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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. S.H. v. State, Dept. of Health & Social Services (03/08/2002) sp-5544

S.H. v. State, Dept. of Health & Social Services (03/08/2002) sp-5544

     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.


S.H.,                              )
                              )    Supreme Court No. S-9932
             Appellant,            )
                              )    Superior Court Nos.
     v.                       )    3AN-98-493/494/495/496/497 CP
STATE OF ALASKA,              )    O P I N I O N
SOCIAL SERVICES, DIVISION OF  )    [No. 5544 - March 8, 2002]
             Appellee.             )
R.H.,                              )
                              )    Supreme Court No. S-9938
             Appellant,            )
     v.                       )
STATE OF ALASKA,              )
             Appellee.             )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Reese, Judge.

          Appearances:  Gayle J. Brown, Law Offices  of
          Gayle  Brown,  Anchorage, for Appellate  S.H.
          J.  Stefan  Otterson, Law Office of  Thom  F.
          Janidlo,  Anchorage, for Appellant R.H.   Jan
          Hart  De  Young, Assistant Attorney  General,
          Anchorage,  and  Bruce M.  Botelho,  Attorney
          General, Juneau, for Appellee.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          FABE, Chief Justice.


          The  Department of Health and Social Services, Division

of  Family and Youth Services (DFYS) petitioned to terminate  the

parental  rights of S.H. and R.H.  In April 1999  a  DFYS  social

worker  removed S.H.s five children from the home after receiving

a  report  that S.H. was using cocaine and that R.H. had returned

home  in  violation  of a restraining order.  The  primary  issue

before  the superior court was whether the parents recent efforts

to  eliminate substance abuse and domestic violence from the home

and   to  attend  to  their  childrens  complicated  needs   were

sufficient  to remedy their harmful conduct within  a  reasonable

amount of time.  After a four-day hearing in September 2000,  the

trial court terminated the parental rights of S.H. and R.H.  Both

parents  appeal.   Because  the trial  courts  findings  are  not

clearly erroneous, we affirm.


     A.   The Children

          R.H. and S.H. were married from 1991 to 2000.  S.H.  is

the  mother of four boys and one girl: J.F., a son born in  1986;

S.F.,  a  son  born in 1990; T.H., a son born in  1992;  V.H.,  a

daughter born in 1994; and D.H., a son born in 1995.  R.H. is the

father  of  the  three youngest children.   J.F.  and  S.F.  were

fathered by two different men.

          1.  J.F.

          J.F., the eldest child, was born in 1986 to S.H. and an

Alaska  Native who has not been involved in J.F.s upbringing  and

is  not  a party to this appeal.  J.F. is eligible for membership

in the Orutsararmuit tribe by virtue of his fathers membership.

          J.F.  was  hospitalized twice in 1999 at Charter  North

Hospital (Charter) due to aggression and his attempt to jump  out

of  a  window  at a shelter.  He was subsequently transferred  to

Alaska  Childrens Services (ACS) residential treatment  where  he

remained  for  at least nine months.  According to his  ACS  case


          [J.F.]  has a history of defying parents  and
          other  adults,  severe  verbal  and  physical
          outbursts,  destroys  property,  attempts  to
          injure    children,   lies,   acts    without
          considering  consequences,  ADHD   [attention
          deficit    hyperactivity    disorder]     per
          diagnosis, easily agitated, refuses to comply
          with  normal  duties, attempts to  manipulate
          others, associates with negative peers,  fire
          setting, mood swings, depression, anxiety and
          grief issues.
When  hospitalized at Charter, J.F. admitted, I get mad  quickly.

I  have  an  anger  problem.   J.F.  was  diagnosed  as  possibly

suffering  post  traumatic stress disorder and major  depression.

Psychological  testing revealed that he may  have  been  sexually


          2.  S.F.

          S.F. was born in December 1990 to S.H. and another  man

who  is not a party to this appeal.  S.F. was described as having

a  history  of  defying  parents and  other  adults,  hyperactive

behavior,  impulsive  behavior,  usually  withdrawn  and   quiet,

anxious,  needs  constant  supervision,  history  of  abuse   and

neglect, shows no attachment, grief and loss issues.  He also has

varied  symptoms  of repressed anxiety.  A neuropsychologist  who

assessed him concluded that S.F. needs to reside in a structured,

predictable, and highly supportive environment that provides  him

with  the  experience of safety and consistent guidance.  .  .  .

