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E.A. v. State, Div. of Family and Youth Services (5/10/2002) sp-5564
E.A. v. State, Div. of Family and Youth Services (5/10/2002) sp-5564
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
E. A., )
) Supreme Court No. S-10200
Appellant, )
) Superior Court No. 3AN-95-0484
CP
v. )
) O P I N I O N
STATE OF ALASKA, DIVISION )
OF FAMILY AND YOUTH ) [No. 5564 - May 10, 2002]
SERVICES, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Kathleen A. Murphy, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Michael
G. Hotchkin, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
I. A mother appeals the termination of her parental rights
to her Native child. We affirm the trial courts holding that the
state made active, unsuccessful efforts to prevent this
termination. Although the state failed to obtain an updated
psychological evaluation of the mother following her childs
allegation that she had abused him, an update would not likely
have increased the mothers chances for reunification given her
inability to maintain long-term sobriety and her resistance to
receiving treatment. We also hold that substantial evidence
supports the superior courts finding that returning the child to
his mothers custody would likely result in serious emotional
harm. Two experts testified that the child feared his mother and
would regress if returned to her. Further, the record clearly
demonstrated that the mother had not successfully overcome her
substance abuse, and could not address her parenting issues until
she had done so. We therefore affirm the superior courts
termination decision.
II. FACTS AND PROCEEDINGS
This appeal arises from the termination of E.A.s
parental rights to H.O., her six-year-old son.1 H.O. is an
Indian child within the meaning of the Indian Child Welfare Act.2
E.A. has led a troubled life. She claims to have been
physically abused by her adoptive parents children and sexually
abused by a relative during her childhood, and she has a long
history of substance abuse.
The Division of Family and Youth Services (DFYS)
assumed custody of E.A.s first child shortly after birth due to
his parents substance abuse and domestic violence problems.
E.A.s second child was born while she was in treatment at the
Dena-A-Coy residential substance abuse treatment center, and her
third was born a year after she completed the treatment program.
DFYS permanently removed all three children in 1994 due to their
parents substantial neglect and a dangerous home environment.
DFYS arranged for Dr. Michael Rose to conduct a
psychological evaluation of E.A. Dr. Rose found that E.A. had a
high potential for child abuse because of her negative attitudes
towards her children, untreated anger issues, and authoritarian
parenting style. He further found that E.A. was significantly
addiction-prone, and especially likely to abuse substances when
acutely stressed. Dr. Rose concluded that E.A. was not currently
capable of being a safe and nurtur[ing] caregiver to her
children, that her prognosis [was] very poor, and that her
prospects for future treatment were dismal at best.
E.A. entered Dena-A-Coy for the second time in March
1995. When H.O. was born later that year, the state filed a non-
emergency CINA petition, but there was no removal at the time.3
In 1996, pursuant to his parents stipulation, H.O. was
adjudicated a child in need of aid due to his parents continuing
substance abuse and domestic violence problems.
DFYS removed H.O. from E.A.s custody in 1998 due to
E.A.s poor parenting skills, refusal to accept services, and use
of inappropriate care providers. E.A. was placed in the same
foster home as his three older siblings.
In October 1999 H.O. claimed that his mother harmed him
during a visit and that he was afraid of her.4 DFYS suspended
visitations and placed H.O. in therapy with Dr. Michael Baldwin.
Dr. Jeanne Bereiter performed a psychological evaluation of H.O.
and concluded that he suffered from post-traumatic stress
disorder. Over the next six months three psychologists (Dr.
Baldwin, Dr. Bereiter, and Dr. Susan LaGrande) all cautioned that
renewed visitation might result in further emotional harm.
DFYS filed a petition to terminate E.A.s parental
rights to H.O. in August 2000. The parties significantly
narrowed the issues for trial by stipulating to most relevant
facts. The only issues in dispute were whether DFYS had provided
active remedial efforts directed towards reunifying E.A. and H.O.
and whether the state could prove beyond a reasonable doubt that
returning H.O. to his mother would likely cause him serious
emotional harm. The court found in favor of the state on both
issues.
E.A. appeals.
