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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Demetria H. v. State, Dept. of Health & Social Services, Office of Children's Services (10/5/2018) sp-7308
Notice: This opinion is subject to correction before publication in the P ACIFIC 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
DEMETRIA H., )
) Supreme Court No. S-16826
Appellant, )
) Superior Court No. 3AN-15-00679 CN
v. )
) O P I N I O N
STATE OF ALASKA, DEPARTMENT )
OF HEALTH & SOCIAL SERVICES, )
OFFICE OF CHILDREN'S SERVICES, )
)
No. 7308 - October 5, 2018
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Olena Kalytiak Davis, 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.
CARNEY, Justice.
I. INTRODUCTION
A mother appeals the termination of her parental rights to her son, an Indian
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1
child. She argues the trial court violated the Indian Child Welfare Act (ICWA) by
finding that the Office of Children's Services (OCS) made active efforts and that her
continued custody of her son was likely to result in serious emotional or physical damage
to him. She also argues that the trial court's latter finding was not supported by the
testimony of a qualified expert as required by ICWA. We affirm the trial court's order
terminating her parental rights because its findings satisfy ICWA's requirements.
II. FACTS AND PROCEEDINGS
2
Demetria H. is the mother of seven-year-old Dion,
who is an Indian child
3
as defined by ICWA. Demetria is a member of an Indian tribe and Dion is eligible for
4
membership in the Native Village of Yakutat Tlingit. Demetria also has a 16-year-old
daughter, Dasia, who is a member of Chickaloon Native Village. Although OCS had
custody of both children early in this case, Dasia was released from custody and returned
to Demetria in December 2015 after refusing OCS services and running away from her
foster home. OCS filed a motion to release Dasia from custody in January 2017. As a
result, Demetria's parental rights to her were not terminated.
A. First Removal
Dion was first in OCS custody fromapproximately June2013 toJune2015.
1
25 U.S.C. §§ 1901-1963 (2012). ICWA establishes "minimum Federal
standards for the removal of Indian children from their families and the placement of
such children in foster or adoptive homes which will reflect the unique values of Indian
culture." 25 U.S.C. § 1902.
2 Pseudonyms are used to protect the family's privacy.
3 See 25 U.S.C. § 1903(4).
4
Id. (" 'Indian child' means any unmarried person who is under age eighteen
and is either (a) a member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe.").
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Demetria had asked OCS to take custody of Dion because she was homeless and unable
to care for a toddler. He was placed in three foster homes during that time. Dasia was
in a residential treatment program during the same period.
OCS attempted to work with Demetria to develop a case plan, but she did
not attend any scheduled meetings from July to September or respond to OCS's attempts
to contact her. OCS finalized her case plan in September without her input. The case
plan required Demetria to maintain stable housing, attend therapy, participate in
parenting classes, participate in a urinalysis program, and maintain contact with Dion.
FromJanuary to June 2014 Demetria had little contact with her caseworker
despite OCS's attempts to contact her to update the case plan. In March 2014 the OCS
caseworker updated the case plan to include that Demetria complete a substance abuse
assessment and comply with its recommendations, and sent a letter to the Alaska
Housing Finance Corporation (AHFC) to assist her in getting housing.
In June 2014, before Dasia's scheduled release from treatment, the
caseworker met with her. Dasia reported that in the past Demetria had frequently been
intoxicated and left Dion in Dasia's care. She said that she had once tried to suffocate
Dion because she was jealous he got so much of their mother's attention.
After Dasia was discharged from residential treatment in July 2014, OCS
filed a non-emergency petition seeking legal custody of Dasia but allowed her to remain
with her mother. Demetria had not actively participated in Dasia's treatment while she
was in the residential facility and did not follow through with outpatient services after
Dasia was discharged.
By late June 2014 Dion had been moved to a third foster home because the
second one was no longer willing to care for him due to his treatment of the family's pets
and other children. About the same time, OCS began allowing Demetria five-hour
unsupervised visits with Dion in her home.
