David S. v. State, Department of Health & Social Services
2012 Alas. LEXIS 19
| Alaska | 2012Background
- David appeals the termination of his parental rights to Hannah, an Indian child, after OCS sought termination while he was incarcerated and then fugitive.
- Hannah was taken into OCS custody in April 2008; David remained imprisoned for 20 months, was later paroled, then became a fugitive for about nine months before recapture and re-incarceration.
- OCS petitioned for termination in April 2009; the superior court held a termination trial in November 2009 and terminated parental rights in April 2010.
- OCS argued the child was in need of aid due to abandonment, incarceration, and substance abuse, and that ICWA active efforts were met and termination was in Hannah’s best interests.
- David challenged the ruling via Civil Rule 60(b)(6) alleging ineffective assistance of counsel; the superior court denied relief, which this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Hannah a child in need of aid under AS 47.10.011? | David argues abandonment, incarceration, and substance abuse were not proven as bases. | State contends Hannah satisfied multiple bases: abandonment, incarceration, and substance abuse. | Yes; Hannah found to be in need of aid on abandonment, incarceration, and substance abuse grounds. |
| Did David fail to remedy the conditions causing Hannah's need for aid? | David had efforts in visits and rehabilitation but argued improvements occurred. | OCS showed ongoing recidivism and unresolved issues; failure to remedy continued. | No remedy shown; court found failure to remedy conditions supporting termination. |
| Did OCS meet the ICWA active efforts requirement? | David contends active efforts were not adequately provided, especially post-recapture. | OCS provided substantial active efforts through services, housing assistance, and visits, including telephonic visits while incarcerated. | Yes; active efforts were satisfied despite some periods of limited contact. |
| Was termination in Hannah's best interests? | David argues potential for placement with Claire; best interests should favor familial options. | OCS argued stable, permanent home necessary; placement with Claire was explored but not viable. | Yes; termination was in Hannah's best interests given lack of stable alternative placement and risks to the child. |
| Was Claire an Indian custodian, affecting ICWA analysis? | Claire should be treated as Indian custodian, affecting guardianship and active efforts. | Claire is not an Indian custodian because she was not an Indian and not an enrolled tribe member. | No; Claire is not an Indian custodian under ICWA. |
Key Cases Cited
- S.H. v. State, Dep't of Health & Social Servs., Div. of Family & Youth Servs., 42 P.3d 1119 (Alaska 2002) (standard for factual/property findings in CINA cases; clear error review)
- M.W. v. State, Dep't of Health & Soc. Servs., 20 P.3d 1141 (Alaska 2001) (clear error and de novo review standards in CINA)
- Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013 (Alaska 2009) (active efforts and ICWA considerations in termination)
- Lucy J. v. State, Department of Health & Soc. Servs. and Office of Children's Servs., 244 P.3d 1099 (Alaska 2010) (ICWA placement and active efforts; authoritative guidance on 1912/1915 interplay)
- S.B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 61 P.3d 6 (Alaska 2002) (Risher standard for ineffective assistance in CINA contexts)