” — much less a child with special
needs).
32
Sherry also asserts that the court erroneously relied on events that occurred
subsequent to the termination trial. The court cited evidence of Sherry’s disruptive
behavior “just prior to the termination trial” and after the trial to underscore that point
that her conduct, as a global matter, “erodes [Jake]’s trust and progress” in therapy, and
her “reactive personality prevents her from being able to work with the treatment
providers [Jake] so desperately requires.” These findings were not erroneous, and the
superior court did not erroneously rely on post-termination trial events in reaching them.
33
Sherry R., 74 P.3d at 902.
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The superior court did not err when it found that Sherry had not timely
remedied her substance abuse issues. As we stated in the prior CINA case concerning
Sherry’s four older children, a superior court “is entitled to rely on a parent’s
documented history of conduct as a predictor of future behavior.”34 Sherry’s pattern of
behavior in the present case, going back to when Jake was first taken into OCS custody
in 2004, demonstrates a cycle of addiction and drug abuse that continued until at least
August 2012 based on Sherry’s interpretation of her most recent positive hair follicle test
result. That Sherry can demonstrate a possible period of sobriety prior to the termination
decision in November 2013 does not compel our reversal of the superior court’s factual
finding on this ground. This finding was based on clear and convincing evidence of a
number of recent positive drug test results, as well as Sherry’s decades-long history of
relapsing following completion of rehabilitation services.35
B. The Superior Court Did Not Err In Finding That OCS Satisfied Its
Obligation Of Reasonable Efforts To Effectuate Reunification; We
Agree With The Superior Court That OCS Unduly Prolonged These
Efforts To Jake’s Detriment.
Before terminating parental rights, the superior court must find by clear and
convincing evidence that OCS has made reasonable efforts to provide reunification
between the parent and the child.36 As part of these “reasonable efforts,” OCS must
identify, “actively offer,” and refer the parent to family support services that will assist
him or her in remedying the conduct or conditions in the home that made the child a
34
Id. at 903.
35
Id. at 902.
36
AS 47.10.088(a)(3).
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child in need of aid.37 When making determinations under AS 47.10.086, “the primary
consideration is the child’s best interests.”38 And the reasonableness of OCS’s efforts
“must be viewed in light of the entire history of services that the state ha[s] already
provided.”39
We have recognized that OCS maintains “some discretion in determining
what efforts to pursue and whether the timing is reasonable.”40 We have explained that
OCS’s efforts must “be reasonable, but need not be perfect.”41 On the other hand, OCS’s
reasonable efforts should not unduly prolong and unnecessarily burden a child’s need for
permanency. This may be a difficult balance to strike in cases like Sherry’s. We
conclude that OCS failed to strike the appropriate balance in this case given Sherry’s
long history with drug and alcohol abuse and persistent failure to accept her children’s
needs and disabilities over the course of two separate CINA cases involving five
children. Notwithstanding this conclusion, the efforts OCS made satisfied its reasonable
efforts obligations under AS 47.10.088(a)(3), as detailed in AS 47.10.086, as these
statutes establish the minimum standards that OCS is required to meet.
37
AS 47.10.086(1)-(2).
38
AS 47.10.086(f).
39
Erica A. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 66 P.3d 1, 7 (Alaska 2003) (citing E.A. v. State, Div. of Family & Youth Servs.,
46 P.3d 986, 990 (Alaska 2002)).
40
Sean B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
251 P.3d 330, 338 (Alaska 2011) (citing Jeff A.C., Jr. v. State, 117 P.3d 697, 706 (Alaska
2005)).
41
Audrey H. v. State, Office of Children’s Servs., 188 P.3d 668, 678 (Alaska
2008) (citing Jeff A.C., Jr., 117 P.3d (noting that while the state’s efforts “were not
exemplary, neither were they unreasonable”) at 706).
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The superior court found that OCS “heroically served [Jake]” and “hoped
against reason that [he] could be . . . reunited with his sister and his mother.” The court
found — and we agree — that OCS did this “to a fault.” The court determined that OCS
“extended the time to provide services and fought for reunification,” providing Sherry
with “repeated . . . counseling, parenting education, case planning, visitation,
encouragement, and support” — which Sherry met with “continued drug use and angry
outbursts against the treatment providers.”
