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(Cite as: 2005 WL 1415310 (Alaska))

NOTICE: UNPUBLISHED OPINION


NOTICE

Memorandum decisions of this court do not create legal precedent. See Alaska

Appellate Rule 214(d). Accordingly, this memorandum decision may not be

cited for any proposition of law or as an example of the proper resolution of

any issue.


Supreme Court of Alaska.

MARY U., Appellant,

v.

STATE of Alaska, DEPARTMENT OF HEALTH AND HUMAN SERVICES, Appellee.

No. S-11456.


June 15, 2005.

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Randy M. Olsen, Judge.

Linda K. Wilson, Deputy Public Defender, Barbara K. Brink, Public Defender, Anchorage, for Appellant.

Mary Ann Lundquist, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and  CARPENETI, Justices.


MEMORANDUM OPINION AND JUDGMENT  [FN*]

FN* Entered pursuant to Appellate Rule 214.

I. INTRODUCTION

*1 Mary U. appeals the superior court's termination of her parental rights to her three Alaska Native children. [FN1] She argues that the court erred when it concluded that she failed to remedy the conduct that placed her children at risk. She also argues that the testimony of the state's expert did not satisfy the requirements of the Indian Child Welfare Act because the testimony was not based upon the facts and issues of her case and did not consider the recent progress she made in addressing her alcoholism. We conclude that the superior court's findings are adequately supported by the evidence, that the court's conclusions satisfy the statutory requirements, and that the expert testimony complies with the requirements of ICWA. Accordingly, we affirm.


FN1. Pseudonyms have been used throughout this opinion to protect the identity of the family members involved.

II. FACTS AND PROCEEDINGS

Mary U. appeals the termination of her parental rights to her three youngest children, Scott (10/5/90), Dara (6/30/92), and Joe (9/2/93). All three children are Indian children within the meaning of the Indian Child Welfare Act. Joseph H., the children's father, suffered a head injury in a motorcycle accident and as a result is unable to care for the children. He consented to the termination of his parental rights, provided that Mary's parental rights are also terminated, so that the children can be adopted. He is not a party to this appeal.

In May 1997 Mary and her children moved to Fairbanks. From 1997 through June of 2002, Mary frequently left her children in the care of friends and family for extended periods of time. During these periods, which often lasted several months and, in the aggregate, totaled several years, Mary took little responsibility for her children: she rarely contributed financially to their upkeep, she was largely uninvolved with the children's schooling, she missed holidays and birthdays, she failed to provide reliable contact information to the caretakers or to her children, and the caretakers often did not know when she would return to retrieve her children.

Although over the years Mary left the children with a variety of caretakers, she most regularly left them at the home of Nadene S. and Vincent W. (hereinafter referred to collectively as "Nadene"). As a result, Nadene and her husband have been the children's primary--though by no means the only-- caregivers during the children's lives. From the fall of 1997 through the fall of 1998, Dara lived full time with Nadene. And at one point all three children lived with Nadene for a year and a half. In addition to these longer blocks of time, all of the children were routinely dropped off at Nadene's for days, weeks, or months at a time. At times, Mary would leave her children with Nadene ostensibly so that she could do laundry or run other errands, but would fail to return for days. Even when Mary was caring for the children, she did not reliably transport the children to school on time and sometimes failed to get them there at all. As a result, Nadene would occasionally have to take the children to school and pick them up after school.

*2 Nadene testified that when Mary and the children first arrived in Fairbanks the children spoke little English except for swear words and sexually explicit language; their knowledge of Yupik was limited to "poop" and "puke." They had to be taught how to play games, and suffered from panic attacks whenever they lost sight of Nadene.

The children also appeared to be suffering from nutritional deficiencies. Their hair was dry and split, and "their nails were kind of split and funny." When they first began staying with Nadene, they ate voraciously. The problems with their hair and fingernails soon went away.

While the children were in their care, Nadene and her husband supported them financially, paid for after-school activities such as figure-skating lessons and BMX competitions, paid for the children's athletic gear, attended parent-teacher conferences, took the children to medical appointments, and generally served as the children's sole caretakers.

