- [Baliff] The Honorable Justices of the Supreme Court
of the State of Alaska.
- [Chief Justice Carney] You may be seated.
- The Supreme Court is now in session.
- Good morning.
We are here on the record in
a case that we will call Jayce B.
versus State Office of Children's Services.
Ms. Cella, you're here for Jayce
and Ms. Wolff is here for OCS.
Ms. Cella.
- [Counsel Cella] Thank you.
May it please the Court.
My name is Rachel Cella
from the Public Defender Agency.
I am representing the father, Jayce B.,
in this appeal from the termination
of his parental rights.
As I prepared to discuss this case today,
it occurred to me that what went wrong in the trial
court and what I perhaps did not adequately brief is
the fact that ICWA is a remedial statute.
It's got to be interpreted in light of the problems
that it was designed to address and in recognition
of Congress's explicit finding that compliance with
ICWA is in an Indian child's best interest.
As Justice Gorsuch explained in his concurrence
in Holland versus Brackin,
ICWA did not emerge from a vacuum.
In 1978, Congress passed the Indian Child Welfare Act
to curb, "abusive child welfare practices that
had led to the unwarranted destruction of Indian
families and thus posed an existential
threat to tribes."
Years of hearings and investigation leading up to the
law's passage revealed that Indian children were
removed from their families at significantly higher
rates than non-Indian children,
that they were often placed in non-Indian foster care
and adoptive homes, and that this caused long-lasting
harm to the children who lost their Indian identity and
to the tribes who were deprived of their only real
means for the transmission of tribal heritage.
And they revealed that these removals were often
unwarranted, driven by a lack of culturally competent
state child welfare standards for assessing the fitness
of Indian families, systematic due process violations
against both Indian children and their parents
during child custody procedures,
economic incentives favoring removal of Indian children
from their families and communities,
and social conditions in Indian country.
In short, as Justice Gorsuch says,
the mass removal of Indian children from their families
during the 1950s, 1960s,
and 1970s by state officials and private parties was
only the latest iteration of the atrocious coercive and
assimilationist policies used by the federal government
to eradicate tribes for at least the past century.
- Ms. Cella, we have on occasion noted
all of this, so we are aware of that.
So where are you going with it?
- Where I'm going with that is that while the court has
discussed the issue in most recently in December
in Jada A, there was a reference to it,
and also in Sissie A and also in Mona J,
the trial court does not appear to have truly
understood these historical purposes in interpreting
the provisions at issue here.
And we see that because of the way that the trial court
analyzed both the active efforts finding and the way it
analyzed the harm to serious
damage to the child finding.
The problems that ICWA was
designed to address are persisting.
Disproportionality is still a problem in Alaska,
the Disproportionality Index,
which is published by the
National Center for State Courts.
- [Justice Henderson] So Ms. Cella, I understand,
I certainly understand the reasoning behind looking
sort of more broadly at what's going on
and the purposes behind ICWA.
But I think what would be maybe most helpful for me at
least is you started to reference the way that the
trial court addresses these particular issues.
And if you can point to sort of exactly where that is
and how you would refute the state's argument about how
we should take those findings and those conclusions,
that would really be helpful to me, I think,
in understanding, better understanding your argument.
- Sure.
So looking first at the active efforts finding,
clearly what the court did was rely inappropriately
on an adoption case, Bernard A.
And in doing so, it revealed that it fundamentally has
a misunderstanding about the fact that ICWA itself has
been decided by Congress to be advancing
an Indian child's best interest.
It's compliance with ICWA and the active efforts
standard that actually advances the best
interest of children.
But the trial court instead appeared to look at the
best interest finding as a justification for departing
from the high standard of proof
required in the active efforts context.
And I think we see that in the actual statement that
the court made when the court said first it was
discussing Bernard A. initially in the China findings
regarding substance use and abandonment.
The court said, I think the testimony was he's been
working well with a foster parent,
having contact with the child,
that the contact the child's father has had with him
has been erratic, not always when it was set up.
And there have been times when that's been very
difficult for the child,
which actually there's no testimony
to support that finding, by the way.
In fact, the foster parent denied.
- Ms. Teller, where are you in the transcript?
- That is at Transcript 627.
The court went on to say that the age of the child
makes this particularly problematic because there are
cases and there's case law regarding how the age of a
child being something the court should consider
in terms of considering a child's best interest.
And even if perceived fairness to the adults in the
case is an issue that is secondary to the best interest
of the child,
that's the Bernard A. case.
- [Justice Borghesan] So, Ms. Teller, did you want to,
why don't you finish your point?
