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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ben M. v. State, Dept. of Health & Social Services, Office of Children's Services (04/03/2009) sp-6356
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
| BEN M., | ) |
| ) Supreme Court No. S- 13090 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-05-00209 CN |
| ) | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH AND | ) |
| SOCIAL SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6356 - April 3, 2009 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Dianne Olsen, Anchorage, for
Appellant. Megan R. Webb, Assistant Attorney
General, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
I. Ben M.1 appeals the termination of his parental rights.
Because the trial court did not abuse its discretion in denying
the motion Ben made on the first day of trial to continue the
trial, and because it was not error to find beyond a reasonable
doubt that returning his daughter to his custody would likely
cause her serious harm, or to find by clear and convincing
evidence that the state made active efforts to provide services
to reunify the family, we affirm the termination of Bens parental
rights.
II. FACTS AND PROCEEDINGS
A. Facts
Bens daughter, Nicole, is an Indian child as defined in
25 U.S.C. 1903(4), part of the Indian Child Welfare Act. Nicole
was removed from her parents and declared a child in need of aid
shortly after her birth on July 18, 2005, when she tested
positive for cocaine. Nicoles mother, Robin, had previously
tested positive for cocaine use during the pregnancy. Ben was
incarcerated at the time. He was released from jail later in
July, and in August he began taking parenting classes and
visiting Nicole. He also underwent urinalysis testing to assure
Office of Childrens Services (OCS) that his problems with cocaine
and alcohol had been addressed, and had consistently negative
results for several months in fall 2005. Nicole began a trial
home stay in September, with Ben agreeing to supervise contact
between Nicole and Robin.
Ben and Robin stopped following their case plan and
began missing urinalysis appointments in December 2005. The
efforts of their caseworker Rebecca Morino to contact them met
with little success. Eventually, Morino found the couple home
for an unannounced visit in January 2006. The couple complied
with Morinos request to take a cab to Worksafe, the entity
performing the urinalysis tests, for a test that day. Bens
result was negative, but Robins test was reported as suspect.
Her specimen was out of temperature range and the report detailed
other circumstances suggesting she may have been trying to
falsify her result. Morino returned to the home accompanied by
police officers to request that Robin leave the home. The couple
yelled and gestured at her, and Ben approached her, leading an
officer to step between them. The mothers urinalysis retest
eventually came back positive, and Worksafe reported a later
incident with the mothers urinalysis that led OCS to conclude Ben
knew she was still using: The Worksafe report stated that Ben
was in the lobby for several hours while she was supposed to be
undergoing testing and told the receptionist that she was not yet
there, but she was actually in the lobby. OCS then learned that
during the time when Ben and Robin were out of contact, Robin had
been using cocaine and that Ben had been involved in Robins
suspicious urinalysis incident suggesting he knew of her ongoing
cocaine use. Further, OCS discovered that the Anchorage police
had been called to the home for domestic disturbances in fall
2005, and that Ben had been incarcerated for two days during that
time, apparently leaving Nicole unsupervised with her mother.
OCS removed the child from the home on January 11,
2006. During the removal, Ben was very angry and yelled at the
social worker. On January 17, shortly after the childs removal,
OCS called Ben about his inconsistent attendance at urinalysis
screening and Ben responded, [a]s soon as you removed [Nicole],
all bets were off. Im not doing anything. Ben did not show up
for urinalysis tests set up biweekly from January 13, 2006
through February 17, 2006, when Morinos request for testing with
Worksafe expired. He also ended contact with OCS.
In early February Ben was evicted from his home. On
February 20 he was incarcerated again. He had visitation with
Nicole one or two times a month during this incarceration and was
released in August 2006. He had a few visits with Nicole and was
again incarcerated in September 2006, briefly released, and then
re-arrested on escape status from ankle monitoring. His
whereabouts from November 2006 until March 2007 are unknown. A
new caseworker, Heather Rough, located him in jail in April
2007. That period of incarceration lasted from March 2007 until
August 2007.