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The home visits went well. Demetria was living in an apartment she had
obtained after OCS's referral to AHFC, and she had made progress on her case plan.
OCS released custody of both children to Demetria on June 10, 2015.
B. Second Removal
In October OCS learned that Dasia had suffered a drug overdose; Demetria
became angry and "stormed out" of an OCS meeting arranged a few days later to address
Dasia's overdose and other family issues. When Dasia arrived at the hospital following
her overdose, she threatened to kill herself. Hospital staff reported that Demetria did not
take her daughter's threat of suicide seriously and did not believe that Dasia needed
mental health treatment. The staff also reported that Demetria was aggressive toward
them and had to be restrained and escorted out of the hospital after assaulting security
guards.
OCS took emergency custody of both Dasia and Dion, and filed an
emergency petition on October 10, 2015. OCS's petition alleged that the children were
5
in need of aid on a number of grounds,
including that Demetria was in a relationship
with a sex offender. OCS placed Dion back in his most recent foster home while Dasia
initially remained at Alaska Psychiatric Institute. She was later moved to the same foster
home as Dion.
A probable cause hearing was originally scheduled two days later, but it
was continued to November because Demetria did not attend and was not yet
represented. The court made provisional findings that placement of Dion and Dasia with
5 AS 47.10.011 sets forth 12 grounds on which a child may be determined
to be in need of aid. The emergency petition alleged sections (6) (physical harm), (7)
(sexual abuse or risk of sexual abuse), (8) (mental injury or risk of mental injury), (9)
(neglect), (11) (parental mental illness), and (12) (child has committed illegal act).
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Demetria was contrary to the children's welfare for the reasons alleged in the emergency
petition and granted OCS temporary custody through the next hearing.
Following the temporary custody hearing in November the court issued a
second temporary custody order, finding that active efforts had been made to reunify the
Indian family and that there was good cause to deviate from ICWA's placement
preferences because the removal was an emergency and the children were placed
together. The court found the children were in need of aid but did not specify a
subsection of AS 47.10.011.
Also in November Dasia ran away from her foster home. Demetria helped
locate Dasia and OCS permitted Dasia to stay with Demetria on a trial home visit. OCS
also created a new case plan. In addition to maintaining all of the same requirements as
the earlier case plan, the new one required Demetria to complete a mental health
evaluation and its recommendations, demonstrate impulse control, and assist Dasia in
accessing substance abuse treatment.
In a March 2016 adjudication hearing Demetria stipulated that both of her
6 She also stipulated that active efforts had
children were in need of aid based on neglect.
been made and that there was good cause to deviate from the ICWA placement
preferences because there were no ICWA-compliant placements available when the
children were removed. Finally she stipulated to temporary OCS custody of both
children, and OCS agreed to allow Dasia to remain living with Demetria, while Dion
remained in the foster home.
In May 2016 OCS filed a predisposition report summarizing what had
occurred since OCS took custody. The report outlined that Dasia was not attending
school and that in the months leading up to the report she had been hospitalized three
6
See AS 47.10.011(9).
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times due to overdosing on synthetic marijuana (spice), blacking out from alcohol, and
attempting suicide. The report stated that Dion had an Individualized Education Plan
(IEP) at school due to his speech and social development delays and that he had to have
two teeth pulled due to severe tooth decay. The disposition hearing was held in June, but
the court was unable to make active efforts findings because Demetria was not being
allowed to visit Dion. The court therefore did not make any disposition findings, instead
saying that it would continue the disposition hearing as to Dion and enter disposition
findings at the next hearing.
Demetria worked with OCS throughout 2016, attending meetings in
January, February, March, April, July, August, October, and November, and making
some progress on her case plan. In October 2016 the court held a permanency hearing.