- So that was regarding the China finding,
but the court went on to address it specifically
in active efforts.
The court said it understood that the GAL believes that
there should be additional time because in the
GAL's opinion, and of course, Jayce's opinion,
efforts had not been adequate,
particularly in light of the progress that Jayce made.
But again, with this child being three
and with the court having to put, you know,
consider the best interest over
the perception of fairness to the parents,
the fairness to the parents lies in the standards
the court has to meet.
- So let's assume this is an error,
a legal error that the court made in sort of conflating
best interest analysis with active efforts analysis.
You referenced Jada M a few minutes ago.
That was, I think, a case where there was confusion
about whether the trial court had applied the
correct standard, kind of conflated reasonable
and active efforts standards in its analysis.
And we ruled that, well, nonetheless, whether,
you know, certain efforts rise to the,
whether they're factual findings is one thing and
whether they're wrong is one thing,
but whether the facts found rise to the level of
meeting the active efforts standard is
a different thing.
That's a legal question and we can actually review that
de novo and make that determination on appeal.
Would that be the same response to if we agreed with
you that it was legal error to consider this case and,
you know, use a best interest
concept in measuring active efforts?
Would it be, in a way,
harmless because we can apply the correct standard
on appeal to the facts found,
such as they are, by the trial court?
- I mean, I think that the court,
this court could certainly remand and alone based
on this legal error.
I think that the court has the authority to say,
you know, this was an improper analysis and because
of that we think it's necessary to remand.
But I do think that for the reasons you've articulated,
the question is, can this court, in effect,
review de novo whether or not this met the standard?
And I would argue that it didn't here.
And the reason for that is based on statements
that have been made about the level of proof that is
required to establish active efforts.
The BIA regulations describe it as active, affirmative,
thorough, and timely efforts.
And I don't want to belabor the factual record here
because I don't want to get lost in the weeds,
but I do think that what we see is sort of OCS taking a
garden-variety approach to these child need evade cases
when the information that they had available to them
through records that they introduced at trial,
through visitation records,
through the treatment records previously from Jayce,
through the criminal exhibits,
all of that indicated information to OCS that they
should have capitalized on in deciding
what efforts they needed to pursue.
And the problem here,
and I think I cited it in my brief,
is one that Justice Kristin identified
long ago in the John S.
Appeal and Dissent granted,
but the idea is that the assessment of efforts in using
all of the adjectives, active, affirmative, thorough,
and timely, or adverbs, whatever they are,
the point is it's a qualitative assessment.
And the point is that OCS,
and what's reflected in the state's briefing,
is that OCS sort of takes a catch-all
or kitchen sink approach in saying, look,
here's all the examples of ways that we left voicemails
and called and texted and wrote letters and did
diligent inquiries to find the parents.
But if you parse it out and put it into chronological
context, what you see is that each worker was really
just reiterating the same effort
that had previously failed.
And that's contrary to what
Mona J says is required explicitly.
When OCS encounters a barrier,
OCS is supposed to respond appropriately by pursuing
a different effort.
And that is what failed here,
because OCS had within its power the ability to go
to CITC and talk to the visitation people and wait
until visitation is over, wait in the lobby,
try to encounter Jayce,
try to encounter him and engage him,
because he actually did seek help.
As soon as, so initially he was quite engaged,
he was doing well at visitation,
his mother was involved, he was motivated,
and when he met with the two workers who were
initially the, Von Borstal and Michelle Fanning,
he actually did indicate to them, look,
here are the problems that I anticipate having,
here are the ways that I want to engage.
He was forthcoming, he was candid.
We don't see that with all parents in all China cases.
Then there's a problem.
He reveals in February 2023 to Von Borstal, look,
this is what I'm struggling with.
And there's no response to that that was effective.
He meets with her again in April.
No response to that.
I mean, what OCS points to is the fact that
she left some voicemails for him,
but what should have happened is that she should have
led him to, or perhaps transported him to the ITC if
she believed that it was necessary for him to obtain a
substance abuse assessment, which really was critical.
- Ms. Cella, it seems like we walk a fine line
though, because there is, I mean, understandably,
and certainly the requirement that there be
meaningfully responsive work by a caseworker
with someone who's struggling,
particularly in an ICWA case.
And yet some of what I'm hearing from you right now
really seems like hindsight tells us everything,
like this wasn't effective and this may have been
effective, and so OCS should have done this.
And that seems to demand more than perfection even.
I mean, looking backwards,
it may be more doable to sort out what is effective and
what is not, whereas in the
moment that can be difficult.
