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K.N. v. State of Alaska (7/23/93), 856 P 2d 468
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Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
K.N., ) Supreme Court File No. S-4969
) Superior Court File
Appellant, ) 3AN-87-153/420 CP
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 3980 - July 23, 1993]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Jacqueline Bressers,
Anchorage, for Appellant. Steven D. DeVries,
Assistant Attorney General, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
MOORE, Chief Justice.
In this Child In Need of Aid (CINA) proceeding, Mr. N.
appeals the superior court's order terminating his parental
rights. We find substantial evidence in the record supporting
the court's decision and affirm.
I. Facts and Proceedings
A. Background History
The N. family has had a troubled history. Ms. N., a
native Alaskan, is an alcoholic who often leaves the family home
for extended periods of time. Mr. N. has a history of mental
instability which dates back to his discharge from the Air Force
for mental health reasons.
The Department of Family and Youth Services (DFYS)
became involved with the N. family in April 1987 after Mr. N. was
arrested for disorderly conduct, leaving no parent available to
care for the couple's first child, J.N. DFYS instituted CINA
proceedings and J.N. was subsequently adjudicated a child in need
of aid.1 Although a DFYS caseworker expressed concern over the
lack of stability in the home, the case was dismissed in
September 1987 because there had been no further instances of
neglect.
Shortly after the birth of the N.'s second child, K.N.,
Jr., in November 1987, both children were adjudicated children in
need of aid after Mr. N. was arrested for disorderly conduct a
second time. The court placed the children in the legal custody
of DFYS but returned physical custody to the parents. The court
also ordered both Mr. N. and Ms. N. to participate in counseling,
to use homemaker services provided by DFYS and to place the
children in Intermission2 rather than leave them unattended.
Pre-disposition reports identified Ms. N.'s alcohol
abuse as a major cause of the family's problems and underlined
her failure to participate in an alcohol treatment program and
counseling as ordered by the court. Both the social worker,
Buffy Gullberg-Williams, and the guardian ad litem, Colleen Ray,
recommended that the children be placed with Mr. N. After a
disposition hearing in May, the court returned the children to
the physical custody of Mr. N. The court also ordered Mr. N. to
continue his VA counseling and to use homemaker services to help
him develop single parenting skills. Later that summer, the N.'s
youngest child, N.N., was born.
Gullberg-Williams visited Mr. N.'s home one to four
times a week after the court returned physical custody to Mr. N.
She described Mr. N. as very loud and rigid in his views
(especially regarding the police), but she never observed any
delusional behavior. She noted that Mr. N. was rigid but not
inappropriate in his treatment of the children. Finally she
observed that although Mr. N. followed the treatment plan, he
resented DFYS involvement and was not completely cooperative.
Because she observed no child protection issues, legal custody
was returned to Mr. N. in January 1989 at DFYS's request.
DFYS kept in contact with Mr. N.'s family but did not
make any further home visits. In the spring of 1989, Mr. N.
entered into a voluntary placement program with DFYS to enable
him to work. He also used other community resource programs such
as Intermission. J.N. was enrolled in the Head Start program in
February 1989, however her participation in this program ended
when Head Start stopped providing transportation services after
Mr. N. displayed inappropriate and threatening behavior to staff
members.
B. Facts leading to final CINA petition
On April 24, 1990, Mr. N. drove his three children,
J.N. (age four), K.N., Jr. (age three) and N.N. (age two), to
Westchester Lagoon after having a fight with his girlfriend.
According to Mr. N.'s statement to the police, he let the
children out to play while he worked on his stereo, put gasoline
in the car tank and practiced Kung-Fu. He stated that he first
realized that his youngest son was missing when K.N., Jr. asked
him about N.N. After looking around the area, Mr. N. concluded
that someone had kidnapped his son.
Mr. N. then took J.N. and K.N., Jr. to DFYS's Anchorage
office around 4:30 in the afternoon. Highly agitated, he left
his children with a caseworker, shouting "you took my one kid,
now you're going to . . . take my other two . . . ." He then
returned to the lagoon with his girlfriend and went to the
Anchorage Daily News with a picture of N.N. The Daily News staff
called the police about an hour after N.N. had disappeared.
N.N.'s body was later discovered in the lagoon.