Sherry argues that OCS failed to make reasonable efforts to provide
effective family therapy or parenting classes specifically for a special needs child. She
asserts that OCS did not provide her “with the same kind of training and supports as were
provided to [Jake’s therapeutic] foster family.” Finally, Sherry asserts that OCS should
have identified her substance abuse and made reasonable efforts to provide services to
her.
OCS was well aware of Sherry’s persistent substance abuse issues and
failure to accept or comprehend the special needs of her children when it was first
contacted in 2004 and the twins where placed in OCS custody.42 OCS had been involved
with Sherry’s efforts to parent Jake since he was about a year old, or roughly nine years
at the time of trial, and had been involved with Sherry and her four older children as far
back as the 1990s.43
The current CINA case was re-opened in 2009 — four years prior to the
termination trial. Over the course of the present case Sherry was referred to and
42
See Sherry R. v. State, Dep’t of Health & Soc. Servs., Div. of Family &
Youth Servs., 74 P.3d 896, 903 (Alaska 2003) (noting Sherry’s long history of substance
abuse and failure to recognize, understand, or accept her four older children’s special
needs and disabilities).
43
Id. at 897.
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provided a myriad of services addressing her substance abuse, including sobriety support
groups, individual therapy, testing, and outpatient substance abuse treatment. In
addition, Sherry was provided with psychological evaluations, updated case planning
services, and reunification services at the Resource Center for Parents and Children along
with the family therapy specific to Jake’s special needs that Jake’s therapist, Ryan
Adams, provided. Adams counseled Sherry on how to effectively communicate and
intervene to prevent Jake’s meltdowns.44 And while Sherry argues that OCS did not
provide her “with the same kind of training and supports” as Jake’s therapeutic foster
family, Sherry admitted at trial that she got feedback from Adams constantly; at trial she
stated: “You know, we’ve talked many, many times and email each other back and forth
quite frequently.”
Notably, Dr. Cranor stated at trial that it “really stood out” that even though
Sherry had “received a lot of services, [and] OCS got involved with [Jake and Karen]
pretty early on in their lives[,] . . . the children . . . were [still] removed several times . . .
[and] both . . . displayed significant behavioral problems at various points in time.”
When asked why these multiple disruptions were so detrimental to children, Dr. Cranor
explained:
[M]ultiple removals from the home, multiple placements,
multiple transitions, [and] delayed permanence are harmful
to children. . . . [I]f a parent has had multiple opportunities
to try to change their behavior and yet the children have had
44
Even though Sherry alleges that she was not aware that the Jasper Mountain
video conferencing sessions were family therapy with specific goals in mind, emails
from Adams to Sherry reveal that she was counseled to “focus on sending calm messages
to [Jake] through your body and voice tone, ” and not to “shy away from calling [Jake]
on [his] issues . . . . [H]e needs to trust in the process of listening to adults,” such that
“if he starts arguing . . . tell him to back up, prompt him with the appropriate response
to your direction, and run through it again.”
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to be removed over and over and over, you reach a point
where the harm being done to the children by the removals
outweighs any benefit that they’re getting from . . . continued
contact with their parents.
The detriment caused to Jake by OCS’s prolonged reunification services to Sherry far
outweighed the benefit Jake received from Sherry’s continually disruptive contact. We
echo the superior court’s conclusion that OCS unreasonably “extended the time to
provide services and fought for reunification,” providing Sherry with “repeated . . .
counseling, parenting education, case planning, visitation, encouragement, and support”
— much to Jake’s disadvantage in achieving a sense of continuity, structure, and
permanency, even if adoptive placement was not an immediately viable option.
Nevertheless, it is clear that OCS satisfied the requirements of AS 47.10.088(a)(3) to
make reasonable efforts, and the superior court did not err in so finding.
C. The Superior Court Properly Concluded That Terminating Sherry’s
Parental Rights Was In Jake’s Best Interests.
