Burke P. v. State, Department of Health & Social Services, Office of Children's Services

MATTHEWS, Justice,

with whom BRYNER, Justice, joins, dissenting.

I believe that the state failed in its obligation to make reasonable efforts to reunite Jesse with Burke.

Jesse was removed from the custody of Burke and Sondra for the first and final time in December of 2004 because of reports that Sondra had physically abused their children. The specific allegations of physical abuse involving Jesse seem relatively minor. But there was no question that in light of Sondra's mental illness and history of physically abusing the other children Jesse was at risk of physical injury so long as he was cared for by Sondra. This meant that Jesse was a child in need of aid and justified at least the temporary exercise of state custody over him.

Child-in-need-of-aid status is step one in a three-step process that can result in the termination of parental rights. The third and final step is a parent's failure to remedy within a reasonable time the condition that made the child in need of aid. The second *1249step is that the state must make reasonable efforts to enable the safe return of the in-need-ofaid child to one or both parents. These reasonable efforts should be aimed at helping a parent remedy the condition that caused the in-need-of-aid status. If the efforts succeed, the condition will be remedied, the final step will not be reached, and the parent's rights will not be terminated.

As noted above, the condition that caused Jesse to be a child in need of aid was that he was at risk of physical injury from Sondra. This condition could have been remedied by Burke if he had separated from Sondra and made arrangements to care for Jesse in a way that protected Jesse from risk of injury by Sondra. Our case law contains examples where state social workers have advised a parent to separate from a live-in partner where the continued presence of the partner could result in the termination of the parent's rights.1 But no such advice was given to Burke.2

In many cases efforts at reuniting parent and child are likely to fail because of the nature of the parent's problems. In such cases, the reasonable efforts requirement can be satisfied by making efforts that are relevant to the problem that has caused child-in-need-of-aid status even though there is not much hope that the efforts can succeed.3 *1250But this is not a typical case. Burke has no obvious problems that make him an unfit parent. He is a man who, as the superior court found, works "long hours in the fish processing facilities in Kodiak." He is not addicted to drugs or alcohol and is not sexually or physically abusive. And while Burke was not an ideal parent, there is considerable evidence of his parental involvement. The superior court noted Burke's contributions at the April 2005 adjudication - hearing: "[Burke], the children's father, provides a great deal of support. When he is at home, he shoulders many of the responsibilities for cooking and laundry and for childcare." Case worker Rush, who was in the household quite a bit in 2004, also noted Burke's parental support:

[Burke] did grocery shopping, he did the laundry, you know, when he got up in the morning, he would get [Billy] up, make sure [Billy] was ready to go, you know, just kind of help [Sondra] make sure all the kids were ready to go when they needed to be ready. Before he walked out in the morning, he just made sure everybody was up. So he got [Sondra] up and made sure all the kids were up before he left in the morning. ... He works at the cannery, so he worked odd hours, but he tried to make sure he was available, you know, left early morning, and then in the evening, and then they'd let him off for-for lunch to pick up the kids during summer camp, and sometimes in the evening. I've stopped by there a couple evenings, and he was cooking dinner, or he was getting dinner ready. So he was doing his part of the share of house-house keeping chores and making sure things were going okay.

In the case plan that the state developed for Burke on June 2, 2005, the state identified only two interrelated "concerns" with respect to Burke: (1) he had not demonstrated an ability "to interact with his family on a positive basis" and (2) he had "not developed the skills necessary to positively interact with his children or find ways to spend quality time with them." These are common shortcomings among parents. They are not the reasons why Jesse was a child in need of aid, nor are they reasons that would stand in the way of the safe return of Jesse to Burke.

The overriding concern that resulted in Jesse's in-need-of-aid status was that Sondra could not be trusted to be left alone with Jesse. So long as Burke and Sondra remained a couple, Jesse could not be returned to Burke. In the face of this concern, Burke needed the frank advice that unless he separated from Sondra he could not regain custody of Jesse and his parental rights were likely to be terminated4 I think that any *1251reasonable effort at reuniting Jesse with Burke necessarily would have included this advice. Since it was not given, I would hold that the reasonable efforts requirement was not satisfied and reverse the order of the superior court.

. See Ruby A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., Mem. Op. & J. No. 1152, 2003 WL 23018276, at *1 (Alaska, December 29, 2003) (noting that the parent's OCS social worker told her that unless she evicted her boyfriend, who had sexually molested one of her children in the past, she would lose immediate custody of her children); V.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., Mem. Op. & J. No. 1124, 2003 WL 393768, at *1 (Alaska, February 19, 2003) (finding that the father "has been repeatedly and explicitly warned by ... the social worker, and the court that if [the substance-abusing mother] remained in his home, his parental rights would likely be terminated").