[E]xcessive environmental stimuli should be limited . . . because

he is easily overwhelmed.

          3.  T.H.

          T.H.  was born in August 1992.  From the summer of 1998

to January 1999, T.H. was admitted to Charter three times for two

to  three  weeks  each  time.  Upon the initial  intake,  he  was

described as follows:

          This  five-year-old, who has been treated  by
          Dr.  Lynn  Clark  for  attention  deficit  on
          Ritalin and imipramine, has manifested severe
          behavior  to  the point of bizareness  [sic].
          He  is  not  containable by his parents  with
          extreme  aggression,  fighting,  kicking  and
          severe destruction of property.  His behavior
          is  unremitting  and also  violent  to  other
          children  with having to be under observation
The admitting doctor stated that T.H. looks as if he could be  in

a black and white picture as a refuge[e] child behind barbed wire

in a wartime photo.  Thusly trauma is written on his face.  After

his  third hospitalization, T.H. was transferred from Charter  to

ACS  residential treatment where he lived from February  1999  to

February 2000.

          A   neuropsychological  evaluation  to   assess   T.H.s

aberrant  behavior and emotional dysfunction in May 2000 revealed

that his hyperactive and aggressive behavior has not ceased.   He

was  again  admitted  to  Charter after  reporting  that  he  had

experienced auditory hallucinations telling him to harm  himself.

T.H.  was diagnosed with post traumatic stress disorder  and  was

found to be clearly struggling with psychosis.

          4.  V.H.

          V.H.,  the only daughter of S.H. and R.H., was born  in

May  1994.   In  June  1997 DFYS received a report  of  suspected

sexual abuse of V.H.  The report alleged that S.H. had invited  a

couple  she had met on a dating chat line to her house to  engage

in  sexual  activities.   S.H. had previously  learned  that  the

couple had lost custody of their children to the state.  The  man

reportedly  assaulted T.H. and molested V.H.,  then  three  years

old,  while  in  the  home.  The incident  was  reported  to  the

Anchorage Police Department.

          One  of  V.H.s teachers reported in May 2000 that  V.H.

had  come  to  school disheveled and unkempt, that she  exhibited

difficulties  with  her  school  work,  and  that  she  displayed

inappropriate behaviors with the male children in her  class.   A

neuropsychologist  recommended  that  V.H.  reside  in   a   very

structured,   predictable,   and  nurturing   environment   where

appropriate  displays  of affection are emphasized  and  personal

boundaries are gently clarified.

          5.  D.H.

          D.H.,  the  youngest child, was born in December  1995.

He was hospitalized during January 1996 for lung problems and was

diagnosed  with  reactive airway disease. Despite recommendations

to  refrain  from  smoking around D.H., DFYS social  workers  who

visited  the home noted that S.H. and R.H. continued to smoke  in

the home.  A licensed therapist who assessed D.H. in January 2000

testified that D.H. had been harming his foster parents pets, had

reenacted  domestic  violence  in his  play,  and  had  described

violence in his home.

     B.   DFYS Involvement

          Ten  reports of suspected child abuse were made to DFYS

starting in 1987. On June 5, 1997, the first substantiated report

to  DFYS  was  made based on an incident in which R.H.  assaulted

J.F.,  T.H.,  and  S.H. while he was intoxicated.   According  to

DFYSs  petition, [o]fficers reportedly had to draw their  weapons

on  [R.H.] to get him to remove a meat cleaver.  Less than  three

weeks  later, DFYS received the report regarding suspected sexual

abuse  of V.H. and assault of T.H. by a man S.H. met on a  dating

chat line.  It was also reported that S.H. had been verbally  and

physically abusive to the children.

          After   this   incident,  S.H.   complied   with   DFYS

instructions  to refrain from associating with the man  from  the

chat  line  and his wife, and S.H. called Southcentral Foundation

to become involved in a parent support group and to start V.H. in

therapy.   However,  within  several  weeks  S.H.  began  missing

appointments.  In the summer of 1997 DFYS referred the family  to

the Anchorage Center for Families for counseling.