From February of 2001 through July of 2002, the children sometimes stayed with Nadene, sometimes stayed with Mary, and sometimes stayed with other caretakers. On occasion Mary would leave the children at Nadene's house when no one was home or when Nadene had expressly stated that she couldn't take the children. Further, Nadene became aware that when Mary had custody of the children, she would wait until they went to sleep and then would go out, leaving them home alone. Scott and Joe once called Nadene to pick them up because Mary had left them with a friend of hers the day before. At this point Scott, the oldest of the three children, was eleven years old. Mary also left Dara at the home of a friend of Dara's, ostensibly for one night, but Mary remained out of touch for two weeks.

Not only did Mary regularly leave her children with a variety of caretakers, she also abused alcohol. She has twice been convicted of driving while under the influence. The children told caseworkers that they witnessed her drinking, and that she would sometimes drive after she had been drinking. She has been hospitalized twice for alcohol poisoning. And on three occasions, Mary arrived at Nadene's late at night under the influence.

In July 2002 an unidentified person complained several times to the Department of Health and Human Services ("the department") about Mary's failure to care for the children. When Nadene informed the department that she could no longer care for the children without financial aid, the department took emergency custody, and petitioned to have the children adjudicated as children in need of aid. The department placed them with Nadene as an official foster family.

Both Mary and Joseph stipulated that the children were children in need of aid under AS 47.10.011(1) (abandonment), (3) (custodian unwilling or unable to provide care), (9) (neglect), (10) (substance abuse), and (11) (serious mental illness of the father). In August 2002 the superior court entered a CINA adjudication order and committed the children to the custody of the state for one year.

*3 After the adjudication, the children were transferred from Nadene's home to ICWA compliant foster homes in Scammon Bay. The two boys were placed with a family that agreed to adopt them if the parents' rights were terminated; Dara was placed with Mary's sister, who was willing to act as the girl's guardian but did not want to adopt her.

When the state took custody of the children, state social workers created a case plan for Mary. Her case plan required her to address her abuse of alcohol: it required her to abstain from alcohol, to undergo a substance abuse assessment, to follow and complete all treatment recommendations, and to submit to urinalysis testing. The plan also required her to find a stable home and to remain there long term, to visit her children regularly and consistently, to participate in the children's medical appointments, and to participate in their school conferences.

Caseworker Lorita Clough reviewed Mary's case plan with her, and Mary signed the plan on August 8, 2002. The plan expressly warned that in order for the children to be placed permanently with her, Mary "need[ed] to follow through with this case[ ]plan and demonstrate stability[.][I]f this is not achieved the children cannot wait for permanency and need to move on and be placed in a permanent home."

In early September 2002 Mary participated in a substance abuse assessment at Inroads to Healing. For the next several months, she did not enter treatment or follow through on her case plan in any other way. Instead, in October 2002 she spent a month in Montana with her boyfriend. She then went to Scammon Bay for a few months even though her children were still in Fairbanks--and even though her case plan required her to visit with them regularly and consistently. In early 2003 she went to Dutch Harbor to work on a fishing boat, seeking to earn money to use when she got out of her substance-abuse-treatment program.

Mary delayed entering substance-abuse treatment until June 2003. She was discharged from this program for leaving the area and not returning by the agreed upon date. In August 2003 Mary entered a new inpatient treatment program, the Phillips Ayagnirvik Treatment Center in Bethel. She successfully completed treatment and, while at the center, participated actively in her program. Mary was discharged upon completing the program in late September 2003. She then moved to Scammon Bay to be near her children.

Meanwhile, on July 30, 2003, the court had held a permanency hearing as required by AS 47.10.080(l). The court found that although the department had made reasonable and active efforts to reunite the family, "the parents ha [d] not made substantial progress in remedying the conduct and conditions" that led them to be adjudicated children in need of aid. The court therefore approved adoption as the permanency plan for the children.

The department petitioned to terminate parental rights in October 2003. Following a trial in February and March of 2004, the superior court made extensive findings and terminated Mary's and Joseph's parental rights. The court found that the children were children in need of aid under several subsections of AS 47.10.011. The court further found that Mary had not remedied the conduct that caused her children to be in need of aid, despite the state's active efforts to provide rehabilitative services. [FN2] The court also found that termination was in the best interests of the children. Finally, the court found beyond a reasonable doubt that returning the children to Mary's care would likely cause them serious emotional or physical harm.


