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A.M. v. Alaska (9/12/97), 945 P 2d 296
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
A.M., )
) Supreme Court No. S-7720
Appellant, )
) Superior Court No.
v. ) 1JU-90-75/76 CP
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 4886 - September 12, 1997]
______________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Walter L. Carpeneti, Judge.
Appearances: Philip M. Pallenberg, Assistant
Public Defender, Juneau, and Barbara K. Brink, Acting Public
Defender, Anchorage, for Appellant. Jan A. Rutherdale, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
BRYNER, Justice.
In A.M. v. State, 891 P.2d 815, 828 (Alaska 1995),
overruled in part by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996),
we reversed a superior court order terminating A.M.'s parental
rights to his children, M.M. and S.M., on the ground of
abandonment. We remanded for consideration of a different
potential ground for termination: A.M.'s apparent inability to
provide care for his children. Id. On remand, the superior court
concluded that inability to provide care was not a viable ground
for termination; the court nevertheless decided to terminate A.M.'s
parental rights on three other grounds that it had not previously
ruled on and that were not addressed by this court in A.M. A.M.
appeals the renewed termination order. We affirm.
I. Facts and Proceedings
We summarized the background of this case in our earlier
opinion:
[M.M. and S.M.] were born in 1987 and
1989 to A.M. and S.L.S. The children are Indian children
within the meaning of the Indian Child Welfare Act
(ICWA), 25 U.S.C. sec.sec. 1901-23, 1951 (1988).
In 1990, A.M. was charged with, and later
convicted of, sexually abusing S.S., a child of S.L.S. by
a prior relationship who lived with A.M. and S.L.S. at
the time. In March 1990, after the abuse was reported,
the Division of Family and Youth Services (DFYS) arranged
for S.L.S. and her three children to live in a women's
shelter. Upon finding that S.L.S. had left the shelter
and was not keeping S.S. from A.M., DFYS took emergency
custody of S.S. S.L.S. entered an alcohol treatment
program shortly thereafter; A.M. took custody of M.M. and
S.M., with DFYS monitoring their situation.
In September 1990, A.M. was formally
charged with sexually abusing S.S. M.M. and S.M. were
taken from A.M. upon his arrest and were temporarily
placed in the home of a maternal great aunt in Juneau
with whom S.L.S. was staying. Not long thereafter,
S.L.S. left the children with a baby sitter and failed to
return. On October 23, 1990, DFYS petitioned for
adjudication of S.M. and M.M. as children in need of aid.
. . . A.M. and S.L.S. both stipulated that the children
were in need of aid and that DFYS should assume custody
for up to two years. A.M. was subsequently convicted of
sexually abusing S.S. and was eventually sentenced to
serve a total of ten years in prison, with one year
suspended.
In June 1992, seventeen months after A.M.
stipulated that M.M. and S.M. were children in need of
aid, DFYS petitioned for termination of A.M.'s parental
rights. Superior Court Judge Walter L. Carpeneti
conducted a consolidated hearing on the adjudicative and
dispositional aspects of the [s]tate's petition to
terminate. On August 6, 1993, Judge Carpeneti entered an
order terminating A.M.'s parental rights.
A.M., 891 P.2d at 818-19 (footnote omitted).
In originally ordering parental rights terminated, the
superior court concluded that A.M. abandoned his children, thereby
making them children in need of aid (CINA) under subsection (1) of
Alaska's CINA statute, AS 47.10.010(a). [Fn. 1] A.M., 891 P.2d at
819-20. The trial court further concluded that A.M.'s conduct
toward his children was likely to continue if A.M.'s parental
rights were not terminated. [Fn. 2] Id. at 825.
On appeal, we found that the evidence at trial did not
establish abandonment. [Fn. 3] Id. at 821-24. Nevertheless, based
on the trial court's findings, we concluded that a CINA
adjudication (and consequently termination of parental rights)
might be justified on an alternative theory under subsection (1):
inability to provide care. Id. at 824. We remanded to the
superior court for further consideration of this alternative
ground. Id. at 824-25.