          During  T.H.s hospitalization in June 1998,  home-based

services  were arranged for the family with the Anchorage  Center

for  Families.   S.H.  and R.H. agreed to participate  in  mental

health   assessments,  substance  abuse  evaluations,   parenting

classes,   random   urinalysis  tests,   and   three   Alcoholics

Anonymous/Narcotics Anonymous (AA/NA) meetings  per  week.   S.H.

and  R.H.  were  warned  that they were at  high  risk  for  DFYS

involvement if they did not work on their case plan.

          In  July 1998 DFYS received a report that S.H. and R.H.

were  participating only marginally in T.H.s treatment at Charter

and that they had threatened to abandon T.H. if he did not behave

as   they  wished.   A  fourth  substance  abuse  evaluation  was

scheduled, but in October 1998 the Anchorage Center for  Families

decided  to  discontinue services to the family  due  to  chronic

noncompliance.   Between  October  1998  and  August  1999,  DFYS

developed  three case plans to address the needs of the  children

and to assist R.H. and S.H. in meeting those needs.

     C.   Procedural History

          In the fall of 1998 the trial court found that probable

cause  existed to believe that the five children were in need  of

aid.   The  court ordered temporary supervisory custody to  DFYS,

while  permitting the children to remain in the home.  In January

1999  DFYS filed a second petition for temporary custody alleging

that S.H. and R.H. were not complying with the DFYS case plan  to

eliminate  domestic violence and substance abuse from  the  home.

After a hearing in early February 1999, Superior Court Judge John

Reese  awarded  supervisory  custody  to  DFYS  but  allowed  the

children to stay with S.H., on the condition that R.H. stay  away

from the home.

          In  April  1999  DFYS received a report that  R.H.  had

returned  to the home in violation of the courts order  and  that

both  parents  were using crack cocaine.  The DFYS social  worker

who  went to the home also reported that it was extremely  filthy

and   that  S.H.  was  smoking  cigarettes,  despite  being  told

previously by the court that smoking was prohibited due to [D.H.]

and  [T.H.s]  asthma.  DFYS removed the five  children  from  the

home,   placing  J.F.  and  T.H.  in  Alaska  Childrens  Services

residential treatment and situating V.H, D.H., and S.F. in foster


          R.H.  relinquished his parental rights of  T.H.,  V.H.,

and  D.H.  in  October 1999.  In February 2000 DFYS  developed  a

permanency  plan  to terminate S.H.s parental rights,  indicating

that  S.H.  has  not  addressed any of  the  issues  outlined  in

previous  case  plans.   DFYS petitioned  to  terminate  parental

rights  on  May 12, 2000.  In May or June 2000 R.H.s  request  to

withdraw  the relinquishment of his parental rights was  granted.

On  July  10,  2000,  DFYS amended its petition  to  include  the

termination of R.H.s parental rights.  In August 2000 DFYS sent a

letter  to  R.H.  at Spring Creek Correctional Center,  inquiring

about  R.H.s  participation in the case plan while  incarcerated.

R.H. failed to respond to the letter.

          After a four-day hearing in September 2000, Judge Reese

terminated  S.H. and R.H.s parental rights.  Both S.H.  and  R.H.

appeal this order, and their appeals have been consolidated.


     A.   Standard of Review

          We  apply the clearly erroneous standard when reviewing

a  trial  courts  findings on termination  of  parental  rights.1

Clear  error  arises only when our review of  the  entire  record

leaves  us with a definite and firm conviction that the  superior

court  has made a mistake.2  Whether the superior courts  factual

findings  satisfy  applicable child in need of aid  statutes  and

rules is a question of law that we review de novo.3

     B.   The  Trial  Court Did Not Err in Concluding  that  S.H.
          Failed To Remedy the Conduct or Conditions in the  Home
          that Place the Children at Substantial Risk of Harm.
          Under   AS  47.10.088(a),   parental  rights   may   be

terminated if the court finds: (1) that the child is in  need  of

aid  under AS 47.10.011; (2) that the parent has failed to remedy

the  conduct  or conditions that place the child at a substantial

risk of harm or failed to remedy the conduct or conditions within

a  reasonable  time; and (3) that the department made  reasonable

efforts to provide family support services to prevent out-of-home

          placement of the child or to return the child to the family home.4

The  court must also consider the best interests of the child and

any  fact relating thereto.5  The superior court found that  this

three-part  test was satisfied.  It further found that  DFYS  had

complied   with   the   Indian  Child  Welfare   Acts   placement

requirements6 as they pertained to J.F.

