Chloe O. v. State, Department of Health & Social Services, Office of Children's Services
309 P.3d 850
| Alaska | 2013Background
- Mother (Chloe O.) has long-standing substance abuse and mental-health issues (possible bipolar disorder and fetal alcohol syndrome); child Ashanti was taken into OCS custody in August 2010 after safety concerns and Chloe’s arrest.
- OCS developed a case plan requiring substance-abuse treatment, mental-health evaluation, urinalysis, parenting classes, visitation, housing and employment; Chloe repeatedly refused or inconsistently participated in services and missed many drug tests (all positive when taken).
- OCS initially prioritized substance-abuse treatment because Chloe refused mental-health services; later Chloe completed a psychiatric intake but participated in therapy only sporadically and failed to complete several residential/dual-diagnosis programs.
- Trial court (Judge Michalski) terminated Chloe’s parental rights to Ashanti in Feb. 2012 but used the wrong evidentiary standard when finding OCS had made active efforts; appeal led to limited remand to reconsider the active-efforts finding under the clear-and-convincing standard.
- On remand, Judge Easter held an evidentiary hearing limited to whether OCS made active efforts and found by clear and convincing evidence that OCS made active but unsuccessful attempts to reunify Chloe and Ashanti; appellate court affirms termination.
Issues
| Issue | Plaintiff's Argument (Chloe) | Defendant's Argument (State/OCS) | Held |
|---|---|---|---|
| Scope of appellate review after remand | Court should consider all evidence from original trial (including Sandhofer’s testimony) when reviewing remand finding | Review limited to evidence presented to the court on remand | Review is limited to evidence presented to the remand hearing judge |
| Whether OCS made "active efforts" to reunify (ICWA/Rule 18 standard) | OCS failed to prioritize or adequately provide mental-health services and thus did not make active efforts | OCS reasonably prioritized substance-abuse treatment given Chloe’s refusal of mental-health services and provided extensive referrals and assistance | Trial court’s finding that OCS made active efforts is supported by clear and convincing evidence |
| Whether returning Ashanti to Chloe would likely cause serious harm (ICWA proof beyond a reasonable doubt and expert testimony required) | No adequate expert support for the finding that returning the child would likely cause serious harm | Expert (Sandhofer) and social-worker testimony support that Chloe’s unresolved issues posed a likely serious risk to Ashanti | Trial court’s beyond-a-reasonable-doubt finding of likely serious harm is supported (expert testimony on record) |
| Whether a remand is required to investigate ineffective assistance of counsel for not calling Sandhofer on remand | Attorney’s failure to call Sandhofer may have been ineffective and warrants remand | Tactical choice likely reasonable; Sandhofer’s testimony largely supported OCS and would not have changed outcome; remand would delay permanency | No remand; ineffective-assistance claim unlikely to succeed and would unduly delay child’s permanency |
Key Cases Cited
- Sherman B. v. State, Dep’t of Health & Servs., 290 P.3d 421 (Alaska 2012) (standard of review for CINA findings)
- Pravat P. v. State, Dep’t of Health & Servs., 249 P.3d 264 (Alaska 2011) (active-efforts and ICWA standards)
- Lucy J. v. State, Dep’t of Health & Servs., 244 P.3d 1099 (Alaska 2010) (description of active efforts vs. passive efforts)
- Wilson W. v. State, Office of Children’s Servs., 185 P.3d 94 (Alaska 2008) (OCS’s role in guiding parents through reunification steps)
- Ben M. v. State, Dep’t of Health & Servs., 204 P.3d 1013 (Alaska 2009) (ICWA requirement of beyond-a-reasonable-doubt showing of likely serious harm)
- Barbara P. v. State, Dep’t of Health & Servs., 234 P.3d 1245 (Alaska 2010) (reviewing factual record admitted to the trial court)
- David S. v. State, Dep’t of Health & Servs., 270 P.3d 767 (Alaska 2012) (ineffective-assistance standards in CINA context)
- A.M. v. State, 945 P.2d 296 (Alaska 1997) (limitations on requiring OCS to seek court orders to compel services)