Ben requested visitation when he was released, but
Rough found him confrontational and difficult to work with. The
parties reached a new visitation agreement in October 2007, but
Ben did not visit Nicole from October 2007 through the trial in
March 2008. Ben was incarcerated again in October 2007. The
record is unclear as to the length of this incarceration. He was
released from jail on March 3, 2008, but this was apparently from
a later, separate incarceration. His testimony during the motion
for continuance suggested that he went into OCS in January 2008
for an assessment and understood that OCS would help him get into
treatment. In March 2008, several days before trial, he briefly
entered a residential treatment program and then left the
following day to attend the first day of the trial. He did not
attend the second day of the trial.
B. Proceedings
Three days after Nicoles birth, OCS filed an Emergency
Petition for Adjudication of Child in Need of Aid and for
Temporary Custody. The petition was granted and counsel was
appointed. Ben had been released from jail by this time and he
and Robin enrolled in parenting classes. The familys OCS
caseworker filled out a case plan in August 2005 indicating that
she had made numerous attempts to contact the mother and father
and that they called her and said they were busy with his work as
a window washer. The plan for Ben included urinalysis testing
and contacting past treatment providers to confirm that substance
abuse was no longer an issue for him.
OCS placed Nicole back in the home on a trial basis in
September 2005. In October 2005 the parties entered a
stipulation under which Nicole was declared a child in need of
aid and OCS was granted temporary custody. OCS ultimately
decided, in January 2006, to remove Nicole from her parents home
after repeated problems, and place her in foster care. In
February 2006 the court entered a disposition order granting OCS
custody of Nicole for two years. OCS had been unable to contact
Ben since the conversation with Morino, just after Nicole was
removed in January 2006, stating that all bets are off.
In March 2006 Morino learned of Bens incarceration on
February 20 and e-mailed him in jail to set up visitation with
Nicole, which occurred monthly during that incarceration. OCS
researched the possibility of telephonic substance abuse
assessment so that Ben could be screened for substance abuse
treatment in prison; the extent and result of this research are
unclear and were not the subject of testimony. A permanency
hearing was held in July 2006. Morino noted in her report for a
permanency hearing that the goal remained reunification but that
if Ben did not comply with his case plan when released from his
current incarceration, or remained incarcerated past September
2006, it would be changed to adoption. In fact Ben was released
in August but then was in and out of jail for the months of
September and October 2006. Morino was not able to reestablish
contact with Ben until November, when she told him and his
attorney that she would not schedule visitation this time until
she saw some clean urinalysis tests and some compliance with the
case plan.
After November Ben fell out of contact with OCS
through March 2007. Morino attempted phone calls and home visits
until a new caseworker, Heather Rough, replaced her in January
2007. Rough did not initially know where Ben was until she
discovered that he was incarcerated in April 2007. During that
incarceration, which lasted until August 2007, Rough set up
telephonic visitation while Ben was jailed in Kenai and in-person
visitation once he was transferred to Anchorage. Rough testified
that the only thing Ben could have done regarding his case plan
during this incarceration would have been to participate in
substance abuse assessment when he was about to be released. The
provider she identified to conduct the assessment said that it
could not screen Ben until he was about to be released, which
Rough believed would be October. However, Ben was released early.
Rough testified that Ben was uncooperative and confrontational at
meetings, and that he became argumentative and this led to
discussions being ended before any progress was made at meetings.
The visitation plan was revised in October 2007. Under
the new plan, OCS agreed to arrange for an evaluation with Dr.
Washington Brown to evaluate [Ben]s parenting ability by
providing copies of written referral materials to all parties.
Ben never showed up for visitation and fell out of contact with
OCS some time soon after this, and then disappeared again. The
states amended termination motion in November 2007 states that
Rough learned that month that Ben returned to prison in October
for domestic assault and forcing another to become a prostitute.