While A.M.'s case was pending on remand, this court
issued In re. S.A., 912 P.2d 1235 (Alaska 1996), which partially
overruled A.M. by holding that parental inability is not a proper
ground for finding CINA status under subsection (1). Id. at 1242.
[Fn. 4] In light of S.A., the superior court concluded on remand
that A.M.'s inability to care for his children was not a valid
ground for CINA adjudication or termination of parental rights.
Nevertheless, over A.M.'s objections, the superior court
went on to find that the parental conduct it originally relied on
to find abandonment would alternatively establish grounds for CINA
adjudication under three other subsections of AS 47.10.010(a):
subsection (3) (imminent risk of physical harm); subsection (4)
(imminent danger of sexual abuse); and subsection (6) (substantial
physical abuse or neglect). [Fn. 5] After determining that the
State had made sufficient efforts to avoid termination and that
A.M.'s conduct was likely to continue, the court again ordered
A.M.'s parental rights terminated. A.M. again appeals, raising a
number of procedural and substantive challenges to the renewed
termination order.
II. Discussion
A. Did the Superior Court Exceed the Scope of the Remand?
A.M. first argues that the trial court exceeded the scope
of the mandate on remand by finding M.M. and S.M. CINA under
subsections AS 47.10.010(a)(3), (4), and (6). A.M. contends that
the mandate in A.M. specifically limited the trial court to
considering CINA status under subsection AS 47.10.010(a)(1),
thereby precluding consideration of CINA status under subsections
(3), (4), and (6). The State responds that the superior court's
consideration of subsections (3), (4), and (6) was not inconsistent
with the mandate of A.M. and was therefore permissible.
This argument presents a question of law, see Gaudiane v.
Lundgren, 754 P.2d 742, 744 (Alaska 1988); cf. Guin v. Ha, 591 P.2d
1281, 1284 & n.6 (Alaska 1979), which we review de novo. See O.R.
v. State, Dep't of Health and Soc. Services, 932 P.2d 1303, 1307
n.1 (Alaska 1996).
A trial court has no authority to deviate from a specific
mandate [Fn. 6] of the supreme court but may take actions not
inconsistent with our decision. Gaudiane, 754 P.2d at 744 (citing
King v. Alaska State Hous. Auth., 571 P.2d 1010, 1011-12 (Alaska
1977)). A trial court must also act consistently with a general
mandate. See King, 571 P.2d at 1012.
Our opinion in A.M. ended with the following language:
The superior court's finding of abandon-
ment was clearly erroneous; this error
requires that the order of August 6, 1993, terminating A.M.'s
parental rights be vacated. A remand is necessary, however, for
further proceedings to determine whether A.M.'s children should be
adjudicated CINA due to A.M.'s inability to provide care and, if
so, whether termination of parental rights is warranted under that
theory. . . .
Accordingly, the order terminating A.M.'s
parental rights is VACATED, and this case is REMANDED for further
proceedings consistent herewith.
A.M., 891 P.2d at 828.
A.M. correctly argues that this mandate required the
trial court "to determine [under AS 47.10.010(a)(1)] whether A.M.'s
children should be adjudicated CINA due to A.M.'s inability to
provide care." Id. The trial court unquestionably complied with
this requirement: on remand, the court considered adjudicating the
children CINA under subsection (1) due to A.M.'s inability to
provide care; it correctly recognized that this option was
foreclosed by our newly announced decision in S.A., 912 P.2d 1235
(Alaska 1996).
A.M. would have us hold that the mandate in our prior
opinion empowered the trial court to do nothing further after it
rejected inability to provide care as a viable ground for CINA
adjudication. But a careful look at the mandate fails to confirm
A.M.'s contention: nothing in the mandate foreclosed the trial
court from considering whether A.M.'s children should be declared
CINA on the alternative grounds specified in subsections (3), (4),
and (6) of AS 47.10.010(a). To the contrary, the mandate broadly
authorized any "further proceedings consistent herewith." Id.