C. Pre-adjudication Proceedings
Following N.N.'s death, DFYS filed its final CINA
petition. After a four-day temporary custody hearing,3 Judge
John Reese directed DFYS to take temporary legal and physical
custody of J.N. and K.N., Jr. The court also ordered Mr. N. to
have no contact with the children unless authorized by DFYS.
Finally, the court found that DFYS had made active, albeit
unsuccessful, efforts to prevent the break-up of the family
before placing the children in foster care.
At the July interim review hearing, social worker
Thomas Garlock testified that Mr. N. had told him that he wanted
his children back and would do whatever necessary. However,
Garlock also stated that Mr. N. was very reclusive and had not
initiated any contact with DFYS. The court ruled that all
previous orders would remain in effect and again found that DFYS
was making reasonable efforts to reunite the family.
At the August review hearing, DFYS informed the court
that both J.N. and K.N., Jr. were in counseling and that DFYS was
seeking a psychiatric evaluation of Mr. N. DFYS also noted that
it was evaluating possible placement of the children with Mr.
N.'s relatives in Ohio. The court again found that DFYS was
making reasonable efforts to reunite the family.
In September DFYS filed a written case treatment plan
for Mr. N. This plan identified three objectives. First, DFYS
sought an updated psychological assessment of Mr. N. and required
Mr. N. to follow any recommendations the examining psychologist
might have. Once Mr. N. had made initial progress in individual
therapy, DFYS planned to initiate family therapy in order to work
toward DFYS's second stated objective -- allowing Mr. N.
visitation with the children. The final objective -- helping Mr.
N. develop a consistent and stable home environment -- was to be
implemented by providing Mr. N. with homemaker services once
visitation had been established and by requiring Mr. N. to
participate in parenting classes.
In November DFYS filed a Motion for a Psychological and
Psychiatric Examination after Mr. N. failed to sign the proposed
treatment plan. Mr. N. opposed this request on the grounds that
DFYS was seeking this evaluation with a view to terminate his
parental rights rather than to reunite him with his family.
Superior Court Judge Peter Michalski granted DFYS's motion on
November 14, 1990.
Despite this order, Mr. N. refused to obtain a
psychiatric or psychological evaluation until DFYS moved for
sanctions. Doctor Gregory McCarthy ultimately evaluated Mr. N.
during two sessions in March 1991.
D. Adjudication Trial
At the three-day adjudication hearing in March, Officer
Reeder reiterated his earlier testimony concerning his
investigation of N.N.'s death and J.N.'s statements about the
tragedy (that her father had put N.N. in the water because N.N.
had gotten his feet wet). Denise Albee, J.N.'s foster mother,
also testified to J.N.'s similar unsolicited statements to her.
Albee also testified that J.N. had told her of several incidents
where Mr. N. had hit the children. On cross-examination, Albee
confirmed that J.N. had also given other explanations of the
tragedy and that she no longer said that her father had put N.N.
in the water.
J.N.'s therapist, Christy Williams, testified that, in
her expert opinion, J.N. had suffered numerous episodes of
traumatic stress in addition to N.N.'s death and that these
episodes were related to Mr. N.'s inappropriate parenting (i.e.
excessive discipline and anger). She stated that it would be
contrary to J.N.'s best interests to have any contact with Mr. N.
until he could understand the impact his behavior had had on J.N.
She stated that J.N. was afraid of her father and did not want to
see him.4
Doctor Gregory McCarthy, qualified as an expert in
clinical psychiatry, testified at length concerning his
evaluation of Mr. N. He stated that his opinion was based
primarily on his clinical evaluation of Mr. N., but that he also
had relied on the referral materials provided by DFYS. Dr.
McCarthy noted that Mr. N. demonstrated paranoia in his thinking
and ideas of reference, reality distortion, and looseness of
association. He stated that Mr. N. denied having any psychiatric
problems and projected blame for his problems onto others.
According to Dr. McCarthy, these symptoms were consistent with a
diagnosis of paranoia or paranoid schizophrenia.
Dr. McCarthy observed that there is no cure for
paranoid schizophrenia, which is characterized by slow mental
deterioration. He expressed his opinion that Mr. N.'s mental
condition had deteriorated significantly in the last few years
and that his prognosis was poor. In his view, Mr. N. would have
to be stabilized by appropriate medication before therapy could
possibly help him. However, he expressed pessimism that Mr. N.
would follow through consistently with either counseling or
medication.
