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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Caitlyn E. v. State, Dept. of Health & Social Services, Office of Children's Services (6/16/2017) sp-7181

Caitlyn E. v. State, Dept. of Health & Social Services, Office of Children's Services (6/16/2017) sp-7181

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                      THE SUPREME COURT OF THE STATE OF ALASKA                                      

CAITLYN  E.,                                                    )  

                                                                )          Supreme  Court  No.  S-16306  

                     Appellant,                                 )  


                                                                )          Superior Court Nos. 4BE-13-00001/  


           v.                                                   )         00002 CN  



STATE OF ALASKA,                                                                               

                                                                )         O P I N I O N  


DEPARTMENT OF HEALTH &                                          )  


SOCIAL SERVICES, OFFICE OF                                                                                   

                                                                )         No. 7181 - June 16, 2017  


CHILDREN'S SERVICES,                                            )  


                     Appellee.                                  )  

_______________________________ )  


                     Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  


                     Fourth  Judicial  District,  Bethel,  Dwayne  W.  McConnell,  



                     Appearances:              William  T.  Montgomery,  Assistant  Public  


                     Advocate,  Bethel,  and  Richard  Allen,  Public  Advocate,  


                     Anchorage,  for  Appellant.                      Joanne  M.  Grace,  Assistant  


                     Attorney          General,   Anchorage,                 and   Jahna   Lindemuth,  


                     Attorney General, Juneau, for Appellee.  


                     Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                     and Carney, Justices.  


                     BOLGER, Justice.  



                     The  superior  court terminated  a mother's  parental  rights  to  two  of her  


Indian children.  She now appeals, contesting the qualification of the ICWA-required  

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 expert witness and the finding that OCS made active efforts to prevent the breakup of the                                                                                                                                                                                                                                                                                                                                         

Indian family.                                                           Because the superior court's decision to qualify the expert witness was                                                                                                                                                                                

not an abuse of discretion, and because the superior court's active efforts finding was not                                                                                                                                                                                                                                                                                                                                       

 erroneous, we affirm the termination of the mother's parental rights.                                                                                                                                                                                                                                                

II.                               FACTS AND PROCEEDINGS                                                    

                                                                   Caitlyn E., a Yupik woman, lives in Bethel and is the mother of Maggie and                                                                                                                                                                                                                                                                                   

Bridget, ages nine and six at trial, who are Indian children within the meaning of the                                                                                                                                                                                                                                                                                                                                           

Indian Child Welfare Act (ICWA) based on their affiliation with the Orutsararmiut Native                                                                                                                                                                                                                                                                                                                         

Council (the Tribe).                                                                                 1  

                                                                                                          Caitlyn has struggled with abuse of both legal and illegal drugs                                                                                                                                                                                                                                           

 since a young age.                                                                                She regularly sought narcotics for back pain, and Maggie tested                                                                                                                                                                                                                                                 

positive   for   cocaine   and   marijuana   when   she   was   born.     The   Office   of   Children's  

 Services (OCS) received other reports of harm; at a doctor's visit when the girls were                                                                                                                                                                                                                                                                                                                                 

toddlers, they reportedly had multiple impetigo sores on their bodies and had to be                                                                                                                                                                                                                                                                                                                                                 

cleaned by the doctor, and Caitlyn smelled like marijuana.                                                                                                                                                                                                                                          Caitlyn was also reported to                                                                                                        

have been violent toward both her daughters, kicking Maggie and giving her a bloody                                                                                                                                                                                                                                                                                               

nose, and, while drunk, swinging Bridget around "like a rag doll."                                                                                                                                                                                                                                                                             

                                                                   OCS took emergency custody of Maggie and Bridget in January 2013 after                                                                                                                                                                                                                                                                                   

receiving reports that Caitlyn exposed Maggie to marijuana and, while intoxicated, took                                                                                                                                                                                                                                                                                                                                     

Maggie from the safety of Caitlyn's mother's home and allowed her to be driven by a                                                                                                                                                                                                                                                                                                                                                        

drunk driver.                                                       The children were placed with Caitlyn's mother, Sarah, who qualified as                                                                                                                                                                                                                                                                                            



                                                                   See 25 U.S.C.  1903(4) (2012). We use pseudonyms to protect the privacy  


of the parties.  The father relinquished his rights before trial.  