The alternative grounds set out in subsections (3), (4),
and (6) remained undecided upon remand: facts conforming to the
subsections had been alleged in the original petition to terminate
A.M.'s parental rights, and evidence addressing them had been
presented at A.M.'s trial; the trial court had not resolved these
theories in its original termination decision, and they remained
unresolved in our opinion deciding A.M.'s first appeal. See
generally A.M., 891 P.2d 815. Once the trial court complied with
our specific direction to consider inability to provide care under
subsection (1), its additional consideration of CINA jurisdiction
under subsections (3), (4), and (6) was not inconsistent with
A.M.'s mandate.
Moreover, any uncertainty as to the scope of the mandate
in A.M. was resolved by our subsequent decision in S.A., 912 P.2d
at 1241-42 & n.7. While S.A. expressly overruled A.M.'s conclusion
that inability to provide care was a viable theory of CINA
jurisdiction under subsection (1), id. at 1241, S.A. expressly
pointed out that this decision would not change the result in A.M.Id. at 1241-42 n.7. In explaining this conclusion, we virtually
invited the trial court in A.M.'s case to consider the alternative
CINA grounds on remand:
The results we reached in A.M. . . .
would not change under our holding in this case. . . . In A.M., .
. . [w]e remanded the case for consideration of whether the father
was able to care for the children. We noted:
The superior court specifically
found, beyond a reasonable doubt, that A.M.'s daughter was likely
to suffer sexual abuse if placed in his custody; that both children
were likely to suffer physical abuse resulting from A.M.'s domestic
violence; and that both were likely to suffer physical deprivation
due to A.M.'s inability to meet their needs on a consistent,
ongoing basis.
These findings would support CINA adjudica-
tions under subsections [(3), (4), and (6)],
respectively.
Id. (citations omitted) (emphasis added).
Given the broad scope of the mandate in A.M. and the
above quoted passage from S.A., we conclude that the trial court
did not exceed the scope of A.M.'s mandate in considering
subsections (3), (4), and (6) on remand.
B. Did the Superior Court Violate A.M.'s Right to Procedural
Due Process by Considering CINA Status under AS 47.10.010(a)(3),
(4), and (6)?
A.M. next argues that the superior court violated his
constitutional right to procedural due process [Fn. 7] by failing
to afford him notice on remand of its intent to address CINA status
under AS 47.10.010(a)(3), (4), and (6) and by failing to allow him
an opportunity to present additional evidence on these
jurisdictional theories. The State replies that A.M. suffered no
prejudice, "constitutionally or otherwise."
"Notice reasonably calculated to afford the parties an
opportunity to present objections to a proceeding, and affording
them a reasonable time to do so, is a fundamental requirement of
due process." Kerr v. Kerr, 779 P.2d 341, 342 (Alaska 1989).
Whether the superior court violated A.M.'s right to due process is
a question of law, which this court reviews de novo. See DeVaney
v. State, Dep't of Revenue, 928 P.2d 1198, 1200 (Alaska 1996).
Although the alternative CINA grounds set out in AS
47.10.010(a)(3), (4), and (6) may not have been actively argued at
A.M.'s trial, they were alleged in the State's petition to
terminate A.M.'s parental rights. A.M., 891 P.2d at 819. They
were also addressed in evidence presented by the parties at the
trial. Thus, from an evidentiary standpoint, CINA jurisdiction
under these subsections had been fully litigated when this case
returned to the trial court for further proceedings on remand. [Fn.
8] Because A.M. had an opportunity to present evidence relating to
these subsections at the original trial, he had no automatic right
to present new evidence upon remand. See Murray v. Murray, 856
P.2d 463, 466 n.1 (Alaska 1993).
