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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sandy B. v. State, Dept. of Health & Social Services, Office of Children's Services (9/25/2009) sp-6416
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
| SANDY B., | ) | |
| ) Supreme Court Nos. S- 13302/13310 | ||
| Appellant, | ) (Consolidated | ) |
| ) | ||
| v. | ) Superior Court Nos. 2KB-04-31 CN, | |
| ) 2KB-05-34 CN, 2KB-07- 21 CN | ||
| STATE OF ALASKA, | ) | |
| DEPARTMENT OF HEALTH & | ) | |
| SOCIAL SERVICES, OFFICE OF | ) O P I N I O N | |
| CHILDRENS SERVICES, | ) | |
| ) No. 6416 September 25, 2009 | ||
| Appellee. | ) | |
| ) | ||
| ) | ||
| LEO W., | ) | |
| ) | ||
| Appellant, | ) | |
| ) | ||
| v. | ) | |
| ) | ||
| STATE OF ALASKA, | ) | |
| DEPARTMENT OF HEALTH & | ) | |
| SOCIAL SERVICES, OFFICE OF | ) | |
| CHILDRENS SERVICES, | ) | |
| ) | ||
| Appellee. | ) | |
| ) | ||
Appeal from the Superior Court of the State
of Alaska, Second Judicial District,
Kotzebue, Richard H. Erlich, Judge.
Appearances: Angela Greene, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant Sandy B.
Brooke Browning, Lewis & Thomas, P.C., Nome,
for Appellant Leo W. Michael G. Hotchkin,
Assistant Attorney General, Anchorage, and
Richard A. Svobodny, Acting Attorney General,
Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Eastaugh,
Fabe, Winfree, and Christen, Justices.
FABE, Justice.
I. INTRODUCTION
The Office of Childrens Services (OCS) removed three
girls, who are Indian children under the Indian Child Welfare
Act, from the care of their parents in three separate alcohol-
related incidents between September 2005 and December 2007. The
parents began to participate in residential substance abuse
treatment just three weeks before the trial to terminate their
parental rights. Before entering residential treatment, the
parents had repeatedly denied that they had problems with
alcohol, declined to communicate with OCS, failed to provide OCS
with current contact information, and expressed interest in
relinquishing their parental rights to the two oldest girls.
Following a three-day termination trial, the trial court issued
two written orders terminating their parental rights to all three
children. The parents appeal the trial courts findings
concerning the adequacy of OCSs active efforts to reunify them
with their children and the sufficiency of the expert testimony.
Given OCSs efforts throughout its involvement with the family and
the parents lack of cooperation and failure to acknowledge their
problems with alcohol, the trial courts active efforts finding
was not erroneous. The trial court also did not err in giving
weight to the testimony of OCSs expert because the testimony was
sufficiently grounded in the cases facts and issues and was
consistent with the other evidence presented at trial. We
therefore affirm the trial courts termination of the parents
rights to the three children.
II. FACTS AND PROCEEDINGS
A. Facts
Sandy is the mother of three girls, Vicki, Kathy, and
Sarah.1 Leo is the father of Vicki, born in 2001, and Sarah,
born in 2007. Kathy was born in 2004 and her father, Trevor, is
deceased. The three girls are Indian children under the Indian
Child Welfare Act (ICWA).2
The children were removed from their parents custody at
different times. On September 8, 2005, OCS filed an emergency
petition for adjudication of Kathy as in need of aid and for
temporary custody. The petition alleged that during the early
morning of September 7 Sandy became intoxicated in the presence
of Kathy and then left Kathy in her apartment in Kotzebue with
Kathys father, Trevor, who was also intoxicated. According to
the petition, Trevor later left the sixteen-month-old girl alone
in the apartment and committed suicide.
Sandy was admitted to the Maniilaq Health Center in
Kotzebue on September 8, 2005, due to suicidal ideation, and she
remained in the hospital for about a week. Between September and
December 2005, Sandy participated in residential drug and alcohol
treatment at the Maniilaq Recovery Center, but she left twice
against treatment advice. During substance abuse and mental
health assessments at the center, Sandy disclosed her extensive
history of depression and alcohol and marijuana use.
While Sandy was in residential treatment, she routinely
attended OCS-scheduled visits with Kathy three times a week. But
Sandy rarely visited Kathy after she left the treatment program.
In addition to scheduling supervised visits between Sandy and
Kathy, OCS enrolled them in the Early Learning Family program,
which included monthly visits with a program worker as well as
monthly play groups for parents and their children. OCS alleged
in a September 2006 request and report for permanency findings
that it had attempted to get [Sandy] to commit to a regular
visitation schedule and was willing to provide transportation and
that [o]n several occasions [she] agreed to times for visitation,
home visits or office visits and then was either not home or
didnt arrive at the office at the prearranged time.
