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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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

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E. A.,                        )
                              )    Supreme Court No. S-10200
               Appellant,      )
                              )    Superior Court No. 3AN-95-0484
     v.                       )
                              )    O P I N I O N
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.   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.


          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


          E.A. appeals.


     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

           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



          For  these  reasons,  the superior courts  decision  is


     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

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.