After the case returned to the trial court, moreover,
A.M. had ample notice that subsections (3), (4), and (6) were fair
game on remand. As we have already pointed out, our opinion in
S.A., 912 P.2d at 1241 n.7, made the relevance of these subsections
abundantly clear; the trial court discussed S.A. with the parties;
and the State specifically requested the court to address the
alternative CINA grounds. A.M. objected to the State's request
exclusively on legal grounds, arguing, as he does here, that
consideration of subsections (3), (4), and (6) would be beyond the
scope of this court's mandate on remand. Even though A.M.
requested and was allowed to produce new evidence on remand
concerning other matters, he made no request to present additional
evidence addressing the alternative subsections. Nor did A.M. seek
reconsideration based on lack of notice after the superior court
issued its decision invoking these provisions and again revoking
A.M.'s parental rights.
While A.M. does make a belated offer of proof on appeal
describing additional evidence he could present if an evidentiary
hearing were now granted, this offer relates to events occurring
after his release from prison. A.M. was not released until May
1996, many months after the conclusion of all hearings in his case
and less than a month before the superior court issued its final
written decision on remand. Thus, even if the trial court had on
its own initiative invited a full, post-remand evidentiary hearing
on subsections (3), (4), and (6), A.M.'s newly-offered evidence
would not yet have been available.
For all of these reasons, we find no merit to A.M.'s due
process claim.
C. Did the Superior Court Clearly Err in Finding CINA Status
Under AS 47.10.010(a)(3), (4), and (6)?
A.M. further claims that the superior court erred on
remand in finding clear and convincing evidence that the children
were CINA under AS 47.10.010(a)(3), (4), and (6). He argues that
the record contains insufficient evidence to support a CINA finding
under any of these subsections. In so arguing, however, A.M.
covers territory we have already visited.
In concluding on remand that A.M.'s children were CINA
under subsections (3), (4), and (6), the superior court readopted
the factual findings it made after A.M.'s trial; the court then
shifted its analysis from the termination criteria it originally
considered -- which involved abandonment under CINA subsection (1)
-- to the specific requirements of subsections (3), (4), and (6).
The court concluded that its original findings fit these
requirements. [Fn. 9]
In A.M., 891 P.2d at 820, we specifically addressed the
findings upon which the superior court based its original
termination decision:
In reaching the conclusion that A.M. had
consciously disregarded his parental obligations to M.M. and S.M.,
the court focused on A.M.'s pre-incarceration conduct, which
included
his long history of severe drug and
alcohol abuse, his long history of committing crimes (including
sexual abuse of his stepdaughter), his inability to provide
consistent support and nurture for his children, his constant
moving of the children, his long history of physical attacks upon
their mother, and numerous episodes of leaving the children for
substantial periods.
We expressly found these findings to be supported by the record and
not clearly erroneous. Id. at 821.
We went on to quote an additional passage from the
superior court's original findings:
[A.M.] is highly likely to continue to abuse
drugs and alcohol, to commit crimes (especially assaultive crimes
in the context of domestic disputes and sexual offenses against
children, but also property crimes given his extensive criminal
record, his lack of success in substance abuse treatment, his poor
prognosis for sexual offender treatment, his failure even to obtain
anger management counseling, and his characterological problems).
Id. at 825. Again, we expressly found these findings to be
supported by the record and not clearly erroneous. Id.
Here, A.M. emphasizes portions of the trial record that
support his own view of the evidence. He argues, as he did in his
original appeal, that there is insufficient evidence to support a
CINA adjudication. But we addressed and disposed of essentially
the same argument in A.M., 891 P.2d at 825: "Although A.M. points
to contrary evidence that he presented, it is not this court's job
to reweigh the evidence when the record provides clear support for
the superior court's ruling." This statement is as pertinent to
the superior court's findings under subsections (3), (4), and (6)
as it was to the court's original findings under subsection (1)'s
abandonment clause, for the findings are the same in both statutory
contexts, and A.M.'s quarrel is with the findings themselves, not
with their application in a new statutory context.
In termination of parental rights cases, we review the
trial court's factual findings for clear error, reversing those
findings only if our review of the entire record leaves us with a
definite and firm conviction that a mistake was made. In re J.W.,
921 P.2d 604, 606 (Alaska 1996) (citing E.J.S. v. State, 754 P.2d
749, 750 n.2 (Alaska 1988)). Applying this standard, we conclude
that the superior court's findings on remand were not clearly
erroneous and that they support CINA adjudication under subsections
(3), (4), and (6) of AS 47.10.010(a) and termination under AS
47.10.080(c)(3).