- I mean, I think that's problematic
to look at it that way.
I understand that that's a very forgiving approach
to OCS when what's actually required is for them
to internalize the information
that they've gathered.
This is all information that came to me.
It's information OCS had.
This isn't something that I am privy to
that the workers never had.
They're the people in the best position to,
and they're the experts in terms of offering services.
They have the discretion.
The reason they have the discretion is because
they're considered to be able to exercise
that discretion appropriately.
But when the workers themselves are simply repeating
the same tasks that the previous worker undertook,
that's not excusable.
That's the kind of thing that this court should
explain, that when we talk about affirmative, active,
thorough, and timely, what we actually mean is looking
at what the previous efforts have been made,
examining qualitatively how successful or not
were they, what can be done differently.
And the example that we saw in the case of where that
occurred very briefly was when OCS worker Madras
was saying, you know what,
maybe I should reach out to the grandmother to try
to get in touch with these people
and try to get her involved.
That is an example.
But it's one example in what is otherwise a quite
sort of standard approach to we'll call the parents,
we'll send them letters.
And then Madras himself,
he's conducting a diligent inquiry searching for the
parents when Jayce is at a halfway house.
This is the kind of thing that just illustrates,
I think, quite squarely that there was just one hand
did not understand what the other was doing,
and that's not what the active efforts burden requires.
If there's any other questions on that,
I'd like to move on because I know I'm going to run
out of time.
- Yeah. And you're well into the time
that you reserved for your rebuttal...
- I'll just attempt to...
- but I figure you know that.
- I do.
And I just want to touch on the other prongs because I
do think we have, you know, OCS has not met its burden,
but I think also that this court should examine very
clearly the question of whether they met the
other ICWA standard.
And I think that I raise several different reasons why
the court should reverse,
and I think the one that is most apparent and that
isn't really extensively briefed is the question
of whether there was compliance with Sissy A.
And this is really a variation on Sissy A.
In that case, it was the trial court that said,
I don't have enough information to be sure that this
causation experts' opinions are
not implicating cultural issues.
And here, what happened is if you read Sissy A,
it's almost like you can substitute Karen Morrison
for Marty Cranor in that case because the same types of
testimony were offered by Karen Morrison as the basis
for her concerns that there was harm.
And yet, the tribal experts were asked almost
essentially the same types of questions,
were asked the same types of questions
that were also at issue in Sissy A.
In that, they were vague, they were overgeneralized,
and they were not contextualized.
And the ICWA harm finding,
what's critical about it is to ensure, of course,
that any harms that the causation expert identifies
are, in fact, harms as defined by the tribe.
That is the point of the ICWA regulation.
That is the point of the statute itself.
That's not debatable.
And here, there just wasn't that kind of integration of
what Karen Morrison said was a problem and what the
cultural expert identified
as the concerns the tribe had.
There needed to be a much greater level of granularity
about, for example, when Karen Morrison says, well,
in my opinion, Jayce needs to attend substance abuse
treatment for at least a year.
There was no discussion of whether treatment for at
least a year was, in fact, considered necessary
by the tribe.
And it's that kind of integration that needs to occur
in order to ensure that the causation expert's opinion
is not, in fact, resting upon inappropriate assumptions
about what constitutes a harm.
The purpose of the finding is to look at,
are there ways to, first of all,
is to figure out what does the tribe conside,r within
its framework, a harm that would warrant permanently
removing a child from the parent's custody.
And another purpose of that, of course, is to say,
well, we identify this in our Eurocentric viewpoint
as being a problem, but, in fact,
there's ways to mitigate it.
And the example that Sissy A talks about is maybe there
would be testimony about extended family involvement
in the case.
And that's the kind of thing
that also did not happen here.
There was no attempt to actually look at whether Jayce
was not making a mistake when he was essentially
understanding that his mother could take care of his
child for a period of time and that his mother was
integral to child rearing and that his father was too.
Yet, OCS continually returns to this idea that the
grandparents' involvement was somehow problematic,
not that it was actually within the norms, perhaps,
of the Crooked Creek Tribe.
And if it wasn't, then the
OCS expert needed to establish that.
The cultural expert needed to testify to that.
But there just wasn't that level of testimony.
So I think that the finding
should be reversed under Sissy A.
I identified other reasons that
I think the finding should be reversed.
And I do think that there are problems with the way
that the qualified expert witness prong
is being interpreted.
And I would urge the court to look at the Montana case
KH, because I think that the important gloss that that
case gives us into Section 1912(f) is that
they identified that the point of requiring
cultural expertise, even from the causation expert,
is because whether a parent is going to continue
to harm a child is itself informed by culture.
