as: 38 P.3d 7)
Court of Alaska.
of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, DIVISION OF
Division of Family and Youth Services (DFYS) petitioned to terminate
parental rights to Indian children. The Superior Court, Third Judicial
District, Anchorage, John Reese, J., terminated parental rights. Parent appealed.
The Supreme Court, Matthews, J., held that evidence did not
support finding that placing children with parent would likely result
in serious damage to them, as required for termination of
parental rights under the Indian Child Welfare Act (ICWA).
Reversed and remanded.
proceedings under the ICWA to terminate parental rights to an
Indian child, the Superior Court's findings of fact will be
upheld on appeal unless they are clearly erroneous, but whether
the factual findings comport with the requirements of the ICWA
is a question of law that the Supreme Court will
review de novo. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
proceedings under the ICWA to terminate parental rights to Indian
children, evidence did not support finding that placing children with
parent would likely result in serious damage to them, even
though state's expert testified that parent's successful completion of alcohol
abuse treatment program did not remedy the effects of her
abandonment of the children and that her sobriety was too
short to justify an assumption that she would not relapse,
did not meet or speak with parent, the children, or
parent's counselors, and the file upon which expert relied was
incomplete. Indian Child Welfare Act of
1978, § 102(f),
25 U.S.C.A. § 1912(f).
*7 Guy Kerner, Assistant Public Defender, Barbara K. Brink, Public Defender,
Anchorage, for Appellant.
Mary A. Gilson, Vennie E. Nemecek, Assistant Attorneys General, Anchorage,
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
J.J. appeals the superior court's termination of her parental rights
to her son and daughter. Because it was error to
find that continued custody with J.J. is likely to result
in serious emotional or physical damage to the children, we
FACTS AND PROCEEDINGS
On February 22, 1998, J.J. left her four-year old daughter
and two-year old son at home alone while she and
her friend went to a liquor store. The children wandered
outside, at night, dressed only in their underclothes. They were
found by strangers and taken inside by a neighbor, who
called the Anchorage Police. J.J. returned home after approximately an
hour-and-a-half, intoxicated and unaware that her children had left the
house. J.J. was arrested, and the State took the children
J.J. was convicted of child neglect and incarcerated for forty-five
days. While J.J. was in jail, she saw her children
only once. Both J.J. and her children ended that visit
crying after J.J. was forced to tell her children that
she could not leave with them.
Larry Overholser, a social worker for the Division of Family
and Youth Services (DFYS), was assigned to the children's case.
*8 Overholser first met with J.J. during a court review hearing
on March 16, 1998. At that meeting, Overholser discussed J.J.'s
case plan with her "in general," and arranged for J.J.
to be evaluated at Alaska North Addictions Recovery Center (ANARC)
on April 13, 1998. Although Overholser testified that the case
plan required J.J. both to complete alcohol treatment and to
visit her children regularly, the written case plan only specified
activities related to J.J.'s problem with substance abuse: maintaining sobriety;
submitting to urinalysis; obtaining treatment for substance abuse; and attending
Alcoholics Anonymous meetings.
Following a subsequent in-chambers conference meeting on March 26, which
J.J. may not have attended, Overholser called J.J. and gave
her a phone number to call
to set up visitation with her children. Although J.J. made
an appointment to visit her children, she did not attend
that appointment. She also did not attend her scheduled evaluation
at ANARC. J.J. had no further contact with either DFYS
or her children for over one year, until May 1999. [FN1]
She also lost touch with her lawyer from the Alaska
Public Defender Agency, who withdrew from the case in July
After J.J. disappeared, Overholser tried to reinitiate contact with her
once, but without success.
J.J. continued to drink during the rest of 1998, but
stopped drinking in January or February of 1999 when she
learned she was pregnant. J.J. had been trying to arrange
for admission to ANARC as early as November or December
of 1998, but had been unable to find a charity
bed. After her boyfriend offered the $450 required for admission
to ANARC in February 1999, J.J. was placed on a
wait list; she was admitted to ANARC on May 10,
A week-and-a-half or two weeks after being admitted to the
inpatient program, J.J. called Overholser to ask about regaining custody
of her children. J.J. and her inpatient counselor both testified
that Overholser told them that J.J.'s parental rights had already
been terminated. Overholser testified, however, that he only told J.J.
that she needed to contact her lawyer.
DFYS petitioned to terminate J.J.'s parental rights on May 21,
1999, at about the same time as J.J.'s call to
Overholser. After learning that her parental rights had not, in
fact, already been terminated, J.J. sought assistance to contest the
termination, and was granted court-appointed counsel on August 30, 1999.
J.J. successfully completed inpatient, intensive outpatient, and continuing care treatment
at ANARC by September 30, 1999, and, according to her
inpatient counselor, has continued to do well since then.