At the termination trial, Sandy testified that she met
regularly with OCS during the winter of 2006 to talk about her
desire to have Kathy adopted but that she was told to wait. In
February 2006 OCS received two reports of Sandy and Leo being
passed out drunk and leaving their four-year-old daughter Vicki
without a sober care provider. In March OCS received a report
that the police had stopped Leo for intoxication and that Leo had
failed to pick up Vicki from the babysitters. At the time, Sandy
was incarcerated after having been arrested for criminal trespass
when she refused to leave a residence while intoxicated. In
April OCS helped Sandy apply for an inpatient program in
Fairbanks but she declined to enter the program when a bed became
available in June. That spring Sandy and Leo were living in
various places in Kotzebue and Fairbanks because they did not
have a permanent residence due to their frequent drinking.
On the morning of June 15, 2006, Vickis babysitter
tried to return Vicki to her parents but they were intoxicated
and fighting. Vickis babysitter called the Kotzebue police and
said that she could not continue to care for Vicki or identify
other suitable care providers. Vicki received a mental status
evaluation after OCS took custody of her. According to the
evaluation, Vicki told an OCS supervisor that Leo had offered her
alcohol but she declined to drink it because she did not like the
taste. The evaluation also reported that Vicki recalled watching
her father push her mother to the floor and threaten to kill her.
On June 16 OCS filed an emergency petition for adjudication of
Vicki as in need of aid and for temporary custody. The petition
noted that Vicki was clearly affected by the incident[,] making
remarks such as[,] did you see what my daddy did [to] my mommy?
On August 9, 2006, Sandy entered a treatment program in
Fairbanks, but she left on September 1. OCS subsequently lost
track of Sandy and Leo, apparently because OCS was unable to
reach them using the phone numbers that Sandy and Leo had
provided. According to a December 18, 2006 OCS report, Sandy and
Leo spent most of the fall of 2006 in Fairbanks, living with
relatives or in a homeless shelter, and each had problems with
the law that involved alcohol.
After OCS discovered that Sandy was in the Kotzebue
jail in late February 2007, it resumed communication with her and
Leo, though OCS continued to have difficulty reaching them by
phone. OCS also used radio announcements to try to contact Sandy
and Leo during 2006 and 2007, but OCS stopped trying to reach Leo
through the radio after he asked that an announcement be taken
off the radio in late May 2007. OCS also sent the parents
letters, some of which were returned.
In February 2007 OCS arranged seven supervised visits
between the children and their parents, but Sandy and Leo failed
to make most of the visits even though OCS had on some occasions
been able to reach them by phone to remind them of the visits.
The parents absence may have been due to their expressed desire
to relinquish their parental rights. After the parents missed
several visits, OCS cancelled the rest because, as their case
worker explained, its pretty traumatic for the kids to
continually show up for a visit and wait for their parents to
come and have nobody come. In the spring of 2007, OCS scheduled
two substance abuse assessment appointments for Leo after he
mentioned difficulty in arranging them himself, but he failed to
attend both. A June 2007 permanency report for Vicki, which was
incorporated into a superior court order, summarized Sandys three
unsuccessful attempts at completing substance abuse treatment
while Vicki was in OCSs custody and observed that Leo had been
offered services to address substance abuse, [but] throughout the
case he has adamantly stated he does not have a substance abuse
problem. According to the report, the parents had not maintained
contact with Vicki or participated in their case plans.
In the summer of 2007, Sandy and Leo expressed to their
case worker that they were not interested in treatment, that they
had given up on the older two children, and that they had focused
their efforts on retaining their youngest daughter, Sarah, who
was born in August 2007. Within ten days of Sarahs birth, OCS
received a number of reports concerning Sandy and Leo. On
August 6 Leo was arrested for disorderly conduct after he was
screaming at Sandy in the middle of the road at 2:30 a.m. On
August 14 a Kotzebue police officer reported that four days
before Sandy gave birth he had an interaction with her and she
was intoxicated. The same police officer found Sandy passed out
in the road on August 14. Sandy was admitted to the hospital for
detox but she refused services. During a home visit after these
reports were made, Sandy declined to talk with the familys case
worker. Leo told the case worker that while Sandy was
hospitalized, he was caring for Sarah. The case worker testified
that Leo did not appear interested in . . . talking about
anything to alleviate the concerns of OCS and that the parents
werent interested in engaging in services. They felt they didnt
have a problem.
On October 9, 2007, OCS filed a petition for
adjudication of Sarah as in need of aid and for temporary
custody, but OCS did not remove Sarah from her parents custody.
The familys case worker again visited the parents at their home,
but this time Leo declined to talk to the case worker, and Sandy
said that she was not drinking and did not have a substance abuse
problem. In November the parents case worker had some
conversations with them over the phone and visited their home,
but they did not make any treatment progress and Leo did not
appear to be more receptive to OCSs efforts.
