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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barbara P. v. State, Dept. of Health & Social Services, Office of Children's Services (7/9/2010) sp-6493
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
| BARBARA P., | ) |
| ) Supreme Court No. S- 13603 | |
| Appellant, | ) |
| ) Superior Court Nos. 3PA-06-00053 CN | |
| v. | ) and 3PA-08-00025 CN |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| DEPARTMENT OF HEALTH & | ) |
| SOCIAL SERVICES, OFFICE OF | ) No. 6493 July 9, 2010 |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
| LEO S., | ) |
| ) Supreme Court No. S- 13606 | |
| Appellant, | ) |
| ) Superior Court Nos. 3PA-06-00053 CN | |
| v. | ) and 3PA-08-00025 CN |
| ) | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH & | ) |
| SOCIAL SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Palmer, Eric Smith, Judge.
Appearances: Christi A. Pavia, Pavia Law
Office LLC, Anchorage, for Appellant Barbara
P. Jill C. Wittenbrader, Contract Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Appellant Leo S.
Megan R. Webb, Assistant Attorney General,
Anchorage, and Daniel S. Sullivan, Attorney
General, Juneau, for Appellee State of
Alaska. Dianne Olsen, Law Office of Dianne
Olsen, Anchorage, for Guardian Ad Litem.
Before: Fabe, Winfree, Christen, and
Stowers, Justices. [Carpeneti, Chief Justice,
not participating.]
FABE, Justice.
I. INTRODUCTION
Barbara and Leo each appeal the superior courts
judgment terminating their parental rights to their children,
Michael and Gary, on the grounds of mental illness, domestic
violence, substance abuse, and abandonment.1 The parents
challenge the superior courts admission of expert testimony
during trial, its finding that the children were in need of aid,
its finding that the parents had not remedied the conduct or
condition that placed the children at risk, its finding that the
State of Alaska Office of Childrens Services (OCS) made
reasonable efforts to reunify the family, and its finding that
termination of parental rights was in the best interests of the
children. Because the superior courts legal conclusions were
correct and its factual findings were not clearly erroneous, we
affirm the judgment in all respects.
II. FACTS AND PROCEEDINGS
Barbara and Leo are the parents of Michael and Gary.
Michael was born on August 1, 2006 and has been living in foster
care or with relatives of Barbara since December 2006. Gary was
born on April 14, 2008 and has been living in foster care his
entire life. Michael and Gary are currently living with the same
foster parents, who have stated an intent to adopt the children
should Barbaras and Leos parental rights be terminated.
A. Facts
1. Barbaras history
Barbara was born in April 1988. As a child, she was
exposed to parental substance abuse and was the victim of neglect
and sexual and physical abuse. Barbara has a history of
depression and suicidal behavior. As early as age six, Barbara
threatened to kill herself. She attempted to commit suicide
during her pregnancy with Michael and again when he was one year
old. During a mental health assessment, she acknowledged that
she had slit her wrists 7-8 times. At trial, she testified that
she had attempted suicide [a] lot.
Barbara also has a history of substance abuse. At 12,
Barbara began drinking alcohol; by 14, she had used marijuana; by
15, she had used Percocet and crystal methamphetamine; and by 16,
she had used cocaine. Between the ages of 14 and 16, Barbara
obtained several substance abuse assessments that recommended
that she participate in substance abuse treatment programs. She
was discharged from her first treatment program because she had a
sexual relationship with another client in the program. She
finished a second treatment program but relapsed before she even
got out of treatment, using cocaine during the final month. While
pregnant with Michael, Barbara used marijuana regularly and did
not stop until the eighth month of her pregnancy. She took
methadone before and after his birth.
2. Domestic violence in Barbara and Leos relationship
Barbara and Leo began a relationship in February 2005.
Leo testified at trial that there was domestic violence in the
relationship, describing at least one physical argument based on
his jealousy and stating that he was sure he had left bruises on
Barbara from their fights. Barbara testified that Leo had
threatened to kill her and had strangled and choked her.
Barbara became pregnant with Michael in late 2005.
When Barbara was four months pregnant, she attempted to commit
suicide, explaining later that she was tired of being beaten
every day. When Michael was several months old, Barbara filed
for a protective order in which she expressed fear for her and
Michaels lives; described Leos constant abuse, including hitting
her and pushing her mom; and explained that Leo is violent when
he is on any kind of drug. She was granted a temporary
protective order but did not request a long-term order at the
hearing that followed.
3. Michaels removal and placement in foster care
Michael was born in August 2006. On October 17 of that
year, the State of Alaska, Office of Childrens Services (OCS)
took temporary custody of Michael after receiving a report that
Barbara was using crack cocaine, and her mother, Jane, was using
crack cocaine with Michael in the room. The investigating social
worker visited the home in which Michael, Barbara, and her mother
were living and witnessed Leo being removed from the home by
officers who had served him a temporary protective order that
Barbara had obtained from the court. Barbara verified to the
social worker that Leo hit her and threatened her.
Although Barbara and Jane initially denied drug use to
the social worker when they were interviewed together, Jane
admitted separately that she had recently used cocaine, although
not around her children or in the home. Prior to this cocaine
use, Jane had been sober for ten years, and she attributed her
relapse to her fear for her daughters safety because of Leo.
Both Barbara and Jane submitted to drug tests and tested positive
for methadone. Based on the positive drug tests, Janes recent
relapse into cocaine use, ongoing domestic violence, and concern
about Michaels safety, the social worker assumed custody of
Michael and placed him temporarily into foster care. On
October 24, 2006, the superior court issued a temporary custody
order pending an adjudication hearing committing Michael to the
custody of OCS and requiring the development of a case plan for
Barbara and Leo.
4. Michaels return to Barbara and removal again
several months later
After Michael was removed from her care in October
2006, Barbara moved out of her mothers house and into a domestic
violence shelter. Approximately two and a half weeks later,
Michael was returned to Barbara at the shelter. In late
December, Barbara tested positive for cocaine use, and a white
powder substance was found in her room at the shelter. As a
result, Michael was removed permanently from her care, and she
was required to leave the shelter. Michael remained in foster
care briefly before being placed with a relative of Barbara.
In January 2007 Barbara and Leo stipulated to
adjudication of Michael as a child in need of aid pursuant to AS
47.10.011(8) (domestic abuse) and AS 47.10.011(10) (substance
abuse). Based on the stipulation, the superior court issued an
order adjudicating Michael to be a child in need of aid and
committing Michael to the continuing custody of OCS.
In July 2007 OCS received a report that Barbara and Leo
were involved in a domestic violence issue at the home of the
relative with whom Michael had been placed. At one point during
the incident, Barbara picked up Michael to leave the home, and
Leo slapped Barbara while she was still holding Michael. The day
after the incident, a social worker and state trooper went to the
home and, after finding Leo hiding in the back room, removed
Michael from the home and placed him back in foster care.