No evidence is in the record regarding what actions were taken by
either party as to the assessment with Dr. Brown other than that
Ben, if he was given written referral materials, did not use them
to call and set up the appointment on his own.
At a pre-trial conference on January 14, 2008, Bens
attorney notified the state that Ben would be requesting another
visitation hearing; the state replied that he would have to
complete two weeks of urinalysis testing before such a visit
would be set up. At this hearing the state requested that the
court direct Ben, who was in the courtroom, to provide updated
contact information to enable them to set up an evaluation with
their expert, Dr. Michael C. Rose. The state did not present
evidence on whether this occurred or what efforts it made to set
up a meeting with Dr. Rose. Anne Ashton, who took over as
caseworker on this case in January 2008, testified that Ben was
out of touch from the time she took over the case and that he
called OCS in March 2007 and spoke to another caseworker but did
not leave his contact information for Ashton to return his call.
Also at the January 14 pre-trial conference, Bens
counsel withdrew because of a potential conflict if one of the
states proposed witnesses testified. At first, during the pre-
trial conference at which the potential conflict was initially
raised, OCS offered not to call the witness to avoid a long
continuance while Bens new counsel prepared for trial. However,
during the same hearing, the trial was continued for Robins sake.
The trial would concern both parents rights, and Robin had
requested a representation hearing that could have resulted in a
new attorney for her. The court asked both Bens and Robins
attorneys how long a new attorney would need to get up to speed
on the case; both agreed six weeks was reasonable, so the court
scheduled trial for March 26, more than eight weeks away.
Ultimately, because of the length of the continuation, OCS
decided to insist on calling the witness that raised the
potential conflict for Bens original attorney, and counsel
withdrew. The court appointed the Office of Public Advocacy to
provide conflict counsel for Ben on January 18, 2008. Bens new
attorney entered an appearance on February 1, 2008.
One week before the scheduled trial date in March 2008,
Ben asked for a representation hearing because he did not believe
that [his attorney] could be prepared to try the case and . . .
wanted to get [it] on the record. A confidential hearing was
held before Superior Court Judge Sen K. Tan. However, Bens
attorney remained on the case, Judge Tans decision is not an
issue on appeal, and Ben does not raise a claim of inadequate
assistance of counsel.
After trial concerning termination of both parents
parental rights on March 26 and 27, 2008, Superior Court Judge
Peter A. Michalski found that Ben had a substance abuse problem
that affected his ability to maintain visitation with Nicole and
therefore his ability to parent; that Ben abandoned Nicole by not
visiting her from November 2006 to April 2007 and again from
October 2007 to the time of trial; that he failed to participate
in his case plan; that there was clear and convincing evidence
that he had not remedied the conduct that put the child at
substantial risk; that there was clear and convincing evidence
that active efforts had been made to provide remedial services
and rehabilitative programs to prevent the breakup of the family;
and that there was evidence beyond a reasonable doubt that
returning the child to either parents custody would likely
result in serious physical or emotional damage to her.
Ben appeals. He argues that the trial court abused its
discretion in denying his motion for a continuance on the day of
trial. He also argues that the required expert support for the
finding of likely emotional damage beyond a reasonable doubt was
lacking because the expert, Dr. Rose, did not meet with Ben or
the child, and reported his findings at a very high level of
generality. His final argument is that the trial court erred in
finding by clear and convincing evidence that the state provided
active remedial efforts to prevent the breakup of his family.
III. STANDARD OF REVIEW
We review a denial of a motion to continue for abuse of
discretion, determining whether a party has been deprived of a
substantial right or seriously prejudiced by the lower courts
ruling.2 Whether substantial evidence supports the trial courts
conclusion that a child is likely to be seriously harmed if
returned to her parent is a mixed question of fact and law, while
whether the expert testimony requirement of Indian Child Welfare
Act is satisfied is a pure question of law which we review de
novo.3 Finally, the question of whether OCS used active remedial
efforts to reunify the family is a mixed question of law and
fact.4 When reviewing mixed questions of law and fact, we review
factual questions under the clearly erroneous standard and legal
questions using our independent judgment.5
IV. DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying Bens
Request for a Continuance of the Termination Trial.