FN2. The superior court's findings of fact are not in complete accord with its termination order. The findings of fact state that the department must prove by clear and convincing evidence that it has made active efforts to keep the family intact and that those efforts have failed. In contrast, the termination order finds by a preponderance of the evidence that the department made reasonable efforts to reunite the family. Neither of these states the law correctly. To terminate a parent's right to an Indian child, the state must prove by a preponderance of the evidence that the state has made active efforts to keep the family together and that those efforts have failed. See, e.g., Carl N. v. State, Dep't of Health & Soc. Servs., 102 P.3d 932, 935 (Alaska 2004). Because Mary does not challenge the court's finding on this element, we need not address this issue. Additionally, the findings of fact state that the department needed to show beyond a reasonable doubt that leaving the children in Mary's care was likely to result in serious harm to them. In contrast, the termination order finds by clear and convincing evidence that returning the children to Mary would place them at a substantial risk of physical or mental injury. The correct standard of proof is beyond a reasonable doubt. But as Mary notes in her opening brief, "[s]ince the findings of fact were incorporated into the later order, it appears that the reference to the mistaken standard of proof in the order was inadvertent." The mistake in the order is therefore insignificant.

*4 Mary appeals.

III. DISCUSSION

To terminate parental rights to an Indian child the superior court must make five findings:

The trial court must find by clear and convincing evidence that the child is in need of aid as described in AS 47.10.011 and that the parent has not remedied, within a reasonable time, the conduct or conditions in the home that place the child at substantial risk of physical or mental injury. The court must find by a preponderance of the evidence that the department has made active but unsuccessful efforts to provide services and programs designed to prevent the breakup of the family and that termination of parental rights is in the child's best interests. Finally, the court must find by evidence beyond a reasonable doubt, including qualified expert testimony, that continued parental custody is likely to cause serious emotional or physical damage to the child. [ [FN3]]


FN3. Carl N., 102 P.3d at 935 (citations omitted).

 Mary challenges two of the superior court's findings, arguing (a) that the state failed to prove that she had not remedied the conduct or conditions that placed her children at risk; and (b) that the state relied on inadequate expert testimony and therefore failed to prove beyond a reasonable doubt that returning the children to Mary's custody would likely result in serious emotional or physical harm.

A. Standard of Review

In cases involving the termination of parental rights, we review the superior court's factual findings for clear error. [FN4] We will find clear error only where we are "left with a definite and firm conviction that a mistake has been made."  [FN5] Whether the trial court's findings comport with the requirements of the Indian Child Welfare Act or with this state's CINA statutes and rules is a legal question and that we review de novo. [FN6] "Whether expert testimony satisfies ICWA requirements is a pure legal question" that we review de novo as well. [FN7]


FN4. L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 949 (Alaska 2000).


FN5. Id. at 949-50.


FN6. Id. at 950; see also R.J.M. v. State, 946 P.2d 855, 861 (Alaska 1997).


FN7. E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 989 (Alaska 2002).

B. The Trial Court Did Not Err when It Found by Clear and Convincing Evidence that Mary Had Failed To Remedy Within a Reasonable Period of Time the Conduct that Placed Her Children at Risk.

To determine whether a parent has sufficiently remedied the conduct that placed a child at risk, we look first to the conduct or conditions that led the court to rule that the children were in need of aid under AS 47.10.011.  [FN8] In the present case, the court concluded that the children were in need of aid because their father was unable to care for them due to his mental disability and because Mary had subjected them to neglect. The court also found that her alcohol abuse had contributed to this neglect.


FN8. Matter of H.C., 956 P.2d 477, 484 (Alaska 1998) ("After a trial court has determined that a child is in need of aid as a result of parental conduct, it must determine whether that conduct is likely to continue."). AS 47.10.088, in its current form, requires that the trial court find that the parent has failed to remedy, or has failed to remedy within a reasonable period of time, the conduct or conditions that placed the child at risk of harm. Previous versions of this statute required the trial court to determine whether the parent had remedied the conduct or conditions that made the child a child in need of aid. See E.M. v. State, Dep't of Health & Soc. Servs., 959 P.2d 766, 768 (Alaska 1998). This difference does not affect the current case.