                                                                                                                                                                                                                   -2-                                                                                                                                                                                                    7181  

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 a preferred placement under ICWA.                                                                                                                                                                                 In the ensuing months, OCS worked extensively                                                                                                                                                                         

with Sarah, helping get the family into better housing and obtain fuel oil and funding for                                                                                                                                                                                                                                                                                                                                                                                                

 additional food.                                                                           

                                                                            Caitlyn initially participated in the case, but disengaged before long.                                                                                                                                                                                                                                                                                                                              She  

 apparently dropped out of contact with both OCS and her attorney until August 2013,                                                                                                                                                                                                                                                                                                                                                                                     

when she renewed her interest in parenting after initially consenting to allow Sarah to                                                                                                                                                                                                                                                                                                                                                                                                       

 adopt the children but later withdrawing that consent. During the spring of 2013, Caitlyn                                                                                                                                                                                                                                                                                                                                                                       

was also diagnosed with active tuberculosis for which she refused treatment.                                                                                                                                                                                                                                                                                                                                                                          

                                                                            Although Caitlyn reengaged in services in August and later obtained a                                                                                                                                                                                                                                                                                                                                                 

 substance abuse assessment, she was unable to start treatment due to her tuberculosis;                                                                                                                                                                                                                                                                                                                    

no treatment center would accept her while she had active tuberculosis.                                                                                                                                                                                                                                                                                                                                                 In June 2014,  

 a few days after finishing her tuberculosis medication, Caitlyn entered treatment at                                                                                                                                                                                                                                                                                                                                                                                                         

Phillips Ayagnirvik Treatment Center (PATC) in Bethel, but she was discharged after                                                                                                                                                                                                                                                                                                                                                                                             

less than two weeks for possession of marijuana and unprescribed pills.                                                                                                                                                                                                                                                                                                                                                            PATC then   

recommended a higher level of care, but instead Caitlyn proceeded to, in her own words,                                                                                                                                                                                                                                                                                                                                                                             

 "drink[] for three months straight."                                                                                                                                                                    

                                                                            In November 2014 Caitlyn began treatment at Women and Children's                                                                                                                                                                                                                                                                                                

 Center   for   Inner   Healing   in   Fairbanks.    OCS   completed   her   application,   provided  

transportation for her, and sent Bridget to join her within 30 days as required by the                                                                                                                                                                                                                                                                                                                                                                              

program.  OCS also made arrangements for Maggie to visit.                                                                                                                                                                                                                                                                                                  Because Caitlyn initially   

 did well at Women and Children's Center, OCS decided to hold a termination petition                                                   

in abeyance in January 2015. But Caitlyn was discharged in March for throwing a frozen                                                                                                                                                                                                                                                                                                                                                                          

water bottle at a staff member.                                                                                                                                                Sarah later testified that the sudden removal of Caitlyn                                                                                                                                                                                                                         



                                                                            See 25 U.S.C.  1915(b) (giving preference to "a member of the Indian  


 child's extended family").  

                                                                                                                                                                                                                                              -3-                                                                                                                                                                                                                              7181  

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and Bridget from the facility when Bridget had been sleeping made Bridget become                                                                                                                                                                                                                         

withdrawn and scared.                                                                   

                                                   Following Caitlyn's discharge from Women and Children's Center, OCS                                                                                                                                                                                               

worked with her to try to get her back into treatment, completing applications to three  

different facilities on her behalf.                                                                                         Caitlyn agreed to submit to urinalysis tests (UAs) and                                                                                                                                         

was given cab vouchers for transportation to her appointments, but she completed no                                                                                                                                                                                                                                           

UAs.     In   September   2015   Caitlyn   completed   an  integrated   intake   assessment   for  

 substance abuse treatment, at which she stated she used drugs on a daily basis and craved                                                                                                                                                                                                                     

heroin.   Multiple therapies and inpatient residential treatment were recommended.                                                                                                                                                                                                                                        

                                                   But the following month, Caitlyn again dropped out of contact with OCS.                                                                                                                                                                                                                  

Her caseworker continued to leave messages for her, but she did not respond until                                                                                                                                                                                                                                    

February 2016.                                              During that time Caitlyn had been working on her own - without the                                                                                                                                                                                              

knowledge or support of OCS - to get re-accepted to Women and Children's Center                                                                                                                                                                                                                               

and had secured a bed date.                                                                                Caitlyn filed a motion for a review hearing under Alaska                                                                                                                 

                                                                                                                                                                          3  asking the court to order OCS to place  

Child in Need of Aid (CINA) Rule 19.1(d),                                                                                                                                                                                                                                                                          

Bridget with her at Women and Children's Center within 30 days, as required by the  


program. The court held a hearing on her motion two weeks before the termination trial.  