OCS requested that the court adopt its recommended goals of guardianship for Dasia and
7 OCS asked the court to find that Demetria had not substantially
adoption for Dion.
complied with her case plan. In December 2016 OCS filed a petition to terminate
Demetria's parental rights to Dion.8
In January 2017 Demetria refused to complete a mental health assessment
for an individual therapy referral or to sign a release of information so OCS could
confirm her participation in a different individual therapy program. OCS also filed a
motion requesting permission to release Dasia from custody because she was unwilling
to receive services. OCS continued meeting with Demetria through January 2017.
7 OCSinitially consideredDion's foster hometobeapreadoptiveplacement.
Dion was still in the same home at the time of trial, but the foster parent was no longer
willing to adopt him.
8 OCS alleged Dion was a child in need of aid under
AS 47.10.011(1) (abandonment), (6) (physical harm), (7) (sexual abuse or risk of sexual
abuse), (8) (mental injury or risk of mental injury), (9) (neglect), (10) (parental substance
abuse), and (11) (parental mental illness).
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C. Termination Trial
In May and June 2017 the court held a three-day termination trial. A
representative from Yakutat Tlingit, Dion's tribe, attended by telephone starting on the
second day of the trial. Although OCS had notified Yakutat Tlingit of the case in
October 2015, the tribe did not move to intervene until after the termination trial. The
court, however, allowed its representative to participate in the trial and to question
witnesses.
OCS called 11 witnesses, including two Anchorage police officers
regarding incidents involving Demetria and Dasia, and a security guard from the
Anchorage transit center regarding incidents involving the family there. In addition a
number of professionals who had worked with the family testified: Dasia's counselor,
Dion's kindergarten teacher, Dion's former foster parent, Dion's therapist, two OCS
caseworkers, and an OCS visitation supervisor. To satisfy ICWA's requirement of
expert testimony, OCS presented the testimony of Philip Kaufman. 9
Dion's psychologist, Dr. Courtney Horwath-Oliver, testified that she had
diagnosed him with post-traumatic stress disorder (PTSD) and disinhibited social
engagement disorder (DSED). The PTSD diagnosis was based on Dion's sleep
problems, nightmares, hypersensitivity to touch and noise, and increased negative
emotional states, which she attributed to past traumatic experiences. She testified that
DSED is a form of attachment disorder characterized by the child "seeking out and
initiating contact with unfamiliar adults" and having "experienced a pattern of extreme
9 25 U.S.C. § 1912(f) (2012) (requiring termination of parental rights to be
supported by evidence beyond a reasonable doubt including testimony of a qualified
expert that continued custody of the child by the parent is likely to lead to serious
emotional or physical damage to the child).
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insufficient caregiving." Dr. Horwath-Oliver testified that because of his DSED, Dion
lacks instincts of "stranger danger" which creates a high risk that he would become a
victim unless he had proper adult supervision. She testified that his conditions impair
his ability to function - including being successful in school and making friends. She
testified that Dion should continue in therapy to address his attachment disorder and help
him avoid future problems such as being unable to regulate his emotions, form
meaningful attachments with people, have peer relationships, or have intimate
relationships as an adult.
The trial court allowed Philip Kaufman to testify as OCS's ICWA expert
over Demetria's objection. Kaufman is a licensed social worker who previously worked
for OCS and is a former police officer; he has a bachelor's degree in elementary
education and psychology, a master's degree in social work, and a master's degree in
public administration. He testified that he has completed training in substance abuse and
its impact on Alaska Natives and American Indians, domestic violence, and ICWA. He
had previously been qualified as an expert in child welfare cases. The Yakutat Tlingit
representative approved of his testifying as an ICWA expert.
Kaufman reviewed the family's records provided by OCS and prepared an
expert report to the court. He identified several safety threats for the children. He
testified that Demetria did not control her alcohol use; exposed the children to
individuals who present risks to them; and struggled to provide stability, food, clothing,
and shelter. He also testified that Demetria had not appropriately addressed Dasia's
medical needs. And he testified that based on Demetria's failure to help Dasia get
mental health treatment or to participate in Dasia's therapy, she was unlikely to follow
through with Dion's therapy. Kaufman concluded that, in light of Dion's special needs,
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Demetria's continued custody of Dion was likely to result in serious and substantial
physical or emotional harm to Dion.
