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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Payton S. v. State, Dept. of Health & Social Services, Office of Children's Services (5/1/2015) sp-7004

Payton S. v. State, Dept. of Health & Social Services, Office of Children's Services (5/1/2015) sp-7004

         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, email  



PAYTON S. and EFFIE B.,                             )  

                                                    )        Supreme Court Nos. S-15581/15585  

                          Appellants,               )  

                                                    )        Superior Court Nos. 4BE-10-00046/  

                 v.                                 )        00047 CN and 4BE-13-00011 CN  



STATE OF ALASKA,                                    )        O P I N I O N  

DEPARTMENT OF HEALTH AND                            )

SOCIAL SERVICES, OFFICE OF                          )        No. 7004 - May 1, 2015

CHILDREN'S SERVICES,                                )


                          Appellee.                 )  


                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth  Judicial  District,  Bethel,  Dwayne  W.  McConnell,  


                 Appearances: Hanley Robinson, Assistant Public Defender,  


                 Anchorage,         and     Quinlan       Steiner,     Public      Defender,  

                 Anchorage,  for  Appellant  Payton  S.    Whitney  A.  Power,  

                 Power  &  Brown,  LLC,  Bethel,  for  Appellant  Effie  B.  


                 David      T.    Jones,    Senior      Assistant     Attorney       General,  

                 Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                 Juneau, for Appellee.  

                 Before:  Fabe, Chief Justice, Winfree, Maassen, and Bolger,  

                 Justices. [Stowers, Justice, not participating.]  

                 MAASSEN, Justice.  

----------------------- Page 2-----------------------



                    The Office of Children's Services (OCS) took custody of two young girls  


because of their parents' substance abuse and neglect.  OCS took custody of the parents'  


son shortly after his birth for the same reasons.  The trial court terminated the parents'  


rights  to  all  three  children,  who  are  Indian  children  as  defined  by  the  Indian  Child  

Welfare Act (ICWA).1  

                    The parents appeal.  They argue that the trial court violated due process  


when it entered an adjudication and disposition order on the basis of OCS's offer of  

proof before the parents had received proper notice or been appointed counsel.  They  


also argue that the trial court erred at the termination trial when it found that (1) the  


children were in need of aid; (2) the parents failed to timely remedy the conduct or  


conditions that placed the children at risk of harm; (3) OCS's expert witnesses qualified  


as experts for purposes of ICWA; (4) the parents' continued custody of the children  

would  likely  result  in  serious  emotional  or  physical  harm  to  the  children;  and  (5)  


termination of parental rights was in the children's best interests.  We affirm, concluding  


that the lack of proper notice at the adjudication and disposition stage did not affect the  


outcome of this proceeding (and therefore did not deprive the parents of due process) and  

that the trial court's decision at the termination stage was supported by the evidence.  

          1         25 U.S.C.  1903(4) (2012).  

                                                              -2-                                                            7004  

----------------------- Page 3-----------------------


          A.        OCS's Involvement With The Family; Pretrial Proceedings  

                    This case involves Payton and Effie and three of their children: Adelaide,  


born in 2007; Angelica, born in 2009; and Payton Jr., born in 2013.2   Both parents have  


histories of alcohol abuse.  OCS employee Venissa Wynn went to the family home in  


August 2010 to investigate a report that the two girls were home with Payton and another  


man, who were both intoxicated, while Effie "was nowhere to be found."  OCS took  

custody of the children for the night.  When Wynn returned the next day, Payton was   

intoxicated again.  Effie was home, but she told Wynn that "she just came home to wash  


her hair and change her clothes, and she was leaving again," and she asked if OCS could  


keep the children another day.  

                    OCS  filed  an  emergency  petition  asking  that  the  trial  court  adjudicate  

Adelaide and Angelica as children in need of aid under AS 47.10.011(1) (abandonment),  

                                                           3  OCS had difficulty maintaining contact with  

(9) (neglect), and (10) (substance abuse).                             

the parents during the months that followed, and they were not served with a copy of the  


petition until the day of the combined adjudication and disposition hearing, November 4,  


          2         The parents also have an older daughter, Kiersten, who has been culturally  

adopted by her maternal grandmother Xandy.  We use pseudonyms to protect the privacy  


of the parties.   

          3         ICWA permits an Indian child's tribe to intervene in state court Child In  


Need of Aid (CINA) proceedings.  25 U.S.C.  1911(c).  Both the mother's tribe, Native  

Village of Eek, and the father's tribe, Native Village of Kasigluk, intervened.  

                                                             -3-                                                       7004

----------------------- Page 4-----------------------



2010.       OCS does not dispute that this notice did not satisfy the requirements of ICWA  


and CINA rules.   The parents did not attend the hearing.   

                    OCS submitted an offer of proof at the hearing that listed the witnesses it  


intended to call and identified the testimony that supported adjudicating the girls to be  

children  in  need  of  aid  and  retaining  them  in  OCS  custody.    Reciting  the  incorrect  


assertion by OCS's counsel that the parents had been served with notice, the trial court  


found the children to be children in need of aid under AS 47.10.011(1), (9), and (10),  


"based on the offer of proof that conditions leading to removal have definitely not been  

corrected."  Adelaide and Angelica were placed with Xandy, their maternal grandmother,  


who had a licensed foster home in the village of Eek.  A few weeks later Payton and  


Effie were appointed counsel and, with their counsel, they attended a number of other  

hearings over the next several years.   