OCS opposed Caitlyn's request, explaining that when Caitlyn had been discharged for  


misconduct, Bridget was traumatized by being suddenly removed along with her mother.  


OCS stated it was unwilling to risk the same result a second time.  The superior court  


declined to order OCS to place Bridget at Women and Children's Center.  


                         3                         "At any time in a proceeding, the court may review matters not otherwise                                                                                                                                                                        

covered by these rules upon motion of a party or on its own motion."                                                                                                                                                                                                                    CINA Rule   


                                                                                                                                                               -4-                                                                                                                                                    7181

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                      Ajoint permanencyhearing and termination ofparental                                         rights trialwas held       


over four days in February 2016.                                                                                                          

                                                            Five witnesses testified:  Caitlyn; Sarah; two OCS  


caseworkers, Collyn Symmes and Karen Johnson; and ICWA expert Robin Charlie, a  


Yupik woman with six years of experience doing social services work for the Tribe. The  


children's guardian ad litem (GAL) and the Tribe also participated.  


                       Caitlyn testified that she had been sober for 15 months, and she felt her  


children were safe around her even when she was drinking as long as a sober person was  


present.  She stated that she smokes marijuana "whenever [she] feel[s] like it" and had  


done so as recently as the day before trial.  Her testimony revealed that she chose not to  


attend  UAs.              She  blamed  OCS  for  interfering  with  her  recovery  by  switching  


caseworkers so frequently and for Bridget's traumatizing removal from Women and  


Children's Center.  


                       Sarah testified that Caitlyn only intermittentlyvisited her daughters, stating  


that when  she visited  in  a bad  mood, she yelled  at  Sarah in  front of the girls and  


frightened them.  Sarah also testified that Bridget was "a changed little girl" who acted  


"withdrawn"and"scared"following Caitlyn's and Bridget's dischargefromWomenand  


Children's Center.  Sarah further testified that at least two OCS caseworkers had made  


themselves available to her by phone to help her through verbal confrontations with  




                       The OCS caseworkers testified regarding efforts they made to get services  


for Caitlyn and her family, and their difficulty reaching her or securing her cooperation.  


Symmes testified that he helped get the family into better housing and obtain fuel oil and  


additional funding for food. OCS lost part of Caitlyn's file while Symmes was assigned  



                       The proceeding was continued twice, after being originally scheduled for  


August and then December 2015.  

                                                                       -5-                                                                    7181  

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to her case, but he testified that Caitlyn could not have been in treatment during that                                                                                                                                                                                                                                       

period because she had active tuberculosis.                                                                                                                               Johnson testified that, after working with                                                                                                        

Caitlyn to apply to treatment programs, Caitlyn fell out of contact with OCS in the                                                                                                                                                                                                                                             

months leading up to the termination trial.                                                                                                                          

                                                    The superior court qualified Charlie as an expert in Yupik child-rearing                                                                                                                                                               

practices and child protection over Caitlyn's objection that Charlie lacked social work                                                 

education and substance abuse expertise. Charlie testified that it was her expert opinion                                                                                                                                                                                                                       

that the children would be at risk of harm if returned to Caitlyn's custody because of her                                                                                                                                                                                                                                       

 substance abuse and verbal abuse.                                                                                                          Charlie explained that substance use in front of                                                                                                                                        

















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leaves us with 'a definite and firm conviction that a mistake has been made.' "                                                                                                                                                                 Caitlyn  

argues that the superior court erred by finding that OCS made active efforts to prevent                                                                                                                                                          

the breakup of the Indian family, noting several instances in which OCS either was not                                                                                                                                                                        

providing services to her or "obstructed [her] from getting the services she needed." But                                                                                                                                                                    

Caitlyn's arguments primarily consist of competing inferences, and she ignores both her                                                                                                                                                                       

own unwillingness to participate in services and OCS's efforts toward the entire family.                                                                                                                                                          

                                         We have stated that "[c]onflicting evidence is generally insufficient to                                                                                                                                                

overturn the superior court, and we will not reweigh evidence when the record provides                                                                                                                                                       