          S.H. does not contest the finding that her children are

in need of aid.  Rather, she maintains that the trial court erred

in  concluding  that she had failed within a reasonable  time  to

remedy  the  conduct  or conditions in the home  that  place  the

children  at  substantial  risk of harm.   S.H.  argues  that  by

divorcing  her  abusive husband and by entering  substance  abuse

treatment, she has taken substantial steps to remedy the  primary

causes of the emotional damage suffered by the children.

          Judge Reese found that the children are in need of  aid

under  five statutory factors: AS 47.10.011(1) (abandonment);  AS

47.10.011(6) (substantial risk of physical harm); AS 47.10.011(8)

(mental injury to the child); AS 47.10.011(9) (neglect);  and  AS

47.10.011(10)  (substance abuse of the parent).   In  his  ruling

from the bench, Judge Reese noted:

          [S.H.]  started  her treatment  program  last

          week.   [R.H.  is] going to  start  his  next

          Monday.  .  .  .   Even if you  succeeded  in

          those,  it would be months and months  before

          anyone  could say with a straight  face  that

          there was success happening.  And, of course,

          we  all know that the success in these  kinds

          of  programs is very elusive.  And  the  kids

          just dont have time. They need permanency.

We  conclude  that Judge Reese did not err in finding  that  S.H.

failed  to remedy her substance abuse problem within a reasonable


          Contrary  to  S.H.s assertion that her substance  abuse

problem  did not start until April 1999, she tested positive  for

          cannabinoids, cocaine, alcohol, opiates, and amphetamines seven

times  from April 1994 to October 1995.  In 1999 she began  using

crack  cocaine on weekends.  S.H. claims that [s]he was  actively

seeking  treatment by September of 1999.  But between April  1999

and  March 2000, S.H. tested positive nineteen times for  cocaine

and  cannabinoids.   S.H. also failed to follow  through  on  two

earlier  drug assessment plans and repeatedly failed to  complete

outpatient treatment.7

          In  February  2000  DFYS  developed  a  case  plan  for

termination  of  S.H. and R.H.s parental rights.   But  even  the

imminent threat of losing her children was not enough to motivate

S.H.  to  cease her drug use:  In March 2000 she tested  positive

for  cocaine and she admitted to having used cocaine as  recently

as  May  2000.8   The June 2000 assessment indicated  that  S.H.s

resistance  to treatment was high and that she was at  high  risk

for   relapse.   It  also  noted  that  S.H.  appears  ambivalent

concerning need for treatment and that she has continued  to  use

illicit substance[s] despite negative consequences.

          In  making a determination that a parent has failed  to

remedy  the harmful conduct within a reasonable amount  of  time,

the court may consider any fact relating to the best interests of

the child, including

               (1)   the  likelihood of  returning  the
          child to the parent within a reasonable  time
          based on the childs age or needs;
               (2)   the amount of effort by the parent
          to  remedy  the conduct or the conditions  in
          the home;
               (3)  the harm caused to the child;
               (4)   the  likelihood that  the  harmful
          conduct will continue; and
               (5)   the  history  of  conduct  by   or
          conditions created by the parent.[9]
S.H.s  substance  abuse  history, which  reflects  a  pattern  of

periods of progress followed by periods of heavy substance  abuse

and neglect of her childrens needs, supports Judge Reeses finding

that  S.H. failed to remedy her substance abuse problem within  a

reasonable time.10

          The  court properly considered that several more months

would  pass  before S.H. or R.H. could provide a sober,  healthy,

and  stable family environment in which they could focus on their

childrens complicated special needs.  The fact that DFYS  already

had  exhibited  such  patience with this  family  made  immediate

attention  to  these childrens needs all the more  crucial.   The

record  also  indicates  that there is a  high  risk  that  S.H.s

substance abuse will continue.  The harm caused by S.H. and R.H.s

substance  abuse, neglect, and abandonment of their  children  is

evidenced  by  the fact that the children require  therapy  as  a

result  of  mental  and physical injuries received  in  the  home

environment.    If  S.H.  had  been  progressing  in   outpatient

treatment  during the year prior to the permanency  hearing,  her

argument that the waiting list for residential treatment made  it

impossible for her to remedy her conduct within a reasonable time

would carry more weight.  But she continued to use cocaine during

this  period,  failed  to pursue individual counseling,  and  was

noncompliant with outpatient drug treatment.

