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Supreme Court of Alaska.
NELSON M.,
v.
STATE of Alaska, Division OF FAMILY AND YOUTH SERVICES, Appellee.
Dora B., Appellant,
v.
State of Alaska, Division of Family and Youth Services, Appellee.
Nos.
S-11208, S-11236.
Nov. 24, 2004.
Appeals from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Dale O. Curda, Judge.
Sharon Barr, Assistant Public Defender,
and Barbara A. Brink, Public Defender, Anchorage, for Appellant Nelson M.
J. Randall Luffberry, Assistant Public
Advocate, Palmer, and Joshua Fink, Public Advocate, Anchorage, for Appellant Dora
B.
Michael G. Hotchkin, 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
This Indian Child Welfare Act
parental termination case requires us to decide whether, as appellants contend,
the superior court erred in finding that the state made active efforts to prevent
the breakup of the Indian family and that termination was in the child's best
interests. Because we conclude that the superior court did not clearly err, we
affirm.
II.
FACTS AND PROCEEDINGS
Jason M. was born to Dora B. and
Nelson M. in December 1994. [FN1]
Dora is Athabaskan and Jason is a member of the Native Village of McGrath. Jason
is an Indian child within the meaning of the Indian Child Welfare Act (ICWA).
[FN2]
FN1. This opinion uses pseudonyms
for all family members.
FN2.
25 U.S.C. §§ 1901-23, 1951 (2000).
In March 1995 Alaska Division
of Family and Youth Services (DFYS) began receiving reports of harm towards Jason
involving neglect by his parents and domestic violence within the home. DFYS started
working with the family to correct these issues but the neglect reports continued.
Jason was first removed from Dora and Nelson's custody in November 2000 and was
placed with Nelson's mother in an effort to avoid DFYS assuming custody. In January
2002 DFYS learned that Nelson's mother began leaving Jason with his parents. It
began receiving reports from the community that Nelson and Dora would leave Jason
at home alone while they both went to the bar and that they would both be intoxicated
while they were watching Jason.
On March 9, 2002 DFYS received a
report that Jason was home with Dora and Nelson who were both intoxicated. Brennda
Cash, a DFYS social worker, removed Jason from the home; the state was granted
temporary custody and Jason was placed with foster parents. Shortly after this
removal, Cash met with Nelson and Dora to develop a case plan that provided for
alcohol treatment and monitoring, parenting training, and anger management and
mental health counseling. Both parents participated in the plan's development
but refused to sign it and did
not attempt to implement any of the provisions. While DFYS had custody of Jason,
two additional case plans were formulated with similar results.
[FN3]
FN3.
Nelson signed the third case plan. For a more detailed review of the services
DFYS provided to Nelson and Dora, see Part IV.A below.
The parties agreed to a Child
in Need of Aid (CINA) stipulation and adjudication. Their June 4, 2002 stipulation
stated that "[a]ctive efforts have been and are being made, active remedial
services and rehabilitative programs were offered to avoid removal and to make
it possible for the child to return home, without success to date." Both
parents agreed in the stipulation that they would work with DFYS to accomplish
the following:
a. The parents agree to obtain substance abuse evaluations and to follow all recommendations, including aftercare and AA meetings as appropriate and available.
b. The parents agree to attend and successfully complete parent education classes.
c. The parents agree to participate in and successfully complete anger management classes and domestic violence counseling.
d. The parents agree to remain sober at all times when the child are [sic] in their care and custody and maintain a safe household for the child.
*2 e. The parents agree to maintain regular contact with the assigned social worker.
The superior court entered an order finding Jason to be a child in need of aid on June 26, 2002.
In January 2003 the state petitioned
for termination of Dora and Nelson's parental rights. A termination trial was
held in May, June, and July 2003. Both parents testified. So did DFYS social worker
Brennda Cash, psychologist Paula MacIan, substance abuse counselor Richard Breckheimer,
and guardian ad litem Thor Williams. Because Jason is a member of the McGrath
Tribe, the Tanana Chiefs Conference participated in the trial and ICWA standards
were applied.
The superior court entered the termination
order on August 12, 2003. Dora challenges only two of the superior court's findings
on appeal: (1) that DFYS made "active efforts" to prevent the breakup
of the family, and (2) that it was in Jason's best interest to have Dora's rights
terminated. Nelson appeals only the first issue.