                    In August 2012 OCS petitioned to terminate Payton's and Effie's parental  


rights to Adelaide and Angelica.  In November, the parties stipulated to stay termination  

          4         Under CINA Rule 15(a), adjudication "is a trial to the court on the merits  

of the petition for adjudication."  Under CINA Rule 17(a), disposition is the hearing at  


which  the  court  determines  "the  appropriate  disposition  of  a  child  who  has  been  

adjudicated a child in need of aid."  

          5         Federal law requires that parents have ten days' notice of "any involuntary  

proceeding  in  a  State  court"  by  a  "party  seeking  the  foster  care  placement  of,  or  


termination of parental rights to, an Indian child," and that they be allowed a 20-day  


postponement,  "upon  request,"  to  prepare.    25  U.S.C.    1912(a).  CINA  Rule  15(b)  

requires that parents and other interested parties in an ICWA proceeding receive notice  

of an adjudication hearing "at least ten days before the hearing" and that the hearing be  


postponed upon request "to ensure that the Indian child's parents, Indian custodian or  

tribe have had thirty days from receipt of the notice to prepare for the hearing."  CINA  


Rule 7(f)(2)(G) also requires that parents in ICWA cases be notified of their right to a  

30-day postponement "on request . . . to prepare for the adjudication hearing."   

                                                               -4-                                                         7004

----------------------- Page 5-----------------------

proceedings while the Native Village of Eek Tribal Court explored the possibility that  


Xandy would culturally adopt the girls.  Payton and Effie stipulated that the children  


continued to be children in  need of aid and that they had failed to make substantial  

progress to remedy their conduct and the conditions in their home that placed their  

daughters at risk of harm.  


                     In the years following adjudication, the parents' problems with substance  


abuse did not improve; neither parent successfully completed treatment despite OCS's  

efforts.  OCS family services supervisor Katherine Cramer testified at the termination  

trial about her  difficulty locating Payton and Effie to work on their case plan.   She  


"basically begged" them to help her build a positive parenting record by doing sober  


check-ins twice a week and by not giving up.  She arranged and paid for the parents to  

travel  for  substance  abuse  assessments  at  the  Phillips  Ayagnirvik  Treatment  Center  


(PATC) in Bethel, but Payton went fishing instead and Effie started the program but left  

without completing it.  


                     An OCS protective services specialist, Patsy Bowen, substantiated reports  


of Effie's drinking during her pregnancy with Payton Jr.  While visiting Effie in the  

Bethel jail,6 Bowen helped her fill out an application for treatment at the Women and  

Children's Center in Fairbanks.  Effie eventually was assessed for and diagnosed with  


alcohol dependency, but again she did not complete the recommended treatment.  On a  


number of occasions Payton and Effie failed to take advantage of travel OCS arranged  


for them; for example, when Bowen arranged for them to travel to a parenting class, they  

          6          Bowen could not remember at trial exactly why Effie was in jail but thought             

it involved a charge of theft, that Effie may have been intoxicated, and that Effie had  

been assaulted as well.  

                                                                 -5-                                                          7004

----------------------- Page 6-----------------------


used  their  tickets  but  did  not  attend  the  class.                 On  another  occasion  Payton  began  

treatment at PATC but after three days climbed out a window and never returned.  


                    Both parents admitted to heavy drinking.  During an assessment at PATC  


in June 2011,  Payton reported that the longest period of sobriety he had that year was  


four days.  Effie reported during a July 2012 alcohol screening that she was 13 weeks  


pregnant, drank four or more times a week, and typically had ten or more drinks at a  


time.  In a March 2013 assessment Payton reported that he was unable to regulate his  


alcohol  intake  and  would  go  on  three-week  drinking  binges.    In  April  2013  Effie  


reported that it was difficult for her to control her drinking when she was in Bethel, and  

that she blacked out almost every time she drank.  

                    Cramer testified  that by the time of trial Payton and Effie had still not  


addressed their alcohol problems, continued to leave their children without appropriate  

care, and failed to return to their children when they said they would.   

          B.        The Children  

                    Adelaide and Angelica lived in Eek with Xandy from August 2010 through  

October 2013, when OCS removed them because of concerns they were not getting  

proper  supervision.    While  the  girls  lived  in  Eek,  Adelaide  attended  school  there.  


According to the principal, Adelaide had trouble listening to instructions, sitting still, and  


completing  tasks,  and  she  constantly  bothered  other  students.                             A  behavioral  health  


clinician in Bethel testified at the termination trial that Adelaide would benefit from  

therapy to address her aggressiveness and response to conflict.  Wynn testified that  

Adelaide was very clingy, and Bowen testified that she was hyperactive and sometimes  



                    Adelaide and Angelica were next placed with Betty, a licensed foster parent  

who lived in Payton's village of Kasigluk.  Betty testified at trial that Adelaide was  

                                                             -6-                                                        7004

----------------------- Page 7-----------------------

normal, happy, and doing well in school.                     She testified she would be "more than happy"  

to adopt both girls.  