[Mary's] neglect of her children caused them to be Children in Need of Aid. Her neglect includes: poor nurturing such that the children were seriously deficient in their verbal skills when it was time for them to begin school; leaving the children with caregivers and failing to return at the appointed time, and being out of communication with both caregivers and the children for weeks, even months at a time; on some occasions she left the children unattended without prior agreement at a caregiver's home, and on one occasion left the children unattended contrary to the express wishes of the caregiver; she has a serious alcohol problem which resulted in her abdication of all mothering responsibilities for extended periods, even years, while her children were raised by others; when placed in some harsh environments the children were required to call for help from previous caregivers rather than their mother because they could not reach her; she neglected to note the children's birthdays, holidays, special school events, sporting events, and was not a consistent participant in parent-teacher conferences or other aspects of the children's lives; she did not participate in routine dental care appointments; school teachers noticed a dramatic difference in the children when they were with their mother, as to their attitudes, their preparation for school, and their behavior.... Her neglect ... has placed the children in substantial risk of suffering mental or emotional injury by this pattern of ignoring the children. [Mary's] alcohol abuse as well as neglect of the children for extended periods of time ha[s] caused ... serious impact already in the children's intrinsic abilities to bond with other people.... [T]his court finds, beyond a reasonable doubt, let alone by clear and convincing evidence, that the children are Children in Need of Aid under the statute, and that they have been subjected to substantial risks of harm, both physical and emotional, by their mother's neglect and alcohol abuse.

 *5 Mary does not challenge these findings.

After concluding that the children were in need of aid, the court next considered whether Mary had remedied the conduct that placed the children at risk. The court found that after the state assumed custody, Mary continued her pattern of neglect. It found that she left the state "for an extended period to pursue a romantic relationship," and that at another time she worked a seasonal fishing job and was unavailable to the children and her social worker for several months. The court found that "[t]hese absences were made as direct choices between staying in contact with her children and dealing with her parenting deficiencies, and running off in other directions that were more attractive at the time." Moreover, the court found that her neglectful behavior continued until the termination trial:

Despite her claims to have remedied the neglect, the court found extremely powerful evidence of her failure to remedy the neglect in just the few months before the hearing. Although she claimed to have moved to Scammon Bay to be near the children, the testimony was that she frequently left the village for Bethel or elsewhere. In the two months before the hearing, one month had been spent in Anchorage instead of with the children. [The boys' foster mother] testified that while [Mary] was gone for the month, she only called the boys one time, while ... [Mary's] sister and Dara's aunt and foster mom, testified that Dara received no phone calls. Even when she was in Scammon Bay, she did not actively fill the role of mother. [Mary's] home is only a hundred feet from where her daughter lives with [her foster mother], yet, [Mary] never goes to see Dara, but instead calls a couple of times a week for Dara to visit her for a couple of hours. Although in a small village together, [Mary] only visited her sons every few days for an hour or so. She should have had hours of contact daily with each child. She should have helped them with their daily homework, regularly prepared meals for her family, and participated in bedtime preparation activities. Even though in a small village, her contact was only enough to preserve a recognition of her relationship to the children.

 The court concluded that she had failed to remedy her neglectful conduct--the conduct that placed her children at risk.

In addition to concluding that Mary had failed to remedy her neglectful treatment of her children, the court also found that she did not fully comply with her alcohol treatment plan. It found that rather than entering treatment immediately when her children were taken into custody, Mary delayed treatment for an extended period of time, that she failed to submit to the required urinalyses, that after completing an alcohol treatment program she did not follow through with after-care in Scammon Bay, and that there was testimony that she had made a phone call to a foster parent and to a social worker during which she appeared to be intoxicated. These findings contributed to the court's conclusion that "[t]he superficial progress that she has made has been insufficient to remedy the conditions that created the emotional harm to these children."

*6 The court's findings and conclusions are amply supported by the record. The main conduct that the superior court found placed Mary's children at risk was her neglect of them. Her substance abuse was significant because it contributed to the neglect. Although Mary's parenting skills may have improved somewhat, the record supports the court's conclusion that Mary remained unable or unwilling to be consistently and reliably present in her children's lives.