Ben argues that the court abused its discretion by
denying his request for continuance. He first claims that his
attorney was too newly appointed. He then argues that the court
abused its discretion by declining to continue the case so that
he could enter substance abuse residential treatment. He also
claims that OCS was responsible for most of the delays prior to
his request for a continuance, and that the state did not argue
that the continuance was contrary to its or the childs interest.
The original trial date in this case was August 6,
2007. Ben obtained a continuance to attempt to mediate the case.
The new trial date October 15 and 16, 2007 was continued at the
states request because a witness was unavailable. Trial was then
set for January 2008. Finally, the January 2008 trial was
continued because the state failed to provide the required expert
witness disclosures.
To show that the court abused its discretion in denying
his request for a continuance, Ben must show that he was deprived
of a substantial right or that he was seriously prejudiced by the
denial of a continuance.6 Ben does not present an argument that
he was seriously prejudiced by his counsels performance. His
substitute counsel began work on the case sometime between
January 18, 2008 and February 1, 2008. At a minimum, he had more
than seven weeks to prepare for trial. Just before trial, Ben
had the opportunity to present his concerns about his new
attorneys preparedness at a confidential representation hearing.
Judge Tan found no reason for concern about Bens attorneys
ability to represent him, and Judge Tans decision is not an issue
on appeal. On the day of trial, Bens attorney did not himself
claim to be unprepared; Ben testified only that he felt
uncomfortable proceeding and wanted to appeal Judge Tans ruling
on the representation hearing.
There was no evidence that Bens attorney had been
unable to prepare in the six to eight weeks provided, and Ben
presents no examples of witnesses or evidence that his attorney
could have produced if given more preparation time. And we place
substantial weight on Judge Michalskis efforts to obtain an
estimate of necessary preparation time for new counsel at a
hearing in January 2008, when it first became clear that Bens
original counsel would have to withdraw. At that hearing, the
court asked Robins counsel for an estimate of adequate time to
prepare so that he could schedule a new trial date. Robins
counsel replied that six weeks would be adequate, and Bens
original counsel agreed with that estimate. And the court
provided that much time. Ben was not deprived of a substantial
right with regard to the proceedings. He makes no claim that
representation was inadequate or ineffective, instead arguing
only that he feels that his attorney possibly could have been
better prepared. The substantial right Ben claims deprivation of
is his right to parent the central issue of the trial. However,
because he fails to show that his right to fairly present his
case was impaired,7 we do not find that the denial of a
continuance unfairly led to the ultimate result at the trial.
Finally, Ben argues that the trial court abused its
discretion by denying his request for a continuance to complete
substance abuse treatment. As we discuss in detail in Part IV.C,
Ben did not cooperate with his reunification plan from June 2005
through the trial date. Ben had ample opportunity from 2005
through 2007 to obtain an assessment and enter treatment.
Further, trial in this case was originally scheduled for August
2007, and we have emphasized that CINA cases are very time-
sensitive.8 The courts decision to avoid further delay was not
an abuse of discretion.
B. It Was Not Clearly Erroneous for the Trial Court To Find
Evidence Beyond a Reasonable Doubt that Nicole Was Likely To
Suffer Serious Emotional or Physical Damage if Returned to Ben.
The federal Indian Child Welfare Act (ICWA) requires
that before terminating parental rights, a court must find by
evidence beyond a reasonable doubt that returning the child to
the parent is likely to result in serious physical or emotional
damage to the child, and that this finding be supported by expert
testimony.9 Proof that a parents custody is likely to cause a
child serious harm requires proof that (1) the parents conduct is
likely to harm the children and (2) the parents conduct is
unlikely to change.10 This can be proven through expert testimony
alone or through aggregating expert testimony with other evidence
such as testimony of lay witnesses.11 Ben argues that the trial
court should not have relied on the expert testimony of Dr.