                    When Angelica was four years old, she was hospitalized at the Alaska  


Native Medical Center for encephalitis.  A nurse testified that Angelica was beginning  


to recover, but she was likely to need extensive physical and neural rehabilitation out of  


state.  She would need speech therapy to learn to talk again and occupational therapy to  

learn to use her hands.  The nurse testified that it was unsafe to leave her alone.  


                    As for Payton Jr., OCS took custody of him very soon after his birth in  

early 2013.  Also dealing with significant health issues, Payton Jr. was placed in foster  

care with his great-aunt Ida in Kasigluk, who was willing to adopt him.  

          C.        The Termination Trial  

                    Effie and Payton eventually withdrew their stipulation that Adelaide and  


Angelica were children in need of aid, and OCS filed a petition to terminate the parents'  


rights to the two girls and for a simultaneous adjudication and termination as to Payton  


Jr.    Trial  was  held  in  Bethel  in  December  2013.    Payton  and  Effie  were  no  longer  

together and lived in different communities.  Payton attended the first day and a half of  


trial telephonically; Effie did not attend at all.  The parents did not call any witnesses.  

OCS presented the testimony summarized above and the testimony of two experts.  


                    Over  the  parents'  objection,  the  court  found  Dr.  Sarah Angstman, a  


psychologist, qualified to testify as an expert in clinical psychology.  On the basis of her  

assessment of Adelaide, Dr. Angstman described the child's behavioral problems and  

medical diagnoses and her continuing need for therapy and individualized education  



                    OCS also called its regional manager, Sharon Fleming, as an expert in child  


welfare, relying on the second and third categories of the Bureau of Indian Affairs (BIA)  

                                                              -7-                                                       7004

----------------------- Page 8-----------------------



 guidelines for the qualification of experts in ICWA cases.   Over the parents' objection,  

 the trial court found Fleming qualified.  She testified that the children would likely suffer  


 serious physical and emotional damage if returned to their parents' care because of the  

 parents' substance abuse, which had led to abandonment and neglect, and because of the  

 children's special needs and vulnerabilities.   

          D.        The Trial Court's Decision  


                    The trial court terminated Payton's and Effie's parental rights in May 2014.  

The   court   found   that   all   three   children   were   children   in   need   of   aid   under  

           7         We have looked to the BIA Guidelines for guidance in determining whether  

 a proposed witness meets the heightened ICWA expert requirements.  In re Candace A.,  


 332 P.3d 578, 583-84 (Alaska 2014).  Under these guidelines the witnesses most likely  


 to meet ICWA's expert requirements are:  

                     (1)  a  member  of  the  child's  tribe  recognized  by  the  tribal  

                     community as knowledgeable in tribal customs pertaining to  


                     family  organization  and  childrearing  practices,  (2)  a  lay  

                     expert with substantial experience and knowledge regarding  


                     relevant Indian social and cultural standards and childrearing  


                     practices  and  the  delivery  of  child  and  family  services  to  

                     Indians,  or  (3)  [a]  professional  person  having  substantial  


                     education in the area of his or her specialty.  

 Id. (quoting Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 504 (Alaska  


 2009) (alteration in original) (emphasis omitted) and Guidelines for State Courts; Indian  

 Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,593 (1979)).  At the time of these  


 termination proceedings, the 1979 guidelines were in place.  They have recently been  


 updated.    See  Guidelines  for  State  Courts  and  Agencies  in  Indian  Child  Custody  

 Proceedings, 80 Fed. Reg. 10,146, 10,157 (Feb. 25, 2015).  

                                                               -8-                                                       7004

----------------------- Page 9-----------------------

                          8      9       10              11                             12 


AS 47.10.011(1),  (6),  (8),                and (10),       and AS 47.10.014.              The court found that (1) the  


children had been subjected to conduct or conditions described in AS 47.10.011 because  

of the parents' abandonment, substance abuse, domestic violence, conduct causing serious  


                                                                            (2) the parents failed to timely remedy  

risk of physical harm to the children, and neglect; 


                                                                                             (3) OCS made active but  

the conduct or conditions that placed the children at risk; 


unsuccessful efforts to provide remedial services and rehabilitative programs designed to  

           8         AS 47.10.011(1) allows the trial court to find a child to be in need of aid                    

 if the parent has abandoned the child.  

           9         AS 47.10.011(6) allows the trial court to find a child to be in need of aid  


 if it finds that "the child has suffered substantial physical harm, or there is a substantial  


 risk that the child will suffer substantial physical harm, as a result of conduct by or  


 conditions created by the child's parent, guardian, or custodian, or by the failure of the  


 parent, guardian, or custodian to supervise the child adequately."  



                     The trial court cited "Alaska Stat. Ann.  47.10.011(B)," plainly intending  


 AS 47.10.011(8)(B)(i) and (ii).  Under these provisions the trial court may find a child  

 to be in need of aid if it finds that conduct by or conditions created by the parent placed  


 the child at substantial risk of mental injury as a result of "(i) a pattern of rejecting,  


 terrorizing, ignoring, isolating, or corrupting behavior that would, if continued, result in  


 mental injury; or (ii) exposure to conduct by a household member . . . that is a crime  

 under [certain statutes addressing Offenses Against the Person] . . . ."  