Although Dr. McCarthy emphasized that he had never seen
Mr. N. interact with his children, he believed that it would be
very difficult for a young child to grow up with a parent as
psychotic as Mr. N.
Gary Muromoto, a social worker at the VA hospital,
testified that Mr. N. had been attending counseling at the VA
since 1984 but that he had stopped in November 1989. Muromoto
stated that Mr. N.'s treatment issues were still unresolved at
that time.
Mr. N. presented the testimony of social workers who
had worked with his family during the 1988-89 adjudication
proceedings. These professionals observed that they had never
seen Mr. N. use inappropriate discipline and that they had
considered the children safe with Mr. N. at that time. Several
friends of Mr. N. also testified that he treated the children
appropriately.
In her written closing statement, Kathleen Wilson, the
guardian ad litem, expressed her pessimism regarding "[Mr. N.'s]
desire and ability to undertake treatment, given his paranoia,
hostility, and need for medication." Although she recognized
that, in the past, Mr. N. had been a "conscientious and caring
parent,"she did not believe that Mr. N. could be relied on "to
maintain a mental state sufficiently stable . . . to enable him
to be an adequate caregiver."
On April 2, 1991, the court adjudicated J.N. and K.N.,
Jr. as children in need of aid, by clear and convincing evidence,
pursuant to AS 47.10.010(a)(2)(A), (C), and (F).5
E. Subsequent Proceedings
At a May review hearing, Ms. N. reappeared and asserted
her desire to be reunited with her children.6 The court again
found that DFYS was making reasonable efforts to reunite the
family.
In June 1991 Mr. N. telephoned the Anchorage Daily News
and talked to the night editor, Andrew Ryan, about DFYS's
involvement with his children. Concerned by the nature of Mr.
N.'s comments, Ryan reported this call to the police department.
As a result DFYS decided that the children were not safe in their
present location and moved them to a new foster home. This
placement was unsuccessful. DFYS then decided to place them with
Mr. N.'s relatives in Ohio. Mr. N. opposed DFYS's motion for out-
of-state placement and requested a placement review hearing.
At the placement hearing, Christy Williams, the
children's therapist, testified that J.N. still expressed fear of
her father and needed a stable environment. In her view, J.N.'s
fears were related to excessive discipline which was abusive.
Williams testified that in therapy K.N., Jr. had
expressed more positive feelings about his father. However, she
also testified that K.N., Jr. exhibited symptoms of fetal alcohol
syndrome which increased his need for a stable and permanent
environment.
Finally Williams stated her opinion that Mr. N. could
not meet these needs as a single parent given his diagnosed
mental problems. She concluded that a permanent family placement
would be in both children's best interests.
The social worker assigned to the case, Brianne Surrey,
testified that Mr. N. had discontinued visitation with K.N., Jr.
in February 1991 and had discontinued his parenting classes. In
June and July, Surrey talked to Mr. N. about his treatment plan
and Dr. McCarthy's recommendations (possible hospitalization and
medication) but Mr. N. maintained that he had been misdiagnosed
and refused to take medication. Finally she testified that she
had tried to set up a treatment plan with Mr. N., but that he had
refused to cooperate.
Doctor Leon Janis, a VA psychiatrist, testified on Mr.
N.'s behalf. Dr. Janis started seeing Mr. N. regularly in July
1991. In his opinion, Mr. N. suffered from a schizo-typal
personality disorder, a condition less disabling than paranoid
schizophrenia. He did not believe that Mr. N.'s condition
required hospitalization, but recommended supportive therapy and
medication. He did not consider Mr. N. to be a danger to his
children in a supervised setting, but admitted that Mr. N. could
appear grossly psychotic at any time. In his own words, his
assessment of Mr. N. differed more quantitatively than
qualitatively from Dr. McCarthy's.
At the close of evidence, Judge Reese ruled, based on
clear and convincing evidence, that contact between Mr. N. and
his children would be harmful. In denying Mr. N.'s motion to
prohibit out-of-state placement of the children, Judge Reese
emphasized that the children needed a stable environment and
observed that Mr. N. had voluntarily suspended visitation with
K.N., Jr. The children were then placed with Mr. N.'s Ohio
relatives.
F. Termination Trial
In August 1991 DFYS filed a petition to terminate Mr.
N.'s parental rights and a hearing was held in December.7 At the
termination trial, Valerie Miller, Mr. N.'s first cousin,
testified that J.N. and K.N., Jr. had adjusted well to their new
environment and that she and her husband hoped to adopt the
children. She also stated that J.N. continued to express fear of
Mr. N.