III.
STANDARD OF REVIEW
It is a mixed question of fact and
law whether DFYS complied with the "active efforts" requirement of the
Indian Child Welfare Act (ICWA).
[FN4] We review the superior court's factual findings under the clearly erroneous
standard and its legal conclusions de novo.
[FN5] A finding is clearly erroneous if "after
reviewing the entire record, we are left with a definite and firm conviction that
a mistake has been made." [FN6]
FN4.
E.A. v. State, Div. of Family
& Youth Servs., 46 P.3d
986, 989 (Alaska 2002); 25 U.S.C. §§ 1901-23 (2000).
FN5.
E.A.,
46 P.3d at 989.
FN6.
J.W. v. State,
921 P.2d 604, 606 (Alaska 1996).
IV.
DISCUSSION
Nelson and Dora have filed separate
appeals. They both argue that the superior court erred in finding that DFYS had
made active efforts to provide programs and services to reunify them with Jason.
Dora also argues that the superior court erred in finding that it was in Jason's
best interests for her parental rights to be terminated.
A.
The Superior Court Did Not Clearly Err in Finding that DFYS Made Active Efforts
Under ICWA.
ICWA requires a state to prove by
a preponderance of the evidence that it made "active, but unsuccessful, efforts
to provide remedial services and rehabilitative programs" designed to prevent
an Indian family's breakup. [FN7]
Because the record contains evidence that supports the trial court's determination
that active efforts were made by DFYS, this finding was not clearly erroneous.
FN7.
N.A. v. State, Div. of Family
& Youth Servs., 19 P.3d
597, 602 (Alaska 2001); 25 U.S.C. § 1912(d) ("Any party seeking
to effect a foster care placement of, or termination of parental rights to, an
Indian child under State law shall satisfy the court that active efforts have
been made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved unsuccessful.").
We have previously said that
there have been active efforts if the caseworker "takes the client
through the steps of the plan rather than requiring that the plan be performed
on its own." [FN8] The
court may consider whether the parents cooperated with treatment plans in making
its active efforts determination.
[FN9] Because we have held that "no pat formula" exists for distinguishing
between passive and active efforts, we review the superior court's active-efforts
determination on a case-by-case basis.
[FN10]
FN8.
A.A. v. State, Div. of Family
& Youth Servs., 982 P.2d
256, 261 (Alaska 1999).
FN9.
N.A.,
19 P.3d at 603.
FN10.
A.M. v. State,
945 P.2d 296, 306 (Alaska 1997).
1.
The superior court permissibly found that DFYS made active efforts to reunify
Dora and Jason.
Following a full trial, the superior
court found that the preponderance of the evidence showed that DFYS had made active
efforts to prevent the family's breakup. Dora argues that with respect to her
alcohol problem, DFYS acted passively by only providing applications and not assisting
her with completing an application or attempting to advance her priority for entry
into a program. The superior court found that DFYS had provided Dora with many
applications for inpatient substance abuse treatment programs but that Dora "chose
to seek out treatment on her own, entering a program that does not fully meet
her needs." The court also found that DFYS "did what it could to help
[Dora] including paying for her transportation" to treatment. There is support
in the record for these findings. They are therefore not clearly erroneous.
*3
In the first case plan, developed
within a month after DFYS took custody of Jason, DFYS laid out a plan to assist
Dora with her alcohol problem. The case
plan instructed Dora to complete an alcohol assessment, follow the assessment's
recommendations, and complete an alcohol treatment program at Old Minto, an inpatient
care facility. Dora's social worker, Brennda Cash, testified that she sat down
with Dora and went over the plan, a timeline for implementing the plan, and explained
to Dora what she needed to do to ensure reunification with Jason. Cash testified
that she made a formal referral to Four Rivers, a counseling center located in
McGrath, for a mental health and alcohol assessment and that she encouraged Dora
to call and schedule the assessment.
Dora's first case plan required her
to complete alcohol treatment at the Old Minto Recovery Program. Cash testified
that Dora was within "a few forms" of being admitted to Old Minto when
Dora came to the office and requested a different program without explanation.