Michael Rose. He claims that because Dr. Rose did not meet or
evaluate him or his daughter, the testimony was insufficiently
rooted in details of his specific situation.
In C.J. v. State, Department of Health & Social
Services12 and a companion case, J.J. v. State, Department of
Health & Social Services,13 we held that the evidence before the
trial court did not support finding that placing the children
with either of their parents would result in serious damage to
them.14 We carefully analyzed the information on which the expert
based his conclusions and the contradictory information in the
record, and specifically and explicitly stated that we did not
hold that in-person interviews were required in every case.15 In
both cases, the expert was unaware of significant recent progress
the parents had made.16 On the other hand, in J.A. v. State,
Division of Family & Youth Services,17 we reached the opposite
conclusion although the expert had not evaluated the parents,
where the experts answers to hypothetical questions were specific
and based on the full and accurate facts of the case.18 Finally,
in E.A. v. State, Division of Family & Youth Services,19 we
expressly recognized that the states expert testimony need not
meet the burden of proof standing alone so long as it supports
the courts conclusion.20
It is possible that Dr. Roses testimony would have
been stronger or more detailed had he evaluated Ben in person.
We note that Dr. Rose attempted to arrange a meeting through OCS.
We also note that the record indicates that Ben was not in
contact with OCS during the period in early 2008 in which Dr.
Rose wished to meet with him. Ultimately, however, the issue is
not the efforts made to arrange for a meeting, nor is it whether
the court should have disregarded the entirety of Dr. Roses
opinion. Our case law is clear that in-person meetings are not
required and the requirement for expert testimony is that it
support the ultimate conclusion. The issues are whether the
expert disregarded or was unaware of contrary evidence, and
whether the testimony was so vague and generalized that the trial
court clearly erred in according weight to it.
In his testimony, Dr. Rose identified substance abuse,
domestic violence, and psychological problems as the reasons that
he believed that Ben could cause harm to Nicole. With respect to
substance abuse, Dr. Rose testified to the likely problems faced
by parents caring for children while under the influence of
substances, such as overreaction and defective judgment. Dr.
Rose was aware of numerous missed urinalysis tests from 2005 to
2007, Bens testimony that he had relapsed in December 2007, and
the detailed records of treatment from Bens court-ordered
substance abuse treatment in 2004. Dr. Rose concluded that Ben
had a high probability of relapse and would need further
treatment.
Based on Bens long criminal history, including episodes
of family violence and Bens arrest for forcing Robin into
prostitution, Dr. Rose concluded that Ben needed to address the
other psychological problems that are reflected and that he had
personality features that are dysfunctional and certainly
detrimental to a child. Dr. Rose was clear that he was in no
position to diagnose Ben with any particular disorder without
examining him. However, Dr. Rose testified that children
exposed to domestic violence can suffer negative effects to their
self-esteem and emotional stability.
This testimony was consistent with other evidence at
trial. The trial court found, based on other testimony, that Ben
missed urinalysis appointments because he knew they would be
positive, and he knew that he would be unable to visit Nicole
with positive urinalysis tests. Other testimony demonstrated
that Ben was aggressive and disruptive to the point that Ben
would have been expelled from residential treatment had he not
voluntarily left. This aggressive behavior prevented his
caseworker at OCS from making any progress with him on the few
occasions she was able to locate him and get him to meet with
her. All of this testimony and the treatment records in evidence
supported the same conclusion as Dr. Roses testimony. Dr. Roses
conclusions were not, unlike the expert opinions in J.J. and
C.J., contradicted by any other evidence at trial.21
The trial court found that Ben did not visit Nicole for
two periods of time that exceeded six months, and that this
failure constituted abandonment of Nicole. Ben did not notify
anyone of his whereabouts to arrange visitation in jail nor did
he attempt to set up visitation outside of jail. Dr. Rose
testified that the long periods of loss of contact, such as those
periods longer than six months leading up to the trial, could
affect the attachment and bonding process. The record contains
substantial evidence demonstrating that Ben failed to show
progress in recovering from his substance abuse, that he recently
and apparently severely abused Nicoles mother, that he failed to
seek visitation, and that he was repeatedly incarcerated, leaving
him unable to create a stable home environment. Based on this
evidence, as well as Dr. Roses testimony, we conclude there is
substantial evidence to support the courts finding beyond a
reasonable doubt that returning Nicole to Bens custody would be
likely to result in serious emotional and/or physical damage to
the child.