The children's therapist, Williams, reiterated her
opinion that the children had special needs and that their need
for stability, continuity and security was very great.
Dr. McCarthy testified that his diagnosis of Mr. N. was
unchanged after reviewing Dr. Janis's testimony at the out-of-
state placement hearing and Mr. N.'s current VA medical records.
He characterized Mr. N. as actively delusional, extremely
paranoid and unable to meet the needs of a young child. He
reiterated his view that Mr. N.'s prognosis was poor, and
concluded that lengthy treatment would be required to stabilize
Mr. N.
Dr. Janis again testified on Mr. N.'s behalf. He had
seen Mr. N. five times since the September hearing. He
reiterated his earlier diagnosis of Mr. N. and his view that Mr.
N.'s condition was not deteriorating. He testified that Mr. N.
had agreed to take an anti-psychotic drug several days before the
termination trial however he did not know if Mr. N. had started
taking the medication.
Surrey, the social worker, reiterated by video
deposition her earlier testimony that Mr. N. had refused to
cooperate with his treatment plan or get a second psychological
assessment. She testified that she first learned that Mr. N. was
seeing Dr. Janis at the September hearing. She admitted that she
never had tried to contact Dr. Janis concerning Mr. N. but stated
that she would have worked to develop a new treatment plan if
either Mr. N.'s attorney or Dr. Janis had contacted her.
At the close of trial, the trial court terminated Mr.
N.'s parental rights. The court entered its written findings of
fact and conclusions of law in December 1991. This appeal
followed.
II. Discussion
Before a court may terminate parental rights in an
Indian child,8 DFYS must prove:
(1) by clear and convincing evidence that the
parental conduct that caused the child to be
adjudicated a child in need of aid is likely to
continue unless parental rights are terminated.
CINA Rule 18(c)(1); In re J.R.B., 715 P.2d 1170,
1172 (Alaska 1986).
(2) by evidence beyond a reasonable doubt that
custody of the child by the parent or Indian
custodian is likely to result in serious emotional
or physical damage to the child. CINA Rule
18(c)(2); 25 U.S.C. 1912(f) (1983).
(3) by a preponderance of the evidence that the
party requesting the termination of parental
rights has shown that active efforts have been
made to provide remedial services and
rehabilitative programs designed to prevent the
break-up of the Indian family and that these
efforts have proved unsuccessful. CINA Rule
18(c)(2); 25 U.S.C.
1912(d).
On appeal, Mr. N. argues that the superior court erred in finding
that DFYS had met its burden of proof on each of these
requirements.9 Mr. N. also maintains that ICWA requires DFYS to
prove "beyond a reasonable doubt"that DFYS's active remedial
efforts have been unsuccessful and that this higher burden of
proof preempts the preponderance burden set forth in CINA Rule
18(c)(2).
The findings of the superior court in CINA cases will
not be overturned unless this court, after reviewing the entire
record, is left with a definite and firm conviction that a
mistake has been made. In re S.D., Jr., 549 P.2d 1190, 1195
(Alaska 1976).
A. Did the superior court err in finding that Mr.
N.'s inappropriate parenting is likely to continue?
The trial court found by clear and convincing evidence
that Mr. N.'s conduct, a product of his mental illness, was
likely to continue, and indeed worsen, in light of the
seriousness of his condition and the increasing stress of
parenting his growing children. The court commented that
[Mr. N.'s] explosiveness, his tendency
toward violence as well as his preoccupation
with the paranoid delusional thoughts which
allow him to neglect the children are all
going to continue and in fact increase.
On appeal, Mr. N. contends that the evidence
demonstrates that he could successfully parent his children given
appropriate support services. Relying on Dr. Janis's expert
testimony, he argues that his condition is less severe than
paranoid schizophrenia and that it has not deteriorated since
1988. He then concludes that the 1988-89 positive evaluations of
his parenting capacity are compelling evidence of his future
ability to parent.
On the record presented, we conclude that the court did
not err in finding that Mr. N.'s inappropriate parenting was
likely to continue. At the termination trial, Dr. McCarthy
stated that even after reviewing Dr. Janis's testimony and Mr.
N.'s current VA medical records, his negative assessment of Mr.
N.'s condition and prognosis remained unchanged.
