Paula E. v. State, Department of Health & Social Services, Office of Children's Services

276 P.3d 422, 2012 WL 1649165, 2012 Alas. LEXIS 68
CourtAlaska Supreme Court
DecidedMay 8, 2012
DocketS-14247
StatusPublished
Cited by41 cases

This text of 276 P.3d 422 (Paula E. v. State, Department of Health & Social Services, Office of Children's Services) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paula E. v. State, Department of Health & Social Services, Office of Children's Services, 276 P.3d 422, 2012 WL 1649165, 2012 Alas. LEXIS 68 (Ala. 2012).

Opinions

OPINION

PER CURIAM.

I. INTRODUCTION

This appeal arises from a Child In Need of Aid (CINA) case involving four Indian children who were removed from their parents' care due to substance abuse and domestic violence. The children were placed with their maternal grandmother, who claims that the Office of Children's Services (OCS) permanently removed the children and placed them with a non-Native foster family while she was away in Montana caring for her elderly mother. OCS responds that the grandmother requested that the children be removed from her care. There were also substantiated reports of harm relating to the grandmother's care, and the tribe expressed dissatisfaction with the children's placement with their grandmother. After the grandmother returned from Montana to Alaska, the children stayed with the foster family while the grandmother provided afternoon care. But OCS terminated the grandmother's visitation when the tribe and the foster family complained that the children were behaving poorly after the visits. After removing the children from the grandmother's care, OCS did not provide the grandmother with notice of scheduled permanency or placement hearings for the children.

Over a year after returning from Montana, the grandmother formally requested that the children be placed with her. OCS denied this request and the grandmother appealed, arguing that the children should be placed with her and that the failure to provide her with notice of hearings conducted during the preceding year violated her due process rights. After the standing master conducted a full hearing on the grandmother's placement request, the superior court denied the request, finding good cause to deviate from the Indian Child Welfare Act's (ICWA) placement preferences. The court further concluded that the grandmother was neither entitled to notice of earlier hearings nor prejudiced by a lack of notice. After the superi- or court proceedings, the children were adopted by the foster family with whom they had bonded. The grandmother appeals, arguing that because she did not receive proper notice of the earlier proceedings related to the children and because there was not good cause to deviate from the ICWA preferences, the adoption should be set aside and OCS [426]*426should begin to reunify her with her grandchildren. The grandmother is correct in her argument that she did not receive proper notice of the earlier permanency proceedings. But because any prejudice to the grandmother was cured by the subsequent hearing in which she participated and was able to present evidence and cross-examine witnesses, and because the superior court did not commit plain error by finding good cause to deviate from ICWA's placement preferences, we affirm the superior court's ruling.

II. FACTS AND PROCEEDINGS

A. Initial Removal

This case involves four children: Eddie (born March 1996), Tawny (born August 1997), Callie (born January 2001), and David (born February 2005).1 The children's mother, Maddie, is an enrolled member of the Northern Cheyenne tribe. The three younger children's father, Steve, is an enrolled member of the Gulkana Village tribe (Gulkana).2 The children were initially taken into OCS custody in May 2006 due to their exposure to Maddie and Steve's domestic violence and substance abuse.

After OCS obtained custody of the children, the younger three were placed with their paternal grandmother and Eddie with his maternal great-grandfather. The placements changed slightly over the year: In September 2006 Callie was placed with Paula, her maternal grandmother, and in January 2007 David was placed with his mother, who was undergoing substance abuse treatment. Paula obtained a foster care license and by June or July 2007 all four children were in her care.3 Gulkana's former ICWA worker testified that, at that time, she thought Paula was very culturally oriented. She stated that while she had concerns regarding how crowded Paula's house could be, those concerns had been addressed.

By January 2008 the children's mother had made improvements and completed her first phase of treatment, and so the children were returned to her for a trial home visit, This was unsuccessful, and in July 2008 the children were removed and again placed with Paula. Following a hearing, the permanency plan was then changed from reunification to adoption. OCS identified Paula as a potential adoptive parent. In December 2008 the children's father relinquished his parental rights, and in July 2009 the children's mother relinquished her rights.

B. Children's Placement With Paula From July 2008 Until Summer 2009

In December 2008 a home study for adoption by Paula was completed and the results of this study were apparently mostly positive.4 Lori Wikle, the OCS caseworker, testified that the most pressing concern was whether Paula was committed to the long-term adoption of the children.

While the children were placed with Paula, Wikle conducted monthly home visits. She testified that in each progressive visit Paula looked more exhausted and appeared to be pulled in many directions with commitments to various family members. Wikle and Valerie Nelson, Gulkana's ICWA worker, testified to a conversation around March 2009 between Paula, themselves, and a few others where a different, more suitable placement was discussed.5 Both testified that Paula [427]*427agreed she "wanted to just be grandma" again.

At about the same time, OCS began receiving both informal and formal reports regarding the children's well-being. OCS received three reports of harm from Gulkana. Two reports were formal letters from the tribal council and one was an informal report from a concerned tribal member. The reports expressed concerns about Paula's extensive travel to Anchorage, the cleanliness of her house, her lack of control and supervision of the children, and her practice of driving with the youngest child in the car without a car seat.

The children were supposed to be attending therapy sessions, but Paula was often unable to get the children to the appointments. Despite OCS's involvement in setting up appointments and transportation, Tawny attended only two sessions and Eddie and Callie only one. Tawny told her therapist that Paula had hit her hard enough to knock her down and to leave bruises. Based on this information, the therapist filed a report of harm.

The children's school also sent notices to OCS regarding the behavior and condition of the children. The school was specifically concerned with Eddie's poor grades and bullying behavior and Tawny's lack of proper medication for her skin condition. Additionally, the school was concerned that the children did not have food in their lunches.6 Wikle investigated these complaints. The children reported that Paula used corporal punishment. Wikle told Paula that foster parents were not allowed to use corporal punishment, but the punishments continued.

Sometime in May 2009 Paula became aware that her mother, who lived in Montana, was ill and required her assistance. Paula told OCS that she needed to go to Montana three days before she left.7 Based on the emergency need the children were placed with the Dubovs, the non-Native foster family with whom they had stayed for various other short visits.

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Bluebook (online)
276 P.3d 422, 2012 WL 1649165, 2012 Alas. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paula-e-v-state-department-of-health-social-services-office-of-alaska-2012.