On December 4, 2007, Sandy and Leo had arranged for a
babysitter to care for four-month-old Sarah while they were at a
party, but unbeknownst to them, the babysitter dropped Sarah off
at the party while they were both intoxicated. The parents
discovered that their daughter was at the party when the police
arrived, and they arranged for a family member to take her to a
home shared by some of Sandys relatives. OCS was concerned
because there was a history of sexual abuse in that home. Sarah
was removed from her parents custody on December 5. On December
12 OCS filed a petition to terminate the parental rights of Sandy
and Leo to all of their children.
In late December 2007 Leo received his first substance
abuse assessment. During the assessment, Leo denied experiencing
alcohol problems in the thirty days prior to the assessment and
reported that he used alcohol fewer than eight times per month.
OCS was given a copy of the assessment but did not have an
opportunity to provide the assessor with additional information.
The assessment rate[d] [Leos] potential for continued substance
use as Low and recommended that Leo participate in outpatient
treatment. In January 2008 Leo went to jail after pleading
guilty to driving under the influence, and he was then
reassessed. Leo requested inpatient treatment, but both
assessments recommended outpatient treatment.
In February 2008 Leo began participating in outpatient
treatment. On March 14, about three weeks before the trial to
terminate Sandys and Leos parental rights began, the parents
entered inpatient treatment at the Spud Farm, which is a recovery
program outside of Kotzebue that emphasizes subsistence living.3
At the termination trial, Sandy testified that she was trying to
control her alcohol problem. But Leo denied that he was
dependent on alcohol and that he had ever placed his need for
alcohol before the needs of his children.
B. Proceedings
On September 8, 2005, OCS filed an emergency petition
for adjudication of Kathy as in need of aid and for temporary
placement. Following an adjudication hearing in early January
2006, Superior Court Judge Richard H. Erlich found that Kathy was
in need of aid. On June 16, 2006, OCS filed an emergency
petition for adjudication of Vicki as in need of aid and for
temporary placement. The superior court found that Vicki was in
need of aid after an adjudication hearing in late October 2006.
The superior court also held a permanency hearing for Kathy in
late October 2006. The superior court subsequently found that
Kathy continued to be in need of aid and that the permanent plan
for her was adoption. Following a permanency hearing for Vicki
in mid-June 2007, the superior court found that Vicki continued
to be in need of aid and that the permanent plan for her was
adoption.
On October 9, 2007, OCS filed a petition for
adjudication of Sarah as in need of aid and for temporary
custody. OCS did not remove Sarah from her parents custody. On
November 9 the superior court issued a temporary supervision
order that determined that Sarah was a child in need of aid but
ordered that she remain in her parents custody. On December 5
Sarah was removed from her parents custody and the superior court
issued a temporary custody order later that month.
On December 12, 2007, OCS filed petitions to terminate
the parents rights to all three children. The parties agreed to
address the adjudication of Sarah as a child in need of aid and
the termination of the parental rights to Vicki, Kathy, and Sarah
in a single trial that was held during the spring of 2008. Dr.
Raymond Droby testified as OCSs ICWA-required expert. At the
conclusion of the trial, the superior court instructed the
parties to address the factual issues in their closing arguments
and to write a legal brief on the issues in contention. Post-
trial briefs were filed by Sandy, Leo, the childrens guardian ad
litem, and OCS.
The superior court issued two written orders
terminating Sandys and Leos parental rights. The superior courts
initial order on September 29, 2008, found that Sarah was a child
in need of aid, adopt[ed] the States arguments as to all
uncontested issues, and addressed the issues that were disputed
by Sandy, Leo, or both of them.
The superior court issued a second written order
terminating Sandys and Leos parental rights on October 21, 2008.
In doing so, the superior court found by clear and convincing
evidence that: the children were in need of aid; Sandy and Leo
had not remedied the conduct or conditions that put their
children at substantial risk of harm within a reasonable time;
and OCS made active but unsuccessful efforts to provide services
and programs designed to prevent the familys breakup. The
superior court also found by a preponderance of the evidence that
termination of Sandys and Leos parental rights was in the
childrens best interests. Finally, the superior court found that
there was evidence beyond a reasonable doubt, including the
testimony of a qualified expert pursuant to ICWA, that the
children would likely suffer serious emotional and physical
damage if returned to their parents.