At the close of trial OCS urged the court to terminate Demetria's parental
10 OCS filed
rights to Dion due to her abandonment, neglect, and substance abuse.
proposed findings of fact; Demetria did not object to any of them or file her own
proposed findings. In September 2017 the trial court issued a written order terminating
Demetria's parental rights to Dion and largely adopting OCS's proposed findings.
The court found by clear and convincing evidence that Dion was a child in
need of aid under AS 47.10.011(9) (neglect) and (10) (parental substance abuse) and that
Demetria had not remedied the conduct or conditions that put him at substantial risk of
harm. It also found clear and convincing evidence that active efforts had been made to
prevent the breakup of the family. It based this finding on OCS's multiple case plans;
its attempts to assist Demetria to get into individual therapy; and its referrals to parenting
classes, substanceabuseassessments, housing assistance, drug testing, and mental health
assessments. The court foundthat Demetriahad refused to participate in substance abuse
treatment, to address her own mental health needs, and to take the necessary steps to
secure housing for herself and her children.
Finally, in part based on Kaufman's testimony, the court found evidence
beyond a reasonable doubt that Demetria's continued custody of Dion was likely to
result in serious emotional or physical damage to Dion. It relied on Kaufman's
testimony that Demetria lacked protective capacity and refused to address risks to her
children. It found by a preponderance of the evidence that Dion's best interests would
be promoted by terminating Demetria's parental rights.
10
AS 47.10.011(1) (abandonment), (9) (neglect), (10) (substance abuse).
OCS did not ask the court to rule on any of the other grounds alleged in the petition.
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Demetria appeals.
III. STANDARD OF REVIEW
"We review de novo whether a superior court's findings satisfy the
11
requirements of the CINA and ICWA statutes and rules."
12
"We review a superior court's findings of fact for clear error." "A trial
court's determination that a parent's continued custody of a child will likely result in the
child suffering serious emotional or physical damage is a factual finding that we review
13
for clear error."
"A trial court's decision to admit expert testimony is reviewed for an abuse
14
of discretion." But "[w]hether expert testimony presented at trial satisfies the
15
requirements of ICWA is a legal question that we review de novo."
"Whether OCS made active efforts as required by ICWA is a mixed
16
question of law and fact." "Whether 'the trial court's active efforts finding failed to
17
comport with ICWA's requirements' is a question of law reviewed de novo."
11
Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 249 P.3d 264, 270 (Alaska 2011) (quoting Dale H. v. State, Dep't of Health &
Soc. Servs., Office of Children's Servs. , 235 P.3d 203, 210 (Alaska 2010)).
12
Id. at 269 (quoting Dale H., 235 P.3d at 209).
13 Thea G. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
291 P.3d 957, 962 (Alaska 2013).
14
Id.
15 Id.
16 Pravat P., 249 P.3d at 270 (quoting Dale H., 235 P.3d at 210).
17 Denny M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 365 P.3d 345, 348-49 (Alaska 2016) (quoting Sandy B. v. State, Dep't of Health
(continued...)
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IV. DISCUSSION
Demetria argues that the trial court's order did not comply with the
requirements of ICWA, that the court erred in finding OCS made active efforts to prevent
the breakup of her family, that the evidence did not support the trial court's finding that
her ongoing custody of her son would result in a substantial risk of harm to him, and that
the trial court's order was not supported by the testimony of a qualified expert. We
disagree: the court's order complied with ICWA's requirements.