III. DISCUSSION
A. Standard of Review
A. Whether DFYS complied with the active efforts requirement of
the Indian Child Welfare Act (ICWA) is a mixed question of fact
and law.5 Likewise, whether substantial evidence supports the
courts conclusion that an Indian child is likely to be seriously
harmed if returned to his parent is a mixed question of fact and
law.6 Whether expert testimony satisfies ICWA requirements is a
pure legal question.7 We review the courts factual findings
under the clearly erroneous standard,8 and its legal conclusions
de novo.9
B. The Trial Court Correctly Concluded that DFYS Made Active
Efforts To Prevent the Breakup of E.A.s Family.
Prior to terminating parental rights to a Native child,
the state must prove by a preponderance of the evidence that it
made active, but unsuccessful, efforts to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the family.10 The trial court held that active
efforts had been made in this case, but without success. E.A.
argues that DFYSs stipulated failure to make active remedial
efforts for the first half of 1999 and its failure to obtain an
updated psychological evaluation of E.A. after H.O.s allegation
of harm in October 1999 compel us to conclude that the state did
not make active efforts.
The trial court found that an additional psychological
evaluation of E.A. would have been of marginal value because two
had already been conducted and another simply would have
recommended services similar to those already being provided.
This finding is not erroneous. Arguably, DFYS needed to conduct
an updated evaluation to design an effective treatment program in
light of abuse issues brought into focus by H.O.s allegations in
October 1999. Dr. LaGrande testified that an updated evaluation
might be helpful to guide future treatment.
However, the state makes a compelling argument that
even if an updated evaluation might have ideally guided future
treatment, E.A.s failure to address her substance abuse problems
strongly indicates that E.A. was not sufficiently interested in
or capable of taking advantage of such treatment. E.A. failed to
curb her substance abuse by the time of trial; in fact, multiple
alcohol-related encounters with the police in the year leading up
to trial indicate that she had taken a significant turn for the
worse. Dr. LaGrande testified that E.A. would have to maintain
sobriety for at least a year before she could expect to
successfully begin dealing with her parenting problems. She
further testified that E.A. had been provided many opportunities
to obtain therapy and substance abuse treatment and had failed to
take advantage of them.11
Although the evaluation may well have provided new
information, the utility of that information was conditioned on
E.A.s ability to overcome her serious substance abuse problems.
The new evaluations recommendations would surely have been
consistent with those of the earlier evaluations regarding her
need to maintain long-term sobriety, and the record does not
support a finding that E.A. is likely to meet this critical
requirement in the near future.
Further, DFYSs failure to make active efforts from
January to July 1999 is insignificant in light of the extensive
remedial efforts the state has provided throughout its
involvement with E.A.s children apart from this seven-month
period. E.A. has participated in six substance abuse treatment
programs, parenting education, anger management classes,
relationship and self-esteem classes, couples therapy, twelve-
step programs, family counseling, ACF home-based services, the
ACF preschool program, and CITC home-based services and therapy.
E.A. also has a history of either refusing services altogether or
abandoning treatment plans prior to completion.
E.A. admits that DFYS resumed active efforts in the two
months before the October 1999 incident. Although DFYSs efforts
thereafter consisted largely of failed attempts to contact E.A.
or obtain information from her rather than the provision of
services, E.A.s evasive, combative conduct rendered provision of
services practically impossible.12
We have consistently held that [a] parents demonstrated
lack of willingness to participate in treatment may be considered
in determining whether the state has taken active efforts.13
Further, where efforts have been made to address a substance
abuse problem, the parent has made no effort to change, and
parental rights have already been terminated as to one or more
children as a result, the superior court may consider the degree
of the states efforts to prevent the breakup of the entire family
in assessing whether that effort was sufficient under ICWA.14
DFYS has expended substantial efforts over the last decade to
prevent the breakup of E.A.s family, without success. There is
no reason to think that either an additional psychological
evaluation or an additional seven months of intervention would
have prevented this result.15 Accordingly, we affirm the trial
courts conclusion that active efforts were made.
C. The Trial Court Properly Concluded that H.O. Would Likely Be
Harmed if Returned to E.A.s Custody.