5. Barbaras case plan
OCS developed a case plan for Barbara in late 2006,
requiring that she obtain a substance abuse assessment and comply
with its recommendations. After completing the substance abuse
assessment in November 2006 with Alaska Family Services (AFS),
Barbara was diagnosed with opioid abuse, alcohol abuse, sedative
abuse, amphetamine dependence, and cannabis dependence. The
assessment recommended an intensive outpatient substance abuse
program, and Barbara was placed on the waiting list for
treatment; she was dropped from the waiting list when she failed
to attend two Alcoholics Anonymous (AA) meetings per week as
required. After she tested positive for cocaine use in December
2006 and Michael was taken into OCS custody, Barbara returned to
AFS asking to be reinstated on the waiting list. Barbara was
unable to begin substance abuse treatment through AFS because her
mother was currently receiving treatment at the same facility,
although she was provided with alternative options for treatment,
including Ascent Treatment and Counseling.
Barbara tested positive for cocaine again in April
2007. In a meeting with a social worker, she denied using
cocaine but admitted to selling cocaine during March and April
because she could not find a job. Barbara participated in a new
substance abuse assessment with AFS in May 2007. The assessment
reaffirmed her dependency on and abuse of various drugs and again
recommended intensive outpatient substance abuse treatment. She
began substance abuse treatment through Ascent in August 2007.
Barbara was at times inconsistent in taking her required
urinalysis tests and tested positive for cocaine use again in
October 2007, which she testified was the last time she used
cocaine. At the time, she was pregnant with Gary.
Barbaras substance abuse assessment also recommended
that she complete a full psychiatric evaluation. Barbara
completed a psychological evaluation with Dr. Grace Long
consisting of five meetings between March and May 2007.2 Dr.
Long concluded that Barbara should obtain intensive outpatient
treatment for her substance abuse and recommended that she seek
long-term treatment for depression, possibly with psychotropic
medications and participate[] in a dialectic/behavior therapy
program including long-term individual therapy. Without such
treatment, Dr. Long concluded that Barbaras parenting skills
[were] likely to remain unchanged and compromised. Dr. Long
reiterated this recommendation at trial.
Barbara requested that she be allowed to see Megha
Hammaker, a nurse practitioner whom she had seen before, as her
mental health professional, and OCS approved of her request. At
trial, Barbara testified that she had seen Hammaker at least
every two weeks since February 2006 and spoke to her frequently.
The superior court did not credit this testimony. According to
Hammakers own records and testimony, there were periods of months
between visits and few phone calls. Barbara reinitiated
counseling sessions with Hammaker after a ten-month lapse in
August 2007, following a suicide attempt. She participated in
three sessions and then stopped seeing Hammaker until February
2008, when Barbara resumed sessions for less than a month before
missing another nine weeks. After Hammaker recommended in early
June 2008 that Barbara have weekly appointments to work through
issues related to domestic violence, Barbara attended three
sessions, went thirteen weeks without a visit, attended one
session in October and one in November, then went until late
April 2009 before attending another session the day after she was
questioned at trial about the frequency of her sessions.
The case plan also required that Barbara attend
parenting and domestic violence classes. After missing a number
of parenting classes, she eventually completed the required
course in October 2007. She had begun attending domestic
violence classes with AFS but believed she had to stop taking
those classes after she was asked to leave the shelter in
December 2006. By mid-2007 she had not resumed the classes.
Around that time, she spoke to a social worker and described a
recent violent encounter with Leo, where he came to her apartment
and accused her of seeing another person. Barbara did not
terminate her relationship with Leo; rather, in August 2007
Barbara decided she wanted to become pregnant again by Leo
because she wanted both her children to have the same father.
Dr. Longs report described a well-established pattern for
[Barbara] to enter into heterosexual relationships that are
volatile, abusive, and drug-related.
By late 2007 Barbara had completed only her parenting
class and the required evaluations.
6. Garys removal immediately following his birth
On April 14, 2008, Barbara gave birth to Gary. Several
days later, OCS assumed temporary custody of Gary after receiving
a report that Barbara had tested positive for cocaine when she
was admitted at the hospital. She denied using drugs when
questioned by the investigating social worker at the hospital,
and when her drug test was sent to the laboratory, it came back
negative. The baby tested negative for cocaine at the hospital,
but a meconium test performed several days later came back
positive.3 Leo was in the hospital when the social worker
arrived, and Barbara admitted that he had been present during and
since Garys birth. Barbara was homeless at the time and staying
on the couches of acquaintances. Based on concerns about
substance abuse, domestic violence, and lack of appropriate
housing, the social worker assumed custody of Gary and placed him
in foster care with Michael.
7. Barbaras progress on her case plan since Garys
birth
In May 2008 Barbara began participating in the Womens
Residential Reunification and Action Program (WRRAP), which
offers domestic violence classes, life skills classes, and
shelter. Her updated case plan required that she successfully
complete this program. While in the program, Barbara continued
to see Leo. Barbara requested that Leo be added to her weekly
visitation with the children in July 2008, but she changed her
mind after several weeks because Leo had gone back to his old
ways of being controlling. In August 2008 Barbara sought medical
attention after her ex-boyfriend had pull[ed] on a pierced nipple
when [he] got angry. The superior court found that she was
referring to Leo. In September 2008 Barbara was with Leo when he
was arrested for a parole violation and was still using a picture
of her and Leo as the profile picture on her MySpace page.
Although Barbara finished the WRRAP program in November 2008,
staff noted that her level of participation was minimal and had
the sense that she was not fully committed to the program because
she diminished the seriousness of her domestic violence issues
and refused to terminate her relationship with Leo.
Barbara visited Leo several times while he was in
prison and continued to have conversations with him to update him
on their children until March 2009. At that time, Barbara sent a
letter to Leo stating that their relationship was over; according
to the superior court, this letter was sent at the advice of
counsel.
Barbara completed her substance abuse treatment with
Ascent in September 2008 and began to participate in after-care.
Barbara went to AA meetings several times per month, and after
the question whether she had a sobriety sponsor was discussed at
trial, she obtained a sobriety sponsor. Despite Barbara missing
drug tests in 2009, the superior court credited her testimony
that she was sober and found that she had been sober since at
least Garys birth in April 2008.
Barbaras case plan also required that she follow up
with Megha Hammaker for all of her mental health needs and
recommendations. As noted above, despite her testimony to the
contrary, Barbara did not follow Hammakers recommendation in
early June 2008 that Barbara have weekly appointments to work
through issues related to domestic violence, and Barbara went
long periods without visits. At trial, Hammaker expressed her
opinion that Barbara was presently . . . not experiencing any
major depressive symptoms or mood disorder symptoms, and that it
was appropriate for her not to take any medication or see a
professional for her mental health issues. Barbara was neither
taking any medications nor regularly seeing Hammaker or any other
mental health professional.
Barbaras case plan established regular supervised
visits with her children through AFS. Barbara consistently
attended her scheduled visits, and the social worker agreed that
her interactions with her children were loving and appropriate.
Barbara moved to Anchorage in January 2009 and rented
her own apartment.
8. Leos case plan
A social worker developed a case plan for Leo as well
and mailed a copy to him on October 25, 2006. The plan required
Leo to complete parenting and domestic violence classes, a
substance abuse assessment, substance abuse treatment if
recommended, and random weekly drug tests. Leo did not meet with
a social worker to discuss his case plan requirements until May
2007, at which time he signed the plan and agreed to its terms.
Around that time, Leo was arrested on a drug charge to which he
pled guilty and went to jail for a month.