Both parents appeal. Sandy challenges the superior
courts finding concerning OCSs active efforts and the sufficiency
of the expert testimony to support its finding that her children
would likely suffer serious harm if they were returned to her
care. Sandy also argues that she was denied due process by the
cumulative effect of the alleged errors in the case. We granted
Leos unopposed motion to join Sandys opening brief.4
III. STANDARD OF REVIEW
We will affirm the trial courts factual findings in a
child in need of aid (CINA) case unless they are clearly
erroneous.5 Findings of fact are clearly erroneous if a review
of the entire record in the light most favorable to the party
prevailing below leaves us with a definite and firm conviction
that a mistake has been made.6 Whether OCS made active efforts
as required by ICWA is a mixed question of law and fact.7 Here,
the parents argue that the trial courts active efforts finding
failed to comport with ICWAs requirements. This is a question of
law that we review de novo.8 We will also review de novo the
legal question whether an experts testimony satisfies the
standards of ICWA.9 We will not review issues that were not
raised below unless there is plain error, which exists where
there is a high likelihood that injustice has resulted from an
obvious mistake made below.10
IV. DISCUSSION
The trial court must make five findings to terminate
parental rights to an Indian child in a CINA case.11 The trial
court must find by clear and convincing evidence that: (1) the
child is in need of aid under AS 47.10.011;12 (2) the parent has
not remedied the conduct or conditions in the home that place the
child at substantial risk of physical or mental injury or has
failed to do so within a reasonable time;13 and (3) OCS has made
active but unsuccessful efforts to provide services and programs
designed to prevent the Indian familys breakup.14 The trial court
must find by a preponderance of the evidence that (4) termination
of parental rights is in the childs best interests.15 Finally,
the trial court must find by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that (5) the
Indian child is likely to suffer serious emotional or physical
harm if the child remains in the parents custody.16 Sandy and Leo
challenge the trial courts active efforts finding and the
sufficiency of the expert testimony.
A. The Trial Courts Active Efforts Finding Was Not
Erroneous.
ICWA requires that before a court may terminate
parental rights to an Indian child, OCS must have made active
efforts . . . to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.17 Under Alaska Child
in Need of Aid Rule 18(c)(2)(B), the trial courts active efforts
finding must be supported by clear and convincing evidence.
Sandy and Leo argue that the trial court did not make
the required active efforts finding. They correctly point out
that the trial courts initial written order terminating their
parental rights lacks any reference to OCSs active efforts. But
as OCS explains, the trial court made clear in its September 29,
2008 order that it was only addressing the issues that [were] in
dispute and that it was adopt[ing] the States arguments as to all
uncontested issues. Neither parent contested whether OCS made
active efforts during their closing arguments or in their post-
trial briefing. In fact, Leos attorney told the trial court to
skip the question whether OCS had proved by clear and convincing
evidence active efforts were made to provide remedial services
because [w]ere okay with that. In failing to object when Leos
attorney conceded that OCS had met its active efforts burden and
in contesting only the finding concerning whether the parents
remedied within a reasonable time their conduct that put their
children at substantial risk of harm, Sandy did not indicate that
she disagreed with Leo and OCS that OCS had made active efforts
to prevent the familys breakup. Sandys silence certainly could
have been taken as acquiescence in Leos position that this issue
was not in dispute.
In any event, the trial court entered a second written
order that found that OCS had made active efforts and that
provided support for its finding.18 The trial court found [b]y
clear and convincing 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
[t]hese efforts have proven unsuccessful. In support of its
finding, the trial court highlighted OCSs efforts to contact[]
and communicat[e] with the parents, schedule visitation with
their children, and OCSs attempts to get the parents into
treatment programs. Thus, it is clear that the trial court made
the required active efforts finding.
We turn next to the parents argument that the trial
courts active efforts finding was insufficient with respect to
their daughter Sarah. We evaluate OCSs efforts to reunite an
Indian family on a case-by-case basis.19 Although there is no pat
formula . . . for distinguishing between active and passive
efforts, we have recognized that what is critical is OCSs
involvement with a parent after it has drawn up the parents case
plan.20 OCS makes active efforts to reunite a family when it
helps the parents develop the resources necessary to satisfy
their case plans, but its efforts are passive when it requires
the parents to perform these tasks on their own.21 A parents
willingness to cooperate is relevant to the scope of active
efforts required.22 Where services have been provided and a
parent has demonstrated a lack of willingness to participate or
take any steps to improve, [we have] excused minor failures by
the state and rejected arguments that the state could possibly
have done more.23 In evaluating whether OCS has taken active
efforts, we consider OCSs involvement in its entirety.24
Sandy and Leo argue that the facts fail to support an
active efforts finding for their youngest daughter, Sarah.25 The
question before us is a narrow one: When a child is born while
OCS is involved with the family in an ongoing case, should the
trial court view OCSs efforts toward each child in isolation
rather than in the context of its efforts toward all of the
children? The answer to that question is no. The trial court
properly considered all of OCSs efforts from the time that it
first became involved with the family in September 2005 when it
filed an emergency petition for adjudication of Kathy as in need
of aid and for temporary custody until the trial on termination
of Sandys and Leos parental rights began in April 2008.