The state must further prove beyond a reasonable doubt
that H.O. is likely to suffer serious emotional or physical
damage if placed with E.A. prior to terminating her rights to
him.16 This proof must include qualified expert testimony based
upon the particular facts and issues of the case.17 We hold that
qualified expert testimony in combination with substantial
evidence in the record supported the courts determination that
H.O. would likely be harmed if returned to E.A.
Dr. Baldwin, H.O.s therapist, testified at trial, as
did Dr. LaGrande, a clinical psychologist who was asked by H.O.s
guardian ad litem to review the case. E.A. argues that both
experts testimony was insufficient under our decision in C.J. v.
State, Dept of Health & Soc. Servs.,18 because neither expert
evaluated or interviewed E.A., and because the information they
relied on to render their opinions was outdated.19 The state
correctly responds, however, that the testimony nonetheless
supports the courts conclusion because both experts had
substantial contact with H.O.20 In contrast, the expert in C.J.
relied exclusively on the DFYS case file.21
Further, while the experts testimony in C.J. amounted
to little more than generalizations about the harms resulting
from a parents absence,22 both experts here spoke to the
specifics of H.O.s aberrant behavior and its connection to his
traumatic relationship with his mother. Dr. Baldwin testified
that H.O. exhibited significant behavioral difficulties,
including nightmares in which he was being harmed, aggression
towards his siblings, and repetitive play reenacting harmful
incidents. Dr. Baldwin further stated that H.O. became very
agitated when his mother was mentioned, and expressed fear during
therapy sessions that his mother was coming to get him. H.O.
would shut down or become non-verbal when the subject of his
dreams or his mother arose. Dr. Baldwin testified that H.O. was
emotionally fragile as a result of his traumatic experiences. He
concluded that any contact between H.O. and E.A. would very
likely trigger a substantial regression, and therefore had a high
potential to cause H.O. serious emotional harm.
Dr. LaGrande testified that H.O. was a psychologically
fragile child, and that he needed a high degree of stability and
consistency in order to overcome his traumatic experiences and
successfully reach his developmental milestones. She was
concerned that E.A. would not provide the structured, consistent
environment H.O. needed to maintain his psychological growth.
She concluded that returning H.O. to an environment in which he
would predictably experience fear would prevent him from gaining
the sense of comfort and security necessary for healthy
psychological growth.
The state argues that the one-year lag between the
experts formulation of their opinions and their trial testimony
is immaterial where E.A. has provided no evidence (or even
argument) contradicting the experts assessments. In fact, it
seems clear that both experts would have been even more concerned
about reunification of H.O. with E.A. if they had known of recent
events. In contrast, the parent in C.J. introduced unrebutted
evidence that he was successfully parenting his older child and
that he had taken steps to put himself in a position to parent
his younger children.23
Finally, there is substantial evidence of E.A.s
instability and parental incapacity outside of the experts
testimony in this case. ICWA does not require that the experts
testimony provide the sole basis for the courts conclusion; ICWA
simply requires that the testimony support that conclusion.24
Accordingly, there is no basis for holding the experts testimony
insufficient.
E.A. further argues that the court improperly focused
on her substance abuse in concluding that H.O. would likely be
seriously harmed if returned to her custody. To prove that E.A.s
custody of H.O. would likely cause him harm, the state must prove
both that E.A.s conduct is likely to harm H.O. and that E.A. is
unlikely to change her conduct.25 E.A. argues that the state
never proved a connection between her substance abuse and her
parenting capacity, and therefore the court had no basis for
concluding that E.A.s harmful conduct was likely to continue,
even if it had sufficient grounds to believe that E.A.s substance
abuse would continue.
However, the record contains substantial evidence
linking E.A.s alcohol and drug abuse and her parenting abilities.
H.O. and his three older siblings were adjudicated children in
need of aid due in part to their parents substance abuse. E.A.s
substance abuse has been a factor in multiple DFYS interventions
throughout the 1990s, and has been the principal focus of E.A.s
long history of receiving professional help. Finally, as noted
above,26 Dr. LaGrande and E.A.s social worker both testified that
E.A. had to achieve lasting sobriety prior to addressing her
parenting issues, and both were very skeptical that she would
ever do so given her significant relapse history.