In September 2007 Leo tested positive for cocaine,
leading to the revocation of his probation and a 60-day prison
sentence. Leo was also charged with criminal trespass and
received a suspended sentence. By the end of 2007, Leo had made
almost no progress on his case plan, failing to complete a new
substance abuse assessment or domestic violence classes, starting
but not finishing a mental health evaluation, and only
participating in a few drug tests. In March 2008 Leo completed a
substance abuse assessment in which it was recommended that he
participate in an intensive outpatient treatment program. Leo
entered treatment that month.
Leos case plan was updated in June 2008, although the
issues to be addressed remained largely the same. Leo was
required to participate in domestic violence and parenting
classes and supervised visitation with his children. Leo
completed an intake form for a domestic violence program that
month in which he admitted to committing acts of domestic
violence against Barbara, and then began but quickly abandoned
the 36-week program.
In August 2008 Leo left the state and returned to
Florida without notifying OCS. He stopped attending substance
abuse treatment and was discharged for non-compliance as a
result. By leaving the state, Leo also cut off visitation with
his children. When he returned the following month, Leo was
arrested on a probation violation and sentenced to 18 months in
prison at the Palmer Correctional Center, a sentence he was
serving during the termination trial.
By the end of 2008, Leo had completed parenting classes
and started, but not completed, substance abuse treatment and
domestic violence classes. He was incarcerated and acknowledged
that it would be impossible for him to be reunified with his
children at that time. As a social worker put it, he had not
mitigated the circumstances that brought the kids in[to] custody.
By the conclusion of the termination trial in May 2009, Leo was
still incarcerated and had made no further progress on completing
the case plan.
B. Proceedings
In April 2008 OCS filed a petition for adjudication of
Gary as a child in need of aid. In May 2008 OCS filed a petition
for termination of Barbaras and Leos parental rights to Michael
and Gary. The superior court consolidated Garys adjudication
hearing and the termination hearing and conducted a seven-day
trial ending in May 2009. At the conclusion of trial, the
superior court adjudicated Gary as a child in need of aid and
terminated Barbaras and Leos parental rights to both Michael and
Gary. The court found by clear and convincing evidence that: (1)
the children were in need of aid as a result of abandonment (by
Leo), domestic violence (by both parents), substance abuse (by
both parents), and Barbaras mental health issues; (2) the parents
had failed, within a reasonable time, to remedy the conduct or
conditions that placed the children at risk of harm; and (3) OCS
had made reasonable efforts to provide family support services to
reunify the family. It also found by a preponderance of the
evidence that it was in the childrens best interests that
Barbaras and Leos parental rights be terminated. We commend the
superior court on its exemplary job of distilling the evidence
presented at trial into thorough findings of fact and conclusions
of law.
Barbara and Leo each appeal, challenging the superior
courts admission of expert testimony, its finding that Michael
and Gary were in need of aid, its finding that the parents had
not remedied their conduct, its finding that OCS made reasonable
efforts, and its finding that termination was in the best
interests of the children.
III. STANDARD OF REVIEW
We review a decision to admit expert testimony for
abuse of discretion.4 In a child in need of aid (CINA) case, we
review a superior courts findings of fact for clear error.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 We review de novo whether a trial courts findings
satisfy the requirements of the child in need of aid statute.7
We have not been entirely consistent in whether we
treat a trial courts finding that a parent failed to remedy the
conduct or conditions that placed his or her child at substantial
risk as a question of fact or a mixed question of law and fact.8
We take this opportunity to clarify that this determination is
generally a finding of fact that will only be reviewed for clear
error. Whether the parent has remedied the conduct or conditions
. . . that place the child at substantial risk9 and whether
returning the child to the parent would place the child at
substantial risk of physical or mental injury10 are factual
determinations best made by a trial court after hearing witnesses
and reviewing evidence, not legal determinations to which an
appellate court should apply its independent judgment.
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion In
Admitting The Testimony Of Dr. Long.
Both Barbara and Leo argue that the superior court
erred in allowing the testimony of Dr. Grace Long because it was
inadmissible expert testimony and because it was not relevant.
Dr. Long performed a psychological evaluation of Barbara between
March and May 2007 and produced a report discussing Barbaras
history of substance abuse, domestic violence, and mental health
issues and making diagnoses and recommendations. She had no
further contact with Barbara. Dr. Long testified for the State
during the termination trial on April 27, 2009. Barbara made a
timely but unsuccessful objection to Dr. Longs testimony on the
ground that the evaluation conducted more than two years prior
was not a valid basis for an expert opinion.
Dr. Long proceeded to testify about her evaluation and
conclusions and how Barbaras issues could affect her ability to
parent. Dr. Long stated clearly that she was unable to offer a
current diagnosis of Barbara because she had not seen her
recently. Through their questioning, the parties provided Dr.
Long with updated information concerning Barbara and asked Dr.
Long to opine on the extent to which such circumstances might
affect Barbara and change her original diagnosis.11 In its
decision, the superior court acknowledged that Dr. Longs report
was dated,12 but relied on her testimony because it found that the
concerns expressed in Dr. Longs report were still applicable and
that Dr. Longs recommendations had not been adequately followed.
The court also noted that Dr. Long strongly stood behind [her]
analysis.
Dr. Longs testimony about the psychological evaluation
and her conclusions at the time of the evaluation fall within the
scope of permissible expert testimony, regardless of when the
evaluation was performed.13 She based her opinion on five days of
clinical interviews and her review of numerous records data of a
type reasonably relied upon by experts in her field.14 Even if
Dr. Longs expert testimony about the evaluation was proper expert
testimony, Barbara argues that it was not relevant and was
therefore inadmissible because the evaluation took place two
years earlier. To the contrary, the testimony was directly
relevant to whether Michael was a child in need of aid. It was
also relevant to whether Gary was a child in need of aid and
whether Barbara had remedied the conduct or conditions that
placed the children at substantial risk of harm. For example,
Dr. Longs recommendation in 2007 that Barbara needed intensive
substance abuse treatment followed by long-term counseling for
depression could be considered along with evidence of whether she
in fact received such treatment.
Dr. Long also expressed opinions on whether and how
certain events that occurred subsequent to the evaluation,
communicated through hypothetical questions that described facts
elicited at trial, were likely to affect Barbara. Hypothetical
questions that accurately describe the facts of the case are an
acceptable basis for an expert opinion.15 If Dr. Long had offered
a current diagnosis of Barbara based solely on a psychological
evaluation performed two years earlier, then arguably the expert
opinion could have presented a problem. But Dr. Long explicitly
declined to do so. The superior court did not abuse its
discretion in allowing Dr. Longs testimony.
B. The Superior Court Did Not Err In Finding That Michael
And Gary Were Children In Need Of Aid.
In order to terminate a parents rights and
responsibilities, a superior court must find by clear and
convincing evidence that the child has been subjected to
conditions or conduct that would qualify the child as a child in
need of aid pursuant to AS 47.10.011.16 The superior court found
that Michael and Gary were children in need of aid under AS
47.10.011(8) (domestic violence) and AS 47.10.011(10) (substance
abuse) based on Barbaras and Leos conduct, under AS 47.10.011(11)
(mental health) based on Barbaras condition, and under AS
47.10.011(1) (abandonment) based on Leos conduct. We affirm the
courts finding that the children were in need of aid based on the
first three grounds.17
1. Alaska Statute 47.10.011(11) mental health
The superior court found that OCS met its burden of
proving by clear and convincing evidence that both children were
in need of aid based on Barbaras mental health issues. It found
that Barbara has a long history of depression and suicide
attempts, including attempting suicide prior to getting pregnant
with Michael, when she was four months pregnant with Michael, and
one year after his birth. The superior court observed that
Barbara had not followed through on the strong recommendation of
Dr. Long that she engage in extensive mental health therapy.
