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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pravat P. v. State, Dept. of Health & Social Services, Office of Children's Services (2/18/2011) sp-6540
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
PRAVAT P., )
) Supreme Court No. S-13798
Appellant, )
) Superior Court Nos.
v. ) 3AN-06-00225/00226/00227 CP
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF )
CHILDREN'S SERVICES, )
)
Appellee. ) No. 6540 - February 18, 2011
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sharon Gleason, Judge.
Appearances: Christi A. Pavia, Pavia Law Office,
Anchorage, for Appellant. Megan R. Webb, Assistant
Attorney General, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
CARPENETI, Chief Justice.
I. INTRODUCTION
A Laotian father challenges the termination of his parental rights to his three
boys who qualify for protection under the Indian Child Welfare Act. The superior court
found the children to be in need of aid due to a history of domestic violence and neglect.
----------------------- Page 2-----------------------
It found (1) that the father had not remedied his conduct, (2) that returning the children
to the father's custody would likely result in serious emotional or physical damage, (3)
that termination of parental rights would be in the best interests of the children, and (4)
that the State made active efforts to reunify the family. Because on appeal the father has
not shown clear error in the superior court's factual findings, and because these findings
meet the evidentiary thresholds required by Indian Child Welfare Act and Alaska's Child
in Need of Aid statutes and rules, we affirm the superior court's termination of the
father's parental rights.
II. FACTS AND PROCEEDINGS
A. Facts
Pravat1 was born in Laos in 1957 and immigrated to the United States in
1981. He is the father of three boys who are "Indian children" under the terms of the
Indian Child Welfare Act (ICWA).2 Mark and Jung were born in 2001 and 2002,
respectively, to Molly, a Native Alaskan who died in 2007. Reese was born in 2006 to
Stella, a Native Alaskan who relinquished her parental rights in 2008. Only Pravat's
parental rights are at issue in the present case.
All three of the children have experienced serious developmental delays and
other health problems. Molly, who died of alcohol poisoning in 2007, used alcohol and
drugs while she was pregnant with Mark and Jung. Mark has been diagnosed with static
encephalopathy, a non-progressive brain dysfunction which impairs his cognitive and
motor functions. He also has Post-traumatic Stress Disorder and Oppositional Defiance
Disorder. He has a history of intestinal blockages, possibly due to poor nutrition while
in his father's care. He has trouble sleeping, and his doctor's testimony suggested that
1 Pseudonyms have been used throughout the opinion to protect the privacy
of the family.
2 25 U.S.C. § 1903(4).
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Mark hallucinates. He also has a history of sexually acting out, including inappropriate
behavior with his foster parents' pets, his brothers, and other children.
Like Mark, Jung has static encephalopathy, various behavioral disorders,
and bowel problems. There is also evidence in the record of Jung grabbing women's
breasts, smearing feces on the wall, exposing his genitals, and placing his finger in
Mark's bottom.
Stella, Reese's mother, was also diagnosed with Fetal Alcohol Spectrum
Disorder. She was a teenage babysitter when Pravat impregnated her. She has admitted
to a problem with alcohol and cocaine, and Pravat stated to Cook Inlet Tribal Council
that he cut crack cocaine for her. But it is unclear whether she exposed Reese to alcohol
or drugs in utero. When Reese was first removed from Pravat's custody in 2006, he
showed "obvious signs of neglect." The back of his head was flat from lying on his back
much of the time rather than being held. The shape of Reese's head began to improve
during his time in foster care. Reese also has been diagnosed with Oppositional Defiant
Disorder and Attention Deficit Hyperactivity Disorder. All three boys have
Individualized Education Plans in their respective schools to address their special needs.
Pravat's children have a long history of involvement with the Office of
Children's Services (OCS). Shortly after Jung's birth in 2002, Pravat came home to find
that Molly was drunk and had severely beaten Mark and Jung. Pravat then hit her. The
children were hospitalized for several days due to head injuries. Jung had suffered
multiple facial lacerations, contusions on his face and scalp, a retinal hemorrhage, and
a subdural hematoma. The children were released to Pravat's sole physical custody,
although OCS continued to supervise the family until 2004. Once OCS closed the case,
government services were discontinued because of Pravat's failure to follow through
with efforts to improve his children's home environment.