D. Did the Superior Court Err in Finding that the State
Complied with ICWA's Requirement of Active Remedial Efforts?
A.M.'s final claim relates to the adequacy of the State's
efforts to prevent the breakup of his family. A.M.'s children are
Indian children within the meaning of the Indian Child Welfare Act
(ICWA), 25 U.S.C. sec.sec. 1901-23, 1951 (1988). Under ICWA sec.
102(d), 25
U.S.C. sec. 1912(d) (1988), the State was required to prove by a
preponderance of the evidence that "active efforts"were made "to
provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts
. . . proved unsuccessful." See A.M., 891 P.2d at 826. See also
CINA Rule 18(c)(2); In re J.W., 921 P.2d 604, 609 (Alaska 1996).
[Fn. 10]
Our first decision in this case summarized the superior
court's original findings on the active remedial efforts issue as
follows:
The superior court found that DFYS had
"made active efforts to provide remedial services and
rehabilitative programs to prevent the breakup of this family but
those efforts have proved unsuccessful . . . ." In the superior
court's view, the [s]tate had done everything "feasible given
[A.M.'s] incarceration status . . . ."In reaching this conclusion,
the court observed that "[A.M.] has expressed a willingness and
desire to undergo sex offender treatment while incarcerated, but
substantial doubt on the motivation of that expressed willingness
was raised by the [s]tate's expert witnesses. The court concludes
that [A.M.] is not sincerely interested in changing his deviant
sexual behavior . . . ."
A.M., 891 P.2d at 826 (footnote omitted).
In the first appeal, A.M. challenged the trial court's
findings, contending that the State had failed to meet its burden
of proving active remedial efforts. In response, the State argued
that, given A.M.'s incarceration and poor motivation for treatment,
"[DFYS] fulfilled its duty of making active efforts to provide
remedial services"simply "by preparing a reunification plan and
encouraging A.M. to seek services available within the
institution." Id. at 827. We rejected the State's argument,
holding that "[n]either incarceration nor doubtful prospects for
rehabilitation will relieve the [s]tate of its duty under ICWA to
make active remedial efforts." Id.
Although we acknowledged that both incarceration and a
demonstrated lack of willingness to participate in treatment are
relevant factors in determining the reasonableness of the State's
remedial efforts, id., we cautioned that
[w]e have never suggested that the scope of
the [s]tate's duty to make active remedial efforts should be
affected by a parent's motivation or prognosis before remedial
efforts have commenced. To vary the scope of the [s]tate's ICWA
duty based on subjective, pre-intervention criteria such as a
parent's motivation or treatment prognosis might defeat the purpose
of the active remedial effort requirement.
Id.
Given the trial court's emphasis on A.M.'s predictedly
poor but apparently untested prospects for rehabilitation, we
concluded that the finding of ICWA compliance was problematic:
In the present case, the superior court's
finding of compliance with the ICWA requirement presents a close
question, particularly because the court's assessment of the active
efforts that the [s]tate should have made was apparently influenced
by its perception that, despite his avowed willingness to partici-
pate in treatment, A.M. had made no genuine commitment to
rehabilitation and his prospects for rehabilitation were poor.
Id. Since a remand was necessary in any event, we ordered the
trial court to reconsider the issue in light of our concerns. Id.
On remand, the superior court heard updated evidence on
the active remedial efforts issue. By that time, A.M.'s potential
for rehabilitation was no longer conjectural: a DFYS social worker,
a DFYS supervisor, a counselor from the Hiland Mountain
Correctional Center's sexual offender treatment program, and a
counselor from the Wildwood Correctional Center's alcohol and drug
abuse program testified that A.M. had enrolled in institutional
sexual offender and substance abuse treatment programs and had been
discharged from both for failure to comply with treatment
requirements. A.M.'s substance abuse counselor specifically
testified that A.M. had no real interest in treatment, but was only
going through the motions. Other testimony revealed that A.M.'s
efforts in the sexual offender program had earned a rating of zero
on a scale of 0 to 5 for active participation.