                     AS 47.10.011(10) allows the trial court to find a child to be in need of aid  


 if  the  parent's  ability  to  care  for  the  child  has  been  substantially  impaired  by  the  

 addictive or habitual use of intoxicants.  

           12        Under AS 47.10.014 "the court may find neglect of a child if the parent,  

 guardian, or custodian fails to provide the child with adequate food, clothing, shelter,  


 education, medical attention, or other care and control necessary for the child's physical  

 and mental health and development . . . ."  

           13        AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).  

           14        AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i)-(ii).  

                                                                 -9-                                                        7004

----------------------- Page 10-----------------------



prevent the breakup of the Indian family;                     (4) OCS proved beyond a reasonable doubt,  


including by the testimony of qualified expert witnesses, that the children would likely  



                                                                                                                  and (5)  

suffer serious emotional or physical damage if returned to the parents' custody; 

                                                                                           17  The parents challenge  

terminating the parents' rights was in the children's best interests. 

each finding except the finding of active efforts.  


                   The trial court's factual findings are reviewed for clear error and are clearly  


erroneous only if, after a review of the entire record in the light most favorable to the  

party prevailing below, we are left with a "definite and firm conviction" that a mistake has  


been made.           "Conflicting evidence is generally insufficient to overturn the superior  

court, and we will not reweigh the evidence when the record provides clear support for  


the superior court's ruling."19  

                   The trial court's determination that a  witness may testify as an expert is  


reviewed for an abuse of discretion, which occurs when "the reasons for the exercise of  

           15       25 U.S.C.  1912(d) (2012).  

           16       25 U.S.C.  1912(f).  

           17       CINA Rule 18(c)(3); see also AS 47.10.088(c).  

           18       Emma  D.   v.   State,   Dep't   of   Health  &   Soc.   Servs.,   Office  of  Children's  

 Servs.,  322 P.3d 842,  849 (Alaska 2014)                  (quoting Chloe  O.  v. State, Dep't of Health &  

 Soc. Servs., Office of Children's Servs., 309 P.3d 850, 855 (Alaska 2013)).   

           19       Maisy  W.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  

 Servs., 175 P.3d 1263, 1268 (Alaska 2008).  

                                                            -10-                                                     7004

----------------------- Page 11-----------------------


discretion  are  clearly  untenable  and  unreasonable."                           Whether  the  expert  testimony  


satisfies ICWA's requirements is a legal question reviewed de novo.                                      


          A.	      It Was Error To Enter An Adjudication And Disposition Order When  


                   The Parents Lacked Proper Notice Of The Hearing, But The Error Did  


                   Not Affect The Outcome Of The Case.  

                   The parents contend that their due process rights were violated because they  


did not receive proper notice of the November 2010 adjudication and disposition hearing;  


they were not appointed counsel to represent them at that time; and the court entered  


findings in their absence based on OCS's offer of proof.  OCS concedes that notice was  


inadequate.  Alaska's CINA rules require that an Indian child's parents, Indian custodian,  


or tribe receive notice "at least ten days before the [adjudication] hearing," and that the  


notice inform them of, among other things, their right to a postponement of up to 30 days  

                22  The notice must also inform the parents of their right to appointed counsel  

to prepare.     


if they are indigent.            Federal law similarly requires at least ten days' notice and extra  

                                           24   Effie  and  Payton  did  not receive  the  benefit of  these  


time  to  prepare  if requested.  

provisions;  certified  mail  receipts  show  that  they  did  not  receive  their  notices  until  

           20       L.G. v. State, Dep't of Health & Soc. Servs. , 14 P.                         3d 946, 950 (Alaska  


           21        See id.  

           22        See CINA Rule 7(f)(2)(G); CINA Rule 15(b).  

           23        See CINA  Rule 7(f)(2)(F).   The rules further require the court to "inform  

 the parties at the first hearing at which they are present of their respective rights to be  


 represented by counsel at all stages of the proceedings."  CINA Rule 12(a).  

           24        See 25 U.S.C.  1912(2) (2012).  

                                                             -11-	                                                      7004

----------------------- Page 12-----------------------

November 4, 2010, the day of the adjudication hearing.  We also note with concern that  


the findings and order of adjudication and disposition, drafted by counsel for OCS and  


adopted by the trial court, contained the misleading assertion that "[t]he parents . . . were  

not present although both were served with notice of this hearing."  



                    The failure of notice in CINA proceedings may violate due process. 

parties  claiming  a  due  process  violation  must  establish  that  they  likely  would  have  


achieved a more favorable outcome with proper notice.                                    "Although the due process  

analysis is a flexible and contextual one focusing on the interest and not the outcome,  


there must be some actual prejudice . . . and not merely the 'theoretical possibility of  


prejudice.' "          

                    Effie  and  Payton  identify  three  ways  in  which  they  claim  they  were  


prejudiced by the lack of early notice.28  They argue that "[t]he most basic effect of proper  


notice . . . would have been to fully alert [them] to the importance of the legal proceeding  


and  its  effect  on  their  family";  as  it  was,  they  may  not  have  appreciated  that  OCS's  


involvement was likely to be long-term and could result in termination of their parental  

rights.  Second, they argue that lack of notice prejudiced their ability to obtain counsel  


who  could  have  explained  the  potential  impact  of  their  non-appearance,  "preserved  

           25        See D.M. v. State, Div. of Family & Youth Servs.                          , 995 P.2d 205, 212-14  

 (Alaska 2000) (noting that in many cases, late or inadequate notice may deny the parent  

 due process, but concluding that there had been no showing that lack of proper notice  

 risked erroneous termination of parental rights).  