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In May 2005 OCS received a report alleging that "the living conditions of
[Pravat's] home were unsuitable for children." The report stated that the home "did not
have a working toilet and the children are frequently sick." In February 2006 OCS
received a "Child at Risk" report from the Alaska Native Medical Center. The report
stated that Mark and Jung were dirty, with a "breakdown to skin due to prolonged contact
[with] stool." It also stated that the "father [is] unable to care for children appropriately."
In 2006 Mark underwent a psychological assessment following an OCS
referral. The examiner reported:
[Pravat] reports experiencing a significant amount of stress in
parenting [Mark]. Nothing about this child was noted to be
positive. Instead, his father is feeling trapped by parenting
responsibilities, cut off from access to friends and adult social
activities, and generally "not very good at being a parent."
. . . This level of distress indicates a significant Parent-Child
Relational Problem.
Reports from Cook Inlet Tribal Council confirmed that Pravat lacked parenting skills and
was overwhelmed as the primary caregiver.
In the months after Reese's birth in January 2006, police responded to
multiple reports of domestic violence in the home. In February 2006, Pravat alleged that
Stella broke into his home wielding a knife and attempted to take Reese away. Police
were called again to the home a few days later. Pravat claimed Stella threatened to kill
herself, and he had restrained her to prevent her from doing so. Stella claimed she had
wanted to leave, but Pravat grabbed her to stop her. All three children were present
during the incident. Pravat received a protective order against Stella, which Stella
violated.
On June 20, 2006, police were called to Pravat's home once again. Officers
found Stella tied up on the floor, her wrists and ankles bound by belts, and her overalls
pushed down to her thighs. Pravat was sitting on the couch and Reese was in a car seat
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next to him. Jung and Mark were also at home. Pravat claimed that Stella had been
drinking and became violent, kicked one of the children in the head, threw things around
the house, and at one point tried to run away. He stated that he had dragged her back into
the home and tied her up to prevent her from harming the children. Stella claimed Pravat
had forced her into his car with the children inside, drove her to his home, and began
giving her alcohol and saying he wanted to have sex with her. According to Stella, when
she tried to leave, Pravat dragged her back into the apartment and told her he was going
to rape her. A neighbor witnessed Pravat pulling Stella back into the apartment by her
feet and heard her scream, "Let me go."
Pravat was arrested and charged with kidnaping, assault in the fourth
degree, and interfering with a report of a crime involving domestic violence. He pled
guilty to the charges of coercion and assault in the fourth degree and was incarcerated
from June 2006 until March 2007. OCS contacted Pravat while he was at a pretrial
detention facility, but it did not initially engage him in a case plan. As reasons for its
delay, OCS cited both communication barriers as well as its practice of deferring work
on case plans until incarcerated parents are out of jail or transferred to their long-term
prison. A number of barriers made communication with Pravat difficult, including his
limited English, bilateral hearing loss, and a diagnosed panic disorder.
Once OCS began visitations between the children and Pravat, the boys were
so aggressive that the guardian ad litem asked OCS to get an opinion on whether visits
should be discontinued. The clinician felt that stopping visits would harm the children
even more, so visits continued.
Cook Inlet Pre-trial Facility obtained a hearing aid for Pravat while he was
incarcerated, but he did not wear it. Sandra Dehart, Pravat's caseworker, met with him
in September 2006 to explain his case plan. In December Dehart returned with an
interpreter to discuss the case plan again. In February 2007 Dehart mailed a letter to
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Pravat containing his case plan and a list of referral agencies. After his release from
prison, Pravat met with Dehart again to discuss the case plan and visitation schedule.
In May 2007 OCS created a new case plan for Pravat. OCS also created a
simplified, one-page, bulleted version that would be easier for Pravat to understand. OCS
continued to work with Pravat to assist with his communication needs, including trying
to obtain a second hearing aid for him. Weekly visits between Pravat and the children
originally took place at OCS. During these visits, the boys continued to display
hyperactivity and aggressiveness, hitting Pravat and not listening to him. Pravat often
did not intervene to stop them. In July 2007 OCS changed the location of the visits to
the Eklutna Child Advocacy Center (Eklutna Center).