In light of this evidence, the trial court found that
"A.M. remains an untreated sex offender and a serious substance
abuser." The court further found it "appropriate to consider
[A.M.'s] unwillingness to do the work required by those programs."
On this basis, the court concluded "that the State met the
requirements of the Indian Child Welfare Act to make active efforts
to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that these efforts
have proved unsuccessful." While acknowledging that DFYS itself
did little more than promulgate a plan for reunification and
facilitate A.M.'s visitations with his children, the trial court
found that there was little more DFYS could have done under the
circumstances; in the court's view, additional efforts by DFYS
"would have been superfluous and probably counterproductive."
A.M. challenges this finding and questions anew the
adequacy of the State's remedial efforts. A.M. insists that DFYS
had a duty to intervene actively on his behalf while he was in
treatment, so as to maximize his chances of success. We find this
argument unpersuasive.
The measure of ICWA compliance is whether the State made
"active efforts . . . to provide [A.M.] remedial services and
rehabilitative programs"in order "to prevent the breakup of [his]
family." 25 U.S.C. sec. 1912(d). It is undisputed that the
services
and programs A.M. needed most to promote his rehabilitation and
eventual reunification with his children consisted of sexual
offender and substance abuse treatment programs. The record
unequivocally establishes that the State provided these programs to
A.M. in prison. The State classified A.M. to institutions where
the programs were available; the State accepted and enrolled him in
the programs; and the State kept him in treatment until his own
disinterest led to termination. These were "active efforts"by the
State, and they plainly entailed "remedial services and
rehabilitative programs."
It is of no particular consequence that the Department of
Corrections (DOC), rather than DFYS, made these active remedial
efforts. As a sentenced prisoner, A.M. was committed to DOC's care
and custody; by law, DOC was the state agency with primary
responsibility for his successful rehabilitation. See, e.g., Rust
v. State, 582 P.2d 134, 137-38 (Alaska 1978). [Fn. 11] We need not
speculate what active reunification efforts DFYS might have been
required to make if A.M. had not actually enrolled in appropriate
DOC treatment programs. A.M.'s enrollment in the DOC programs
necessarily reduced DFYS's role in providing active remedial
efforts. Active intrusion by DFYS into DOC's therapeutic programs
would have been inappropriate and unreasonable, if not
impermissible as a matter of law and impossible as a matter of
practical reality. The record on remand establishes that DFYS
maintained contact with A.M. while he was in treatment, generally
encouraged his treatment efforts, and assisted him in arranging
visitation with his children. The record supports the superior
court's finding that additional DFYS efforts would have been
superfluous.
Our chief concern in remanding the ICWA issue for
reconsideration was that the trial court might have determined the
scope of the State's duty to make active remedial efforts, not by
consideration of A.M.'s "demonstrated lack of willingness to
participate in treatment"but rather by reference to "subjective,
pre-intervention criteria"relating to A.M.'s "motivation or
treatment prognosis." A.M., 891 P.2d at 827. This concern has
been laid to rest by A.M.'s failure in sexual offender and
substance abuse treatment programs. The current record provides
ample support for the conclusion that A.M. has now "demonstrated
[his] lack of willingness to participate in treatment." Id. The
superior court properly considered this factor in deciding that the
State owed no further duty to make active remedial efforts. Id.;
see also In re J.W., 921 P.2d at 610.
In A.M., 891 P.2d at 826 n.12, we cited the distinction
between "active efforts"and "passive efforts"drawn by Craig J.