Instead, Barbara maintained only a minimal relationship with a
nurse practitioner and was not taking psychotropic medication as
recommended. The superior court also found that Barbaras mental
health issues had a very clear ramification[] for her ability to
parent her children, impacting her day-to-day functioning and her
judgment.
Barbara challenges the superior courts findings on the
grounds that the court relied on Dr. Longs testimony, which was
based on a two-year old psychological evaluation, and ignored the
testimony of Hammaker that, at the time of trial, Barbara was not
experiencing any major depressive symptoms or mood disorder
symptoms, she did not need to take medication, and her mental
health did not impair her ability to parent. But it is the role
of the trial court to make credibility determinations and weigh
conflicting evidence as it did here.18 It may have been
preferable for Dr. Long to update her evaluation with an in-
person visit or to have another expert evaluate Barbara closer to
trial, but it was not necessary.19
Barbara further argues, correctly, that a mental
illness alone may not form the basis of a finding under this
subsection20 and contends that OCS failed to demonstrate the
required nexus between her alleged mental illness and any risk of
harm to her children.21 She contends that OCS offered no specific
instances of how Barbaras mental health placed the children at
substantial risk of harm.
In Alyssa B. v. State, Department of Health & Social
Services, Division of Family & Youth Services, a mother made the
same challenge to a superior courts finding that her daughter was
in need of aid based on her mental illness.22 Rejecting this
challenge, we identified specific conduct found by the trial
court that placed her daughter at risk: a refusal to work with
the department leading to a failure to develop any bond with her
daughter; and a refusal to cooperate with authority figures that
may lead to an unwillingness to get help if her daughter needed
it for medical or other problems.23
In this case, the superior courts finding that Barbaras
mental health problems adversely affected her ability to parent
is supported by the record. During trial, Barbara testified that
she had attempted suicide when Michael was one year old. Dr.
Long testified that if her depression remains untreated, it is
possible that she would attempt suicide again. Dr. Long also
testified that Barbara exhibited a pattern of entering into
relationships with abusive men with substance abuse problems. A
social worker testified that the lack of treatment of her
depression would continue to impact her ability to safely care
for her children. The superior courts determination that Michael
and Gary were children in need of aid based on Barbaras untreated
mental health issues is supported by the record.
2. Alaska Statute 47.10.011(8) domestic violence
The superior court found that OCS met its burden of
proving by clear and convincing evidence that both children were
in need of aid based on domestic violence between Barbara and
Leo. The court first noted that Barbara and Leo had stipulated
that Michael was a child in need of aid under this provision,
after which the court had adjudicated him as such. It then
reviewed the evidence presented at trial demonstrating that there
has been domestic violence throughout Barbara and Leos
relationship beginning in 2005 and continuing until just before
trial: Barbaras request for a protective order; testimony by the
parents at trial concerning violent incidents, at least one of
which happened while Barbara was holding Michael; Barbaras
cancellation of joint visits with Leo; and her visit to Mat-Su
Regional Urgent Care in August 2008. The court did not find
Barbaras denial that there was domestic violence in her
relationship with Leo to be credible.
Because Gary was taken into custody by OCS at birth,
the court recognized that he could not be adjudicated a child in
need of aid under a provision requiring direct exposure to
domestic violence. But relying on AS 47.10.011(8)(B)(i), the
court found that Gary was in need of aid because the parents
placed him at substantial risk of mental injury as a result of a
pattern of . . . terrorizing . . . behavior that would, if
continued, result in mental injury. The court based this finding
on evidence of ongoing domestic violence between Barbara and Leo
and expert testimony regarding domestic violence. The court did
not credit Barbaras and Leos testimony that they had ended their
relationship, finding it quite possible that [Barbara] and [Leo]
will re-initiate their relationship.
Barbara first argues that the superior court improperly
relied on the stipulation of the parties and precluded her from
disputing their alleged domestic violence. But the superior
court neither precluded Barbara from offering evidence on this
issue nor relied solely on the stipulation in finding that OCS
had satisfied its burden; it simply noted that it was difficult
to understand how Barbara and Leo were contesting a fact they
admitted at adjudication. Because the burden of proof is lower
in an adjudication than at a termination proceeding,24 a prior
adjudication of a child as a child in need of aid is not
conclusive in the termination proceeding.25 Nonetheless, a court
can consider a parents stipulation and any other evidence offered
at a prior adjudication hearing along with additional evidence
presented at the trial in finding a child to be in need of aid
for purposes of termination of parental rights.26 Therefore, it
was not improper for the court to consider the parties
stipulation among other evidence that Michael was a child in need
of aid based on domestic violence.
Barbara next argues that the superior court erred in
finding Michael to be a child in need of aid under AS
47.10.011(8)(A), which requires OCS to prove that conduct by the
parents resulted in actual mental injury to the child, defined as
serious injury . . . as evidenced by an observable and
substantial impairment in the childs ability to function in a
developmentally appropriate manner that is supported by the
opinion of a qualified expert witness.27 OCS offered no expert
witnesses at trial to testify that Michael had suffered mental
injury as a result of Barbaras and Leos conduct, and in fact no
expert witness has evaluated the children. But there is no
indication that the superior court made a CINA finding under
AS 47.10.011(8)(A). The superior court did not specify the
paragraph of subsection (8) under which it found that Michael was
a child in need of aid as a result of domestic violence.28 Given
that the court made no reference to Michael suffering actual
mental injury, it appears that the court made its CINA finding
under paragraph (8)(B), which requires only a substantial risk of
mental injury.
Barbara argues that any CINA finding under paragraph
(8)(B) would have been error because OCSs petition only requested
a CINA finding under paragraph (8)(A). But Barbara was on notice
that the State intended to present evidence regarding domestic
violence during the termination trial and had an adequate
opportunity to rebut this evidence and offer legal argument: the
petition for termination references Michaels exposure to domestic
violence, Barbaras request for a protective order, her continued
association with Leo, and the case plan requirement that she
complete a Family Violence Intervention class; the petition for
adjudication of Gary as a child in need of aid filed several
weeks before and consolidated with the termination hearing
explicitly requested a finding under subsection (8) and described
a lengthy history of domestic violence between Barbara and Leo;
and Michael had already been adjudicated a child in need of aid
under subsection (8). Even after trial began, Barbara had time
to gather and present her own evidence regarding domestic
violence. OCS elicited testimony from Barbara concerning
domestic violence and its effect on the children early on the
first day of trial (and over her counsels objection). In
scheduling the next day of trial more than 30 days later, the
superior court gave counsel for the parents time to work through
all this discovery and to allow them to assess fully the
ramifications of all this [domestic violence] evidence.