C. The Trial Court Did Not Err in Finding that OCS Made Active
and Reasonable Efforts To Provide Remedial Services to Ben.
A. Ben argues that from the 2006 removal of Nicole onward, OCSs
efforts to provide him with remedial services were inadequate to
meet ICWAs requirement that the state make active efforts to
provide services that might reunify the family.22 Reunification
efforts are evaluated on a case by case basis.23 The burden is
clear and convincing evidence.24
The trial court relied on this courts rule that a
parents demonstrated lack of willingness to participate in
treatment may be considered in determining whether the state has
taken active efforts.25 Incarceration can significantly affect[]
the scope of active efforts required, though it does not
eliminate the requirement.26 Where services have been provided
and a parent has demonstrated a lack of willingness to
participate or take any steps to improve, this court has excused
minor failures by the state and rejected arguments that the state
could possibly have done more.27
Here the trial court found that the states active
efforts included setting up visitation, discussing case plans
with the parents, providing referrals to substance abuse
assessments (particularly the
walk-in appointments available at the department), referring Ben
to anger management and parenting classes, referring him to the
housing program Safe Harbor, and attempting to locate the
parents. The court also found a demonstrated lack of willingness
to participate, as was the case in E.A., where we found that
evasive and combative behavior and refusal to engage in services
excused later minor failures on OCSs part.28 The court also found
that Ben intentionally evaded the department.
OCS repeatedly attempted to maintain contact with Ben,
arrange visitation, and convince him to maintain clean urinalysis
and obtain substance abuse screening. Ben disappeared for months
at a time, from January through early March 2006, from October
2006 until April 2007, and from October 2007 through the time of
trial in March 2008. Contact was reestablished each time only
because OCS located Ben in prison and contacted him. Ben argues
that after he told his first caseworker Morino that all bets were
off after the removal of Nicole, she decided not to renew the
scheduled urinalysis for February 2006 or make other remedial
efforts. However, she did not have working phone numbers for Ben
at that time and he made no attempt to provide her with contact
information. When she located him in jail in March 2006, she e-
mailed him to set up visitation. She also told him that no
visitation or other action would be taken until Ben had several
clean urinalysis tests, and she provided intake packets for
substance abuse screening and treatment, but he did not use them.
Rough, his new caseworker beginning in 2007, searched
for Ben and finally located him in jail in March 2007. Again,
visitation was set up for him. Rough sent him some information
about whom he should contact when he was close to release from
jail for a substance abuse assessment. Ben was released early
from prison, but did not make much progress in his case plan. He
was confrontational and uncooperative in meetings with his
caseworker and missed many of the urinalysis tests she arranged.
She connected him with Safe Harbor, a housing program, but he did
not attempt to follow up with them to obtain permanent housing.
Then she attempted to approach his outbursts in her meetings with
him by arranging an assessment with a psychiatrist, but he did
not call the number she gave him to arrange an appointment. Ben
disappeared after their last meeting in October 2007.
After the October 2007 agreement in which Ben agreed to
an assessment with Dr. Brown and OCS agreed to more visitation,
Ben dropped out of sight. Rough testified that she submitted a
diligent-inquiry search to the Alaska Public Safety Information
Network in early November and contacted relatives to look for
him, but could not locate him. Ben did not renew contact with
OCS and his new caseworker could not locate him. He called the
office once in March and spoke to another caseworker but did not
leave contact information for his assigned caseworker to return
the call.