And I thought that was something I had never really
thought about, the fact that this is a predictive
finding that the expert is supposed to make,
the causation expert.
What is the harm?
Is the harm going to continue?
Culture informs a parent's behavior.
And that's what's significant about even the causation
expert needing to have, I think,
the relevant cultural expertise.
And I realize that would be an extension of this
court's case law and that it's not discussed in the
briefing the ways that that would potentially undermine
what this court has said in Oliver and April.
However, I think for the reasons in KH,
this court should do that.
I think what we see is that this case is illustrative
of the fact that what this court has said in previous
cases is still not working,
that we see this disconnect between this court
as familiar, as Justice Carney told me,
with all of the history of what happened here.
But it's less certain whether the trial courts have
truly internalized the history and understand that that
is the lens through which they
need to review these cases.
So I'd urge the court to consider the import of KH,
which was, by the way,
decided under the 1979
interpretation of the guidelines.
And the reason I mention that is because under those
guidelines, the third guideline allowed the witness
to be qualified when they had
substantial expertise in an area.
And the KH court still said, even under that guideline,
which was the old way under Marsha V.
of looking at things, we still think,
as a matter of state law,
that there needs to be additional cultural testimony.
And I think here, Karen Morrison said that she
testified some 600 times as an expert,
and yet looking at her resume, she has very little,
if any, experience that would lend her the ability
to opine on this question.
And if you're going to maintain the dichotomy,
the causation and the cultural expert,
then it really just makes it that much more important
to insist that when someone like Karen Morrison comes
into court and says, I'm concerned about the bond,
that the cultural expert is examined about that precise
question and the other things
that the causation expert identifies.
So I'd urge the court to reverse for
all the reasons in the briefing.
And I don't know if I'll have any time,
but I hope the court will indulge me.
Thank you.
- Ms. Wolff.
- [Counsel Wolff] Good morning.
May it please the Court.
My name is Laura Wolff, representing OCS,
and here with me is Ms. Pickett,
the standing aunt for Ms. Wilson
representing the native village of Crooked Creek.
The tribe agrees with the state on this issue,
and I just want to put that out as a forefront because
I think that's relevant to Jayce's grandstanding
about the purposes of ICWA,
and the purposes of ICWA are really important,
and OCS takes them really importantly.
But that is quite relevant in this case.
So I'm here to discuss efforts,
the section 1912(f) finding,
and then also if there's time and if this court wants,
also to kind of so reply to two points in the reply,
one about the qualification of experts and one about
what non-evidence can be used for in a brief.
- Can we actually just as a threshold matter talk about
some of the evidence and non-evidence points because
that was raised in the reply brief.
- Sure.
- You know, I think some portions in the briefing,
your brief relies on I think statements or assertions
that were made in the expert
report that was admitted into evidence.
- That was admitted in full.
Mm-hmm.
- Was it admitted full?
Because I thought what the judge...
There was an objection,
and the judge specifically recognized there was
hearsay, then recognized that experts can rely
on hearsay to form their opinions,
then said I will give it what weight it deserves
in that light.
And does that mean that some of the things about what
happened during visitation or whether Jayce wanted a
child with, you know, his, I guess, or.
- No, I understand the question.
- I'm sorry, the child's brother,
whether one of them in the same home,
is that actually admitted for that purpose?
- Yeah.
So I think it was admitted in full.
These objections are... I mean,
almost every attorney will object in this regard,
and oftentimes the objections are sustained,
and the sustaining objection looks like something
like I will admit this for the purposes only of the
opinion, and I will not take into account the hearsay
for the truth of the matter stated.
That's generally what the courts will do
if they sustain an objection.
This court didn't do that.
This court said I'm admitting it,
but I might not give the hearsay basically a
lot of weight.
So I'll give it the weight that's due.
And that, in addition,
if you look at Jayce's appellate brief,
Jayce's appellate brief cites a lot of hearsay because,
from the same report,
both in the facts section and in the arguments section
because it's helpful to Jayce.
So I think we're all on the same page,
and it was admitted in full,
and to the extent that that,
you think that was an error because the court could
have sustained the objection, that's waiver on appeal.
Yes.
- No, I think you answered my question.
I guess I'm not, I'll mull it over and look at the
transcript because I wasn't sure that I read the
court's ruling as admitting it in full,
but I'll go back and look at it.
- I think admitting it but giving the weight it
deserves is admitting it and saying I just might not
give much weight to the hearsay
but that I am admitting it.
So what can you use non-evidence for?