Dorsay, The Indian Child Welfare Act and Laws Affecting Indian
Juveniles Manual 157-58 (1984). According to Dorsay, passive
efforts entail merely drawing up a reunification plan and requiring
the "client"to use "his or her own resources to[] bring[] it to
fruition." Dorsay at 157-58. Active efforts, on the other hand,
include "tak[ing] the client through the steps of the plan rather
than requiring the plan be performed on its own." Id. The overall
efforts made by the State in this case -- including DOC's
enrollment and supervision of A.M. in two institutional treatment
programs -- fall decidedly closer to Dorsay's notion of "active
efforts"than to his description of "passive efforts."
Ultimately, of course, there can be no pat formula for
distinguishing between "active efforts"and "passive efforts"under
25 U.S.C. sec. 1912(d). [Fn. 12] Although we remain troubled by
the
relative passivity of DFYS's remedial efforts at the early stages
of this case, our review of the record convinces us that the trial
court did not err in concluding that the agency's efforts before
and while A.M. was in treatment, coupled with DOC's actual
provision of appropriate and substantial treatment services,
satisfied the State's duty under ICWA to make active remedial
efforts.
III. Conclusion
We AFFIRM the superior court's order on remand
terminating A.M.'s parental rights.
FOOTNOTES
Footnote 1:
AS 47.10.010(a)(1) currently provides that the court may find
a minor to be a child in need of aid as the result of the child
"having no parent, guardian, custodian, or relative caring or
willing to provide care, including physical abandonment by . . .
both parents."
When this case was tried, CINA status was defined in
former subsections (a)(2)(A)-(F) of AS 47.10.010. In finding CINA
status based on abandonment, the superior court relied on former AS
47.10.010(a)(2)(A). Subsequently, the legislature repealed AS
47.10.010(a)(1). The definitions of CINA status previously set out
in subsections (a)(2)(A)-(F) were retained verbatim but were
renumbered as AS 47.10.010(a)(1)-(6). AS 47.10.010(a)(1) is thus
the current counterpart of former AS 47.10.010(a)(2)(A). For
simplicity's sake, we will refer to the current statutory numbering
throughout this opinion.
Footnote 2:
Under AS 47.10.080(c)(3), the court is authorized to terminate
parental rights
upon a showing . . . by clear and convincing
evidence that there is a child in need of aid under AS 47.10.010(a)
as a result of parental conduct and upon a showing . . . by clear
and convincing evidence that the parental conduct is likely to
continue to exist if there is no termination of parental rights.
Footnote 3:
The test for abandonment required the superior court to make
two findings: (1) that the parent's conduct implied a conscious
disregard for parental obligations and (2) that the parent's
conscious disregard led to the destruction of the relationship
between the parent and children. Id. at 820. Although we found
ample evidence to support the trial court's finding that A.M.
consciously disregarded his parental obligations, we determined
that the evidence did not support the court's finding that A.M.'s
conscious disregard led to the destruction of his parental
relationship with his children. Id. at 821, 824 (citation
omitted).
Footnote 4:
We said, in relevant part:
We hold that a child may not be
adjudicated CINA under AS 47.10.010(a)(2)(A) on the grounds that
the child's parent or caregiver is unable to care for the child if
the parent or caregiver is willing to care for the child.
S.A., 912 P.2d at 1242.
Footnote 5:
Under AS 47.10.010(a)(3), (4), and (6), the court may make a
CINA finding as a result of:
(3) the child having suffered substantial
physical harm or if there is an imminent and substantial risk that
the child will suffer such harm as a result of the actions done by
or conditions created by the child's parent . . . ;
(4) the child . . . being in imminent and
substantial danger of being . . . sexually abused . . . by the
child's parent . . . ;
. . . .
(6) the child having suffered substantial
physical abuse or neglect as a result of conditions created by the
child's parent.
Footnote 6:
We have defined specific mandates to include appellate court
decisions that direct trial courts to "determine one particular
issue . . . or to limit proceedings to . . . taking specific
evidence." King v. Alaska State Hous. Auth., 571 P.2d 1010, 1011-
12 (Alaska 1977) (footnote omitted).
Footnote 7:
Amendment XIV, section 1 of the United States Constitution
instructs, in part, "No state shall . . . deprive any person of
life, liberty, or property, without due process of law."