Cash testified that she then gave Dora an application for the Alaska North Addictions
Recovery Center (ANARC) but Dora did not complete that application either. Instead,
Dora had an independent assessment done a few months later in Anchorage.
After getting the results of this
assessment, Cash testified that she and another DFYS social worker met with Dora
and "gave her all of the treatment programs that were available in the state."
DFYS's Report for the Permanency Hearing stated that Cash told Dora that "she
need[ed] to follow through and complete an application for a treatment center
of her choice and immediately get
into treatment." Cash testified that Dora refused this assistance and that
Dora told Cash that she would not work with her or with DFYS.
Dora testified that she chose to
apply to the Ernie Turner Center on her own and was placed on a lengthy waiting
list. She was instructed by her assessment counselor in Anchorage to call once
a week to check her status. Cash testified that Dora would come to the DFYS office
and, with Cash or another DFYS social worker, they would call the Anchorage counselor
and they "worked together to get her [into the Ernie Turner Center]."
Cash testified that while Dora was on the waiting list, another social worker
encouraged Dora to apply to other programs where Dora could get treatment more
quickly. In the permanency report, Cash also suggested that Dora work as an outpatient
with Four Rivers for both mental health and substance abuse counseling until she
could enter her inpatient treatment program. Dora was finally admitted into treatment
fifteen months after losing custody of her son; Cash testified that DFYS paid
Dora's transportation costs to Anchorage.
[FN11]
FN11.
Cash testified that it is DFYS policy to pay for one-way transportation to the
treatment facility. If the treatment program is successfully completed, DFYS will
pay the return fare as well.
The superior court found that
DFYS engaged in active efforts even though Dora "hamper[ed]
the process." The court found that Dora was "uncooperative with DFYS
in formulating a case plan and following it." The court also found that Dora
did not want to go to treatment, that she refused to acknowledge that she had
a problem or needed treatment, and that this attitude impaired the reunification
process.
*4
Cash testified that it was "virtually
impossible to get ... [Dora] engaged" in the reunification process. Cash
testified that she
would go to the door, knock on the door. Even though I would hear the TV going, no one would answer the door, and then I would try again, I'd call on the phone, they would guarantee me they would come into the office at such-and-such date at such-and-such time, and that didn't happen time and time again.
The permanency report shows that although Dora received referrals for "alcohol assessments, substance abuse treatment, mental health counseling, weekly [urinalyses], parenting training and being a victim of [domestic violence] counseling," she "has made minimal effort to follow through with any recommendations."
Dora testified that DFYS has "been
helpful all along, it's just that I haven't been cooperative up until the last
two months." She acknowledged that she did not take advantage of counseling
services offered to her in McGrath, that she was unwilling to meet with her social
worker or to sign case plans, and that she resisted DFYS's efforts to help her.
Dora admitted that she "could've and should've
[done] more applications, but I didn't, and it was just out of anger ... at DFYS."
Cash testified that Dora was not interested in even applying to many of the programs
DFYS offered her, including one she and Jason possibly could have attended together,
because the programs were too long-term.
The superior court also found that
DFYS had encouraged continued contact with Jason by arranging liberal visitation
and providing phone cards when Dora was not in McGrath. Cash testified that initially
visits were scheduled at the DFYS office, but when this did not work, DFYS arranged
visits at Jason's foster home "pretty much ... whenever [Nelson and Dora]
wanted them." Dora acknowledged that she "didn't visit him as much as
I should" because she "always wanted to visit with him, but his dad
wouldn't want to come with me, so I--I just didn't go."
Dora also argues that DFYS's actions
were insufficient because although DFYS identified substance abuse, domestic violence,
and anger management issues when Jason was taken into custody, the case plans
did not fully assist her with all of these issues. She alleges that anger management
treatment was not addressed until the third case plan in March 2003 and her treatment
for domestic violence was limited to victim treatment.
Dora's original case plan directed
her to complete a mental health assessment at Four Rivers, use Four River's counseling
services, and complete counseling for domestic violence victimization. Cash testified
that DFYS referred Dora to Four
Rivers for a mental health and alcohol assessment. Completion of this assessment
was the first task listed in Dora's case plan. The counselor from Four Rivers
testified that after an assessment is completed, he develops a treatment plan
specific to each client's needs.