We addressed a similar issue in E.A. v. State, Division
of Family & Youth Services.26 In E.A., a mother relinquished her
parental rights to each of her five children except for her six-
year-old son.27 In the case to terminate her parental rights to
that son, the mother pointed to the failure of the Division of
Family and Youth Services (DFYS), which is now known as the
Office of Childrens Services (OCS),28 to make active efforts
during a seven-month period to support her argument that DFYS had
failed to provide active efforts toward unifying her with her
son.29 We determined that it was proper for the trial court to
consider the degree of the states efforts to prevent the breakup
of the entire family in assessing whether that effort was
sufficient under ICWA and that DFYSs efforts regarding her son
were active in light of the totality of DFYSs efforts during its
involvement with her family.30
The trial courts finding that OCS made active but
unsuccessful efforts to prevent the breakup of Sandy and Leos
family is amply supported by the record. Before Sarah was born,
OCS tried to provide remedial services and rehabilitative
programs designed to prevent the termination of Sandys
relationship with Vicki and Kathy that included enrolling Sandy
and Kathy in the Early Learning Family program, identifying
treatment programs that allow participants to have their children
with them, helping Sandy apply for an inpatient program in
Fairbanks, scheduling supervised visits with Vicki and Kathy, and
making repeated and varied efforts to contact and communicate
with Sandy. OCS also made efforts to provide remedial services
and rehabilitative programs designed to prevent the termination
of Leos relationship with Vicki that included scheduling two
appointments for substance abuse assessments, scheduling
supervised visits with Vicki, and making repeated and varied
efforts to contact and communicate with him.
But OCSs efforts were hindered by the parents lack of
cooperation, which was largely due to their failure to
acknowledge their problems with alcohol as well as their desire
to relinquish their parental rights to Vicki and Kathy. Sandy
acknowledges in her opening brief that [i]n this case, it is
undisputed that, for the first two children, [she] did not
entirely cooperate with the treatment she clearly needed. Sandy
twice declined substance abuse treatment when it was available to
her, and on the two occasions when she entered treatment, she
left without completing the programs. Leo failed to attend the
two appointments for substance abuse assessments that OCS had
made for him before Sarah was born and did not receive an
assessment or participate in treatment until after Sarah was
removed from his care. And despite having spent nearly three
weeks in residential treatment for substance abuse, Leo testified
at the trial that he was not dependent on alcohol and that he had
never placed his need for alcohol before the needs of his
children.
Following Sarahs birth, her parents unwillingness to
cooperate continued to impede OCSs efforts to guide them through
their case plans. Though Sandy and Leo had told their case
worker that they had given up on the older two children and that
they would focus their efforts on retaining the new baby, a
police officer reported that Sandy was intoxicated when he saw
her four days before Sarahs birth. On August 6 Leo was arrested
for disorderly conduct, and on August 14 a police officer found
Sandy passed out in the road.
The case worker responded to the reports of these
alcohol-related incidents involving Sandy and Leo by visiting
their home. But Sandy declined to talk with the case worker, and
Leo did not address her concerns regarding their alcohol
consumption. According to the case worker, they werent
interested in engaging in services. They felt they didnt have a
problem. The case worker visited the parents home again in
October. Yet this time Leo declined to talk to the case worker,
and Sandy claimed that she was not drinking and did not have a
substance abuse problem. In November the case worker called the
parents and visited them, but they had not made progress in their
treatment, and Leo did not appear to be any more receptive to
OCSs efforts. As Sandys attorney conceded at oral argument
before us on appeal, the State clearly wanted to at least try.
They kept the child in the home for a few months until [Sandy]
got drunk.
OCS removed Sarah from Sandy and Leos care after her
babysitter dropped her off at a party where they were both
intoxicated. Between Sarahs removal in December 2007 and
commencement of the trial on termination of Sandys and Leos
parental rights in April 2008, it does not appear that OCS was
involved with the parents. But OCSs failure to continue its
efforts toward the family during those four months is
insignificant in light of the substantial efforts that OCS made
to assist the parents in receiving substance abuse assessments
and treatment, schedule visitation with their children, and
communicate with them in a variety of ways that were often
rebuffed or ignored.
We conclude that in this case the trial court properly
took into account all of OCSs efforts on behalf of the entire
family in determining that active efforts were made on Sarahs
behalf. We agree with OCSs view, expressed at oral argument,
that the determination of whether OCS may rely on active efforts
made on behalf of older children in support of a petition to
terminate parental rights as to a younger child, born after those
efforts were made, is heavily fact dependent. In this case, OCS
was justified in relying in part on the efforts it made in Kathys
and Vickis cases in its petition to terminate parental rights as
to Sarah. There was no interval between the older siblings CINA
proceedings and the CINA proceedings for Sarah, and the evidence
established that the extensive efforts OCS had made with respect
to the older girls in the nearly two years before Sarahs birth
did not effect a change in the parents conduct toward any of
their children. We therefore conclude that the trial court did
not err in finding that OCS made active but unsuccessful efforts
to prevent the breakup of Sandy and Leos family.