           26        Paula E. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  


 276 P.3d 422, 433 (Alaska 2012).  

           27        Id.  (quoting D.M. , 995 P.2d at 212) (citations omitted).  

           28        Payton  briefs  this  issue  on  appeal;  Effie  adopts  Payton's  argument  by  


                                                               -12-                                                        7004

----------------------- Page 13-----------------------


objections[,] and protected their rights."  Finally, they contend that parents who come late  


to CINA proceedings may view OCS custody of their children as a fait accompli and be  

discouraged from engaging in reunification services.  


                    But  both  Effie  and  Payton  were  appointed  counsel  shortly  after  the  


adjudication  and  disposition  hearing;  their  lawyers  had  appeared  for  them  by  early  


December 2010.  The parents had the benefit of counsel at every subsequent step of the  


proceedings, of which there were many - including, at one point, the parents' stipulation  

that the two girls continued to be children in need of aid and the parents' consent to a  


cultural adoption (later withdrawn).  The record shows that the parents were repeatedly  


reminded of the enormity of the proceedings in which they were involved and their need  


to work hard to recover custody of their children.  And in the three years between the  


adjudication order and the termination trial, they had ample opportunity to identify and  

correct  any  claimed  prejudice  due  to  OCS's  failure  to  provide  proper  notice  at  the  


adjudication stage. Indeed, the judge invited briefing on the issue when Payton's counsel  


raised it at a status hearing in 2011, but the parties did not follow up and apparently did  

not mention the issue again until their post-trial briefing at the termination stage.  On  


appeal they identify no issues that were not fully aired and no chances of reunification  

that were forgone because of the procedural errors at the case's initial stage.   

                    Finally, there is no dispute that Effie and Payton had proper notice of the  

termination trial (Payton attended part of it) and were represented at trial by counsel.  The  

trial court's CINA findings at termination were made under the "clear and convincing  

evidence" standard, higher than the "preponderance of the evidence" standard employed  



at adjudication,           and were based on the testimony and exhibits presented at trial rather  



                      See Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family &  


                                                                -13-                                                             7004  

----------------------- Page 14-----------------------


than an offer of proof.  Under the circumstances we can only conclude that any actual  


prejudice caused by procedural deficiencies early in the case was eliminated during the  


course of subsequent proceedings and had no likely effect on the outcome of this case;  



this leaves "merely the 'theoretical possibility of prejudice' "                                - not enough to require  

that we find a violation of due process or reverse the judgment.  


          B.	       The Trial Court Did Not Clearly Err In Finding That The Children  

                    Were Children In Need Of Aid.  


                    The trial court may find a child to be a child in need of aid if it finds that the  


child has been subjected to any of the conduct or conditions listed in AS 47.10.011(1)  


through (12).  Where the record supports one ground for a CINA finding, we do not need  

to consider the trial court's other findings.31  

                    A child is a child in need of aid if the "parent['s] . . . 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."        The statute does not require that a child be present when the substance abuse  



  Youth Servs., 165 P.3d 605, 610 (Alaska 2007) (holding that challenges to a trial court's  


 finding of probable cause - including an allegation that the father did not receive notice  


 of the hearing - were mooted when the trial court later decided CINA status at the  


 adjudication stage by a preponderance of the evidence, a higher standard).  

           30	       Paula E. , 276 P.3d at 432-33 (quoting D.M. , 995 P.2d at 212).  



                      See Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's  

 Servs.,  290  P.3d  421,  431  (Alaska  2012)  ("Because  we  affirm  the  superior  court's  

 finding of abandonment, we do not reach the State's alternative argument for termination  

 based on neglect.").  

           32         AS 47.10.011(10).  

                                                                -14-	                                                        7004

----------------------- Page 15-----------------------

occurred.33  Here, the trial court found by clear and convincing evidence that the parents'  


habitual use of alcohol substantially impaired their ability to parent, causing a substantial  


risk of harm to the children.   

                    Effie  argues  that  there  was  insufficient  evidence  to  support  this  finding  

because  the  trial  court  cited  only  one  specific  episode  -  when  OCS  found  Payton  

intoxicated with Adelaide and Angelica in the house and Effie absent.  The trial court  

addressed this argument, finding that "the evidence confirms the substance abuse has  

been,  and  continues  to  be,  a  serious  problem  for  both  parents.    Furthermore,  it  is  a  


problem that neither parent seems willing to meaningfully address."  The court noted that  

Effie had been diagnosed with alcohol dependence on at least eight different occasions,  


beginning in 2005, and had been in and out of treatment numerous times.  The court also  

addressed Payton's substance abuse diagnoses and offered examples of his behavior while  

intoxicated, beginning in 2006.  The court pointed out that even if the "OCS workers  

never  witnessed  the  parents'  intoxicated  behavior,  it  is  also  true  the  parents  have  


continually admitted to binge-drinking"; that Xandy "has told OCS workers about the  

parents' monthly trips to Bethel wherein the parents binge-drink"; and that "in the past  

three years, neither parent has completed a single alcohol treatment program."  