For several months after the state assumed custody of the children and Mary signed her case plan, the only step she took to comply with the plan was to get a substance abuse assessment. She did not enter an alcohol treatment program as the assessment recommended, she did not enroll in parenting classes, and, most important, she did not consistently participate in the lives of her children. Instead, in October 2002, she spent a month in Montana with her boyfriend. She then went to Scammon Bay for a few months even though her children were still in Fairbanks and even though her case plan required her to visit with her children several times a week. And in early 2003 she went to Dutch Harbor to work on a fishing boat.

During this period, Mary's caseworker, Susan Desrosiers, had great difficulty contacting her. Desrosiers sent Mary a letter in February 2003 because the children had been diagnosed with Attention Deficit Hyperactivity Disorder and the department needed Mary's permission to give the children psychotropic medication. She also sent Mary a new case plan that had been developed in mid-January. Mary did not sign and return either the consent forms or the case plan.

Mary did not return to Fairbanks until April 2003. Between mid-April and early June, when the children moved to Scammon Bay, Mary consistently visited her children. And when she moved to Scammon Bay, she spent time with her children when they visited her at her house. Her ability to be present in her children's lives improved.

But this improvement was quite limited. There was evidence in the record that she did not regularly attend her children's sporting events in Scammon Bay. Moreover, in the several months preceding the trial, Mary frequently left the village for extended periods of time even though the social worker had stressed that her children needed consistency and stability. Between October 2003, when she moved to Scammon Bay, and the trial the following February, she took her nephew to the hospital in Bethel for a weekend. She went duck hunting for a weekend. She went to Bethel for a weekend to look for a job. She went to Anchorage for four weeks shortly after Christmas. [FN9] Finally, Mary was in Anchorage at the beginning of the trial. She knew that the termination trial was scheduled, and she had sufficient funds in the bank, but she decided to remain in Anchorage. From October when she moved to Scammon Bay, through late February when the trial began, Mary was away from Scammon Bay, and hence her children, for four weeks and four additional weekends. During her time away, she rarely called her children.


FN9. The children went with her for a short visit with their grandparents and then promptly returned to Scammon Bay.

*7 Although Mary has demonstrated increased consistency in visiting with her children, her contact with them has remained sporadic and unreliable. By leaving Scammon Bay on a regular basis, Mary has demonstrated an inability to place her children's need for consistency and stability ahead of her desire to travel.

This inability to concentrate on the needs of her children and to place her children first is visible in other areas of her life as well. For example, although Mary agreed to get an assessment of her parenting skills at the Resource Center for Parents and Children, she failed to do so. Although she conceded that she could have gotten the assessment before leaving for Scammon Bay, she said that, "given the circumstance, naturally you would kind of forget those things ... I mean when you're doing lots of things."

Given the substantial evidence of Mary's inability to consistently participate in her children's lives, and her unwillingness to place their need for support ahead of her own desires, Judge Olsen's conclusion that Mary had failed to remedy the neglect is not clearly erroneous.

Substantial evidence also supports the court's finding that Mary's efforts to remedy her abuse of alcohol were insufficient. Her case plan required her to obtain a substance abuse assessment, to follow all recommendations for treatment, to undergo urinalysis testing, and to abstain from alcohol. But although the state assumed custody of the children in July 2002, Mary did not begin treatment for her alcoholism until nearly a year later. She was discharged from the first program she entered for non-compliance. And, though she ultimately successfully completed treatment at PATC, Mary subsequently attended only one AA meeting in Scammon Bay, thus violating her case plan which required regular attendance.

Further, at no time did Mary consistently submit urine samples to the department for testing. For example, her April 2003 case plan specified that she needed to call the department's office daily to determine whether she was scheduled for a UA that day. From April 2003 through July 2003, Mary only called in four times despite having agreed to call daily. When asked why she failed to call, Mary stated that, "you forget these things, it's--it's only natural ." Her compliance was no better either before or after this time period.