B. The Trial Court Did Not Err in Finding by Evidence
Beyond a Reasonable Doubt, Including Dr. Drobys
Testimony, that Continued Custody by the Parents Would
Likely Harm the Children.
ICWA requires that before a court may terminate
parental rights to an Indian child, the court must find by
evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, that the continued custody of the
child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child.31 The courts
finding may be supported through expert testimony alone or
through aggregating expert testimony with other evidence such as
testimony of lay witnesses.32
The parents contest the qualifications of Dr. Droby as
the States ICWA-qualified expert and express concern that his
testimony was by phone. The parents argue that Dr. Droby was not
qualified as an expert in child development, alcohol treatment or
abuse, or on any subject specifically facing the court. But as
OCS points out, Dr. Droby was qualified as an expert in
psychology and his testimony was well within his expertise. At
trial Dr. Droby addressed the psychological harm that the
children have suffered and would likely continue to suffer if
they were returned to Sandy and Leos care and their parents
continued to drink.
Sandy further argues in her reply brief that even if
Dr. Droby was qualified under the Alaska Rules of Evidence,
testimony from an expert who is generally qualified to testify
under the Rules of Evidence is not sufficient to meet the
requirements of the Indian Child Welfare Act. Sandy cites Marcia
V. v. State, Office of Childrens Services, in which we explained
that although ICWA 1912(f) heightens the requirements for an
experts qualifications beyond those normally required to qualify
an expert, one way to meet ICWAs requirements is by virtue of
substantial education in the area of [the experts] specialty.
The legislative history of ICWA provides further guidance,
stating that the education and training of the expert should
constitute expertise beyond the normal social worker
qualifications. 33 Having earned masters and doctorate degrees in
clinical psychology, Dr. Droby received substantial education in
his speciality of psychology that meets this standard.
The parents also claim that Dr. Drobys testimony was
compromised by the fact that he appeared telephonically, but they
fail to cite any authority in support of this contention.
Although Sandy asserts in her reply brief that she is not arguing
that the trial court erred in allowing Dr. Droby to testify by
telephone under CINA Rule 3(g), she subsequently complains that
[t]he psychologist literally phoned it in from Nome. Dr. Drobys
testimony by phone was proper under CINA Rule 3(g), which
provides that [t]he court may conduct any hearing with telephonic
participation by one or more parties, counsel, witnesses, foster
parents or out-of-home care providers, or the judge.
Sandy and Leo raise their objections to Dr. Drobys
qualifications as well as his telephonic testimony for the first
time on appeal. We will not review issues that were not raised
below absent plain error, which is an obvious mistake creat[ing]
a high likelihood that injustice has resulted.34 The trial court
made no mistake in qualifying Dr. Droby as an expert in
psychology and in permitting his testimony by phone. Thus, there
was no plain error.
Sandy and Leos final challenge goes to the sufficiency
of Dr. Drobys testimony. They argue that his testimony failed to
satisfy the standards of ICWA because it consisted of
generalizations due to his lack of personal knowledge of the
family. But Dr. Drobys testimony is like that of Dr. Michael
Rose in Ben M. v. State, Department of Health & Social Services,
Office of Childrens Services, in which we rejected a fathers
argument that the trial court erroneously relied on the testimony
of an expert who had not evaluated him or his daughter.35 We
observed that [i]t is possible that Dr. Roses testimony would
have been stronger or more detailed had he evaluated [the father]
in person but emphasized that [o]ur case law is clear that
in-person meetings are not required and the requirement for
expert testimony is that it support the ultimate conclusion.36 We
concluded that Dr. Roses testimony was not so vague and
generalized or contrary to other evidence presented at trial that
the trial court clearly erred in according weight to it.37 Dr.
Rose testified that the father was likely to relapse based on the
fathers treatment and relapse history and identified likely
problems faced by parents who care for their children while
intoxicated.38 Dr. Rose further testified that the father needed
to resolve his psychological problems and dysfunctional
personality features reflected in his criminal history and that
children exposed to domestic violence can suffer negative effects
to their self-esteem and emotional stability.39 Yet Dr. Rose was
explicit that without examining the father he could not diagnose
him with any particular disorder.40
Here, Dr. Drobys testimony was grounded in the facts
and issues of this case. Dr. Droby testified that his review of
the materials provided by OCS suggested that Sandy and Leo had a
strong orientation towards using alcohol at the expense of
parenting, though he acknowledged that because he had not
directly evaluated the family members, he could not diagnose the
parents consumption of alcohol as either alcohol dependent or
alcohol abuse. Dr. Droby cited the parents criminal records,
their missed visits with their children, and the incident that
lead to Sarahs removal as examples of their behavior that
suggested that they had an alcohol problem. Dr. Droby further
testified that [i]t seems . . . from the treatment notes on the
children that they have been affected emotionally and that they
have suffered, to some extent, emotionally from their
relationship with their parents. In particular, Dr. Droby
mentioned Vickis response to seeing her father push down her
mother and threaten to kill her, and Vickis diagnosis of post-
traumatic stress disorder. Dr. Droby explained how parents
alcohol problems can hinder bonds between them and their children
and can cause the children to be anxious, insecure, and
depressed. Finally, after Dr. Droby was told of the parents
participation in treatment for the past sixty to ninety days, he
testified that if they were released and continued to drink, the
children might be at harm. Dr. Droby also discussed the likely
adjustment problems that the children would experience if they
were returned to their parents after their parents completed
eighteen months of treatment and six months of being sober in the
community or if their parents relapsed and the children were
again removed from their parents care.