                    Because the record supports the trial court's findings about substance abuse,  


we affirm its finding that Adelaide, Angelica, and Payton Jr. were children in need of aid  

on this ground and do not reach the others.  

           33        Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.                              ,  

 244 P.3d 1099, 1113 (Alaska 2010); see also Christina J. v. State, Dep't of Health &  

 Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1106 (Alaska 2011) ("[A] child  


 need not be present when substance abuse is occurring in order to suffer its negative  


                                                              -15-                                                       7004

----------------------- Page 16-----------------------

          C.	       The Trial Court Did Not Clearly Err In Finding That Both Parents  

                    Failed  To  Remedy  The  Conduct  That  Placed  The  Children  At  


                    Substantial Risk Of Harm.  

                    Before terminating parental rights the trial court 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  

            34  "[W]hether the parent has remedied the conduct or conditions . . . that place the  


child at substantial risk . . . [is a] factual determination best made by a trial court after  


hearing witnesses and reviewing evidence . . . ."                             

                    The trial court found that because the parents "did not complete a single  


substance abuse program in three years" and "have not evinced any desire to rectify their  


alcohol problems," there was clear and convincing evidence that they had not remedied  


their  substance  abuse.    The  trial  court's  findings  highlighted  the  extent  to  which  it  


believed the parents' drinking took priority over their children: they "only parented when  


it  was  convenient  for  them,"  often  leaving  town  for  indefinite  periods  without  


explanation.  The court expressed concern that Payton and Effie continued to binge drink  


and did not show that parenting was a priority for them by attending the termination trial.  


(Payton called in the first day and a half of the five-day trial; Effie did not appear at all.)  

           34	       AS 47.10.088(a)(2)(B).  

           35        Ralph  H.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  

 Servs., 255 P.3d 1003, 1008 (Alaska 2011) (alterations in original) (quoting Barbara P.  


 v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1253  

 (Alaska 2010)).  

                                                               -16-	                                                        7004

----------------------- Page 17-----------------------


                    Findings of continued substance abuse and refusal to undergo treatment are  



sufficient to satisfy "failure to remedy."                    The parents' lengthy histories of alcohol abuse,  

their  failure  to  complete  treatment,  and  the  years  they  had  to  demonstrate  sobriety  


between OCS's first involvement with their children and the eventual trial on termination  


of their parental rights all support the trial court's finding that they failed to remedy their  

conduct within a reasonable time, and we therefore affirm it.  


          D.	       The Trial Court Did Not Err In Concluding That The Children Would  

                    Likely Suffer Serious Emotional Or Physical Harm If  Returned To  

                    Their Parents' Custody.  


                    A court may not terminate parental rights to an Indian child unless it finds  


"by  evidence  beyond  a  reasonable  doubt,  including  testimony  of  qualified  expert  


witnesses, that the continued custody of the child by the parent . . . is likely to result in  

                                                                           37  This finding may be proved through  


serious emotional or physical damage to the child." 

the testimony of one or more expert witnesses or by aggregating the testimony of lay and  



expert witnesses.             "[T]he [S]tate's expert testimony need not meet the burden of proof  


standing alone so long as it supports the court's conclusion."39  


                              1.	       The trial court did not abuse its discretion when it found  


                                        that the State's experts were qualified under ICWA.  

           36        See, e.g., Stanley B. v. State, DFYS, 93 P.3d 403, 407 (Alaska 2004).   

           37        25 U.S.C.  1912(f) (2012); CINA Rule 18(c)(4).  

           38        L.G.  v.  State,  Dep't of Health & Soc. Servs. ,   14 P.3d 946, 950-51 (Alaska  


           39        Ben M. v. State, Dep't of H             ealth  &  Soc. S     ervs., O   ffice of Children's Servs. ,  

 204 P.3d 1013, 1020 (Alaska 2009) (citing E.A. v. State, Div. of Family & Youth Servs. ,  



 46 P.3d 986, 992 (Alaska 2002)).  

                                                               -17-	                                                        7004

----------------------- Page 18-----------------------

                    Effie argues that the trial court erred when it qualified Dr. Angstman and  


                                                                                                           We note first that  

OCS protective services manager Sharon Fleming as ICWA experts.  


the trial court did not rely on Dr. Angstman's testimony for its ICWA-required findings;  


the  court  noted  that  she  had  "expressed  no  opinion  concerning  whether  the  parents'  


conduct will cause serious[] physical or emotional harm to [Adelaide]."  Instead the trial  

court relied primarily on the testimony of Fleming.   