          In  addition, we agree with the trial court  that  S.H.

did not remedy her failure to address her childrens emotional and

therapeutic  needs.   Judge Reese concluded that  the  anger  and

addiction issues are large and important . . . but the main issue

here  is  the parental participation in the childrens lives,  and

especially in their treatment.  In finding that the children  are

in  need of aid, Judge Reese recognized the parents inability  to

succeed  in following the case plans in any reasonable scope  and

their  woefully  inadequate efforts to attend  to  the  childrens

complicated  and  special emotional and  therapeutic  needs.   We

conclude  that  the trial court did not err in ruling  that  S.H.

failed to remedy her conduct within a reasonable period of time.

     C.    The  Trial  Court  Did Not Err  in  Terminating  R.H.s

Parental Rights.

          1.   Termination  of  the parental rights  of  R.H.  to

               T.H., V.H., and D.H. was in the best interests  of

               the children.

          R.H.  maintains  that  all three  children  were  still

subject to being moved to new placements at the time of trial and

that  there is no indication that DFYS will ever find an adoptive

home for T.H., given the childs severe behavioral problems.  R.H.

further  argues  that  although  there  was  testimony  that  the

children  need  a  permanent placement,  there  was  no  evidence

presented  regarding the time in which such a placement  must  be


          The trial court must consider the best interests of the

child in determining whether to terminate parental rights.11  R.H.

cites A.B. v. State, Department of Health & Social Services12  in

support  of his argument that termination of his parental  rights

would  leave his children orphaned, which would not be  in  their

best interests.  Contrary to R.H.s assertion, A.B. stands for the

proposition  that the risk of a child being half-orphaned  should

be  considered in the best interests analysis where DFYS seeks to

terminate  only one parents rights and the child will  remain  in

the  other parents custody.13  Here, DFYS seeks to terminate  the

rights of both parents, and, therefore, A.B. does not apply.

          The  timeliness of a permanent stable placement for the

children  is paramount, particularly in this case.14  The  record

indicates  that the children are in need of a permanent placement

with  foster parents, adoptive parents, or guardians who can meet

the childrens special needs and who will be consistent, reliable,

and  capable of participating in the childrens treatment.   There

is  a  substantial body of evidence regarding the extensive needs

of  the  children, the parents history of failing to  meet  those

needs,  and  the  childrens  repeated  exposure  to  the  parents

substance abuse and domestic violence.

          Both  R.H.  and  S.H.  testified that  they  have  been

physically  violent towards each other.  In July 1995  the  court

          ordered that R.H. was not to have contact with S.H. after he was

convicted  of assaulting her.  In May 1997 R.H. was charged  with

assaulting S.H., J.F., and T.H.  In her petition for a protective

order,  S.H. reported that R.H. had hit her ten-year-old son  and

when she tried to intervene, R.H. hit me and [threw] a toy at  my

4  yr  son, and then took kni[v]es from my kitchen and then thats

when I call[ed] the cops.  He was convicted of disorderly conduct

and  was  sentenced to five years probation, ordered to  have  no

contact  with  S.H. or the children, and ordered to  complete   a

domestic  violence  intervention program.15  From  June  1997  to

August  1999,  S.H.  obtained three domestic violence  protective

orders  against R.H. for his conduct, ranging from verbal threats

and harassment to assaults against S.H. and the children.

          It  is evident from the record that there is a need for

the children to be placed immediately in a permanent stable home.

The  trial court did not err in finding that termination of R.H.s

parental rights was in the childrens best interests.

          2.    R.H. failed to remedy his conduct in a reasonable


          R.H.  argues that there was no testimony that he  would

not  be  able  to  provide  for  the  childrens  needs  within  a

reasonable  time  period.   He asserts that  the  only  testimony

concerning his parenting style was entirely positive.16  Although

R.H.  recognizes  that  it  would take some  additional  time  to

overcome  his  substance abuse problem,  he  maintains  that  the

evidence does not indicate that time had run out.  R.H. testified

that   he  would  be  out  of  prison  and  prepared  to   assume

responsibilities  as a parent eighteen months from  the  time  of


          We  agree with the trial court that R.H.s efforts  were

too  little, too late.  Although R.H. completed parenting classes

in  prison  in August and September 1999, he signed up  to  begin

residential drug treatment that would start only after trial,  in

October  2000, in a program offered through Wildwood Correctional

          Facility.  And R.H. has presented scant evidence that he has

attended  to the medical or mental health needs of his  children.