. Ironically, there is evidence suggesting that Burke stayed in his unhappy relationship with Sondra for the sake of the children. Case worker Rush described their relationship as follows:

And [Burke] made it very clear that they were not going to get married and at the time that he was going to stay there with [Sondral, help her with the kids, and they would work on their relationship as time goes on, but I think they have decided that their best interest is the children, and they could remain just friends, and take care of their kids, and that they would not [sic] have a platonic relationship, and that they were not going to get married. ("sic" in original.)

Thus, it seems that Burke for the sake of his children may have chosen to do the very thing that caused him to lose them. This underscores the fact that he needed sound advice from OCS.

Today's opinion seeks to cast doubt on this conclusion by noting that Sondra at one point told Rush that Burke only wanted her for her money. Op. at 1247 n. 29. The court seems to be suggesting that instead of staying with Sondra for the sake of the children Burke was staying with Sondra for personal enrichment. No witness, not even Sondra (who testified that she spent the boys' PFD money on clothes, shoes, a computer, and back rent), testified that this was so, and Rush's account of what Sondra told her does not support any such inference. According to Rush, Sondra did not make these statements at the time that Burke told Rush that the couple had decided to stay together because of the children, but at another time when Sondra was dissatisfied with their relationship and was considering leaving Burke. The Q & A between counsel for the guardian at litem and Rush on this point was as follows:

Q And did she, at times, tell you that she felt like he only wanted her for her money and always was asking her for her Social Security money?
A To pay-to pay rent, to help him pay rent and stuff like that, correct.
Q Did she also tell you that he asked her for the boys PFD checks?
A Yes, he did.
Q And what was he intending to do with them, according to her?
A She felt like he was going to take off and go back to Laos to visit. He wanted to do a burial celebration for his grandparents or father. I can't remember which one it was.

Later in the same examination Rush confirmed that as of the time of trial in May 2006 Burke and Sondra were making sincere efforts to stay together in the hope that the children would be returned: "[Tihey appear to be really working on their relationship and the communication to maintain that, and to continue to work on that so that if the kids come back in the home, they will do better."

. I am less convinced than the court that Burke was unreceptive to the remedial suggestions of OCS. Burke completed the parenting class and participated in the couples counseling until it was discontinued because he tended to dominate sessions and had attendance problems. The court twice suggests that Burke did not enroll in individual counseling after it was suggested by OCS. Op. at 1245, 1246. But the record is unclear on this point. When asked about the matter, Brenteson testified "I can't honestly re*1250call if [Burke] actually did any individual counseling." Thus, we know that he successfully completed one of OCS's suggested programs, attended another with less successful results, and compliance with the third-whatever it might have consisted of-is simply unclear.

. Burke testified that the social worker assigned to his case, Jan Brenteson, never told him what he needed to do in order to regain custody. He testified that Brenteson

never have no conversation with me, you know. She never tell me what I should do to get my kid-what I do-what I do wrong or what. You know, no communication, you know.
Q So, since December of 2004, have you known what you're supposed to do to get your children back?
A No, I don't know. I don't know nothing.

When Brenteson was in the process of taking the children from the home Burke asked her to leave the children with him. He testified that he received no response and felt powerless to act in the face of authority:

[Slomehow Jan [Brenteson] come into my house-I going take your kid away from you, I say why, what I do wrong to my kid. Then I asked her, Jan, if you think there some-if you know if-can you leave my kid here at home with me and can you take [Sondra] somewhere else and just emergency for her if she get well, and she come back, you know, with my kids and she don't talk to me. She just took my kid away from me. And I don't know until I have to go to court next day then I know what's going on and well, what can I do. I don't know nothing. I just do what they want me to-I mean do what they want to do because I have no right to say nothing to her especially when the police go. over there, so I don't. They got power; I don't have power.

Burke further testified that his requests for additional visitation were also denied and that again he felt that there was nothing he could do:

Q And have you had any concerns about what the-the way the visits have happened?
A I been thinking a lot and how do I going to open-how got I have-some kind of key to talk to Jan that I can see more my kid in the kind of-see more my kid when I like to *1251visitation more, but I just don't-because Jackie [Rush], you know, I just don't want to-I always like talk to Jackie. Jackie, can you find some kind of door or window to get to Jan's office. Let's see if I can visit my kid more, you know. And I just-I don't know. I don't have no answer from anybody. It just-I just-what I do is tell [Sondra], [Son-dral, you do what you like at home, okay, just try to make yourself comfortable, and I going go work-fight for my bill now, you know, and just do what they want us to do. One time-one hours a day-a week-it's okay, you know. That's all we can do.