                    The trial court observed that Fleming has a master's degree in social work,  

is a licensed master's-level social worker, and takes 45 hours of continuing education  


every two years, including substantial class work related specifically to Alaska Natives  


and substance abuse.  The trial court described her work history with OCS as including  

supervisory and management positions in Juneau, St. Mary's, and Bethel, beginning in  


"the early 2000s."  The trial court noted that Fleming "was first qualified as an ICWA  


expert in 2004" and has been qualified as an ICWA expert "an estimated 10-15 times"  


since.  The trial court quoted from our opinion in Lucy J. v. State, Department of Health  


& Social Services, Office of Children's Services, in which Fleming's qualifications as an  

ICWA expert were also at issue; we noted in that 2010 case that Fleming had "worked at  

           40        Payton argues that Fleming's testimony was insufficient to support the trial  

 court's findings, in part because her opinions were based on a review of the relevant files  


 rather  than  direct  contact  with  the  family.    "[W]e  have  .  .  .    acknowledged  that  an  

 expert's exclusive reliance on the case file without speaking to the parent or child may  


 weaken the testimony."  Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496,  


 507 (Alaska 2009) (citing J.J. v. State, Dep't of Health & Soc. Servs., Div. of Family &  

  Youth  Servs.,  38  P.3d  7,  10  (Alaska  2001)).    But  "[a]  review  of  state  records  and  


 summaries  of  relevant  facts  can  be  enough  if  they  'keep  the  expert's  testimony  


 sufficiently grounded in the facts and issues of the case.' " Id.  (quoting  J.A. v. State,  


 DFYS , 50 P.3d 395, 400 (Alaska 2002)).  

                                                                -18-                                                        7004

----------------------- Page 19-----------------------


OCS  for  six  years"  and  had  "served  as  a  supervisor  for  four  years."                                  In  Lucy  J. ,  


reviewing the court's acceptance of Fleming as an ICWA expert for plain error since the  

parent  had  not  objected  at  trial,  we  affirmed  "because  it  was  possible  to  infer  from  

Fleming's known qualifications that she possessed the qualifications necessary under  


ICWA."           The trial court in this case observed that Fleming had continued working for  


OCS since the Lucy J. case, continuing to acquire credit hours in Alaska Native education  


and "a substantial amount of experience and knowledge in Alaska Native culture" over  


the intervening years.  The trial court concluded that Fleming had "expertise beyond the  


normal social worker qualifications" and therefore satisfied the third subpart of the BIA  

guidelines  for  qualifying  ICWA  experts.    These  findings  are  well  supported  by  the  


testimony at trial, in which Fleming also described her practicums at Alaska Psychiatric  

Institute (where she performed psychological assessments) and the Salvation Army's  

Clitheroe Center for treating substance abuse; her continuing training in fetal alcohol  


spectrum disorder, domestic violence, family services assessments, case planning, brain  


development, and trauma; and her participation in a tribal-state collaboration that meets  

regularly to discuss brain development and the impact of trauma.  

                    Effie challenges the court's conclusion that Fleming was qualified "under  


the second category of ICWA experts that are qualified to distinguish between the cultural  

and social standards prevailing in Indian communities and families and actual abuse or  


neglect."  This second category recognizes as potential ICWA experts lay persons who  


have "substantial experience in the delivery of child and family services to Indians, and  

extensive knowledge of prevailing social and cultural standards and childrearing practices  

           41        244 P.3d 1099, 1118-19 (Alaska 2010).  

           42        Id. at 1119.  

                                                              - 19-                                                          7004  

----------------------- Page 20-----------------------



within  the  Indian  child's  tribe."                                       Effie  contends  that  Fleming  lacks  the  requisite  

experience and knowledge specific to the "prevailing social and cultural standards and  

childrearing practices [of] Yup'ik Eskimos."   


                           We reject this challenge for several reasons.  First, termination proceedings  

under ICWA do not require testimony by an expert in Native culture if the grounds for  

termination do not implicate cultural biases - such as in a case like this one involving  


parental substance abuse.                                Effie argues that cultural mores were clearly implicated by  

the  substance  abuse  at  issue  in  this  case:    specifically,  "[w]hether  the  parents  were  


practicing the typical Yup'ik 'it takes a village' style of parenting."  She maintains that  


under "village custom, . . . it was acceptable for [the parents] to drink provided that their  


children were not present," and that OCS's case necessarily failed because it lacked an  

expert qualified to address this cultural practice.  But Effie's assertion that "[c]ultural  


mores and society were implicated in this termination trial" does not appear to have been  

raised in the trial court, and she presented no evidence to support it.45  

               43            Guidelines  for  State  Courts;  Indian  Child  Custody  Proceedings,  44  

  Fed. Reg. 67,584, 67,593 (1979).  