In September 2007 OCS filed a permanency plan with the court. In this
plan, Pravat's social worker referred to the difficulties she faced discussing his case plan
with him due to the communication barriers. OCS's reunification efforts were delayed
due to Pravat's incarceration and hearing issues. In particular, OCS deferred "almost
everything in the case plan" until Pravat could be given a psychological assessment, a
process that "took months" partly due to linguistic and cultural difficulties.
In March 2008 Dr. Michael Rose performed the psychological and
parenting assessment on Pravat. Dr. Rose concluded in his assessment that Pravat
"consistently paints himself as the victim of circumstances or other persons." In Dr.
Rose's opinion,
[Pravat] maintains an extraordinarily defensive posture,
resisting efforts to encourage him to make changes in his
behavior or to see how his choices have negatively affected
his children's safety and welfare. He also appears to
minimize the problems his children now have, believing they
are primarily related to lack of contact with him.
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Ultimately, Dr. Rose concluded that "it is unlikely [Pravat] has the parenting capacity or
ability to currently care for his children, and his prospects for being able to parent his
children in the future appear less than favorable."
Even after OCS succeeded in finding an interpreter fluent in Laotian,
Pravat continued to have problems complying with the case plan. The Eklutna Center
referred visits back to OCS in March 2008 due to Pravat's excessive number of missed
visits and the Eklutna Center's lack of capacity for dealing with the severity and
complexity of the family's problems. To help Pravat better understand his sons' needs,
OCS arranged for him to receive education from the Anchorage Community Mental
Health Center (Anchorage Center). OCS agreed to pay for an interpreter for at least the
first of these meetings. But Pravat stated on at least three occasions at this meeting that
he did not need family therapy. "[M]y sons are fine when they are with me, they are
smart," he stated. Anchorage Center told OCS that it was "not interested in trying to
convince [Pravat] that there is something wrong with the children."
OCS made various attempts to accommodate the cultural and linguistic
difficulties in Pravat's case, including by reaching out to Laotian and Thai temples in
Anchorage and by paying for a translator for case planning, legal meetings, and court
proceedings. In the summer of 2008 Pravat began attending classes for help with
managing his emotions and with parenting, and OCS provided an interpreter for these
meetings. OCS also reached out to a Buddhist priest for help in understanding Pravat's
cultural differences. But the priest told OCS that the Laotian/Thai Buddhist way of
dealing with matters was not "to deny or to avoid telling others or asking for help." Like
the Eklutna Center and the Anchorage Center, the priest also emphasized that if someone
"didn't want the help," the Buddhist community "could not force them."
In September 2008 OCS arranged for Pravat to meet with two monks from
the Buddhist temple. The monks found Pravat to be extremely difficult to work with due
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to his defensiveness and refusal to listen. When one monk tried to tell Pravat about his
children's special needs, Pravat stated, in the words of the OCS report, that his children
had no problem with him; when they lived with him they
were smart and they would do what he said and [Mark] was
good when he started school, it[']s just now that there are
problems because they are away from their dad and because
the state is making them take medication.
OCS asked the monks for a recommendation of a local therapist who had been successful
with others of Laotian descent. But Pravat refused, without explanation, to meet with
the person the monks recommended.
Meanwhile, Pravat's case worker - Miriam Sumner as of November 2007
- reported that Pravat continued to poke and prod the boys "like a doctor exam" during
his visits, despite being told not to do so. Pravat also continued to refuse to wear his
hearing aid.
By October 2008 Pravat had completed 24 hours of a life skills course at
the Buddhist temple, as well as courses on emotion management, parenting, and how to
understand brain-based disorders. OCS also tried to get Pravat into training about Fetal
Alcohol Spectrum Disorder. When OCS asked the instructor whether Pravat had been
attending the classes, the instructor responded that Pravat "showed up for both classes"
and "did understand the impact of alcohol on a dev[eloping] fetus, but was not sure he
believed that this is the cause of his sons' delays. He commented several times that the
boys were slapped hard by Mom and that's why they have problems." A clinician who
interviewed Pravat in December 2008 noted that "[o]ver the past six months the patient
has attended parenting classes and FASD awareness but it appears it has made very little
difference in his parenting and visitation." The clinician continued:
[Pravat] refuses to acknowledge any problem with himself.