Because OCS filed its petition to terminate parental rights on December 19,
2016, this case is governed by the new ICWA regulations issued by the Bureau of Indian
Affairs (BIA) in 2016.18 BIA has also issued interpretative guidelines for these
regulations.19 The guidelines are not binding but in the past we have turned to them for
guidance in interpreting ICWA.20
A. The Trial Court Did Not Err In Finding OCS Made Active But
Unsuccessful Efforts To Prevent The Breakup Of This Indian Family.
To terminate parental rights to an Indian child, the trial court must find by
17 (...continued)
& Soc. Servs., Office of Children's Servs., 216 P.3d 1180, 1186 (Alaska 2009)).
18 ICWA Regulations, 25 C.F.R. § 23.143 (2016). "[T]he provisions of this
subpart apply to any subsequent proceeding in the same matter or subsequent
proceedings affecting the custody or placement of the same child [initiated after
December 12, 2016]." Id. The changes made by the regulations do not affect the
outcome of this case, but because Demetria refers to the regulations and guidelines in her
briefing, they are discussed when relevant to her arguments.
19
BUREAU OF INDIAN AFFAIRS, G UIDELINES FOR IMPLEMENTING THE INDIAN
CHILD WELFARE ACT 4 (Dec. 2016), https://www.bia.gov/sites/bia.gov/files/assets/bia/
ois/pdf/idc2-056831.pdf.
20 See David S. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 270 P.3d 767, 781-82 (Alaska 2012).
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clear and convincing evidence that OCS has made active efforts "to provide remedial
services and rehabilitative programs designed to prevent thebreakup ofthe Indian family
21
and that these efforts have proved unsuccessful."
Demetria argues OCS did not make active efforts because it failed to
involve Dion's tribe in his case, address her need for housing, or permit her to participate
in Dion's therapy, and was merely passive in its efforts to assist her. She claims that
under the recently amended ICWA regulations such failures preclude a finding of active
efforts.
Under the now-applicable 2016 ICWA regulations "active efforts" is
defined as "affirmative, active, thorough, and timely efforts intended primarily to
22
One regulation provides
maintain or reunite an Indian child with his or her family."
examples of what constitutes active efforts:
Wherean agency isinvolved in thechild-custody proceeding,
active efforts must involve assisting the parent or parents or
Indian custodian through the steps of a case plan and with
accessing or developing the resources necessary to satisfy the
case plan. To the maximum extent possible, active efforts
should be provided in a manner consistent with the prevailing
social and cultural conditions and way of life of the Indian
child's Tribe and should be conducted in partnership with
the . . . Tribe.[23]
OCS properly notified Yakutat Tlingit of the proceedings; the tribe did not participate
21 Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
212 P.3d 756, 760-61 (Alaska 2009) (quoting 25 U.S.C. § 1912(d) (2012); CINA Rule
18(c)(2)(B)).
22
25 C.F.R. § 23.2.
23 Id.
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24
until the termination trial. Contrary to Demetria's argument, the tribe's decision not
to participate until trial does not mean that OCS failed to comply with the regulation's
exhortation to work in partnership with Dion's tribe or to make active efforts.
Demetria next focuses on her lack of housing to argue that OCS failed to
provide active efforts. After first taking custody of the children, OCS released themback
to Demetria when she obtained an apartment with its help. OCS was never able to
determine how or why Demetria had lost her apartment. Throughout the period leading
up to the termination trial OCS continued to identify possible housing options and offer
to assist Demetria to apply for them. The trial court therefore appropriately considered
OCS's efforts to help Demetria obtain housing as part of its active efforts finding. 25
Demetria also argues that refusing to allow her to participate in Dion's
therapy demonstrates that OCS failed to make active efforts. But Dion's therapist stated
that it would not be in Dion's best interest to include anyone in his therapy who would
not consistently participate. And although she testified that it would help Dion to have
his caregiver involved in his therapy, it would only be beneficial to involve a consistent
primary caregiver. She testified that until there was a specific plan for Dion to return to
his mother's custody it would not have been appropriate to involve Demetria in his
24
We note that Dasia's tribe, Native Village of Chickaloon, was involved
throughout the time that Dasia was in OCS custody.