Because the record links Mr. N.'s continuing mental
illness with his past instances of extreme neglect, Judge Reese
understandably found that Mr. N.'s improper parental conduct was
likely to continue. We emphasize, however, that mental illness
alone is not conduct and may not form the basis of a termination
order. See Nada A. v. State, 660 P.2d 436, 440 (Alaska 1983)
(trial court erred in terminating a mother's parental rights
simply because she suffered from an impulsive personality
disorder).
B. Did the superior court err in finding that custody
by Mr. N. is likely to result in serious emotional or
physical harm to the children?
The trial court concluded that
[Mr. N.] has harmed the children emotionally
and physically in the past. And I believe that
the evidence shows beyond a reasonable doubt that
the children would continue to suffer substantial
and serious harm in the future, physical and
emotional, if they were placed with him.
Mr. N. attacks this finding in several ways. First, he
argues that the evidence of past physical harm is based solely on
the children's unsubstantiated hearsay statements. Second, Mr.
N. argues that DFYS has failed to show that the children have
been emotionally harmed by his conduct. He emphasizes that K.N.,
Jr. has positive feelings about him and wants to see him. He
attributes J.N.'s negative feelings to the fact that J.N. has not
seen him since the day N.N. died. He suggests that her fears
stem from this single incident. Finally Mr. N. attacks the
children's therapist's assessment on the grounds that her
information on Mr. N. was filtered through DFYS.
Mr. N.'s arguments are unpersuasive. Both Dr. McCarthy
and the children's therapist clearly considered that Mr. N.'s
paranoia and related conduct would emotionally harm the children.
There were also numerous reports of excessive and inappropriate
discipline. Taking the record as a whole, there is sufficient
evidence to support Judge Reese's finding.
C. Did the superior court err in finding that active
remedial efforts had proven unsuccessful?
(1) Burden of proof10
On appeal, Mr. N. argues that ICWA requires proof
beyond a reasonable doubt that active remedial efforts have been
unsuccessful. Further he argues that the preponderance burden
set forth in CINA Rule 18(c)(2) is preempted because it is
inconsistent with the fundamental purpose of ICWA -- to prevent
the breakup of Indian families.
Section 1912(d) of ICWA provides:
Any party seeking to effect a foster
care placement of, or termination of parental
rights to, an Indian child under State law
shall satisfy the court that active efforts
have been made to provide remedial services
and rehabilitative programs designed to
prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.
25 U.S.C. 1912(d) (1983). On its face, this section does not
conflict with the preponderance burden required under CINA Rule
18(c)(2). However, a number of courts have ruled, albeit without
much analysis, that the beyond a reasonable doubt burden also
applies to proof of active remedial efforts. See In re S.R., 323
N.W.2d 885, 887 (S.D. 1982) (where the South Dakota Supreme
Court "assume[d] that the same burden required to prove serious
emotional or physical harm under 1912(f), beyond a reasonable
doubt, would also be required to prove active efforts by the
party seeking termination."); see also In re Kreft, 384 N.W.2d
843, 848 (Mich. App. 1986) (adopting the S.R. holding without
analysis); In re P.B., 371 N.W.2d 366, 372 (S.D. 1985).
We are unpersuaded by these authorities and conclude
that this interpretation is inconsistent with both the plain
language of the statute and the relevant legislative history.
[Section 1912(d)] provides that a party
seeking foster care placement or termination
of parental rights involving an Indian child
must satisfy the court that active efforts
have been made to provide assistance designed
to prevent the breakup of Indian families.
The committee is advised that most State laws
require public or private agencies involved
in child placements to resort to remedial
measures prior to initiating placement or
termination proceedings, but that these
services are rarely provided. This
subsection imposes a Federal requirement in
that regard with respect to Indian children
and families.
H.R. Rep. No. 95-1386, 95th Cong., 2d Sess. 22 (1978), U.S. Code
Cong. & Admin. News 1978, p. 7545; see also In re Charles, 688
P.2d 1354, 1354 (Or. App. 1984) (finding that the purpose of
1912(d) is to require an affirmative showing by the state that
active efforts to reunite the family had failed). Thus we reject
Mr. N.'s argument and hold that the standard of proof required is
a preponderance of the evidence.
(2) Sufficiency of the Evidence
The trial court found that DFYS had met its burden of
proving that reasonable efforts had been made to reunite the
family. Mr. N. maintains that DFYS decided to terminate Mr. N.'s
parental rights immediately after N.N.'s death and that all
DFYS's subsequent efforts were geared toward termination rather
than reunification.