Dr. Drobys testimony is also consistent with the
evidence that the trial court cited in finding that the children
would likely suffer serious harm if returned to Sandy and Leos
care. In support of Dr. Drobys conclusions, the trial court
cited: the foster mothers testimony about Vickis displays of
sadness and insecurity related to her jealousy of her foster
mothers natural children, which had improved significantly during
her time with her foster family; the treatment plan and mental
status evaluation for Vicki, which contained her diagnosis of
post-traumatic stress disorder and adjustment disorder; the
guardian ad litems December 2006 pre-disposition report that
mentioned Vickis bed-wetting problem at the age of five; the
guardian ad litems February 2006 pre-disposition report that
discussed Kathys assessments, which determined that she had
delays in various areas, including language; the foster mothers
testimony about Kathys inability to count past two when she was
about four years old and about her progress since living with her
foster family; and Sarahs young age and need to attach with an
adult caregiver to prevent her from suffering significant
emotional damage, based on legislative findings concerning the
attachment process of children under the age of six.41
Because Dr. Drobys testimony is particular to facts and
issues in this case and consistent with the other evidence
presented at trial, the superior court did not err when it
relied on his testimony in combination with other evidence to
find beyond a reasonable doubt that [b]ased upon the ages and
developmental needs of the children and the parents history of
unsuccessful engagement in treatment, . . . continued custody by
the parents would result in emotional harm to the children.42
V. CONCLUSION
For these reasons, we AFFIRM the trial courts
termination of Sandys and Leos parental rights to their children.
_______________________________
1 We adopt the pseudonyms used by the parties to protect
the family members privacy.
2 25 U.S.C. 19011963 (2006). Although the parties agree
that the girls are Indian children under ICWA, it does not appear
that the childrens tribal affiliation has been fully resolved.
3 The Spud Farm, which is the colloquial name for the
Maniilaq Associations Mavsigviq Program, is not a State-approved
treatment facility.
4 Accordingly, the arguments made in Sandys opening brief
are referred to as Sandy and Leos arguments. But because Leo did
not file a motion to join Sandys reply brief and Sandy clarified
in this brief that her arguments are distinct from any that may
be advanced by the father should he choose to file a separate
reply to the states arguments, we refer to Sandys arguments in
her reply brief as her own.
5 Audrey H. v. State, Office of Childrens Servs., 188
P.3d 668, 672 (Alaska 2008).
6 Id. (internal quotation marks omitted).
7 N.A. v. State, Div. of Family & Youth Servs., 19 P.3d
597, 600-01 (Alaska 2001).
8 See Carl N. v. State, Dept of Health & Soc. Servs.,
Div. of Family & Youth Servs., 102 P.3d 932, 935 (Alaska 2004)
(Whether the superior courts findings comport with the
requirements of ICWA or the CINA statutes and rules is a question
of law that we review de novo.).
9 Marcia V. v. State, Office of Childrens Servs., 201
P.3d 496, 507 (Alaska 2009).
10 Ted W. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 204 P.3d 333, 337 (Alaska 2009).
11 See 25 U.S.C. 1912(d), (f) (2006) (listing required
findings to terminate parental rights to an Indian child); AS
47.10.088 (listing required findings to terminate parental rights
to a child); CINA Rule 18(c) (listing required findings to
terminate parental rights to a child, including additional
requirements if the child is an Indian child).
12 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
13 AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i)(ii).
14 25 U.S.C. 1912(d); CINA Rule 18(c)(2)(B).
15 CINA Rule 18(c)(3).
16 25 U.S.C. 1912(f); CINA Rule 18(c)(4).
17 25 U.S.C. 1912(d).
18 Cf. Stone v. Stone, Mem. Op. & J. No. 1341, 2009 WL
1564154, at *3-4 (Alaska, June 3, 2009) (holding that the
superior court did not abuse its discretion when it made
supplemental oral findings five days after it had made its
initial oral findings); D.H. v. State, Dept of Health & Soc.
