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A mother challenges the trial court's decision terminating her parental rights to three children. Because the evidence supports the court's findings and the court correctly applied relevant law, we affirm the termination of her parental rights.
Chiara R. and Jayson Y.
The standards for terminating parental rights are provided in Alaska Child in Need of Aid Rule 18, governed primarily by Alaska Statutes but also, in the case of an Indian child, by federal requirements under ICWA.
Chiara appeals only one of the five findings underlying the termination of her parental rights: the finding that OCS made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the family.
"[W]hether OCS has made active efforts as required by ICWA is a mixed question of law and fact; [we] review[ ] the questions of law de novo."
"When reviewing factual findings . . . we ordinarily will not overturn a trial court's finding based on conflicting evidence,"
"Before terminating parental rights to an Indian child, the trial court must find by clear and convincing evidence that OCS made active, but unsuccessful, efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family."
Chiara also argues — and OCS does not disagree — that active efforts must promote reunification and be targeted at "the particular family needs that caused the child to be in need of aid."
"Whether OCS made active efforts is determined on a case-by-case basis."
Chiara contends that OCS failed in three specific ways to make active efforts: (1) failing to "engage Chiara in its early efforts . . . with the family"; (2) failing to pursue a visitation plan to strengthen Chiara's bond with the children; and (3) failing to "liaise with Chiara's [substance abuse] providers" at Southeast Alaska Regional Health Consortium (SEARHC). Chiara then argues that the superior court erroneously "overlooked these failings" and excused OCS from making active efforts.
Chiara first asserts that OCS approached her only one time in the four months before assuming custody of the children, but this does not establish a failure to make active efforts. Even if Chiara had been available for contact — a disputed fact during the termination trial given her absence from the family home — the record establishes that OCS made significant efforts during the initial stages of this case to prevent the breakup of the Indian family. These efforts include contacting Chiara the one time, contacting Jayson and the children, providing services and cards to buy food for the family, trying to find safe living arrangements for the children, and attempting safety planning with Jayson. Because OCS's active efforts may be evaluated over the entirety of its contact with the Indian family, even if Chiara were correct that OCS's efforts were insufficient during the four-month period, the trial court properly evaluated the entirety of OCS's efforts.
Chiara also focuses on OCS's visitation efforts, arguing that OCS failed to make active efforts by initially providing her visitation with the children jointly with Jayson, failing to help her with her depression, moving visitation to a therapeutic setting at Catholic Community Services (CCS), and restricting telephonic visitation. But despite Chiara's disagreements, the trial court found that OCS in fact had made extraordinary visitation efforts, and the record supports this finding. The evidence in this case clearly established the children's needs for counseling and therapy. OCS attempted visitation in multiple settings, and changing to therapeutic visitation — while arguably more restrictive for Chiara — was specifically designed to provide the opportunity to heal the children and family. Even if visitation away from CCS would have resulted in increased frequency — a dubious prediction considering Chiara's frequent failure to attend meetings or visitation — therapeutic visitation was necessary due to the severity of the family's issues.
Moreover Chiara failed to attend visitation, came late, or came under the influence of drugs; her conduct was not under OCS's control.
Chiara also alleges OCS failed to coordinate with SEARHC and obtain its substance abuse assessment and other information regarding services she received. But there was testimony that OCS tried and was unable to obtain any information from SEARHC. Even if Chiara did in fact complete an assessment, the record establishes her failure to make any meaningful progress addressing her substance abuse.
Chiara ties these alleged failings by OCS to an argument that the trial court incorrectly forgave OCS's alleged passive efforts. But the trial court never concluded that OCS was relieved of its duty to make active efforts, and Chiara does not point to an OCS decision to stop trying to engage Chiara. In sum our review of the record in this case leads us to conclude that the trial court did not err in determining that OCS made the required, but unsuccessful, active efforts to prevent the breakup of this Indian family.
We AFFIRM the trial court's termination of parental rights.
Under Alaska CINA Rule 18(c) parental rights to an Indian child may be terminated at trial only if OCS makes certain showings:
OCS must show by clear and convincing evidence that: (1) the child has been subjected to conduct or conditions enumerated in AS 47.10.011; (2) the parent has not remedied the conduct or conditions that place the child at substantial risk of harm or has failed within a reasonable time to remedy the conduct or conditions so that the child would be at substantial risk of physical or mental injury if returned to the parent; and (3) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family;
OCS must show beyond a reasonable doubt, including qualified expert testimony, that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child; and
OCS must show by a preponderance of the evidence that the child's best interests would be served by termination of parental rights.