Moreover, Barbara had the opportunity to present legal argument
on why OCS had failed to prove that the children were in need of
aid under subsection (8), and made arguments concerning both
paragraphs (A) and (B) in her closing brief. Given the
foregoing, Barbara suffered no prejudice from OCSs failure to
explicitly reference paragraph (8)(B) in its termination
petition. Therefore, the superior court could properly make a
finding under any paragraph of subsection (8) supported by the
evidence.29
Finally, Barbara argues that the superior courts
finding under subsection (8) was not supported by the evidence at
trial because the children had minimal exposure to domestic
violence, and OCS failed to prove any pattern of . . . behavior
in the childrens presence. But AS 47.10.011(8)(B)(i) does not
require that the children be physically present when there is
domestic violence (although Michael was in fact present in one
instance).30 Rather, it requires proof that conduct by the parent
places the child at substantial risk of mental injury as a result
of a pattern of . . . terrorizing . . . behavior that would, if
continued, result in mental injury. There was substantial
evidence presented at trial of ongoing domestic violence between
Barbara and Leo and testimony by an expert witness that exposure
to domestic violence creates a substantial risk of mental harm to
a child, even where the child is not physically present. This
evidence supports a finding that Leos acts toward Barbara created
a significant risk of mental injury to the children if they had
been placed with their parents. Therefore, the superior court
did not err in finding that OCS proved by clear and convincing
evidence that Michael and Gary were children in need of aid under
AS 47.10.011(8) of the CINA statute.
3. Alaska Statute 47.10.011(10) substance abuse
The superior court found that OCS met its burden of
proving by clear and convincing evidence that both children were
in need of aid based on substance abuse by Barbara and Leo.
Under AS 47.10.011(10), a court may find a child in need of aid
where the parents ability to parent has been substantially
impaired by the addictive or habitual use of an intoxicant, and
the addictive or habitual use of the intoxicant has resulted in a
substantial risk of harm to the child. In finding Michael to be
a child in need of aid, the superior court referenced the
stipulation of the parties in Michaels adjudication and noted
that Leo had conceded in his pleadings for the termination
proceeding that Michael was a child in need of aid under this
subsection. The court found Gary to be a child in need of aid
based on Leos continuing drug addiction, dismissing Leos
testimony that the only drug he currently uses is marijuana. Leo
does not challenge this ruling on appeal.31 Leos concession with
respect to Michael and his failure to challenge the superior
courts holding with respect to Gary are, by themselves,
sufficient for us to affirm the ruling that Michael and Gary are
children in need of aid for purposes of the termination of both
Leos and Barbaras parental rights.32
The superior court also reviewed Barbaras substantial
history of drug use, including marijuana, opiates, cocaine, and
methamphetamine, through at least October 2007. Barbara used
marijuana, methadone, and Percocet, either while pregnant with
Michael or around the time he was born. She used cocaine during
periods when she was caring for Michael. She repeatedly entered
and failed to complete substance abuse treatment. These facts,
together with the parties stipulation, gave the superior court
ample grounds to find that Michael was a child in need of aid
based on Barbaras substance abuse.
With respect to Gary, the superior court credited
Barbaras testimony that she had not used drugs since Garys birth
and commended her for completing her substance abuse treatment.
But the court did not believe that Barbara had truly addressed
her drug addiction because she had failed to undertake any follow-
up activities after the completion of her program, she still
regarded the harm to her children from drug use solely in terms
of immediate danger that such usage might cause rather than its
long-term effect on her parenting, and she continued to deny or
minimize her past drug use. As a result, the court found that
OCS had proven that Gary was a child in need of aid as a result
of Barbaras still untreated drug addiction.
Barbara does not deny that she used drugs up until the
time Gary was born and while Michael was in her care, but she
argues that drug use alone is not sufficient for a finding under
this subsection of the CINA statute. She contends that OCS
failed to satisfy the additional requirements of proving that her
drug use impaired her ability to parent or that it posed a
substantial risk of harm to her children. Barbara testified that
she took precautions to avoid exposing Michael to her drug use,
such as leaving the home when she used drugs and not returning
until she was sober, and avoiding skin-to-skin contact after drug
use.
Although OCS did not present evidence that Barbara used
drugs in Michaels presence, the statute does not require that a
child be present when the drug use occurred.33 The superior court
heard evidence that Barbara used marijuana, methadone, and
Percocet while pregnant with Michael or shortly after his birth
and that she used cocaine during periods when she was caring for
Michael. Evidence was presented that Michael was taken into OCS
custody, and Barbara was required to leave a shelter after she
tested positive for use of cocaine and a white powder was
discovered in her room at the shelter. Evidence was presented
that Barbara was in and out of substance abuse programs. Such
conduct adequately demonstrates an impairment of parenting and a
risk of harm to or neglect of Michael. Together with Barbaras
stipulation that Michael was a child in need of aid under this
subsection, the conduct supports the superior courts finding that
Michael was in need of aid. OCS was not obligated to leave
Michael with or return him to Barbara and wait to accumulate
evidence of parenting problems based on her admitted drug use,
thereby risking actual harm to the child, before requesting a
finding that Michael is a child in need of aid.34
Barbara further argues that the superior courts finding
regarding drug abuse was erroneous because she had been sober for
over a year before the termination trial began. The CINA statute
requires that a parents ability to parent has been impaired by
drug use and drug use has resulted in risk to the child at some
time prior to the adjudication.35 Because Barbara used drugs
while she was caring for Michael, her new sobriety is not
determinative of whether he was a child in need of aid, but only
relevant to whether she remedied her conduct, which we discuss
below.
On the other hand, Barbaras sobriety since Garys birth
is relevant to whether the superior court properly found that
Gary was a child in need of aid based on her drug use. The
superior court found that Gary was a child in need of aid not
because of Barbaras current drug use, but because Barbara failed
to fully understand[] the depth of her problems with drugs,
leaving her addiction still untreated. The CINA statute speaks
only in terms of use of an intoxicant, not potential for future
use.36 But Barbaras drug use during her pregnancy is sufficient
to find Gary to be a child in need of aid Barbara admitted to
using drugs during her pregnancy with Gary, and Garys meconium
tested positive for cocaine. We have referenced neonatal drug
use in affirming CINA findings in unreported cases, but always
where it was accompanied by drug use following birth.37 Exposing
a child to cocaine in utero, even without drug use following
birth, can also be sufficient to find the child to be in need of
aid under AS 47.10.011(10). Therefore, the superior court did
not err in finding that Gary was a child in need of aid based on
Barbaras substance abuse.
C. The Superior Court Did Not Err In Finding That Barbara
Failed To Remedy The Conduct Or Conditions That Led To
Removal Of Michael And Gary.38
To terminate parental rights, the superior court must
find by clear and convincing evidence that the parent has not
within a reasonable time remedied the conduct or conditions that
placed the child at substantial risk so that returning the child
to the parent would place the child at substantial risk of
physical or mental injury.39 Acknowledging that it was a close[]
call, the superior court found that Barbara had not remedied her
conduct. Although she had formally complied with her case plan,
completing substance abuse treatment, staying sober since Garys
birth, and completing domestic violence and parenting education,
the court believed that she had not internalized what she ha[d]
learned and there [was] no real assurance that [she would] not
fall back into her old dysfunctional ways. We agree that this is
a close question and believe that the deference accorded to a
superior courts factual findings is particularly appropriate in
close cases. Our review of the record does not leave us with a
firm conviction that the superior court made a mistake in finding
that Barbara failed to remedy her conduct.