He blames all of the trouble and problems on his previous
female relationships and on the social workers and on
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miscommunication. He would like to attend meetings with us
and attend counseling in order to help him get his children
back. He says he wants to change and work hard to do so;
however, [he] does not acknowledge in what ways he needs
to change.
B. Proceedings
On January 5, 2009, OCS filed its termination petition.
In preparation for the termination proceedings, Pravat's lawyer referred him
to Dr. Nan Truitt for another psychological evaluation; she completed her report in April
2009. Dr. Truitt partially explained Pravat's minimization and denial of his children's
disabilities as resulting from his minimal contact with his children and his difficulties
communicating with them "[a]fter three years in a foster home that did not promote
exposure to Lao culture, language, and Budd[h]ism spiritual training." Dr. Truitt
recommended that "reunification continue to be the goal as it seems that the reunification
plan was inadequate, delayed for various reasons, and the Federal Guidelines should be
reconsidered in light of these delays."
In May 2009, Pravat filed a motion for continuance of the termination trial
and renewed a request to transfer visits with his children to Cook Inlet Tribal Council.
OCS offered various reasons for opposing transferring visits to Cook Inlet Tribal
Council, including that the visitation supervisor there, Judd Bunag, was not trained in the
"1-2-3 Magic" program,3 a program recommended by the boys' therapists that was
designed to manage the boys' behavior, and that it was not Bunag's job to oversee visits.
The visits ultimately moved to Cook Inlet Tribal Council in July 2009. Bunag testified
to improvements in Pravat's understanding of his children's needs after the transfer.
3 The Laotian-speaking visitation supervisor at OCS also displayed no
knowledge of the 1-2-3 Magic program while testifying at trial.
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OCS and Pravat's attorney referred Pravat to Dr. Alfred Collins for a final
parenting evaluation, which he completed in the fall of 2009. Dr. Collins met with the
family from August until November in various combinations. The boys by this time were
eight, seven, and three, and had been out of Pravat's custody for over three years. Dr.
Collins observed that Pravat
denies the psychiatric and behavioral problems that
professionals have identified in all three children, and blames
their difficulties on the fact that they are in state's custody
and have been put on medication. While he loves the
children, he does not make significant efforts to improve his
parenting of them.
Dr. Collins concluded that it may be "unrealistic to expect [Pravat] to achieve the skills
needed to assume full parenting of his children." At trial, Dr. Collins testified that even
with the most intensive services, it would take a minimum of two years before a
successful, non-harmful reunification could conceivably occur.
The termination proceeding took place in January 2010 before Superior
Court Judge Sharon Gleason. The court heard testimony from a variety of parties,
including both foster parents, two of Pravat's three case managers, a number of visitation
supervisors, the assistant guardian ad litem, the ICWA specialist for the Anchorage
region of OCS, Dr. Rose, Dr. Truitt, Dr. Collins, Pravat's friends, the police officers who
responded to the June 2006 call, a Buddhist monk, Pravat's coordinator in his fathering
courses, and mental health clinicians. At the conclusion of the trial, the superior court
found that the State had satisfied the requirements for the termination of parental rights
under ICWA and the Child in Need of Aid (CINA) statutes and rules.
Pravat appeals.
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III. STANDARD OF REVIEW
"We review a superior court's findings of fact for clear error."4 "Findings
of fact are clearly erroneous if a review of the entire record in the light most favorable
to the prevailing party below leaves us with a definite and firm conviction that a mistake
has been made."5 "We review de novo whether a superior court's findings satisfy the
requirements of the CINA and ICWA statutes and rules."6 "Whether OCS made active
efforts as required by ICWA is a mixed question of law and fact."7
We also review for clear error the superior court's factual determinations
as to whether the State met its evidentiary burden in showing that the children are in need
of aid,8 that the parent has not remedied his conduct or the conditions that placed the
4 Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
235 P.3d 203, 209 (Alaska 2010) (citing Brynna B. v. State, Dep't of Health & Soc.
Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)).
5 Id. at 209-10 (quoting Brynna B., 88 P.3d at 529) (internal quotation marks
omitted).
6 Id. at 210 (citing Carl N. v. State, Dep't of Health & Soc. Servs., Div. of
Family & Youth Servs., 102 P.3d 932, 935 (Alaska 2004)).