Thus, the record gives every indication that E.A.s poor
parenting skills are highly related to her substance abuse
problems, and that E.A. is unlikely to achieve lasting sobriety.
The extensive evidence of E.A.s chronic, unaddressed substance
abuse, taken together with the unequivocal opinions of the two
experts and H.O.s documented fear of returning to his mother,
provide the requisite proof both that E.A.s conduct would likely
harm H.O. and that E.A. is unlikely to permanently change that
conduct.
IV. CONCLUSION
For these reasons, the superior courts decision is
AFFIRMED.
_______________________________
1 E.A. is the biological mother of five children: three
girls and two boys. E.A. relinquished her parental rights to the
eldest three children as well as her youngest.
2 25 U.S.C. 1901-23, 1951 (1988).
3 In 1996 E.A. successfully completed treatment at Dena-A-
Coy and transitioned to New Dawn, an aftercare residential
substance abuse treatment program.
4 H.O. later told a state psychologist that [E.A.] was
mean a long time, she slapped me with [a book].
5 N.A. v. State, Div. of Family & Youth Servs., 19 P.3d
597, 600-01 (Alaska 2001) (citations omitted).
6 L.G. v. State, Dept of Health & Soc. Servs., 14 P.3d
946, 949-50 (Alaska 2000) (holding that factual findings in
termination proceedings are reviewed under clearly erroneous
standard, but whether those findings comport with ICWA
requirements presents questions of law).
7 C.J. v. State, Dept of Health & Soc. Servs., 18 P.3d
1214, 1217-18 (Alaska 2001).
8 L.G., 14 P.3d at 949-50 (citation omitted).
9 Id. (citation omitted).
10 25 U.S.C. 1912(d) (2000) (stating that court may
terminate parental rights only if it finds by preponderance of
evidence 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); CINA Rule 18(c)(2); K.N. v. State, 856 P.2d 468,
476 (Alaska 1993).
11 E.A.s social worker testified similarly, further adding
that even if E.A. were fully cooperative it would take at least
two to three years of intensive treatment efforts before she
would be ready to be reunited with H.O.
12 She repeatedly failed to apprize DFYS of her contact
information and ultimately refused to give her new telephone
number to DFYS, skipped her custody extension hearing, was
verbally abusive toward her social worker, and failed to adhere
to DFYSs instructions to obtain a substance abuse assessment,
curb her substance abuse, or attend AA meetings.
13 N.A., 19 P.3d at 603-04; A.M. v. State, Div. of Family
& Youth Servs., 891 P.2d 815, 827 (Alaska 1995), overruled on
other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996);
K.N., 856 P.2d at 477.
14 N.A., 19 P.3d at 603-04 (citations omitted).
15 Id. (stating that there is no reason to think DFYSs
failure to enroll parent in yet another residential dual-
treatment program would have resulted in more successful
outcome); see also K.N., 856 P.2d at 477 (noting that [a]lthough
. . . DFYS might have done more, it is unlikely that further
efforts by DFYS would have been effective in light of [the
parents] attitude).
16 25 U.S.C. 1912(f) (2000).
17 Id.; C.J., 18 P.3d at 1218.
18 18 P.3d 1214 (Alaska 2001).
19 E.A. further notes that Dr. LaGrande testified that she
lacked sufficient knowledge to evaluate E.A.s capacity as a
parent. Similarly, Dr. Baldwin testified that he had not had
sufficient contact with E.A. to evaluate her parenting abilities.
20 Dr. Baldwin conducted fifteen or sixteen therapy
sessions with H.O. over the course of seven months. Dr. LaGrande
relied upon several sources in preparing her report, including
her observations of H.O. playing with his foster mother,
interviews with Dr. Baldwin, H.O.s social worker, his foster
mother, and his preschool teacher, and her review of DFYS
records.
21 18 P.3d at 1218.
22 Id.
23 Id. at 1219.
24 25 U.S.C. 1912(f) (2000).
25 L.G., 14 P.3d at 950 (citation omitted).
26 See supra Part III.B.