The record demonstrated that Bens actions frustrated
the states efforts. His no-shows at urinalysis, failure to
follow up with Safe Harbor and Dr. Brown, and failure to obtain a
substance abuse screening demonstrated his lack of willingness to
participate in the states efforts. Most importantly, the states
efforts were unsuccessful because of Bens long periods of lack of
contact. For too many long stretches of time, Ben was unwilling
to cooperate minimally or to comply with the urinalysis and
visitation that the state did set up for him. Here, therefore,
the courts finding that Ben demonstrated a general lack of
willingness to participate is not clear error, and there was no
reason to believe that additional efforts would have made a
difference.
V. CONCLUSION
The trial court was within its discretion to deny Bens
motion to continue trial brought on the day of trial. It was not
clear error to conclude, with the support of Dr. Roses testimony,
that returning Nicole to Ben was likely to cause her serious
physical or emotional harm, or to find that the state made
active efforts to provide Ben services to assist in reunifying
him with Nicole. We therefore AFFIRM the trial court in all
respects.
_______________________________
1 We use pseudonyms to protect the identity of family
members.
2 State, Dept of Transp. & Pub. Facilities v. Miller, 145
P.3d 521, 528 (Alaska 2006).
3 E.A. v. State, Dept of Family & Youth Servs., 46 P.3d
986, 989 (Alaska 2002).
4 Id.
5 A.M. v. State, 945 P.2d 296, 304 n.10 (Alaska 1997).
6 Miller, 145 P.3d at 528.
7 See Siggelkow v. Siggelkow, 643 P.2d 985, 988 (Alaska
1982) (primary concern in abuse of discretion inquiry for denial
of motion for continuance is to avoid prejudicing substantial
rights by forcing party to try case without being able to fairly
present his case).
8 S.B. v. State, Dept of Health & Soc. Servs., 61 P.3d 6,
16 (Alaska 2002).
9 25 U.S.C. 1912(f) (2006).
10 L.G. v. State, Dept of Health & Soc. Servs., 14 P.3d
946, 950 (Alaska 2000).
11 Id.
12 18 P.3d 1214 (Alaska 2001).
13 38 P.3d 7 (Alaska 2001).
14 C.J., 18 P.3d at 1218; J.J., 38 P.3d at 10.
15 C.J., 18 P.3d at 1218.
16 J.J., 38 P.3d at 10; C.J., 18 P.3d at 1219.
17 50 P.3d 395 (Alaska 2002).
18 Id. at 401.
19 46 P.3d 386 (Alaska 2002).
20 Id. at 992.
21 See J.J., 38 P.3d at 10; C.J., 18 P. 3d at 1219.
22 ICWA requires that any party seeking to effect a . . .
termination of parental rights to [ ] an Indian child under State
law shall satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts
have proved unsuccessful. 25 U.S.C. 1912 (d) (2006).
23 N.A. v. State, Div. of Family & Youth Servs., 19 P.3d
597, 603 (Alaska 2001).
24 AS 47.10.088(a)(3); CINA Rule 18(c)(2); Marcia V. v.
State of Alaska, Office of Childrens Servs., 201 P.3d 496, 502-03
(Alaska 2009).
25 Id. at 991 (quoting N.A., 19 P.3d at 603).
26 A.A. v. State, Dept of Youth & Family Servs., 982 P.2d
256, 261 (Alaska 1999).
27 See E.A., 46 P.3d at 990 (evasive and combative
behavior and refusal to engage in services can excuse later minor
failures); Thomas H. v. Dept of Health & Soc. Servs., 184 P.3d 9,
17 (Alaska 2008) (failure to make one mental health referral
insignificant due to continued frustration of efforts by fathers
repeated incarcerations).
28 46 P.3d at 990.
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