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C.W. v. State5/25/2001
No. 5415
I. INTRODUCTION
Finding that C.W. had abandoned his young child, J.S., the superior court terminated C.W.'s parental rights. C.W. argues that termination violated the Children in Need of Aid (CINA) statute and the Americans with Disabilities Act (ADA). He claims that the State of Alaska violated the CINA statute by failing to make reasonable efforts to reunite him with his son, and violated the ADA by failing to provide alcohol treatment services that reasonably accommodated his allegedly substantial learning disability. We reject these arguments because, even assuming the state had a duty to make reasonable efforts to reunite C.W. with J.S. after he abandoned J.S., the superior court did not clearly err in finding that the state fulfilled this duty with its reasonable but fruitless attempts to contact C.W. after he had abandoned his son for three years and lost contact with all those involved in his son's CINA proceeding. Furthermore, we conclude that this abandonment finding justified termination notwithstanding any of C.W.'s arguments regarding the ADA because his alleged learning disability has no bearing on the abandonment issue and he has not argued that the state's efforts in contacting him were unreasonable under the ADA. We also conclude that the superior court did not clearly err by failing to incorporate visitation into its order terminating C.W.'s parental rights.
II. FACTS AND PROCEEDINGS
J.S. was born April 30, 1993, to biological mother P.S. and biological father C.W. P.S. has a history of mental illness -- including manic depression -- and alcohol and substance abuse. C.W. has a history of alcohol and substance abuse and criminal violations -- including five convictions for driving while intoxicated and a no- contest plea to a charge of assault against P.S. In addition, a clinical psychologist, Dr. Frank Gonzales, testified that he performed tests on C.W., which show that C.W. has a verbal I.Q. of 73, has difficulty retaining information, and is "borderline deficient" in certain verbal skills.
J.S. was first taken into Alaska Department of Health and Social Services (DHSS) custody on July 17, 1995, after the Anchorage Police Department arrested P.S. for being intoxicated while caring for the child. After two days in foster care, J.S. was placed with his paternal grandmother. When DHSS took custody of J.S., C.W. was commercial fishing in Bristol Bay and was unavailable to care for his son.
In September 1995 DHSS caseworker Jason Allen located C.W. and explained the case plan to him. Allen testified that he perceived no lack of understanding on C.W.'s part and documented C.W.'s agreement to participate in the plan. C.W. did not challenge the case plan at that time.
In September 1995 both parents met with social worker Andrew Linn to discuss their case plan, and appeared intoxicated at the meeting. P.S. admitted using cocaine, and C.W. reported that he was scheduled for a substance abuse evaluation at Clitheroe Center. Linn sent both parents for a urinalysis test, which showed a high dilution rate and inconclusive results. On May 26, 1996, the superior court accepted the stipulation of both parents to CINA adjudication. Both parents stipulated that their substance abuse problems and C.W.'s absence from the home created conditions that placed J.S. at substantial risk of harm, and that although remedial services were being rendered by DHSS to promote reunification of the family, returning J.S. to the home would not be in his best interest at that time.
In 1995 and 1996 J.S.'s paternal and maternal grandparents shared custody. During this period, P.S. and C.W. were granted liberal
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