Initially, Barbara argues that because she complied
with the recommendations of her OCS case plan, the superior court
erred in finding that she had not adequately remedied her
conduct. Even if Barbara had completed every element of her case
plan, completion of a case plan does not guarantee a finding that
she has remedied her conduct.40 The question instead is whether
she had remedied the problems that placed her children at risk
and gained the necessary skills so that the children could be
safely returned to her care. The superior court found that she
had not.
First and most significant to the superior court was
its finding that Barbara had not adequately addressed her mental
health problems and had failed to engage in consistent treatment
as recommended by Dr. Long. The trial court found that Barbaras
sporadic visits to Hammaker did not provide the kind of treatment
recommended by Dr. Long. The trial court was further concerned
about Barbaras false claim that she had seen Hammaker regularly
since February 2006. The trial court concluded:
Given [Barbaras] significant mental health
and substance abuse history, the court found
extremely troubling Ms. Hammakers apparent
position in testimony that there were no real
concerns with respect to [Barbaras] mental
health or that any treatment need only occur
upon request by [Barbara]. The court also
found troubling the fact that Ms. Hammaker
would not communicate with the OCS workers in
any meaningful manner, even though Ms.
Hammakers most recent evaluation of [Barbara]
(May 12, 2009) indicated a continuing need
for therapy, treatment, and support. The
court accordingly concludes that Dr. Longs
evaluation still is relevant and important
and that [Barbara] has not received adequate
services through Ms. Hammaker to address the
concerns laid out in that evaluation. And
until [Barbara] does so, she will not have
remedied the substantial mental health issues
that must be remedied before she can have
full custody of her children.
Barbara argues that the court incorrectly favored Dr.
Longs testimony over Hammakers and suggests that she is willing
to continue to work with Hammaker or another mental health
professional. But the superior court made its finding after
weighing the testimony of both Dr. Long and Hammaker, as well as
listening to Barbara. We cannot say that its finding was clearly
erroneous.
With respect to domestic violence, the superior court
found that Barbara had not fully integrated what she has learned
with respect to domestic violence. The court credited Dr. Longs
conclusion that Barbara was predisposed to entering into volatile
and abusive relationships, noting that notwithstanding her
graduation from the WRRAP program, there had not been a
concomitant change in [Barbaras] overall thinking, and she has
yet fully to acknowledge the abuse she suffered. Indeed, the
superior court questioned whether Barbara had permanently ended
her relationship with Leo, finding it quite possible that [they]
will re-initiate their relationship. Again, reviewing the
record, we cannot say that the superior courts finding that
Barbara failed to remedy her condition related to domestic
violence was clearly erroneous.41
With respect to substance abuse, the superior court
found:
[N]otwithstanding her graduation from
substance abuse treatment, [Barbara] has not
regularly attended 12-step meetings,
maintained regular contact with a sponsor, or
surrounded herself with individuals leading a
lifestyle conducive to sobriety. And as
noted above, she continued to minimize and
even deny her drug use and abuse in her
testimony. Under these circumstances,
[Barbara] will require an extended period to
prove her sobriety before it can reasonably
be concluded that she really can and will
live a clean and sober life.
The superior courts finding that Barbara had been sober at least
since Garys birth, slightly less than six months preceding her
termination trial,42 does not preclude a finding that she had
failed to remedy her substance abuse problem. For example, in
Sherry R. v. State, Department of Health & Social Services,
Division of Family & Youth Services, we affirmed a trial courts
finding that a mother did not remedy her conduct related to drug
use despite the fact that she had been sober for approximately a
year before the termination trial, had been regularly attending
AA meetings, and had maintained clean urinalysis results during
that time period.43 There, as here, the trial court properly
relied on the mothers history of relapses and the questionable
degree to which she accepted that she had a substance abuse
problem.44 The superior courts finding that Barbara had not
remedied her conduct with respect to substance abuse was not
clearly erroneous.
D. The Superior Court Did Not Err In Finding That OCS Made
Reasonable Efforts To Provide Family Support Services.
When terminating parental rights, OCS must prove by
clear and convincing evidence that it made reasonable efforts to
provide family support services designed to prevent out-of-home
placement or enable the safe return of the child to the family
home.45 The superior court determined that OCS had made
reasonable efforts, including: in-person reviews of the
requirements of the case plan, referrals for substance abuse
assessments and substance abuse treatment, drug testing,
parenting classes, and domestic violence education, and
consistent visitation, beginning immediately after Michael was
taken into emergency custody. The superior court found that OCSs
efforts fell short in two respects: it had at times been unable
to provide Barbara with drug tests to prove her sobriety and it
made absolutely no effort to provide visitation to [Leo] while he
was incarcerated, a failure the court described as inexcusable.
Despite these shortcomings, the court found that OCS had met its
burden of reasonable efforts when looking at its reunification
efforts in their entirety.
While Barbara challenged this finding as a point on
appeal and complains generally about OCSs failure to increase her
visitation, she does not pursue this challenge in her briefing.
Leo argues that given the superior courts finding that OCSs
failure to provide him with visitation while he was incarcerated
was inexcusable, it was error for the court to find that OCS had
satisfied its burden of making reasonable efforts to reunify him
and his children. He testified that he made numerous requests
for visits while he was incarcerated, but OCS failed to provide
these visits because of its lack of resources.
In reviewing whether OCS made reasonable efforts, a
court considers the states reunification efforts in their
entirety.46 The court must first identify the problem that caused
the children to be in need of aid and then determine whether OCSs
efforts were reasonable in light of the surrounding
circumstances.47 Michael was first taken into OCS custody and
adjudicated a child in need of aid based on substance abuse and
domestic violence between Barbara and Leo. After Michael was
removed, OCS developed a case plan for Leo that identified these
problems and steps Leo should take to remedy them and made
referrals for a mental health evaluation, a substance abuse
assessment, drug testing, domestic violence classes, and
parenting classes. Leo did not take advantage of these efforts
and made little progress in completing his case plan
requirements. OCS regularly updated the case plan, discussed its
requirements with Leo, and continued to make referrals as well as
arranging for supervised visits. Leo completed the parenting
classes and substance abuse assessment, but not the domestic
violence classes or substance abuse treatment. After Leo was
incarcerated in September 2008, parenting and possibly domestic
violence classes were available to him through the prison system.48
Leos only argument is that OCS failed to make
reasonable efforts because, as the superior court found, OCS made
no effort to provide Leo with visitation with his children when
he was incarcerated between September 2008 and May 2009. While
we agree with the superior court that OCS should make every
reasonable effort to coordinate visitation where possible between
incarcerated parents and their children, its failure to do so in
this case does not preclude a finding that it made reasonable
efforts for several reasons.
First, the scope of OCSs duty to make reasonable
efforts is affected by a parents incarceration. In the context
of an ICWA case where OCS bears a higher burden of making active
reunification efforts, we have held:
A parents incarceration significantly affects
the scope of the active efforts that the
State must make to satisfy the statutory
requirement. While neither incarceration nor
doubtful prospects for rehabilitation will
relieve the State of its duty under ICWA to
make active remedial efforts, the practical
circumstances surrounding a parents
incarceration the difficulty of providing
resources to inmates generally, the
unavailability of specific resources, and the
length of incarceration may have a direct
bearing on what active remedial efforts are
possible. Thus, while the State cannot ignore
its ICWA duties merely because of [the
parents] incarceration, his incarceration is
a significant factor in our evaluation of the
adequacy of the States efforts in this
case.[49]
Moreover, we have affirmed a finding that OCS made
reasonable efforts overall even when its efforts were not
reasonable during a particular period of time.50 And OCS made
substantial efforts to help Leo address the specific problems
that led to the removal of his children and now support the
termination of his parental rights domestic violence and
substance abuse. Given Leos current incarceration, OCSs efforts
to provide Leo with family support services when he was not in
prison, and Leos failure to make any changes necessary to achieve
reunification, the superior court did not clearly err in finding
that OCSs reunification efforts in their entirety were reasonable
despite its failure to provide visitation in prison.