If you want to start with that, we can do that.
I think there's undisputed context in fact section that
doesn't really go to any challenged finding but it just
gives the reader some context like by early October the
child was placed with Allie.
We could triangulate from an order and testimony but
we try to make it the clearest possible.
That's one kind of section.
Another category is judicially noticeable facts like
whether or not a parent is present at a hearing.
That is absolutely judicially noticeable although this
court could independently take judicial notice of it
and I would look to Julian F.
2019 case where this court did just that.
In this case, the trial attorney for OCS actually asked
an opening argument at page 314 or 413 to say hey,
Jayce has only been to 3 of 20 hearings
and you should consider that
in your findings as well.
There's also attorney concessions and I want to make
clear how we're using this.
On appeal, Jayce argues that if only OCS had done more,
it could have reached Jayce because Jayce was motivated
and wanted to be reached and I think that argument is
really undercut by the attorney concessions
below saying I can't reach Jayce.
There's also an assertion from a status hearing
that was discussed in admitted evidence,
the admitted evidence being
Ms. Morrison's report on Excerpt 91
and that talks about the worker
spoke with the grandmother and said hey,
can you please ask the parents if we can meet in your
house and the grandmother agreed to do this and then
there's a discussion of more efforts, unsuccessful, but
directly trying to reach the parents and then it says
at a court hearing on November 17th, 2023,
the grandmother reported that the parents were visiting
Jonah on occasion at her home so we also cited directly
to that which was referenced in the admitted evidence.
I think one other just kind of overarching theme to
think about is the reason why evidence rules apply
to China proceedings.
It's to make them fair, right?
So people have notice of disputed evidence that could
be used against them and they can poke holes in that
evidence and none of those principles are appended by
using the information as the state does in this brief.
Getting back to the actual issues really on appeal
instead of that kind of side issue,
as far as efforts go,
if you look at the trial court's oral decision,
I just don't think reading
the incorporation of Bernard A.
into efforts is actually what the court was doing.
It was actually talking about one,
the best interest and also the China finding of whether
the parent had remedy of the conduct and whether you
should have more time and maybe if there were
more time, which is I think what the GAL was saying,
maybe if there was more time,
maybe more time and more efforts,
maybe he could remedy and I think the court was
using Bernard A. in looking at
the best interests on the one,
just independent best interest and two,
whether it was a reasonable time.
- Ms. Wolff, isn't it problematic that we are talking
about what we think the trial court may have been doing
in interpreting the laws
to these different requirements?
It seems inexact, certainly,
in various places and when discussing
various requirements,
maybe start stiving in but really doesn't get into a
lot of tying in the facts of the case,
which to be fair, the trial court said I'm not going
to get deeply into the facts, and then comes around
to but, the child's best interest.
And we understand certainly that that's
the overarching principle in China cases
but the analysis felt very mixed
and the fact that we're talking about
what the trial court may
have been doing in applying the law feels problematic.
- I agree that it could have been more exact
and the trial court even says I'm issuing this
roundabout order, which is not ideal but back to
Justice Borghesan's point that it's harmless because the
way that this court can review it or will review it
anyway will erase any errors by just reviewing to make
sure that the evidence supports the China finding.
Sorry, the ICWA finding.
As for the efforts, I mean,
I kind of do want to belabor the factual record a
little bit because efforts are really about,
they're very fact intensive.
The state's brief lays out the efforts in the argument
section, trying to do it a little thematically and if
you want a more chronological timeline,
you can go to the facts section, but, looking
at communication, OCS tried
numerous means of communication.
It wasn't just calling and texting,
it was leaving voicemails and calling
with reminder appointments,
it was contacting probation,
it was searching through VINELink,
it was asking family members to pass messages,
it was visiting Jayce in prison,
he would have kind of short prison stints often.
- Ms. Wolff, doesn't prison kind of work
both ways for both parties?
If you're in prison, your access to services
and visitation are limited, right?
But you're there.
It is extremely easy to make contact, correct?
- Yes.
- OCS clearly missed some of those
opportunities, did they not?
- It made some of them
and it missed some of them.
That is correct and I think that you have to look at
the entirety of the case and you're very upfront
with there were some flaws.
I think the second time he landed or maybe
the third time he landed in prison with Mr. Marjoris,
so Mr. Marjoris visited him in prison when he was there
and then he was able to serve him
with a termination petition.
I think they were talking about maybe publishing,
they couldn't find him and then they were okay,
he's in jail, we can serve him.
And then I think there was some confusion about whether
he was released into the community on probation or
into a halfway home.