As recently as December 1998, he was openly defiant towards DFYSs

efforts  to help him address his own needs and the needs  of  his

children.   Given his history of domestic violence and  substance

abuse from 1995 to 1999, we conclude that the trial court did not

err  in  finding  that R.H. had not remedied his harmful  conduct

within a reasonable amount of time.

          3.   DFYS made reasonable efforts to prevent the break-

               up of the family.

          R.H.  argues  that DFYS made no efforts to prevent  the

break-up  of the family in the four months between his withdrawal

of  his  relinquishment of parental rights in May  2000  and  the

termination  of  parental  rights  hearing.   Before  terminating

parental rights, the trial court must find that DFYS has complied

with   the  provisions  of  AS  47.10.086  concerning  reasonable

efforts.17   Alaska Statute  47.10.086(a) provides  in  pertinent


          [T]he    department   shall   make    timely,

          reasonable efforts to provide family  support

          services  to the child and to the parents  or

          guardian  of  the child that are designed  to

          prevent out-of-home placement of the child or

          to enable the safe return of the child to the

          family  home, when appropriate, if the  child

          is in an out-of-home placement.

DFYS  must  identify  and actively offer  to  the  parent  family

support  services  that  will assist the parent  or  guardian  in

remedying  the  conduct or conditions in the home that  made  the

child a child in need of aid.18

          We  have  held  that  a  parents demonstrated  lack  of

willingness  to  participate in treatment may  be  considered  in

determining  whether  the  State  has  made  reasonable  remedial

efforts.19  Despite R.H.s explicit refusal to work on the November

          1998 DFYS case plan, DFYS developed case plans in March 1999 and

August 1999 that focused on R.H.s domestic violence and substance

abuse.   Again, R.H. stated that he was unwilling to work on  the

case  plan  unless  he could have custody of  his  child  from  a

previous  relationship.  A therapist at Alaska Childrens Services

testified that in 1999 R.H. told her that he did not want to have

contact with T.H. because [T.H.] did not do anything for him  and

therefore he did not want to do anything for [T.H.].

          R.H.  claims  that he relinquished his parental  rights

because  he  hoped  it  would improve S.H.s  chances  of  keeping

custody of the children.  But this does not change the fact  that

he  had  from November 1998, when DFYS developed the  first  case

plan,  to May 2000, when he relinquished his parental rights,  to

take  advantage of the services that DFYS offered him.   Instead,

he repeatedly rejected DFYSs efforts.

          Because R.H. had consistently refused to participate in

DFYS  case  plans, we conclude that DFYSs efforts  with  R.H.  to

prevent  the break-up of the family were reasonable.  After  R.H.

withdrew his relinquishment of parental rights, DFYS offered  him

programs  and  services  through the Department  of  Corrections,

including   health   and  parenting  classes,  residential   drug

treatment in a therapeutic community, and urinalysis testing.  In

addition,  in August 2000 a DFYS social worker sent a  letter  to

R.H.  reminding  him  of his case plan objectives  and  inquiring

about  the programs available in the prison and his participation

in  the case plan.  As we recognized in A.M. v. State, [i]t is of

no  particular  consequence  that the Department  of  Corrections

(DOC),  rather  than DFYS, made these active remedial  efforts.20

The  trial  court did not commit error by finding that DFYS  made

reasonable remedial efforts.


          The trial court did not err in finding that termination

of R.H. and S.H.s parental rights is in the best interests of the

children, that the parents failed to remedy the conduct that  put

          the children at risk of physical and emotional injury within a

reasonable amount of time, and that DFYS made reasonable  efforts

to  prevent  the  break-up of the family.  We  AFFIRM  the  trial

courts order terminating R.H. and S.H.s parental rights.

     1     M.W.  v. State, Dept of Health & Soc. Servs., 20  P.3d
1141, 1143 (Alaska 2001).

     2    Id.

     3     Id.; E.M. v. State, Dept of Health & Soc. Servs.,  959
P.2d 766, 768 (Alaska 1998).

     4     J.H.  v. State, Dept of Health & Soc. Servs., 30  P.3d
79,  85-86  (Alaska  2001)  (citing  AS  47.10.088(a)(1)(B),   AS
47.10.088(a)(2), and AS 47.10.086).