25 Demetria also argues that OCS's efforts were insufficient because they did
not address her poverty, homelessness, or unemployment. But OCS has discretion to
prioritize which services should be provided to a parent based upon the issues identified
in her case. See Denny M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 365 P.3d 345, 351 n.22 (Alaska 2016). And Demetria's parental rights were
terminated because of her neglect of Dion and her substance abuse. OCS's efforts were
targeted at addressing these issues.
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----------------------- Page 14-----------------------
therapy. Furthermore Demetria had refused to participate in her own substance abuse
and mental health treatment, and had demonstrated in the past that she was unwilling to
help her children obtain mental health services. It was not inappropriate for OCS to rely
on Dion's therapist's recommendation to involve only a consistent caregiver.
Although Demetria argues that OCS's efforts were more passive than
active, our previous cases have affirmed findings that OCS made active efforts in similar
circumstances. For example, in Pravat P. v. State, Department of Health & Social
Services, Office of Children's Services we held that a similarly long list of referrals and
26 During the four years that OCS
encouragement supported a finding of active efforts.
worked with Demetria's family, it created numerous case plans and tried to engage
Demetria in following them. It provided referrals for parenting classes, substance abuse
and mental health assessments and services, and housing. Demetria elected not to attend
meetings and not to follow through on the referrals.
Demetria urges us to use the opportunity presented by the new regulations
to examinemore closely OCS's duty to makeactiveefforts because"an uncompromising
standard holds true in every Alaska [CINA] case: even if the outlook is bleak and
likelihood of success is low."27
OCS responds that the court should consider "a parent's
demonstrated lack of willingness to participate in treatment"28 when making its active
26 See 249 P.3d 264, 271-72 (Alaska 2011); see also Thea G. v. State, Dep't
of Health & Soc. Servs., Office of Children's Servs. , 291 P.3d 957, 962 (Alaska 2013)
(describing OCS'sprovision ofmultiplecaseplans, multiplereferrals, andregular family
contact as abundant support for an active efforts finding).
27 Kylie L. v State, Dep't of Health &Soc. Servs., Office of Children's Servs.,
407 P.3d 442, 452-53 (Alaska 2017) (examining the effort required from OCS under the
less stringent "reasonable efforts" standard applied in non-ICWA cases).
28 Bob S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
(continued...)
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----------------------- Page 15-----------------------
efforts finding. In A.M. v. State we noted that we had "never suggested that the scope
of the State's duty to make active remedial efforts should be affected by a parent's
29 But we have also
motivation or prognosis before remedial efforts have commenced."
affirmed trial courts' findings of active efforts when it has become clear that further
efforts by OCS would be futile.30 Both parties take positions consistent with our holding
in previous cases: in each case the trial court must make its determination based upon
the evidence presented. "What constitutes sufficient 'active efforts' will vary from
case-to-case, and courts have the discretion to consider the facts and circumstances of
the particular case before it when determining whether the definition of 'active efforts'
is met."31
Thetrial court's finding ofactiveefforts, underboth thepreviousguidelines
and the current regulations, turns on OCS's efforts.32 In this case, OCS repeatedly
referred Demetria to substance abuse assessments that she did not take advantage of; as
28 (...continued)
400 P.3d 99, 107 (Alaska 2017) (quoting Maisy W. v. State, Dep't of Health & Soc.
Servs., Office of Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008)).
29 891 P.2d 815, 827 (Alaska 1995).
30 See, e.g., Wilson W. v. State, Dep't of Health & Soc. Servs., Office of
Children's Servs., 185 P.3d 94, 101 (Alaska 2008) (approving trial court's conclusion
that OCS did not need to make further active efforts following father's detailed threats
to kill any social worker that set foot on his property).
31 BUREAU OF INDIAN AFFAIRS, supra note 19, at 55; see also Jude M. v. State,
Dep't of Health &Soc. Servs., Office of Children's Servs. , 394 P.3d 543, 554-55 (Alaska
2017).