               44            See,  e.g.,  Thea  G.  v.   State,   Dep't  of  Health  &  Soc.  Servs.,  Office  of  

  Children's Servs., 291 P.3d 957, 964 (Alaska 2013) (upholding qualification of expert     

  to testify about effects of substance abuse on families and effects of delayed permanency     

  on children despite her lack of expertise in Alaska Native culture);                                                                    L.G. v. State, Dep't  

  of Health & Soc. Servs., 14 P.3d 946, 952, 954 (Alaska 2000) (noting that "[w]hen there                                                              

  is clear evidence of physical neglect, a trial judge may terminate parental rights without       

  hearing testimony from an expert in Native culture[;]" and "[f]ar from reflecting mere   

  cultural differences in                         the care of Native children, [the mother's] history                                                         of  serious  

  substance abuse places [her  children] at a clear risk of future harm if returned to her  


               45            Effie's citations to the transcript show only that Effie believed substance  


                                                                                      -20-                                                                              7004

----------------------- Page 21-----------------------


                    Finally, the trial court found Fleming qualified to be an ICWA expert not  

only  under  subpart  (2)  of  the  ICWA  guidelines,  but  also  under  subpart  (3),  as  a  

"professional          person"        who       has     "expertise        beyond        the     normal        social     worker  



qualifications."           As Effie only challenges Fleming's qualification under subpart (2),  


Fleming's qualification under subpart (3) provides an independent basis on which to  

uphold the trial court's reliance on her expert testimony.47  


                    2.	       The trial court did not clearly err when it found that returning  

                              the  children  to  their  parents'  custody  would  likely  result  in  

                              serious harm to the children.  

                    The  parents  dispute  the  trial  court's  factual  finding  that  their  continued  


custody of Adelaide, Angelica, and Payton Jr. would likely result in serious emotional or  


physical damage to the children, contending that they never put their children in harm's  

way or failed to meet the children's emotional needs.  


 abuse was not a problem if she drank outside the presence of the children, not that this  


 was consistent with her Native cultural traditions. There was also testimony that having  


 the grandmother raise the oldest daughter was consistent with Native tradition, but the  


 parents' problems with substance abuse were not mentioned in this context.   



                     See Marcia  V.  v. State, Office of Children's Servs., 201 P.3d 496, 504  

 (Alaska  2009)  (quoting  H.R.  Rep.  No.  95-1386,  at  22  (1978),  as  reprinted  in  1978  

 U.S.C.C.A.N. 7530, 7545).  Although the trial court found Fleming qualified under both  

 subparts (2) and (3) at trial, its termination order relied solely on subpart (3).   



                     Effie also suggests that Fleming's testimony was unpersuasive because, as  


 an OCS employee, she was biased toward OCS.  We addressed this issue recently in  


 Sylvia L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 343 P.3d  


 425, 434 (Alaska 2015) (upholding trial court's qualification of OCS social worker as  


 ICWA  expert  witness  because  "it  is  well  settled  that  an  allegation  of  bias  goes  to  

 testimony's weight, not its admissibility").  

                                                                -21-	                                                       7004

----------------------- Page 22-----------------------

                   The  trial  court  heard  testimony  from  lay  witnesses  who  described  the  


parents' substance abuse and the children's behavior and risk of harm.  The trial court  

also relied heavily on Fleming's expert testimony that the parents' substance abuse caused  


them to neglect and abandon their children, that they had not remedied this behavior, and  


that they appeared unwilling to do so.   The court addressed each child's situation in turn:  

"[Adelaide] has special needs and [Angelica] is going to need consistent intensive care  


when she returns home from therapy. . . .  [D]ue to his age, [Payton Jr.] is at risk because  


he cannot remove himself from any danger that could emerge."  These findings are well  


supported by the evidence.  We cannot conclude that the trial court clearly erred when it  

found,  beyond  a  reasonable  doubt,  that  the  parents'  continued  custody  of  Adelaide,  

Angelica, and Payton Jr. would likely result in serious emotional or physical damage to  

the children.  


          E.	      The Trial Court Did Not Clearly Err In Finding That Termination Of  

                   The Parents' Rights Was In The Children's Best Interests.  

                   Alaska Statute 47.10.088(c) requires a court to consider the best interests of  

the child before terminating parental rights.  Best interests determinations are factual  

findings reviewed for clear error.48  

                   The trial court found by a preponderance of the evidence that termination  


of parental rights was in the best interests of all three children. The court cited Adelaide's  

severe  emotional  problems  at  school,  Dr.  Angstman's  diagnosis  of  her  behavioral  

disorder, and Angelica's need for constant, stable care and access to medical treatment  

if she is to recover from her serious illness.  The trial court noted that the girls' foster  


mother is willing to adopt them both and has demonstrated her commitment by helping  

           48       Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's  

 Servs., 254 P.3d 1095, 1104 (Alaska 2011).  

                                                            -22-	                                                        7004  

----------------------- Page 23-----------------------

Adelaide  improve  her  grades  and  by  staying  with  Angelica  throughout  her  medical  


trauma.  As for Payton Jr., the trial court contrasted his parents' "distinct lack of stability"  


with his "current stable home environment."  And as OCS points out, the foster parents  

of  all  three  children  are  members  of  the  Kasigluk  tribe,  and  if  parental  rights  are  


terminated the children will still be connected with their Native culture.  The parents point  


to  nothing  in  the  record  from  which  we  could  conclude  with  a  "definite  and  firm  


conviction" that the trial court was mistaken in finding that the children's best interests  

required the termination of Payton's and Effie's parental rights.49  

V.        CONCLUSION  

                   The order terminating Payton's and Effie's parental rights to their three  

children, Adelaide, Angelica, and Payton Jr., is AFFIRMED.  



                    Emma  D. v. State, Dep't of Health & Soc. Servs., Office of Children's  

 Servs., 322 P.3d 842, 849 (Alaska 2014).   

                                                             -23-                                                          7004  

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