Article I, section 7 of the Alaska Constitution provides,
in part, "No person shall be deprived of life, liberty, or
property, without the due process of law."
Footnote 8:
In A.M., 891 P.2d at 819, we noted that the State had "alleged
that A.M.'s children were in need of aid on the alternative grounds
specified in AS 47.10.010(a)[(1), (3), (4), and (6)],"but we
commented that "[t]he only theory actively argued by the [s]tate at
the termination trial . . . was abandonment under [subsection
(1)]." In the current appeal, the State disputes the accuracy of
the latter comment, insisting that the State did in fact actively
argue the alternative jurisdictional theories at trial. However,
the point is moot: regardless of whether these theories were
actively argued, it is undisputed that they were properly alleged
as grounds for CINA adjudication and were addressed by the parties'
evidence at trial. They were thus fully litigated, even if the
State and the trial court chose not to emphasize them in the final
analysis of the case.
Footnote 9:
For example, the superior court previously found "beyond a
reasonable doubt, that A.M.'s daughter was likely to suffer sexual
abuse if placed in his custody." A.M., 891 P.2d at 825.
Readopting this finding, the superior court concluded on remand
that the children were CINA under subsection (4) due to their being
"in imminent and substantial danger of being . . . sexually abused
. . . by [their] parent." AS 47.10.010(a)(4).
Footnote 10:
Whether the superior court erred in finding the compliance
with these requirements presents both a question of law and fact.
We review the superior court's factual findings under the "clearly
erroneous"standard. In re J.W., 921 P.2d at 606; see also O.R.,
932 P.2d at 1307 n.1 (Alaska 1997) (quoting A.M., 891 P.2d at 820).
We review questions of law de novo. In re S.A., 912 P.2d at 1237.
Footnote 11:
DOC's primacy over DFYS as a source of remedial services in
this case is particularly clear given that A.M.'s rehabilitative
needs as a criminal offender coincided with his reunification
needs. The programs made available to A.M. in prison were thus
programs that he needed to maximize the possibility of reuniting
with his children.
We note that DOC's legal custody over A.M. and its
responsibility for his rehabilitation serve to distinguish his
situation from In re J.W., 921 P.2d 604, 610 (Alaska 1996), where
we suggested that DFYS had failed to make active efforts, as
required under ICWA, when it relied on the court system to monitor
the progress of an alcoholic father who had enrolled, pursuant to
court order, in an inpatient substance abuse program. The father
in J.W. was not in state custody, and the court had no legal duty
to promote his success in the treatment program.
Footnote 12:
We note that other courts reviewing compliance with ICWA's
active remedial efforts requirement have tended to take a case-by-
case approach; their decisions thus provide minimal guidance. See,
e.g., In re Baby Boy Doe, 902 P.2d 477, 484 (Idaho 1995) ("[T]ypes
of remedial and rehabilitative services to be required under
subsection (d) depend on the facts of each case."). See also In re
T.J.J., 366 N.W.2d 651, 656 (Minn. App. 1985) (finding efforts
sufficiently active where social worker contacted mother on a
monthly basis "to stimulate mother's interest . . . with a goal of
reuniting the family"); In re S.C., 833 P.2d 1249, 1257 (Okla.
1992) (finding that if this provision applied, efforts were
sufficient where state conducted two home studies and promulgated
a plan requiring the father to pay child support and visit the
children, and father visited the children only once during pendency
of the proceedings); In re E.M., 466 N.W.2d 168, 176 (S.D. 1991)
(Henderson, J., dissenting) (rejecting the affirmance of a finding
of sufficient efforts under 25 U.S.C. sec. 1912(d) where only one
parenting class was offered); In re S.D., 402 N.W.2d 346, 351 (S.D.
1987) (holding that where evidence showed the state provided "food,
shelter, medical treatment, clothing, and . . . counseling
services,"but social worker had difficulty making services
available, efforts were sufficient in light of parents' nomadic
lifestyle).
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