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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
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
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
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,
Judge.
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-----------------------
I. INTRODUCTION
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).
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II. FACTS AND PROCEEDINGS
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.
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4
2010. OCS does not dispute that this notice did not satisfy the requirements of ICWA
5
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."
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----------------------- 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.
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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
violent.
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
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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
planning.
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)
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7
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).
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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
13
(2) the parents failed to timely remedy
risk of physical harm to the children, and neglect;
14
(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."
10
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] . . . ."
11
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).
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----------------------- Page 10-----------------------
15
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
16
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.
III. STANDARD OF REVIEW
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
18
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).
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20
discretion are clearly untenable and unreasonable." Whether the expert testimony
21
satisfies ICWA's requirements is a legal question reviewed de novo.
IV. DISCUSSION
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.
23
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
2000).
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).
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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."
25
But
The failure of notice in CINA proceedings may violate due process.
parties claiming a due process violation must establish that they likely would have
26
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
27
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
reference.
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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
29
at adjudication, and were based on the testimony and exhibits presented at trial rather
29
See Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family &
(continued...)
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----------------------- 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;
30
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
32
child." The statute does not require that a child be present when the substance abuse
29(...continued)
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).
31
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).
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----------------------- 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
impacts.").
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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
injury."
child at substantial risk . . . [is a] factual determination best made by a trial court after
35
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)).
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----------------------- Page 17-----------------------
Findings of continued substance abuse and refusal to undergo treatment are
36
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
38
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
2000).
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)).
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Effie argues that the trial court erred when it qualified Dr. Angstman and
40
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)).
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41
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
42
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.
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43
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
44
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
custody").
45 Effie's citations to the transcript show only that Effie believed substance
(continued...)
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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
46
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.
45(...continued)
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.
46
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).
47
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").
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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).
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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.
49
Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 322 P.3d 842, 849 (Alaska 2014).
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