Tara U. v. State, Department of Health & Social Services, Office of Children's Services

FABE, Justice,

dissenting.

I would affirm the superior court's decision to terminate parental rights. Although we have held that the trial court should look at the "entire history of the services that OCS has provided a parent" in deciding "whether reunification efforts during a specific time were reasonable,"1 it seems incorrect to conclude in this case that OCS's failure to make efforts prior to removal of the children could negate the reasonable efforts made to reunify the family after the children's removal. Here, Tara's utter lack of cooperation with OCS and her express refusal to work on her case plan provide ample support for the superior court's findings regarding the adequacy of OCS's reasonable efforts. As the trial court explained, "[hlad [Taral made the slightest gesture of cooperation, or even expressed some level of willingness to pursue treatment, the court might [have] balance[d] the factors differently." Even at the time of the termination trial, the trial court noted that it "hald] no evidence at all that [Tara was] serious about treatment."

Our rules expressly contemplate that an earlier failure to make reasonable efforts can be rectified by OCS. Even where the court finds that the Department has failed to make reasonable efforts to avoid out-of-home placement, such a failure "is not in itself a ground for returning the child to the home ... and does not affect the court's ability to proceed to adjudication."2 Moreover, where "the Department has failed to make required reasonable efforts," the remedy is for the court to "postpone disposition until the court finds that reasonable efforts have been made."3 And here, the trial court concluded that post-removal efforts were reasonable, particularly in light of Tara's refusal to cooperate.4 Given that OCS made sufficient efforts to reunify the family after removal, those efforts are not diluted by the fact that earlier in the case, before the children were removed, fewer efforts were made. As the State points out, "[tlo hold otherwise would be to say that the longer OCS has failed to make efforts toward a family, the longer OCS would later have to make efforts in order to show that it has, on average, made 'reasonable efforts'"

The trial court appropriately focused on Tara's complete failure to cooperate with the OCS case plan after her children were removed from the home. For this reason, I do not believe that the superior court committed any legal error, and I respectfully dissent.

. Burke P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 162 P.3d 1239, 1245 (Alaska 2007).

. CINA Rule 10.1(a)(2).

. Id.

. See Audrey H. v. State, Office of Children's Servs., 188 P.3d 668, 678 (Alaska 2008) ("A parent's demonstrated unwillingness to participate in treatment may be considered in determining the reasonableness of state efforts.").