     5    AS 47.10.088(b).

     6    25 U.S.C.  1915(b).

     7     S.H.  attributes  to DFYS her failure  to  remedy  her
substance  abuse  problem in the twelve months between  when  she
claims  DFYS first identified her problem in August 1999 and  the
termination hearing in September 2000.  S.H. argues that DFYS did
not  adequately assess her need for in-patient treatment.   Judge
Reese  put it best when he said:  The responsibility of the state
to  provide  reasonable  efforts  and  active  efforts  does  not
eliminate the responsibility of the parents to do their  part  as
well.  And thats where the failure was here.

     8     S.H.  also claims she attempted to comply  with  DFYSs
drug  assessment plan and that her full compliance with DFYS case
plans  was  not  required  for  her  to  remedy  the  conduct  or
conditions that placed her children at risk.  However, the  trial
court  correctly  concluded that her attempt to comply  with  the
drug  assessment  plans was insufficient to  remedy  her  conduct
within a reasonable time.  Furthermore, Judge Reese did not  base
his decision on S.H.s lack of full compliance with the case plan.
Rather,  he  found that S.H. and R.H.s inability  to  succeed  in
following  the  case plans in any reasonable scope supported  the
conclusion  that  these  parents had not remedied  their  harmful

     9    AS 47.10.088(b).

     10     See  J.H. v. State, Dept of Health & Soc. Servs.,  30
P.3d  79, 96 (Alaska 2001) (holding that despite mothers progress
in  attempting  to conquer her substance abuse problem,  she  had
failed to remedy her conduct within a reasonable time).

     11    AS 47.10.088(c).

     12     7  P.3d 946, 954-955 (Alaska 2000) (In light of DFYSs
efforts  to unite S.B. and R.H. . . . termination of her parental
rights  has, in effect, left S.B. half-orphaned.  If  R.H.  turns
out to be a satisfactory parent for S.B., it is difficult for  us
to  see  how  severing  all  ties with  A.B.  is  in  S.B.s  best

     13     See id. at 955 n.27 (The situation would be different
if  DFYS  were attempting to place S.B. into a permanent adoptive
home. . . .  Here, however, . . . DFYS was seeking to place  S.B.
with  her father, at least until DFYS determines that the  father
is also not an adequate parent.); A.H. v. State, Dept of Health &
Soc.  Servs.,  10 P.3d 1156, 1166 (Alaska 2000) (concluding  that
A.B.  does  not control because the State petitioned to terminate
the  parental  rights  of both [parents], planning  to  free  the
children for adoption).

     14     Cf.  AS  47.10.086(b) (providing that once the  court
finds  that  the requirements for termination of parental  rights
have  been  met,  [t]he  department shall  then  make  reasonable
efforts to place the child in a timely manner in accordance  with
the permanent plan) (emphasis added); AS 47.05.065(5) ([N]umerous
studies  establish that . . . (C) it is important to provide  for
an  expedited  placement procedure to ensure that  all  children,
especially  those  under  the age of six  years,  who  have  been
removed   from   their  homes  are  placed  in  permanent   homes

     15     When  asked  by  his attorney  whether  he  had  ever
intentionally hurt his children, R.H. responded, No, Id never  do
that.  Not with the way I was raised.

     16     The testimony that R.H. cites concerning his entirely
positive  parenting  style  came from  one  neighbor  whose  only
contact with R.H. was while talking to him while R.H. was in  his
yard  doing  chores or playing with the children.  That  neighbor
never saw R.H. in the home with his children.

     17    AS 47.10.088(a)(2).

     18    AS 47.10.086(a)(1)-(2).

     19     See N.A. v. State, 19 P.3d 597, 603-04 (Alaska 2001);
A.M.  v. State, 945 P.2d, 296, 306 (Alaska 1997); A.H. v.  State,
10 P.3d 1156, 1164 (Alaska 2000); A.A. v. State, Dept of Family &
Youth Servs., 982 P.2d 256, 262-63 (Alaska 1999).

     20    945 P.2d at 305; A.A., 982 P.2d at 263.