Servs., 929 P.2d 650, 654-55 (Alaska 1996) (affirming the trial
courts finding concerning the States reunification efforts, which
was the sole additional finding included in the trial courts
amended order). In their briefing and during oral argument, the
parents repeatedly described the trial courts second written
order as a form order, which is in reference to the fact that the
order was submitted by OCS and similar to proposed orders
submitted by OCS in other cases. Because Alaska Civil Rule 78(a)
requires counsel for the successful party to prepare in writing
and file . . . proposed findings of fact, conclusions of law,
judgments and orders, OCS properly submitted a proposed order
with factual findings and legal conclusions that terminated
Sandys and Leos parental rights after the trial court entered its
initial written order that decided each of the disputed issues in
OCSs favor. As Sandys counsel acknowledged during oral argument,
once the trial court signed OCSs proposed order, it was the
courts order. See Indus. Indem. Co. v. Wick Constr. Co., 680
P.2d 1100, 1108 (Alaska 1980) (A trial court is . . . entitled to
adopt findings and conclusions prepared by counsel, so long as
they reflect the courts independent view of the weight of the
evidence.).
19 Ben M. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 204 P.3d 1013, 1021 (Alaska 2009).
20 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 261 (Alaska 1999) (internal quotation marks omitted).
21 Id. (citing Craig J. Dorsay, The Indian Child Welfare
Act and Laws Affecting Indian Juveniles Manual 157-58 (1984)).
22 Id. at 262; see also N.A. v. State, Div. of Family &
Youth Servs., 19 P.3d 597, 603 (Alaska 2001) (This court has held
that a parents demonstrated lack of willingness to participate in
treatment may be considered in determining whether the state has
taken active efforts.); In re J.W., 921 P.2d 604, 609 (Alaska
1996) (determining that OCSs less active efforts after the father
moved were justifiable in light of [his] continuing unwillingness
to participate in treatment in any meaningful or ongoing way).
23 Ben M., 204 P.3d at 1021.
24 Maisy W. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 175 P.3d 1263, 1268 (Alaska 2008).
25 The parents also argue that OCS conceded this at trial
when it discussed OCSs involvement with the parents in its
opening argument:
Ive been doing this case for about two
and a half years now on the eldest daughter.
Weve had two and a half years to correct the
behaviors. That[] hasnt happened, which is
why were seeking termination today. And on
the youngest girl, . . . its a continuation
of these problems that have been going on for
the last two and a half years. The
department had to take custody [of Sarah], in
December, for drinking by both parents. The
department doesnt see a need to work with the
family on this particular child given its
history of two and a half years.
The most recent removal shows that the
history of CINA conditions persist.
But as OCS responds and as we discuss in greater detail below,
OCS was arguing, as it continues to argue on appeal, that it made
active efforts with regard to Sarah in light of the parents
history of failing to cooperate and to complete substance abuse
treatment as well as its efforts between Sarahs birth and her
removal from their care.
26 46 P.3d 986 (Alaska 2002).
27 Id. at 988 & n.1.
28 Smith v. Stafford, 189 P.3d 1065, 1068 (Alaska 2008).
29 E.A., 46 P.3d at 990.
30 Id. at 990-91; see also Kyra K. v. State, Office of
Childrens Servs., Mem. Op. & J. No. 11426, 2005 WL 1189553, at *1-
2 (Alaska, May 18, 2005) (holding that the superior court did not
err in finding that OCS had made active efforts toward the
mothers youngest child in light of the total history of OCSs
efforts during its fourteen-year involvement with her family);
N.A. v. State, Dept of Health & Soc. Servs., 19 P.3d 597, 598-99,
603-04 (Alaska 2001) (highlighting many of DFYSs efforts
throughout its involvement with the mother and her five children,
including efforts made before her two youngest daughters were
born, to hold that DFYSs efforts toward a mothers two youngest
daughters were more than active and in fact exemplary).
31 25 U.S.C. 1912(f) (2006).
32 Ben M. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 204 P.3d 1013, 1020 (Alaska 2009).
33 201 P.3d 496, 504 (Alaska 2009) (quoting H.R. Rep. No.
95-1386, at 22 (1978), as reprinted in 1978 U.S.C.C.A.N. 7530,
7545).
34 See Ted W. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., 204 P.3d 333, 337 (Alaska 2009)
(internal quotation marks omitted).
35 204 P.3d at 1019-21.
36 Id. at 1020; accord Marcia V., 201 P.3d at 507
(explaining that pre-trial interviews of the family members are
not required when the experts testimony is sufficiently grounded
in the cases particular facts and issues but that an experts
testimony may be weakened by exclusive reliance on the case
file).
37 Ben M., 204 P.3d at 1020-21.
38 Id. at 1020.
39 Id. at 1020-21.
40 Id. at 1021.
41 See AS 47.05.065(5)(A)(C) (discussing the problems
associated with children who have not attached with an adult
caregiver before they are six years old and the importance of
expedited placement in permanent homes for these children).
42 Because we conclude that the parents allegations of
error are unfounded, their argument that they were denied due
process by the cumulative effect of these alleged errors is
without merit.
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