32 25 C.F.R. § 23.2 (2016).
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----------------------- Page 16-----------------------
33
a result OCS did not continue to make the same referrals again and again. The trial
court appropriately considered these facts in reaching its conclusion that OCS had made
active efforts to reunite Demetria's family and that the services and referrals it provided
met its burden to provide active efforts. Thus, the trial court did not err in finding that
active efforts were made.
B. The Trial Court Did Not Err In Finding That Demetria's Continued
Custody Would Likely Result In Dion Suffering Serious Emotional Or
Physical Harm.
Demetria argues that the termination of her parental rights is not supported
by evidence beyond a reasonable doubt that her continued custody of Dion would likely
result in a substantial risk of harm to him. To terminate parental rights the trial court
must find "by evidence beyond a reasonable doubt, including testimony of qualified
expert witnesses, that the continued custody of the child by the parent . . . [was] likely
34
to result in serious emotional or physical damage to the child."
Demetria argues that
there was no causal relationship between her conduct and the alleged risks to Dion. She
also argues that Dion's removal was based on her poverty and homelessness. But
evidence at trial showed that Dion was removed and Demetria's parental rights were
terminated because of her neglect of Dion and her substance abuse.
The evidence at the termination trial demonstrated that Dion's DSED was
linked to Demetria's neglect and substance abuse. The American Psychiatric
Association's Diagnostic and Statistical Manual of Mental Disorders specifies criteria
33 Had Demetria later demonstrated an interest in obtaining a substance abuse
assessment OCS could have again been required to make referrals on her behalf.
34 Sylvia L. v. State, Dep't of Health &Soc. Servs., Office of Children's Servs.
343 P.3d 425, 431 (Alaska 2015) (omission in original) (quoting 25 U.S.C. § 1912(f)
(2012); CINA Rule 18(c)(4)).
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----------------------- Page 17-----------------------
35
for a clinician to diagnose a child with DSED. The first criterion is "[a] pattern of
36
behavior in which a child actively approaches and interacts with unfamiliar adults."
The diagnosis also requires the mental health professional to find that the child has
"experienced a pattern of extremes of insufficient care" as evidenced by at least one of
a list of several criteria.37 The first two examples in the list are: "1. Social neglect or
deprivation in the form of persistent lack of having basic emotional needs for comfort,
stimulation, and affection met by caregiving adults," and "2. Repeated changes of
primary caregivers that limit opportunities to form stable attachments (e.g., frequent
changes in foster care)."38 Dion's therapist testified that children meet these diagnostic
criteria when their "basic emotional or physical needs [are] not being met continuously"
and when they have "frequent change[s] in primary caregivers." The evidence
demonstrated that Dion had experienced both of these listed situations. In addition
Dion's therapist testified that his PTSD was the result ofhistraumaticexperiences during
his infancy and early childhood. She suggested Dion's diagnoses could be related to
neglect, witnessing his mother being arrested, times when he and Demetria were
homeless, periods when Demetria was suffering from substance abuse problems, and
when he was often left with strangers. Finally Dr. Horwath-Oliver testified that Dion
would need stability in order to benefit from treatment for his PTSD and DSED.
In addition Kaufman offered his expert opinion that Demetria's own
substance abuse and possible mental illness were linked to her lack of protective capacity
35
AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STATISTICAL MANUAL OF
MENTAL DISORDERS 268 (5th ed. 2013).
36 Id.
37 Id.
38 Id.
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and neglect of Dion, and contributed to his mental health problems. And Kaufman noted
that Dion had spent two-thirds of his life in OCS custody. Significant evidence
demonstrated that Dion's DSED put him at risk of being victimized, of further delays in
school, of an inability to make friends, and of being unable to regulate his emotions or
form meaningful attachments with others.