7 Id. (quoting Sandy B. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 216 P.3d 1180, 1186 (Alaska 2009)) (internal quotation marks
omitted).
8 T.B. v. State, 922 P.2d 271, 273 (Alaska 1996).
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----------------------- Page 12-----------------------
9
children at substantial risk, that returning the children to the parent would likely harm
them,10 and that termination of parental rights is in the children's best interest.11
IV. DISCUSSION
Under ICWA and Alaska's CINA statutes and rules, OCS must prove five
elements under various evidentiary standardsbefore a court may terminate parental rights
in a case involving an Indian child.12 OCS must prove by clear and convincing evidence
(1) that the child has been subject to conduct or conditions described in AS 47.10.11,
such that the child is "in need of aid";13 (2) that the parent has failed, within a reasonable
time, to remedy the conduct or conditions in the home that placed the child at substantial
risk of harm;14 and (3) that active efforts have been made to provide remedial services
and rehabilitative programs designed to prevent the breakup of the Indian family and that
these efforts proved unsuccessful.15 OCS must also prove, by evidence beyond a
reasonable doubt, including the testimony of qualified expert witnesses, (4) that
continued custody of the child by the parent is likely to result in serious emotional or
9 Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 234 P.3d 1245, 1253 (Alaska 2010).
10 Id.
11 Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 222 P.3d 841, 850 (Alaska 2009) (citingFrank E. v. State, Dep't of Health & Soc.
Servs., Div. of Family & Youth Servs., 77 P.3d 715, 717 (Alaska 2003)).
12 Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
235 P.3d 203, 209 (Alaska 2010).
13 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
14 AS 47.10.088(a)(2)(B); CINA Rule 18(c)(1)(A)(ii).
15 25 U.S.C. § 1912(d) (2002); CINA Rule 18(c)(2)(B).
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physical damage to the child.16 Finally, OCS must prove by a preponderance of the
evidence (5) that termination of parental rights is in the best interests of the child.17
Pravat argues that the superior court erred in determining that OCS met its
burden of proof under elements (2) through (5). He does not contest the superior court's
determination that OCS satisfied element (1) by proving through clear and convincing
evidence that the children were in need of aid.18 Because Pravat's central argument is
against element (3), the active efforts requirement, we begin there.
A. The Superior Court Did Not Err In Finding That OCS Made Active
Efforts To Prevent The Breakup Of The Family.
Before the parental rights to an Indian child may be terminated, ICWA
requires the State to prove by clear and convincing evidence that it 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."19 "We
have held that no pat formula exists for distinguishing between active and passive efforts
and have adopted a case-by-case approach for the active efforts analysis."20 But we have
drawn upon the following models of active and passive efforts:
16 25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
17 CINA Rule 18(c)(3); AS 47.10.088(c).
18 Although Pravat lists this argument in his formal points of appeal, he does
not mention it in his summary of issues presented and he fails to brief it. Therefore, it
is waived. Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010) ("[I]ssues not argued
in opening appellate briefs are waived.").
19 25 U.S.C. § 1912(d).
20 Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
235 P.3d 203, 213 (Alaska 2010) (citingA.A. v. State, Dep't of Health & Soc. Servs., Div.
of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 1999)) (internal quotation marks
omitted).
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Passive efforts are where a plan is drawn up and the client
must develop his or her own resources towards bringing it to
fruition. In contrast, [a]ctive efforts [are] where the state
caseworker takes the client through the steps of the plan
rather than requiring that the plan be performed on its own.
For instance, rather than requiring that a client find a job,
acquire new housing, and terminate a relationship with what
is perceived to be a boyfriend who is a bad influence, the
Indian Child Welfare Act would require that the caseworker
help the client develop job and parenting skills necessary to
retain custody of her child.[21]
The court should look to OCS's "involvement in its entirety," and may consider a
parent's demonstrated unwillingness to participate in treatment as a factor in determining
whether OCS met its active efforts burden.22
The superior court held that OCS made "active and reasonable efforts to
provide remedial services and rehabilitative programs designed to prevent the breakup
of [Pravat]'s family, but those efforts proved unsuccessful." The court found that OCS's
efforts included: (1) attempting to obtain a hearing aid for Pravat from the Division of
Vocational Rehabilitation following his release from jail; (2) arranging for visitation at
the Eklutna Center, which could provide parenting assistance and coaching to Pravat, all
of which failed; (3) attempting to locate therapeutic services for Pravat, which were
rejected by him; (4) contacting the Buddhist temple and arranging for a visit with an
interpreter and Pravat; (5) having a Laotian-speaking supervisor oversee visits; (6)
21 Id. (quoting A.A., 982 P.2d at 261(quoting CRAIG J. DORSAY, THE INDIAN
CHILD WELFARE ACT AND LAWS AFFECTING INDIAN JUVENILES MANUAL 157-58
(1984))).