If you look at the transcript,
it seems that there was confusion.
- The halfway home is another place
where he can be contacted, correct?
- I don't know that they realized he was in a halfway
home and they should have based on,
you know, looking back.
- That's clearly on OCS.
- That is on OCS, yes.
And then there was one other time as well towards the
end of the case where the newer case worker should have
realized earlier than he did, than he was in prison.
But when you look at...
- But he hadn't been trained that VINELink
apparently even existed, correct?
Mr. Turpin testified, "I don't know about VINELink."
- I think he didn't know about
the automatic function on VINELink.
I'm not sure if he didn't know about VINELink,
but I'm not positive on that.
- So that whole jail time is essentially lost.
- Yeah, that was...
I think that was two months.
But when you look at...
which is, you know, two months,
but when you look at a case that's been on for,
you know, over two and a half years and all of the
efforts over the entirety of the case,
and also not only just the efforts to Jayce,
but also to the entire family,
especially if you look at your recent decision in Zeke,
just looking at the entire family and what you said
when someone is incarcerated,
there aren't as many services you can provide.
So for instance, one of the times he was incarcerated,
OCS was talking to Martha about permanency,
thinking maybe we could, you know,
reunify the family in that way without having the
parents necessarily having the full panoply of parental
rights, but still keeping kind of the extended
family unit together.
And just kind of an offshoot of that point,
OCS didn't think Martha's
participation was problematic.
OCS involved Martha right from the beginning, from
the case plan, when the second case plan that Jayce
was involved in, Jayce said, you know,
Martha is one of my main supports, and OCS had her,
you know, on the visit list, right?
And then OCS tried to get placement with her.
There were a lot of hiccups with that.
I think the brief explains kind of what happened.
But then eventually did place with Martha and was
trying to have permanency with Martha.
And then you have, again,
just going back to kind of all of the very fact-intense
efforts here, you know, there's case planning,
case planning with each parent, engaging both parents.
I...
- Well, OCS knew that he was a first-time father,
did they not?
- Yes.
- Does that matter to OCS?
- That's why they referred him to parenting classes,
and he did do some parenting classes.
So yes, it does, and they took that into consideration
and tailored the case plan accordingly.
I think also parenting classes were actually part of
one of his judgments as well for one of the two
assaults in the 700 pages in the record.
I'm not sure where.
- [Justice Pate] Counsel Wolff, you're in this area,
but going more to substance abuse,
the father's substance abuse problem,
there was a point at which a caseworker explained that
they told the father to do a
walk-in at CITC, right, an assessment.
Was there anything more done in that regard?
- So two things that, yes, I think on page 532,
that's Jayce's testimony, the OCS attorney asked,
did OCS ever set up a
substance abuse assessment for you?
And he said something like,
I missed the substance abuse assessment
that was scheduled.
So it's not entirely clear if he was saying, yes,
they did, and I missed that substance abuse that
was scheduled, or I set it up myself.
I think Jayce in his reply says, no,
I set that up myself.
And I was like, well,
it's not what the record actually says,
but it's unclear either way, right?
And so what his caseworkers, or one of his caseworkers,
I think Ms. Fanning said, of course,
I said I would call to make an appointment.
I offered that, but you have to have
a parent willing to accept that offer.
And so I think what we have is there was a substance
abuse assessment appointment that he missed that
was scheduled, and they also asked him to do walk-in,
gave him the number for the walk-in appointments.
I don't think the record bears out that a walk-in
appointment is you walk in and it's the same thing as a
phone call, and then you get scheduled for another day.
I think a walk-in is a walk-in appointment,
and you get a schedule for either that day or something
closer or else there wouldn't be a chance.
- But again, that's something you think,
like we're reading the tea leaves of what the
trial court thought.
- Right. And I think the, kind of, but the transcript
actually says, well, yeah,
there's an appointment like that he made really far out
after the termination trial,
but we have been telling
him about these walk-in appointments.
And it's not too much of an implication and stretch to
be like, yes, we've been telling him about these
walk-in appointments because he could
get the appointment sooner.
- So think it's a little…go ahead.
- So, Counsel, just following up,
I understand and I'll need to look at what Jayce
testified to, but I'm focused on OCS's efforts,
their affirmative efforts.
Here the reference was he could do a walk-in at CITC.
I would have talked to him about doing walk-ins.
Does active efforts,
would active efforts require more insight?
They should have gone in with him in that regard?
Is this a failure for active efforts?
- I don't think so, no.
This is one of the caseworkers testifying about this.
CITC walk-ins had been on his case plan for a while
and other caseworkers testified as well saying...