However the record indicates that Mr. N. refused to
follow Dr. McCarthy's recommendations as outlined in the
September 1990 treatment plan or cooperate in setting up an
alternative plan. He repeatedly denied having mental problems
and resisted DFYS's intervention. Although it is true that DFYS
might have done more, it is unlikely that further efforts by DFYS
would have been effective in light of Mr. N.'s attitude. See In
re Brown, 736 P.2d 1355, 1358 (Idaho 1987) (holding that state
made reasonable efforts to reunite family where mother refused to
cooperate with state's efforts and where there was no evidence
that other efforts would have been productive).
Although this is the most difficult issue presented by
this case, taking the record as a whole, there is sufficient
evidence that the state tried to keep Mr. N.'s family together.
III. Conclusion
In this tragic case, the legal standards for
terminating parental rights imposed by the ICWA and the Alaska
Statutes as complied in CINA Rule 18(c) have been fully
satisfied. Moreover, the state met its burden of proving that it
had made reasonable efforts to prevent the break-up of the N.
family. The judgment is therefore AFFIRMED.
_______________________________
1. AS 47.10.010(a)(2)(A) provides, in part, that the court
may find a child in need of aid when there is "no parent,
guardian, custodian, or relative caring or willing to provide
care."
2. Intermission is a community program which provides child
care to eligible parents for respite purposes.
3. At the hearing, the Department presented the testimony
of three witnesses. Denise Albee, J.N.'s foster mother,
testified to spontaneous statements J.N. made to her in the days
following N.N.'s death. J.N. repeatedly told her that "Daddy put
N.N. in the water with the ducks." Albee also testified that
J.N. said that Mr. N. had hit and choked her when she told him
that N.N. was in the water.
The social worker assigned to the case, Thomas Garlock,
stated his opinion that visitation with Mr. N. would be
detrimental to both children. He based his opinion on Albee's
testimony and Mr. N.'s emotional state when he dropped the
children off at DFYS's office on the day of the tragedy.
Officer Reeder testified that before J.N. knew that
N.N. had been found in the lagoon, she told him that her father
had put N.N. in the water because N.N. got his feet wet.
Audiotapes of Officer Reeder's talks with J.N. were played into
evidence. He also testified that Mr. N. displayed bizarre and
erratic behavior during the police investigation.
4. DFYS also presented the testimony of a number of persons
who had witnessed Mr. N. exhibiting inappropriate behavior
towards his children.
5. These sections provide, in part, that a child may be
found in need of aid when (1) there is no parent, guardian,
custodian, or relative caring or willing to provide care (AS
47.10.080(a)(2)(A)); (2) the child has suffered or is in an
imminent danger of suffering substantial physical harm as a
result of the actions of or conditions created by the child's
parent, guardian, custodian (AS 47.10.080(C)); and (3) the child
has suffered substantial physical abuse or neglect as the result
of conditions created by the child's parent, guardian or
custodian (AS 47.10.080(a)(2)(F)).
6. A hearing was held in May 1991 to determine whether Ms.
N. could visit her children. After the hearing, Brianne Surrey,
the social worker, discussed a treatment plan with Ms. N. and set
up a June appointment for her to sign the plan and get the
necessary referrals. Ms. N. did not appear at the appointment
and has not been heard from since.
7. The parties agreed that the court could consider all the
testimony and evidence presented in earlier proceedings at the
termination trial.
8. The ICWA requirements apply even when, as in this case,
DFYS is seeking to terminate the parental rights of a non-Indian
parent. See, e.g., In re Adoption of T.N.F., 781 P.2d 973
(Alaska 1989), cert. denied, Jasso v. Finney, 494 U.S. 1030
(1990) (ICWA applied to adoption of child by Indian father and
his wife, even though child's biological mother was not Indian).
9. Mr. N. also argues that the superior court erred in
finding that he had an "extensive criminal history." However the
record does not show that the court made any such finding or that
the court relied on any statements concerning Mr. N.'s "criminal
history"in the CINA and termination petitions.
10. Determining the appropriate burden of proof is a
question of law which this court reviews under the substitution
of judgment standard. Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979); see, e.g., In re J.R.B., 715 P.2d 1170, 1172
(Alaska 1986).
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