22 Id. (citing Maisy W. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008)) (internal quotation marks
omitted).
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----------------------- Page 15-----------------------
requiring Pravat to use his hearing aid while visiting with his children; (7) encouraging
Pravat's enrollment in and completion of an emotion management class at Cook Inlet
Tribal Council, which was completed by Pravat but not applied by him to his children;
(8) encouraging Pravat's enrollment in and completion of a class for parents of children
with Fetal Alcohol Spectrum Disorder, which was completed but not applied by Pravat
to his children; (9) arranging counseling for Pravat to apply the concepts from those
classes to his children, which proved unsuccessful; (10) providing interpreters; (11)
providing evaluations by Dr. Rose and Dr. Collins; and (12) attempting to enhance
reunification by keeping the boys together in foster care, as Pravat requested.
In addition to the actions taken by OCS, the court looked at Pravat's
cooperation as a factor in its active efforts analysis. The court found that while Pravat
did attend the classes asked of him, he "appeared to be going through the motions rather
than truly engaging." The court found that throughout these programs, Pravat
"repeatedly indicated that he did not need help and did not always wear his hearing aid."
Accordingly, because he was not fully cooperative, the court noted that "[h]is motivation
affected the level of efforts that would otherwise be required."23
Pravat argues that OCS undermined his chances at reunification by, among
other things, failing to provide cultural continuity to his sons and failing to provide
parent modeling.24 It is true that OCS's efforts were not perfect, as the superior court
23 See Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 204 P.3d 1013, 1021 (Alaska 2009) ("Where services have been provided and a
parent has demonstrated a lack of willingness to participate or take any steps to improve,
this court has excused minor failures by the state and rejected arguments that the state
could possibly have done more.").
24 Pravat also objects in his reply brief that OCS's active efforts evidence is
primarily based on the notes of a deceased social worker whom Pravat had no
(continued...)
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also recognized. There were delays. OCS reasonably decided to put off Pravat's
participation in parenting, anger management, and Fetal Alcohol Spectrum Disorder
classes until after he completed a psychological assessment. But the assessment, which
had been proposed in June 2007, did not take place until March 2008. In November
2008 Pravat submitted to OCS a joint proposal with the guardian ad litem's office in
favor of transferring visits from OCS to Cook Inlet Tribal Council, to be supervised by
Pravat's counselor at Cook Inlet Tribal Council. Without a wholly persuasive
justification, OCS refused to transfer the visits to Cook Inlet Tribal Council until July
2009.
But the active efforts requirement does not require perfection. Our concern
is not with whether the State's efforts were ideal, but with whether they crossed the
threshold between passive and active efforts.25 In the present case, the multiple actions
taken by OCS and summarized by the superior court, viewed as a whole, decisively
crossed the threshold into active efforts. This is certainly not a case in which a plan was
drawn up and the parent was left to his own devices in carrying it out.26
24 (...continued)
opportunity to cross-examine. But Pravat did not appeal the superior court's reliance on
the social worker's notes in his initial brief. A reply brief "may raise no contentions not
previously raised in either the appellant's or the appellee's briefs." Crittell v. Bingo, 83
P.3d 532, 536 n.19 (Alaska 2004) (quoting Alaska R. App. P. 212(c)(3)).
25 See Dale H., 235 P.3d at 213 (describing our task as "distinguishing
between active and passive efforts") (internal quotation marks omitted).
26 See supra note 21 and accompanying text.
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It is also worth emphasizing that a parent's lack of cooperation may excuse
minor faults in OCS's efforts.27 Pravat has repeatedly displayed a lack of cooperation.