There was also evidence in the record indicating that Mary may have relapsed after finishing her treatment at PATC. The boys' foster father testified that Mary sounded intoxicated when she called his house on Halloween of 2003. And Elizabeth Pennington, a social worker who arranged a safe place for the children to stay when they were stuck at the Bethel airport on their way to Scammon Bay in January 2004, testified that when she spoke to Mary about the children, Mary sounded intoxicated.

Mary's failure to complete alcohol treatment until over a year after the state assumed custody of her children, her failure to submit urine samples for urinalysis, her failure to attend AA meetings, and the evidence that she had been drinking in the months preceding the trial all support the court's conclusion that Mary had failed to remedy her abuse of alcohol within a reasonable time. The court's findings were not clearly erroneous, and the court's conclusion that Mary had not remedied the conduct or conditions that placed her children at risk was not in error as a matter of law.

C. The Trial Court Did Not Rely on Inadequate Expert Testimony when It Concluded that the State Had Proved Beyond a Reasonable Doubt that if the Children Were Returned to Mary's Custody They Would Suffer Serious Physical and Emotional Harm.

*8 To terminate parental rights to an Indian child, the court must find,  "beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."  [FN10] Here the state qualified Lorita Clough as an expert social worker and an expert in Native children's issues. Clough testified that if returned to Mary's custody, the children would likely suffer emotional or physical harm because Mary is unable to be consistently present in her children's lives and, as a result, cannot consistently provide for their emotional, educational, medical, and physical needs.


FN10. 25 U.S.C. § 1912(f).

Although Mary does not contest that Clough qualifies as an expert in Native family practices and social work, Mary argues that Clough's testimony was flawed in two respects. First, Mary argues that Clough based her conclusions not on the facts of Mary's particular case, but rather in generalizations about "people with these types of behaviors." And second, Mary argues that Clough based her opinion on stale evidence: "Clough reached her opinion on termination over six months prior to the termination trial and well before Mary made significant progress in every area in her case plan ."

Mary relies on C.J. v. State, [FN11] "in which we held that the expert's testimony was insufficiently based on 'the facts and issues of the case' to support the trial court's conclusion that the child would suffer serious harm if returned to the father."  [FN12] In C.J. we noted that a "meeting between the expert and the parties to the termination proceeding"  [FN13] is not required in every case. But we found the expert testimony inadequate to support terminating the father's parental rights because the expert had never met with the parents or the children, the expert relied exclusively on the department's record, and the department offered virtually no evidence beyond the expert testimony to support its claim that the parent was unfit. [FN14] In addition, unrebutted evidence indicated that C.J.'s father was successfully parenting another child, and had a good home and health insurance for the children. [FN15]


FN11. C.J. v. State, Dep't of Health and Social Servs., 18 P.3d 1214 (Alaska 2001).


FN12. J.A. v. State, Div. of Family & Youth Servs., 50 P.3d 395, 400 (Alaska 2002) (quoting C.J., 18 P.3d at 1218).


FN13. C.J., 18 P.3d at 1218.


FN14. Id.


FN15. Id. at 1219.

Similarly, in J.J. v. State, the companion case to C.J., we held that the expert testimony was insufficient to support termination where the expert had not met with the parent, her testimony was based on a file that was "significantly incomplete," and where there was reliable testimony in the record that contradicted the expert testimony. [FN16]


FN16. J.J. v. State, Dep't of Health & Soc. Servs., 38 P.3d 7, 10- 11 (Alaska 2001).

Mary contends that, like the expert testimony in C.J., Clough's testimony cannot support the court's decision to terminate her parental rights, because Clough "primarily based her opinion on information given to her by OCS" and "reached her opinion on termination over six months prior to the termination trial and well before Mary made significant progress."

Mary's reliance on C.J. is misplaced. Clough had extensive contact with Mary and her children. Clough first became familiar with the case when Dara was living at the house of Belinda B., the parent of one of her friends. Clough was also the social worker who responded to two of the reports of harm that were called in concerning the children. And Clough was the social worker who handled the intake when the state assumed custody of the children. She developed Mary's original case plan and went over the case plan with Mary. Unlike the experts in C.J. and J.J., Clough had a history of involvement in Mary's case and had worked with her personally.