- Did anybody walk in with him?
Did anybody actually go that extra
step and escort him in?
- No, but Ms. Fanning said that she of course
told him that she could help him.
She actually could do it with him and help him.
She didn't say walk in.
I think she said maybe to call, to set up,
to fill out the paperwork.
And he said...he didn't accept that.
So I think there's a… You know,
Jayce later testified that he was stressed
out by everything that OCS was asking of him, right?
And so I think that that shows that he has to have
a little bit of buy-in in order for this to work.
- More particularly,
should OCS have gone ahead and set the referral even
though he kind of put it there for him to...
and then if he would not go with him, I mean,
does active efforts require that much?
- So I think transcript 532 should be read that way as
OCS actually did create one referral that he missed.
Because if you read the question and the answer
together, I think that's the cleanest reading
of what happened.
- But isn't the, I think the underlying point
Justice Pate is making that we regularly repeat almost
as a refrain, the difference between active and passive
efforts is passive effort is when OCS tells parents
what they have to do and active is when they go with
them and lead them through it.
And isn't that the question here?
If they say, well, you should go,
isn't that a classical run-of-the-mill passive effort?
- So there's a difference between someone saying, yes,
I will do this with you and someone saying, no,
I don't want that help.
And so if the first step is, hey,
do you want help filling out any of this paperwork?
Do you want help getting the referral?
Do you want help making these appointments?
And when you have that offer and the parent says no,
I mean, that's kind of your answer.
The parent says no.
- We're also talking about two
different points in time.
It seems like that was going on early in the case and
then later when there's more engagement by Jayce and
there's maybe the missed appointment
but then, hey, they do walk-ins.
That seems like a prime opportunity to say,
do you need a cab?
Like what do you need to get there?
- So you're talking about January,
the month before the termination trial,
which is still...efforts is still continuing up until
that, you know, up until there actually
is a termination.
I think that, again,
that could have happened but given the entirety of the
case and all of the different efforts, that particular,
you know, non-excellent effort, I would say,
does not undermine efforts in the entirety.
A point about...
- [Justice Oravec] [crosstalk]
effort should be tailored.
If Jayce is saying he's overwhelmed and stressed out
and OCS is like, here's an 85-page list of stuff to do,
I mean, just think about people that are neurodivergent
and they just get overwhelmed and just short out.
So is OCS taking into effect,
you have a first-time father who's interacting
with an agency, he has other issues going on in his
life and here he is feeling all this pressure and OCS's
efforts are like text messages with a list of things to
do or phone calls or letters.
I mean, like, how is that tailored to his particular
circumstances throughout the case?
- So I think that your articulation of both the efforts
and, like, an 85-page list is just not correct.
It doesn't adhere to the facts here.
- What's OCS's response to someone that says,
I don't know how to do this, I'm stressed out about it.
What's their response to that?
- So there are different responses
even that you see here.
For instance, with Effie,
Effie didn't want...
- To him, I want to know about him.
What was their response to him particularly?
Because it seems to me like the bust is,
are we going to say mid is active or not?
Because there's definitely, you know,
some opportunities, perfection's not the standard, but,
like, it's clearly not perfect, but is it mid?
Is it just kind of normal range or are we actually
tailoring it to the particular circumstances?
What stands out to me at this case is that
Jayce will have these periods of, like,
really trying hard and he's new.
And then he goes silent and missing.
And then, but when he comes in, he's fully engaged.
He wants visitation.
He's trying to do these things.
So is OCS looking at him and saying,
this is someone that's got some avoidance.
What can we do to make this work?
Or are they just saying,
we'll just keep trying what we've tried before?
And I'm trying to, I'm trying to,
I'm not being very articulate,
but when I hear someone that says this is really
stressful, I can totally understand why that would be
the case with a new dad that has other challenges.
And so I want to be able to put my finger on it
and say, this lack of perfection is okay.
Like, this is an okay level of lack of perfection
given what happened here.
And I'm just not seeing, like,
a strong way to put my finger on that.
So when he says, I'm stressed out,
I think this is overwhelming, this is stressing me out,
what is OCS's response to him particularly about, okay,
so let's start at the beginning or we'll start here and
then we'll do a little bit more.
How are they relating to that?
- So the appointment,
the case planning appointment they had when he said,
I was really stressed out for two months and I was
drinking and that's why I wasn't going to visits,
that's why I wasn't doing anything,
then OCS regroups and they regrouped here and
they said, okay, well these are the things that are
on your case plan, let's go through them,
let's go through them one at a time.