He failed to appear at so many visits at the Eklutna Center that the organization referred
those visits back to OCS. He rejected the local therapist proposed by the Buddhist
monks. Above all, from his first evaluation in the spring of 2008 to his final evaluation
in the fall of 2009, he has repeatedly refused to acknowledge that his actions contributed
to the problems faced by his sons, and he has even refused on multiple occasions to
acknowledge the boys' disabilities. Given the evident futility of the many steps OCS did
take, it is not persuasive to suggest that the additional steps proposed by Pravat in his
brief on appeal would have led to a successful reunification.
The superior court's summary of the State's efforts is adequately supported
by the record. In light of these efforts, as well as Pravat's lack of cooperation, we affirm
the superior court's conclusion that the State met its active efforts requirement.
B. The Superior Court Did Not Err In Finding That Pravat Had Not
Remedied His Conduct.
Before a court may terminate parental rights, it must find by clear and
convincing evidence that the parent "has failed, within a reasonable time, to remedy the
conduct or conditions in the home that place the child in substantial risk so that returning
the child to the parent would place the child at substantial risk of physical or mental
injury."28 In making this determination, "the court may consider any fact relating to the
best interests of the child."29 Relevant factors include, but are not limited to: (1) the
likelihood of returning the child to the parent within a reasonable time based on the
27 See supra note 23.
28 AS 47.10.088(a)(2)(B).
29 AS 47.10.088(b).
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child's 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 harm
will continue; and (5) the history of conduct or conditions created by the parent.30 We
recently clarified that "whether the parent has remedied the conduct or conditions . . . that
place the child at substantial risk . . . [is a] factual determination[] best made by a
superior court after hearing witnesses and reviewing evidence, not [a] legal
determination[] to which an appellate court should apply its independent judgment."31
Therefore, we review for clear error the superior court's determination that Pravat failed
to remedy his harmful conduct such that giving him physical custody would place the
children in substantial risk of physical or mental injury.32
The court found that even though Pravat completed the necessary steps on
his case plan, "he does not realize today that the children's exposure to him tying up
[Stella] in their presence for 15 minutes was harmful to the children." Because Pravat
failed to recognize the impact of domestic violence on the children, the court found there
to be a substantial risk that the children would be exposed once again to domestic
violence if returned to Pravat's home.
The court further found that Pravat continued to maintain that all was well
in his home before the children were taken into foster care. As the court stated, Pravat's
"unwillingness or inability to realize that he was a less than model parent, [and] that the
children were subjected to neglect in his care, indicates that the condition of neglect
would not be remedied if the children were returned home." The court found that all of
30 AS 47.10.088(b)(1)-(5).
31 Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 234 P.3d 1245, 1253 (Alaska 2010) (citation and internal quotation marks
omitted).
32 Id.
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the experts agreed that the children could not be placed back in Pravat's home at the time
of trial.
The record adequately supports the superior court's findings. For example,
in his own testimony at trial, Pravat still could not explain why it was wrong to bind
Stella with belts in front of the boys:
Q: . . . [D]id you do anything wrong on June the 20th,
2006[?]
A: Yes. Because I tied [Stella] up. And yes, I'm wrong.
Q: And why was that wrong?
A: I don't know. The police are saying I'm wrong because I
tied her up.
Q: Do you think you're wrong?
A: Yeah, I accept that I'm wrong, because I tied her up.
Q: What was wrong about it?
A: It's wrong because I tied her.
Q: Why is that wrong?
A: I don't know, because I don't really know the laws.
Later, when asked again why it was wrong to tie somebody up, Pravat
responded: "I don't know. The police said it's wrong, so I went to court. They said I
was wrong and I had to pay money." Pravat repeated in his testimony that he was the
victim of Stella's lies and that he lost his children and belongings because of her lies.
In addition, Dr. Rose testified that Pravat failed "to look at his own behavior
and the role that it played in problems in relationships and the difficulties that he had
with OCS," and that without Pravat "showing progress in his ability to take
responsibility, as well as improv[ing] his parenting practices and hav[ing] a much clearer
understanding of what . . . the children's problems are," Dr. Rose would be concerned
about the children's emotional and physical safety.