                                                                                                                                                 30         This  principle  disposes  of  four  of  

clear   support  for   the   superior   court's   ruling."                                                                                                                                                                                                      

Caitlyn's arguments.  First, Caitlyn argues that OCS failed to make active efforts when  


 (almost a year into the case) it allegedly lost her file for six months.  Though testimony  


did  establish  that  OCS  lost  part  of  the  file  during  this  time,  the  superior  court's  


conclusion that this issue did not defeat active efforts was supported by testimony that  


Caitlyn could not be in treatment during that period because she had active tuberculosis,  


that no treatment center would accept her until her tuberculosis was addressed, and that  


OCS was able to get Caitlyn into treatment at PATC "within a matter of days" after she  


completed her tuberculosis medication.  


                                         Second, Caitlyn argues that OCS failed to make active efforts when it  


placed her at PATC even though she needed a higher level of care.  But as the superior  


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

Servs., 290 P.3d 421, 427-28 (Alaska 2012) (quoting                                                                                                                      Barbara P. v. State, Dep't of                                                           

Health & Soc. Servs., Office of Children's Servs.                                                                                                  , 234 P.3d 1245, 1253 (Alaska 2010)).                                                         

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


Servs., 175 P.3d 1263, 1267 (Alaska 2008) (first citing Brynna B. v. State, Dep't of  


Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004);  


then citing D.M. v. State, Div. of Family & Youth Servs ., 995 P.2d 205, 214 (Alaska  



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court   noted,  a   caseworker   testified   that   Caitlyn   wanted   to   stay   close   to   home   for  

treatment; he also testified that starting with the "level of care that is as minimally                                                                                                                                                                         

invasive as possible" is preferable, and OCS tried to offer "the best therapeutic care we                                                                                                                                                                                                 

could, as close to home as possible."                                                                                        The superior court properly considered Caitlyn's                                                                                        

placement at PATC as part of OCS's active efforts.                                                                                                                             

                                             Third, Caitlyn argues that OCS failed to make active efforts when it failed                                                                                                                                                     

to help her get back into Women and Children's Center, which Charlie, the expert                                                                                                                                                                                              

                                                                                                                                                       31        But OCS had determined, and Sarah's  

witness, had testified would benefit Caitlyn.                                                                                                                                                                                                                             

testimony showed, that Bridget was traumatized by Caitlyn's and Bridget's previous  


discharge from Women and Children's Center; OCS was therefore reluctant to risk the  


same result a second time.  The superior court could have reasonably credited OCS's  


position over Caitlyn's.32  


                                             Fourth,  Caitlyn argues that OCS failed to make  active efforts when it  


assigned her multiple caseworkers over the lifetime of the case.  But Caitlyn worked  


closely  with  two  caseworkers  for  approximately  one  year  each  and  was  evasive  


throughout other time periods.  It was therefore not error for the court to acknowledge  


the turnover in this case and nonetheless conclude that OCS made active efforts.  


                       31                    Caitlyn also argues that OCS conceded that her application to Women and                                                                                                                                                                    

Children's Center was not                                                              lastminuteandthat nevertheless thesuperior courtimproperly                                                                                                              

characterized her attempt as coming on the eve of trial.                                                                                                                                  However, the court reasonably                                        

looked at the lifetime of the case, concluding that Caitlyn "waited simply too long over                                                                                                                                                                                             

this three-year period" and citing Caitlyn's periods of lost contact with OCS and failure                                                                                                                                                                                     

to submit UAs.                                       See, e.g.                     ,  S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family &                                                                                                                                          

 Youth Servs.                              , 42 P.3d 1119, 1126 (Alaska 2002) (calling "too little, too late" a parent's                                                                                                                                              

attempts to get into treatment that would start after the trial).                                                                                                                        

                       32                    We further note that the same facts support the court's decision to decline  


to order OCS to place Bridget with Caitlyn at Women  and Children's Center after  


Caitlyn moved for a review hearing under CINA Rule 19.1(d).  