*9 It is true that Clough testified that she had little information concerning the progress of Mary's case since she moved to Scammon Bay. But in contrast to the expert testimony in C.J. and J.J.--where the state relied exclusively on the challenged expert testimony and that testimony was controverted by other evidence in the record--Clough's testimony was supported and confirmed by nearly all the evidence in the record.

Clough testified that she did not believe that Mary was capable of being consistently present in her children's lives and that as a result she would be unable to provide the stability and security that children need from a parent. This testimony is supported by the other evidence in the record. For example, Dara's current foster mother testified that although it was possible Mary had attended one of Dara's sporting events, she had never actually seen her at one. Both sets of foster parents testified that when Mary was out of town she rarely called the children, and when she was in town she virtually never visited them at their foster homes, even though the village is quite small. In response to this testimony, Mary explained that she was unwilling to visit with the children in their foster homes because "I have a--a bit of [a] ... cleanliness problem with other people's homes, so I just choose not to visit my children in their other homes." She had the children visit her at her home, but, as the court pointed out, this meant she could not help with bedtime activities or with many of the daily events in the children's lives. And Mary herself testified that she was frequently gone from Scammon Bay for several days or weeks at a time.

Clough also testified that Mary is not capable of putting the children's needs ahead of her own. Again, Clough's testimony is amply supported by other evidence in the record. Gracie Cleek, the Association of Village Council Presidents social worker, stated in her report that Mary is not able to take responsibility for her actions and fails to understand that leaving her children for long stretches of time is detrimental to them. Cleek further stated that Mary "does not appear to recognize [her children] as individuals but more as possession[s] that she can leave someplace she sees as safe and pick up when she returns.... [Mary] describes herself as a martyr who has sacrificed for her children and does not recognize the selfishness of her actions." Cleek expressed concern that "once [Mary's] children are returned to her she will continue to engage in the same type of behaviors. [Mary] does not appear to have a realistic view of what it means to manage a house and children." Nadene also testified that Mary had "all these other priorities of, you know, different men or different activities or different trips or ... going out at night or leaving for a weekend or all that seemed to be more important than, you know, food, shelter, ... supervision...."

Mary's testimony explaining why she was in Anchorage on the first day of the termination trial and failed to come to Fairbanks further supports Clough's conclusions. At first Mary explained that she had to get a physical and a background check and that this had to be done in Anchorage so that she could report for job training in Bethel. She then stated that she wasn't able to come to Fairbanks for the hearing because "when you have twenty other things going on in your life--you're very challenged right there, otherwise I would be there today." Her decision to give these twenty other things more importance than attending the termination trial in person exemplifies Mary's inability to place her children first in her life.

*10 Moreover, when pressed, Mary admitted that she would have flown to Fairbanks for the trial had she been able to convince the state to pay for her airfare. She admitted that she had several thousand dollars of her own money left over from fishing in Dutch Harbor, and that she could afford to fly to Fairbanks. But she insisted that she shouldn't have to use her own money to fly in for the trial: "I would think that in such a case that the state should take care of it, that's my belief." Perhaps if explained by other evidence, Mary's failure to appear in person at her termination trial would not prove that she is disinvested in the children's welfare or is unable to place their needs above her own; but because abundant other evidence strongly indicates that Mary has consistent and pervasive difficulty in participating responsibly and regularly in her children's lives, her failure to appear for the first few days of the termination trial adds telling evidence of Mary's continuing failure to give priority to her children.

We have held that when terminating parental rights to an Indian child, the court may base its decision upon the aggregation of expert and lay testimony.  [FN17] And in E.A. v. State, Division of Family and Youth Services,  [FN18] we held that even expert testimony that is based on a one-year lag may be sufficient expert evidence where "there is substantial evidence of [the parent's] ... parental incapacity outside of the experts' testimony."  [FN19] Here, Clough's testimony squares with the great bulk of evidence in the record. Viewing Clough's testimony in conjunction with all other evidence in the record, we conclude that the superior court could properly find beyond a reasonable doubt that if the children were returned to Mary's custody, they would likely suffer serious emotional harm.


FN17. L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000).


FN18. E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986 (Alaska 2002).


FN19. Id. at 992.

IV. CONCLUSION

For these reasons, we AFFIRM the superior court's termination of Mary U.'s rights to Scott, Dara, and Joe U.

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