We have previously held that similar failures to accept or understand a
child's disabilities constitutes a failure to remedy, even if the parent undertakes steps
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recommended by OCS to try to learn about the problems.33 Even completing a case plan
does not guarantee a finding that the parent has remedied his or her conduct.34 The
superior court did not clearly err in concluding that Pravat continues to minimize his
children's disabilities, does not recognize the neglect that existed before the children
were put into foster care, and does not accept responsibility for his past actions, and thus
that Pravat failed to remedy his harmful conduct.
C. The Superior Court Did Not Err In Finding That Returning The
Children To Pravat Would Likely Result In Serious Emotional Or
Physical Injury.
To terminate parental rights, the court must find based on "evidence beyond
a reasonable doubt that returning the child to the parent is likely to result in serious
physical or emotional damage to the child."35 This finding must be supported by expert
testimony.36 "Proof that a parent's custody is likely to cause a child serious harm
requires proof that (1) the parent's conduct is likely to harm the child and (2) the parent's
conduct is unlikely to change."37
33 See id. at 1260; Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of
Family & Youth Servs., 74 P.3d 896, 903 (Alaska 2003).
34 See Barbara P., 234 P.3d at 1260 (Alaska 2010) (citing V.S.B. v. State,
Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 45 P.3d 1198, 1208
(Alaska 2002) ("Compliance with treatmentplans 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.")).
35 Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
204 P.3d 1013, 1019-20 (Alaska 2009) (citation omitted).
36 Id. at 1020 (citingL.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946,
950 (Alaska 2000)).
37 Id. (citing L.G., 14 P.3d at 950).
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The court found beyond a reasonable doubt - based on the expert
testimony of Dr. Rose, Dr. Collins, and Dr. Truitt, in combination with other evidence
- that returning the children to Pravat was likely to cause them serious emotional and
physical damage. All three, and especially Dr. Rose and Dr. Collins, expressed doubts
about Pravat's ability to reunite with his children in a safe manner. Pravat argues that the
superior court placed too much weight on Dr. Rose's testimony. But we defer to a
superior court's credibility determinations, particularly when they are based on oral
testimony.38
Because the record adequately supports the superior court's findings, we
hold the court did not err in concluding that Pravat's custody over the children would
likely result in serious damage to them, and that his conduct is unlikely to change.
D. The Superior Court Did Not Err In Finding That Terminating
Pravat's Parental Rights Was In The Best Interests Of The Children.
Under AS 47.10.088(c) and CINA Rule 18(c)(3), the superior court must
consider the best interests of the child in deciding whether to terminate parental rights.
The court can consider any factor of relevance to the child's best interests, including the
child's need for permanency and stability.39 In this analysis, it is the best interests of the
child, not the parent, that are paramount.40
38 Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 165 P.3d 605, 617 (Alaska 2007) (citing Martin v. Coastal Vills. Region Fund,
156 P.3d 1121, 1129 (Alaska 2007)).
39 See Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 102 P.3d 932, 936-37 (Alaska 2004).
40 Tessa M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
182 P.3d 1110, 1116 (Alaska 2008) (citation omitted).
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Dr. Collins testified that Pravat would not be ready to take custody for at
least another two years, even under the best of circumstances. At that point, Pravat
would still require substantial support and services. This court has previously held that
"a child's need for permanence and stability should not be put on hold indefinitely while
the child's parents seek to rectify the circumstances that cause their children to be in need
of aid."41 Pravat's children require a permanence and stability that he cannot offer them
and that the evidence suggests he will not be able to offer them within any reasonable
period of time. The superior court did not err in ruling that it was in the children's best
interests to terminate Pravat's parental rights.
V. CONCLUSION
Because the evidence supported the superior court's factual findings
regarding the State's efforts to promote reunification, and because those efforts were
sufficient as a matter of law under ICWA, we AFFIRM the superior court's
determination that the State made active efforts to prevent the breakup of Pravat's family.
In addition, the evidence supported the superior court's findings that Pravat failed to
remedy the harmful conduct that placed his children at substantial risk, that Pravat's
custody of the children would likely result in serious emotional or physical damage to
them, and that the termination of Pravat's parental rights is in the best interests of the
children. Accordingly, we AFFIRM the decision of the superior court terminating
Pravat's parental rights.
41 Kent V. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
233 P.3d 597, 603 (Alaska 2010).
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