E. The Superior Court Did Not Err In Finding That
Termination Of Barbaras And Leos Parental Rights Was In
Their Childrens Best Interests.
When terminating parental rights, a court shall
consider the best interests of the child.51 The court may order
termination only if OCS proves by a preponderance of the evidence
that termination of parental rights is in the best interests of
the child.52 The superior court found that terminating the
parental rights of Barbara and Leo would promote the best
interests of the children. In making this finding, the court
relied on the fact that the children have spent most of their
lives in foster care and [n]either of them have any real sense of
their parents as parents, they are well bonded with their foster
parents and think of their current placement as their home, and
it would be traumatic to remove them from their present
placement. The court found that neither parent was ready and
able safely to parent these children at the conclusion of the
termination trial, that they would not be ready within a
reasonable time thereafter, and that returning either [child] to
either parent would place them at risk of physical or mental
injury. Given the childrens need for permanency, the court
concluded that it was in the childrens best interests to
terminate the parental rights of Barbara and Leo.
Barbara argues that the superior court erred by failing
to consider the best interest factors enumerated in AS 47.10.088,53
which she contends weigh against termination. She also points to
testimony by social workers that a bond exists between Barbara
and her children as a result of regular and positive visits and
that the termination of that bond would be traumatic. She takes
issue with OCSs reliance on the fact that the children have spent
most of their lives in foster care, given her view that OCS has
not truly attempted to reunify her and her children. Leo argues
that OCS failed to present evidence of the childrens mental or
emotional status or needs and that there was evidence presented
of both the childrens bond with Leo and Barbara and the parents
determination to change.
The best interest factors listed in the statute are not
exclusive and the superior court need not accord a particular
weight to any given factor. Rather, the superior court is
directed to consider the best interests of the child when
deciding whether to terminate parental rights54 and is permitted
to consider any fact relating to the best interest of the child,
including the statutory factors, when evaluating whether a parent
has remedied his or her conduct.55 The superior court properly
considered the childrens need for permanency, a crucial need for
young children.56 [T]he fact that a child has bonded with [the]
foster parent can [also] be a factor in considering whether it is
in the childs best interests to terminate a parents rights.57 The
superior court did not err in determining that the termination of
Barbaras and Leos parental rights was in the best interests of
Michael and Gary based on their need for permanency, the
stability they enjoy in their foster home, and the fact that it
found neither Barbara nor Leo would be ready to care for the
children on a full-time basis within a reasonable period of time.58
V. CONCLUSION
For the foregoing reasons, we AFFIRM the superior
courts termination of Barbaras and Leos parental rights.
_______________________________
1 We use pseudonyms to protect the familys privacy.
2 Barbara also discussed her mental health in her second
substance abuse evaluation in May 2007, in which she acknowledged
having suicidal ideations.
3 Meconium, the tarry stool material passed by a newborn
child in the first days after birth, provides evidence of the
mothers drug use over the last four to five months of pregnancy.
4 Lynden Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001).
5 Brynna B. v. State, Dept of Health & Soc. Servs., 88
P.3d 527, 529 (Alaska 2004) (citing A.B. v. State, Dept of Health
& Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
6 Id. (quoting A.B., 7 P.3d at 950).
7 Carl N. v. State, Dept of Health & Soc. Servs., 102
P.3d 932, 935 (Alaska 2004) (citing Sherry R. v. State, Dept of
Health & Soc. Servs., 74 P.3d 896, 901 (Alaska 2003)).
8 Compare Wendell C. II v. State, OCS, 118 P.3d 1, 4
(Alaska 2005) (referring to the parents failure to remedy their
conduct in a reasonable time as a legal conclusion) and Dennis B.
v. State, Dept of Health and Soc. Servs., DFYS, Mem. Op & J. No.
1202, 2005 WL 435173, at *7 (Alaska, Feb. 23, 2005) (stating that
we review de novo the legal conclusion that the parents failed to
remedy their conduct) with Jon S. v. State, Dept of Health & Soc.
Servs., Office of Childrens Servs., 212 P.3d 756, 763 (Alaska
2009) (holding that superior court did not clearly err in finding
that the parent had not remedied the problematic conduct) and
Sherry R., 74 P.3d at 903 (same).
9 AS 47.10.088(a)(2)(A).
10 AS 47.10.088(a)(2)(B).
11 For example, the State asked Dr. Long whether it was
enough to address Barbaras mental health issues that she has
somebody that she talks to that she evidently trusts a lot . . .
but its not an ongoing relationship. Barbaras counsel asked Dr.
Long whether Barbara entering and successfully completing and
graduating from [a residential treatment program for substance
abuse and domestic violence would] be an indication of how shes
doing with her development.
12 The superior court mistakenly referred to Dr. Longs
report as a year old, but later identified the date of the report
correctly.
13 Such testimony is regularly offered in CINA cases.
See, e.g., Sandy B. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., 216 P.3d 1180, 1190-93 (Alaska 2009);
Neal M. v. State, Dept of Health & Soc. Servs., Office of
Childrens Servs., 214 P.3d 284, 289 (Alaska 2009); Ben M. v.
State, Dept of Health & Soc. Servs., Office of Childrens Servs.,
204 P.3d 1013, 1019-21 (Alaska 2009). Indeed, expert testimony
is required in termination proceedings under the Indian Child
Welfare Act. See 25 U.S.C. 1912(f) (2006).
14 See Alaska R. Evid. 703 (requiring that expert opinion
be based on [f]acts or data . . . of a type reasonably relied
upon by experts in the particular field in forming opinions or
inferences upon the subject).
15 See J.A. v. State, DFYS, 50 P.3d 395, 401 n.18 (Alaska
2002) (hypothetical questions . . . sufficiently based on the
facts of the case . . . enable a qualified expert to give . . .
testimony in a parental termination case).
16 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
17 It is therefore unnecessary to reach the question of
whether Michael and Gary were children in need of aid based on
Leos abandonment. See Martin N. v. State, Dept of Health & Soc.
Servs., Div. of Family & Youth Servs., 79 P.3d 50, 54 n.14
(Alaska 2003).
18 Tessa M. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 182 P.3d 1110, 1114 (Alaska 2008) (citing In
re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001)).
19 See Ben M. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., 204 P.3d 1013, 1020 (Alaska 2009)
(observing that an expert need not conduct an in-person interview
before offering an expert opinion so long as the testimony is
based on the facts of the case).