At the start of the November 8, 1999 termination trial,
J.J.'s counsel unsuccessfully sought a continuance. After a one-day trial,
the superior court terminated J.J.'s parental rights. The court terminated
the parental rights of the children's father, C.J., at the
same time. [FN2] In terminating J.J. and C.J.'s parental rights, the court
found that both parents had abandoned the children, and that
it was in the children's best interests that they be
given the permanency of an adoptive family.
The termination of the father's parental rights was subsequently reversed
by this court. C.J.
v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214 (Alaska 2001).
J.J. appeals the termination of her parental rights.
STANDARD OF REVIEW
The superior court's findings
of fact will be upheld unless they are clearly erroneous, but whether
the factual findings comport with the requirements of the Indian Child
Welfare Act is a question of law that this court will review de novo. [FN3]
A.A. v. State, Div. of Family & Youth Servs., 982 P.2d 256, 259 (Alaska 1999).
Was Error to Find That Custody of the Children by
J.J. Is Likely to Result in Serious Emotional or Physical
Damage to the Children.
Because J.J. is an Alaska Native, her children are Indian
children protected by the *9 Indian Child Welfare Act (ICWA). [FN4] Under ICWA, parental rights cannot be terminated "in the
absence of a determination, supported by evidence beyond a reasonable
doubt, including testimony of a qualified expert witness, that the
continued custody of the child by the parent ... is
likely to result in serious emotional or physical damage to
the child." [FN5]
In its written order, the superior court found that this
requirement of ICWA had been satisfied.
25 U.S.C. §§ 1901-1923.
25 U.S.C. § 1912(f).
J.J. argues that the court erred in finding that the
children were likely to be seriously harmed if they remained
in her custody. She argues that she has remedied the
conduct--her alcohol abuse--that placed her children at risk of physical
harm, and that because the children were not going to
remain with their current foster parents, [FN6] placing the children with J.J. will be no more
emotionally disruptive to them than will placing them in another
The foster mother testified that she had no plan to
adopt the children and was planning to parent the children
only until they were adopted into another home.
In reply, the State points to the testimony of its
expert, Dr. Clarson, that J.J.'s successful completion of her alcohol
abuse treatment program has not remedied the effects of her
abandonment of the children and that J.J.'s period of sobriety
was, in any event, too short to justify an assumption
that J.J. will not relapse. The State also notes that
J.J. has no record of successful parenting to counterbalance the
likelihood that her parenting failures in the past would recur
in the future.
There is evidence that J.J. has taken steps to put
herself in a position to parent her children. J.J.'s written
case plan only specifies activities-- abstaining from alcohol, urinalysis testing,
substance abuse treatment, and Alcoholics Anonymous meetings--related to J.J.'s substance
abuse. J.J. admittedly did not show up for her scheduled
April 13, 1998 assessment at ANARC, and continued to drink
for the rest of 1998. But J.J. ultimately did stop
drinking in January or February of 1999, when she learned
she was pregnant. Moreover, she successfully completed a treatment program
for her alcohol abuse and, according to her inpatient counselor,
has continued to do well since then. J.J. has also
entered into a supportive, sober relationship with a man who
paid the costs of her alcohol abuse treatment and testified
as to his willingness to continue to support her financially
But the State argues that the children should not be
returned to J.J.'s custody, notwithstanding any progress by J.J. or
change in her situation. To support its position, the State
relies in large part on the testimony of Dr. Clarson.
After reviewing files supplied by the State, but without interviewing
J.J. or her children, Dr. Clarson recommended that the court
not return the children to J.J. Dr. Clarson testified that
substance abuse and abandonment are separate issues and that remedying
J.J.'s alcohol abuse "does[not] change anything for the children who
have had no contact for ... around two years" with
Dr. Clarson also suggested that J.J.'s completion of "two months"
of inpatient and outpatient care at ANARC was insufficient to
justify an assumption that J.J. would maintain her sobriety.
Dr. Clarson concluded that the children had been harmed while
in J.J.'s care and by her subsequent abandonment, that it
was "not clear" that the children would not suffer additional
trauma if J.J. regained custody, and that the risks continue. [FN7] When asked *10 how long a period of sobriety J.J. would have to
demonstrate before her "fears were quelled," Dr. Clarson answered "at
least a year." [FN8]
Dr. Clarson was also asked if J.J. were to stay
sober for another six months whether the children could be
returned to her care. She answered that she thought six
months would be too soon and "that there would need
to be some very, very clear demonstration of her ability
to, and willingness to, keep in contact with them on
a regular basis, and have supervised, supported visitation for the
Dr. Clarson's testimony on this point was as follows:
Would you recommend returning--based on the information that you have,
would you recommend returning the children to the parents?
I would not.
And can you tell us why not?