OCS didn't even put, you know,
anger management was part of his, for instance,
probation requirement and also on his case plan,
but they didn't even start that yet.
They were just looking at the bare minimum.
You said, you know, 85 pages of things to do,
it wasn't 85 pages of things to do.
- I'm just talking about someone that's…
- I understand, but I think that's important, right?
There actually weren't that many steps.
There was visitation,
there was substance abuse assessment and UAs,
those were, and keeping in touch with OCS,
those were the main points, right?
Because substance abuse,
that was the big problem,
that was the biggest problem here.
And so they're trying to tackle the biggest problem and
they have to figure out ways to do that and they said,
okay, substance abuse assessment, they gave him,
you know, he originally wanted to go to Jet Morgan,
they said we couldn't do that,
but here's another option because it's more flexible.
The CITC walk-ins, it gives you more flexibility.
If you're stressed out,
you're not going to miss an appointment.
You go when it's good for you.
So that actually is exactly tailoring it to someone who
is stressed out and has been missing appointments and
doesn't want to get more stressed
out about missing more appointments.
- I see I have...
- We've taken you well over.
If you want to take a moment to wrap up,
unless other people have questions.
- Yeah, any other questions?
I think, just one point,
this is not quite a wrap-up point,
there seems to be a new argument that the cultural
experts testimony actually was not robust enough or not
particular enough to point at specific,
supposed implicit bias in the
causation expert's testimony.
I didn't read that in the brief at all or below,
but the cultural expert is there so that there's
an opportunity also for those kind of arguments to be
made below and for cross-examination to pull that apart
and to pick out any particular implicit bias.
And that just wasn't done.
I think mainly because
Ms. Morrison is a pretty great expert
and I don't think has much bias, if any,
but there was an opportunity to do that.
For all the reasons in the brief,
I would just ask that this court affirm.
- Ms. Cella, you can actually have a couple
minutes back if you'd like.
- Thank you.
I appreciate it.
- Sorry for all the paper,
but I want to address the factual questions
that the state raised.
So looking at transcript 532,
this is the issue of who scheduled that assessment.
The question was, "Okay,
so do you recall a caseworker ever setting up that
substance abuse
assessment with you to take it?"
Jayce's response, "I missed the one I had scheduled."
That's ambiguous.
I mean, I think Jayce could be referring to the fact
that he had tried to schedule a substance use
assessment on his own.
And I think the state is asking the court
to fill in the gaps inappropriately.
I think that also happens when we look at what was
discussed with Ashley Von Borstal and
at transcript 365, 367.
That's where we get to this question
of when he disclosed that he was stressed.
And during those conversations,
what Jayce said to her was, "I just want to give up."
And Von Borstal's response was essentially to tell him,
call me when you set up your substance use
assessment because then I will
give them collateral information.
So there was not the kind of
effort that other courts have said.
And I mean, I don't necessarily like the analogy,
but there are courts elsewhere that have said that
active efforts is basically more than pointing
the parent in the right direction.
It requires leading the horse to water.
That's Yodell B.
from the New Mexico Court of Appeals.
In another case from the Utah Court of Appeals,
they said active efforts is leading the horse to water
and then making it drink,
even pushing its head in the water.
I don't like the analogy,
but I think the point is well taken and applies here
in that the efforts just did
not go beyond what was necessary.
- Counsel, for the 532 transcript,
you cited another transcript site, what was that?
- 365 to 367 is where...
- Thank you.
- Sorry, Michelle Fanning talks
about what Von Borstal said.
And I don't understand where the state is taking
the point in the record that Jayce ever
actually refused services.
The state did say that he refused.
I don't think that that's accurate.
I think what Fanning testified that OCS meets people
where they are, I don't think that there was ever
an overt refusal by him.
And I think that OCS should have at the stage
where Von Borstal's getting this feedback certainly
made additional efforts.
And I just want to address
very quickly that...
- Very quickly.
- Very quickly, there was one visit to prison
that's established in the record,
not several as OCS suggested.
I also want to point out that what the state describes
as grandstanding is really just asking the court
to enforce it was standards.
And the tribe's support is not dispositive.
In fact, it's just like any
other party's argument in the case.
If the tribe did support,
well obviously the tribe supported it,
but the tribe certainly could have asked more questions
and presented more evidence as well.
And I don't think the court should simply treat
the tribe's position as any different
than any other party's.
This court should reverse under both of the findings
and remand for further proceedings.
Thank you.
- Thank you.
Thank you both for your
helpful arguments and briefings.
We will adjourn until our next argument at [inaudible].