Before parental rights may be terminated, the superior court must also find
by a preponderance of the evidence that termination is in the child’s best interests.45 In
making this determination, the superior court may consider the same factors used to
determine whether a parent remedied her conduct within a reasonable time, as set forth
above: (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
45
AS 47.10.088(c); CINA Rule 18(c)(3).
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created by the parent.46 The court also may consider the presence or lack of favorable
placements.47
The superior court found “by a preponderance of the evidence, indeed by
clear and convincing evidence,” that termination was in Jake’s best interests. The court
stated that Jake was “currently in the care of . . . highly skilled therapeutic foster parents”
and “[b]y terminating [Sherry]’s parental rights and committing [Jake] to the Department
of Health and Social Services, the court is aware that [Jake] may never find an adoptive
home.” However, the court believed “that future is better for [Jake] than returning to the
certain harm he would suffer in [Sherry]’s care.”
Sherry argues that the court’s focus on Jake’s return to her physical care is
misplaced, as she did not request his immediate return to her care. She believes that the
superior court did not adequately consider the importance of Jake’s bond to her.48
46
AS 47.10.088(b).
47
Sean B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
251 P.3d 330, 339 (Alaska 2011) (citing Karrie B. ex rel. Reep v. Catherine J., 181 P.3d
177, 185 (Alaska 2008)).
48
Sherry relies on the dissenting opinion in Thea G. v. State, Dep’t of Health
& Soc. Servs., Office of Children’s Servs., 291 P.3d 957 (Alaska 2013) (Carpeneti, J.,
dissenting), and In re M.S., 898 N.E.2d 307 (Ind. App. 2008) in support of her argument.
These cases are inapposite to the present appeal.
In Thea G., we held that “[p]reserving [a drug addicted mother’s] parental
rights, in order to ensure maintenance of the children’s ties to her, would continue to
expose the children to [her] potentially dangerous behaviors and would deprive them of
the chance to [achieve a measure of permanency].” 291 P.3d at 968. As in Thea G., “in
some cases a child’s best interests require preserving rather than severing ties to an unfit
parent. While such cases may exist, this is not one of them.” Id. In Thea G., as in the
present appeal, the children had “been in OCS’s custody — in effect, in limbo — for . . .
years, waiting for [their mother] to act responsibly and step into her role as their parent.”
(continued...)
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The superior court carefully considered the evidence and found that
termination was in Jake’s best interests because Sherry consistently and actively
inhibited his progress in treatment. The court believed this harmful conduct would
continue because Sherry was incapable of comprehending and meeting Jake’s needs.
As discussed previously, the present case had been ongoing for years at the time of the
termination trial, and according to Jake’s therapist, paramount to Jake’s development was
his need to feel “safe” in the consistent presence of adults who acted as points of
authority to orient him and control his chaotic moods and outbursts. The superior court
was also entitled to rely on Dr. Cranor’s assessment that Sherry was highly emotional,
demanding, distrustful, and brash, and therefore was highly deficient in the psychological
and emotional characteristics required to parent Jake. Because Jake’s need for calm
consistency in a structured environment was, and remains, paramount, we affirm the
superior court’s determination that termination was in Jake’s best interests.
48
(...continued)
Id. We reject Sherry’s argument that we should adopt the reasoning of the Thea G.
dissent in the present appeal. See id. at 969-73.
In In re M.S., a mother voluntarily sought out the help of the Department
of Child Services and informed it that she was unable to control her special needs son or
protect her other children from him. 898 N.E.2d at 309. The mother had no substance
abuse problems and remained heavily involved in her son’s life, participating in services,
attempting trial visits, weekend visits, and overnight visits to achieve reunification. Id.
The Indiana Court of Appeals found that “everyone who testified agreed that [the]
Mother . . . did everything that was asked of her,” id. at 311-12, and the problem
appeared to be “[the child’s] behavior rather than [the] Mother’s parenting skills.” Id.
at 312. This is not an analogous case, as the superior court made clear findings on
Sherry’s deficiencies as a parent, her lack of timely remedial efforts, and her lack of
progress in the services she did engage in.
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V. CONCLUSION
For the reasons explained above, we AFFIRM the superior court in all
respects.
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