20 See K.N. v. State, 856 P.2d 468, 475 (Alaska 1993)
(stating that mental illness alone may not support a CINA
finding, but still finding the CINA statute satisfied because the
record linked the fathers continuing mental illness with his past
instances of extreme neglect); see also V.S.B. v. State, Dept of
Health & Soc. Servs., Div. of Family & Youth Servs., 45 P.3d
1198, 1206 n.22 (Alaska 2002) (Mental illness, absent related
conduct, cannot be a basis for termination of parental rights.).
21 A finding that a child is in need of aid under AS
47.10.011(11) requires a showing that the parent, guardian, or
custodian has a mental illness, serious emotional disturbance, or
mental deficiency of a nature and duration that places the child
at substantial risk of physical harm or mental injury.
22 165 P.3d 605, 618-19 (Alaska 2007).
23 Id. at 619.
24 Compare CINA Rule 15(c) (requiring proof by a
preponderance of the evidence in an adjudication) with CINA Rule
18(c) (requiring proof by clear and convincing evidence in a
termination proceeding).
25 See Rick P. v. State, OCS, 109 P.3d 950 (2005) (holding
that where parents have previously stipulated that the children
should be adjudicated as being in need of aid, OCS still has the
burden of proving in the subsequent termination of parental
rights proceeding by clear and convincing evidence that the
children were in need of aid); D.M. v. State, Div. of Family &
Youth Servs., 995 P.2d 205, 209 (Alaska 2000) ([N]othing resolved
at the adjudication stage foreclosed a parent from fully
litigating all relevant issues at the termination stage.).
26 See D.M., 995 P.2d at 209 ([A]t the termination
proceeding, a court could review the evidence offered at the
adjudication hearing, and, applying the stricter proof standard,
make supplemental findings satisfying the requirements for
termination.).
27 AS 47.17.290(9).
28 The failure of the superior court to specify what
subsection of the CINA statute it is proceeding under, let alone
what paragraph of the subsection, does not constitute error so
long as the courts factual findings support a determination that
the child is in need of aid. See A.J. v. State, Dept of Health &
Soc. Servs., Div. of Family & Youth Servs., 62 P.3d 609, 613-14
(Alaska 2003).
29 Cf. McCormick v. City of Dillingham, 16 P.3d 735, 743
(Alaska 2001) (holding that so long as a complaint provides
notice, plaintiff can recover under any theory supported by the
evidence).
30 See Martin N. v. State, Dept of Health & Soc. Servs.,
Div of Family & Youth Servs., 79 P.3d 50, 54-55 (Alaska 2002)
(rejecting argument that because terrorizing conduct was not
directed at the child or took place before the childs birth, the
CINA statute was not satisfied, and holding that fathers violent
tendencies . . . pose[d] a risk of future harm to his child).
31 Instead, Leo joins Barbaras briefing related to this
subsection of the CINA statute, which addresses only whether
Barbaras substance abuse supports a finding that the children
are in need of aid.
32 See Jeff A.C., Jr. v. State, 117 P.3d 697, 703 (Alaska
2005) (holding that a superior court can adjudicate a child as a
child in need of aid based on the acts of just one parent).
33 AS 47.10.011(10).
34 See Martin N., 79 P.3d at 54 (holding that OCS is not
required to wait to intervene until a child has suffered actual
harm before requesting a finding that a child is in need of aid).
35 AS 47.10.011(10) (emphasis added); see also Danielle A.
v. State, Dept of Health & Soc. Servs., Office of Childrens
Servs., 215 P.3d 349, 354 (Alaska 2009) (CINA statute permits
courts to look at past conduct or conditions).
36 AS 47.10.011(10).
37 See, e.g., Daphne W. v. State, Dept of Health & Soc.
Servs., Office of Childrens Servs., Mem. Op. & J. No. 1344, 2009
WL 1636261, at *3-*4 (Alaska, June 10, 2009) (affirming finding
that children were in need of aid based on mothers drug use
during pregnancy as well as ongoing substance abuse); Sofia M. v.
State, Dept of Health & Soc. Servs., Office of Childrens Servs.,
Mem. Op. & J., No. 1220, 2005 WL 1540495, at *4 (Alaska, June 29,
2005) (same).
38 Leo admitted at the termination trial that he had not
remedied his conduct, and does not challenge the courts failure
to remedy finding on appeal. Leo failed to complete treatment
for substance abuse, domestic violence, and anger management.
39 AS 47.10.088(a)(2).
40 See V.S.B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 45 P.3d 1198, 1208 (Alaska 2002)
(Compliance with treatment plans does not guarantee that parental
rights will not be terminated because it cannot guarantee that
adequate parenting skills will be acquired from the treatment
regimen.).
41 See Sherry R. v. State, Dept of Health & Soc. Servs.,
Div. of Family & Youth Servs., 74 P.3d 896, 903 (Alaska 2003)
(citing to mothers failure to end her romantic involvement with
man who had been convicted of child sexual assault as evidence
that she had not remedied the conduct or conditions that placed
her children at substantial risk of harm).
42 Barbara admitted at trial that she last used cocaine in
October 2007, approximately one year before the beginning of her
termination trial.
43 74 P.3d 896, 902-03 (Alaska 2003).
44 Sherry R., 74 P.3d at 902-03.
45 See AS 47.10.086(a); AS 47.10.088(a)(3); CINA Rule
18(c)(2)(A).
46 Frank E. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 77 P.3d 715, 720 (Alaska 2003); see
also Burke v. State, Dept of Health & Social Servs., Office of
Childrens Servs., 162 P.3d 1239, 1245 (Alaska 2007) (stating that
courts consider the entire history of the services that OCS has
provided a parent).
47 Burke, 162 P.3d at 1245.
48 Services offered by the Department of Corrections are
considered efforts of OCS for purposes of the reasonable efforts
analysis. See T.F. v. State, Dept of Health & Soc. Servs., 26
P.3d 1089, 1096 (Alaska 2001).
49 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 261 (Alaska 1999) (internal quotations and footnotes
omitted).
50 Audrey H. v. State, Office of Childrens Servs., 188
P.3d 668, 679-81 (Alaska 2008) (holding that although OCSs
efforts were limited during the eight- to nine-month period
preceding the termination proceedings, this did not render its
efforts unreasonable [w]hen considered in the context of the full
history of its involvement with [the parent]).
51 likelihood of re
52 CINA Rule 18(c)(3).
53 Factors include:
(1) the likelihood of returning the child to
the parent within a reasonable time based on
the childs age or needs;
(2) the amount of effort by the parent to
remedy the conduct or the conditions in the
home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct
will continue; and
(5) the history of conduct by or conditions
created by the parent.
54 AS 47.10.088(c).
55 AS 47.10.088(b).
56 See Dashiell R. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., 222 P.3d 841, 850-51 (Alaska 2009)
(approving of a superior courts consideration of the childrens
need for stability and permanency in evaluating the best
interests of the children in a termination proceeding); Debbie G.
v. State, Dept of Health & Soc. Servs., Office of Childrens
Servs., 132 P.3d 1168, 1171 n.5 (Alaska 2006) (We have often
noted that young children require permanency and stability or
risk long-term harm.).
57 Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177,
185 (Alaska 2008); see also AS 47.10.088(a) ([T]he rights and
responsibilities of the parent regarding the child may be
terminated for purposes of freeing a child for adoption or other
permanent placement . . . .).
58 See Dashiell R., 222 P.3d at 850 (reviewing best
interest finding in termination of parental rights case under
clearly erroneous standard).
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