                                                                                                                                           -15-                                                                                                                                    7181

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                        We also have stated that courts may consider "a parent's demonstrated lack                                                   

of   willingness   to   participate   in  treatment"   in   evaluating   the   sufficiency   of   OCS's  



efforts.          Caitlyn argues that OCS failed to make active efforts when it failed to apply  


to any rehabilitation programs on her behalf and timely update a case plan and family  



contact plan during the last six months before trial.                                           But an OCS caseworker testified  


that she filled out three applications with Caitlyn in the OCS office only to have Caitlyn  


drop out of communication around four months before trial, despite multiple calls and  


messages.  Its inability to contact Caitlyn also prevented OCS from being able to set up  


a new visitation schedule after Sarah expressed safety concerns about hosting visits  


around the same time.  And in evaluating OCS's efforts, the court properly considered  


Caitlyn's lack of participation over the course of the case when it emphasized Caitlyn's  


delay in getting treatment for her tuberculosis, discharge from PATC and Women and  


Children's Center, failure to submit UAs, and other periods of lack of contact with OCS.  


                        Courts may also consider OCS's efforts toward the family as a whole in  

                                            35  The superior court noted that during many of the time periods  



evaluating active efforts. 

            33          Maisy W.         , 175 P.3d at 1268 (quoting                      N.A. v. State, Div. of Family & Youth                   

Servs., 19 P.3d 597, 603 (Alaska 2001)).                     

            34          Caitlyn also argues that OCS's failure to file an updated permanency report  


is further evidence of a failure to make active efforts.  We accept the superior court's  


reasoning  that  OCS's  omission  "doesn't  change  [the]  findings  on  the  termination"  


because (1) the parties agreed that the children were still in need of aid and (2) Caitlyn  


was  aware  that  the  termination  petition  had  been  filed  even  as  of  the  previous  


permanency report.  


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


244 P.3d 1099, 1115 (Alaska 2010).  See also 2015 BIA Guidelines, supra note 12, at  


 10,150 (listing "[i]dentifying community resources including housing [and] financial  


. . . services and actively assisting the Indian child's parents or extended family in  



                                                                          -16-                                                                     7181

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in question, OCS was providing services to Sarah, Maggie, and Bridget.                                                                                 For example,   

during the time period that Caitlyn argues that the lost file constituted a lack of active                                                                             

efforts, OCS was helping get the family into better housing and obtain fuel oil and                                                                                         

additional food.                    Similarly, Sarah testified about the support she received from OCS                                                                   

caseworkers who assisted her with confrontations with Caitlyn, including some during                                                                                  

                                                 36   The superior court properly considered OCS's efforts toward  

the last year of the case.                                                                                                                                           

the family as a whole.  


                            Caitlyn's remaining argument, that OCS's failure to monitor her progress  


while she was at Women and Children's Center constitutes a lack of active efforts, is  


factually unavailing.  Her attorney acknowledged that Women and Children's Center is  


a "long-term inpatient treatment program" which provides group and family therapy,  


mental health services, and anger management services in addition to substance abuse  


treatment.  As such, it is not clear what additional services OCS could have provided  


during this time, other than arranging and paying for Caitlyn's travel to and from the  


                                                                                                                      37    Caitlyn further argues that  

program and arranging for Maggie to visit, which it did.                                                                                                                    


more detailed reports from her stay in this facility should have been included in the  


record, citing to the 2015 BIA Guidelines for the proposition that "[a]ctive efforts must  


              35            (...continued)  


utilizing and accessing those resources" as an example of active efforts); 1979 BIA  


Guidelines, supra note 13, at 67,592 (efforts "shall also involve and use the available  


resources of the extended family").  

              36            The court did not find credible Caitlyn's testimony that Sarah, not she,  


instigated these confrontations.  


              37            Cf. A.M. v. State, 945 P.2d 296, 306 (Alaska 1997) (calling "superfluous"  


any additional efforts OCS's predecessor could have made while an incarcerated parent  


was undergoing therapeutic services from the Department of Corrections).  


                                                                                     -17-                                                                                7181

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be documented in detail,"                                          but it was not error for the superior court to credit OCS                                                                     

caseworkers' sworn testimony about the extent of services provided to Caitlyn and her                                                                                                                

family without requiring additional documentation.                                                                        39  


                                We therefore affirm the superior court's finding that OCS made active  


efforts to prevent the breakup of the Indian family.  

IV.             CONCLUSION  

                                For the reasons explained above, the superior court's decision to terminate  


Caitlyn's parental rights is AFFIRMED.  


                38              2015 BIA Guidelines,                                 supra  note 12, at 10,156.                



                                Cf. Kent K. v. State, Dep't of Health &Soc. Servs., No. S-15708, 2016 WL  


483254, at *8 (Alaska Feb. 3, 2016) (construing requirement broadly).  

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