Because I would have concerns that the previous beha--the previous experiences,
A, have been pretty traumatic for the children, and it's
not clear to me that there's any likelihood that these
could not happen again.
You mentioned previously that the children have been placed at
Do you believe that that risk continues?
Yes. I guess that there's one other issue with children
who have been placed at risk. The risks don't get
erased, and so if kids already have some risks accumulated
and then experience additional circumstances that add to those risks,
that decreases their chances tremendously for doing well.
And just to be clear, when we talk about risk,
what kind of risk are we talking about?
Well, we're talking about early experiences of abuse, neglect, witnessing
violence, being left alone, and separation from their two primary
And do these types of risks qualify as serious physical
and/or emotional harm?
She added that "a year of sobriety on her part,
that's already added to two years of lack of contact
with the children, which is a huge problem
Does Dr. Clarson's testimony support
the ICWA-mandated finding beyond a reasonable doubt that placing the children
with J.J. will likely result in serious damage to them? The
question is a close one. Its resolution depends on both an
analysis of the basis for Dr. Clarson's testimony and the options available
to the trial court.
We have already reviewed Dr. Clarson's testimony as it relates
to termination of the parental rights of the children's father,
C.J. In reversing the trial court's decision to terminate C.J.'s
parental rights, we noted that
conclusions of Dr. Clarson are considerably weakened by the fact
that she received all information about this case from reading
the file given to her by DFYS and never met
or spoke with either C.J. or the children prior to
the hearing. [FN9]
v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1218 (Alaska 2001).
We also remarked that Dr. Clarson's conclusions about the unsuitability
of placing the children with their father "appear to be
little more than generalizations about the harms resulting from a
parent's absence and provide little
discussion of the particular facts of this case." [FN10]
Our concerns about Dr. Clarson's testimony in C.J. apply to J.J.'s case as well. Not only did Dr.
Clarson not meet or speak with J.J., J.J.'s children, or
J.J.'s counselors at ANARC, but the file upon which Dr.
Clarson relied was also significantly incomplete. Although she was aware
that J.J. had entered ANARC in May 1999, Dr. Clarson
received "no further documentation about what happened after that." Dr.
Clarson was thus initially unaware that J.J. had successfully completed
a course of treatment at ANARC. And because she had
never spoken to J.J.'s inpatient counselor, Dr. Clarson never learned
that J.J. had continued to be sober since release from
At trial, Dr. Clarson stated that she would like to
see "at least a year [of sobriety]" on J.J.'s part
before her concerns about the suitability of placing the children
with J.J. would be relieved. However, because Dr. Clarson did
not know that J.J. had been sober since at least
February of 1999, she was unaware that J.J. was only
two to three months from meeting the goal of "at
least a year" of sobriety.
As to the options before the trial court, the court
could have deferred resolution of the termination proceedings and asked
DFYS to re-establish visitation
with the children for a limited additional period of time
contingent on J.J.'s continued sobriety and such other factors as
might be appropriate. At the conclusion of the additional period,
or upon violation of the conditions, supplemental evidence could be
presented on the critical predictive finding. At that point a
reasonable person could with greater confidence decide whether the State
had met its burden of demonstrating the likelihood of future
serious harm to the children.
Under the facts of this case this option was available
to the court without interrupting an established relationship, as the
children had *11 not been permanently placed. Absent a trial period along the
lines described above, we do not believe that a reasonable
fact finder could conclude without reasonable doubt that placement of
the children with J.J. would likely cause them serious damage.
J.J.'s case can be contrasted with that of E.M.
v. State, Department of Health and Social Services, in which this court upheld the termination of a father's
parental rights. [FN11] In E.M., the evidence showed that the father had made no progress
in meeting the requirements of his case plan and that
he continued to live in an unsafe environment. [FN12] Unlike E.M., J.J. has made substantial progress in meeting
the requirements of her case plan and seems to have
established a safe home for her children.
959 P.2d 766, 771 (Alaska 1998).
FN12. Id. at 769-70.
J.J.'s case can also be contrasted with that of L.G.
v. State, Department of Health and Social Services, in which this court upheld the termination of the mother's
parental rights in part based on the finding that removing
the children from their current permanent placement, which would be
necessary for them to be reunited with their biological mother,
would cause the children serious emotional harm. [FN13]
14 P.3d 946, 950-51 (Alaska 2000).
Past addictive behavior and associated parenting failures may be predictive
of similar conduct in the future. But a substantial period
of sobriety before trial casts doubt on the reliability of
predictions based on the earlier conduct. In such circumstances uncertainties
can be reduced by a limited period of renewed contact
between parent and children. In the absence of such a
step in this case, we conclude that the evidence was
insufficient to show beyond a reasonable doubt that continued custody
by J.J. is likely to result in serious damage to
We REVERSE the judgment and REMAND for further proceedings consistent
with this opinion.
38 P.3d 7