The court found that Demetria's substance abuse and mental health issues
were linked to her neglect of Dion. And the court specifically connected its finding of
neglect to Demetria's exposing Dion to sex offenders, failing to adequately supervise
him, and failing to take parental responsibility for him, including not feeding or bathing
him.
Demetriafurtherargues that releasing Dasiafromcustody and returning her
to Demetria demonstrates that she should have also been considered a safe placement for
Dion. But this argument ignores the fact that Dasia, who is nearly 17, refused to
cooperate with OCS and ran away fromfoster care, and Dion, who is 7, has special needs
and remains in a foster home. OCS's decision not to petition for termination of
Demetria's rights to Dasia, or even to seek continued custody of Dasia, has no bearing
on the risks of harm to Dion.
The trial court did not err in finding that there was evidence beyond a
reasonable doubt that Demetria's continued custody of Dion was likely to result in
serious harm to Dion.
C. The Trial Court Did Not Err By Qualifying The ICWA Expert.
Demetria argues that Kaufman did not satisfy ICWA's requirements for an
39 She argues that he had insufficient specific knowledge of Yakutat
expert witness.
Tlingit culture and was unqualified because he had not met her or Dion.
39
See 25 U.S.C. § 1912(f).
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----------------------- Page 19-----------------------
ICWA requires that a court's finding of substantial risk of harm be
40
supported by qualified expert testimony.
This finding "may be proved through the
testimony of one or more expert witnesses, or by aggregating the testimony of lay and
41 And "ICWA does not require that the experts' testimony provide
expert witnesses."
the sole basis for the court's conclusion; ICWA simply requires that the testimony
42
support that conclusion."
According to the ICWA regulations:
A qualified expert witness must be qualified to testify
regardingwhether thechild'scontinued custody by theparent
or Indian custodian is likely to result in serious emotional or
physical damage to the child and should be qualified to testify
as to the prevailing social and cultural standards of the Indian
child's Tribe. A person may be designated by the Indian
child's Tribe as being qualified to testify to the prevailing
social and cultural standards of the Indian child's Tribe.[43]
The Yakutat Tlingit tribal representative who participated in the termination trial
explicitly accepted Kaufman as an appropriate expert witness. Thus, the trial court did
not err in qualifying Kaufman as an ICWA expert.
The guidelines do recommend that the qualified expert witness be familiar
44
with the particular child. However, neither ICWA itself nor the new regulations
40 Id.
41
Bob S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,
400 P.3d 99, 108 (Alaska 2017) (quoting Thea G. v. State, Dep't of Health &Soc. Servs.,
Office of Children's Servs. , 291 P.3d 957, 964 (Alaska 2013)).
42
Id. (quoting Thea G., 291 P.3d at 966).
43 25 C.F.R. §23.122(a) (2016).
44
BUREAU OF INDIAN AFFAIRS, supra note 19, at 55.
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----------------------- Page 20-----------------------
require such familiarity. We have previously held that a qualified ICWA expert does not
need to have met with the family so long as the court has sufficient information with
45 The court may obtain such
regard to the particular circumstances of the family.
information from the evidence presented, including the testimony of both the expert
witnesses and lay witnesses familiar with the family.46 Although Kaufman did not meet
with Demetria or Dion, he had reviewed OCS's records.
In addition to Kaufman's expert testimony, the court had before it the
testimony of other witnesses, including mental health professionals and other
professionals who had worked closely with both Demetria and Dion. The trial court was
permitted to aggregate Kaufman's testimony with the evidence received from other
witnesses.47
The trial court did not err in qualifying Kaufman as an expert witness or
using his testimony to support its substantial risk of harm finding.48
V. CONCLUSION
We AFFIRM the trial court's order terminating Demetria's parental rights,
as it complies with the requirements of ICWA.
45 Thea G. , 291 P.3d at 965.
46 See Bob S. , 400 P.3d at 108-09.
47
See id.
48
See 25 U.S.C. § 1912(f); Thea G., 291 P.3d at 964.
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