*5
In October 2002 Dora finally
had an assessment by a counselor in Anchorage. Cash testified that Dora's assessment
recommended that Dora get started with counseling right away because "she
had a lot of mental health issues to work through." Cash testified that after
receiving this assessment, she sat down with Dora to discuss her treatment options
and offered to assist her with applying to any program that she wanted. The next
case plan that DFYS developed was the March 2003 plan which included anger management
treatment and "treatment to address being a victim of [domestic violence]
and other mental health issues." We can reasonably infer that as soon as
DFYS had a professional assessment, Dora's case plan was tailored to her specific
needs.
Dora's case plan arguably should
have included a recommendation that she receive domestic abuse counseling as a
perpetrator as well as a victim. But this possible oversight does not mean that
DFYS did not make active efforts to reunify Dora and Jason. The superior court
found that Dora chose to complete an assessment outside the DFYS case plan and
entered a program "that [did] not fully meet her needs" at "the
[eleventh] hour." The superior court found that, given Dora's reluctance
to cooperate with DFYS, DFYS "did what it could to help"
her. That finding is supported by the record and thus was not clearly erroneous.
2.
The superior court permissibly found that DFYS made active efforts to reunite
Nelson with Jason.
Nelson asserts that DFYS did not
actively assist him because it did not set up appointments for him or walk him
through the application process.
[FN12] Instead, Nelson argues that DFYS only provided applications for alcohol
treatment programs that he could not figure out how to complete. The superior
court found that Nelson "never returned any applications or requested help
in filling them out." The court found it "hard to believe" that
Nelson did not understand how to fill out the applications because he had some
college education and had been described as highly motivated.
FN12.
ICWA standards apply even when, as they are here, DFYS is seeking to terminate
the parental rights of a non-Indian parent to an Indian child. K.N.
v. State, 856 P.2d 468, 474
n. 8 (Alaska 1993).
Within a month of taking custody
of Jason, DFYS met with Nelson and drafted a case plan addressing his problem
with alcohol, parenting, and domestic violence. It required him to get an alcohol
and mental health assessment at Four Rivers within twenty-five days. Cash testified
that DFYS sent a referral to Four
Rivers and encouraged Nelson to contact them to schedule his assessment. He refused
to sign the case plan and did not complete his assessment until nearly nine months
later. DFYS arranged an appointment time for Nelson to have a urinalysis each
week. Nelson testified that he knew about the appointments but because they conflicted
with his work schedule he could never attend. He also testified that he never
told anyone at DFYS about his conflict.
Nelson also argues that there was
a lack of communication between DFYS and himself that led to "an inability
to provide the support that was required and that [Nelson] needed." The superior
court found that Cash had met in person with Nelson numerous times as well as
communicating with him through letters and telephone calls.
*6
Cash testified that she had at
least eight to ten face-to-face meetings with Nelson. Nelson testified that Cash
sent letters to him about treatment options and upcoming meetings in which she
wanted him to participate. Nelson acknowledged receiving letters from Cash. Nelson
also testified that Cash came by his house to remind him of a hearing taking place
that afternoon in which he was to participate. At trial, the superior court took
judicial notice that Nelson did not participate in that hearing.
The superior court also found that
DFYS encouraged visitation between Nelson and Jason. Cash testified that she attempted
to work with Nelson to arrange visitation
with Jason that would be comfortable and convenient for both father and son. Cash
testified that when Nelson complained about the lack of privacy at the DFYS office,
she arranged for visitation at the foster home. Although the foster home was less
than a half mile from his house, Nelson testified that he "seldom" visited
Jason.
The superior court found that Nelson
was uncooperative in the reunification process and that he blamed DFYS for taking
Jason away from him. Cash testified that when she would attempt to engage him
in the case plan, he would "do anything he could to get off of the subject."
The termination plan noted that Nelson would not maintain contact with DFYS. Nelson
refused to sign or act on the first two case plans before eventually signing the
March 2003 plan. Cash testified that she was told that Nelson was entering a residential
alcohol treatment program at New Hope. When she called New Hope to check on his
status, she was informed that Nelson had never even applied to the program. Cash
testified that Nelson blamed DFYS for his problems and told her that if she had
not taken his son, he wouldn't be so "messed up."
Nelson was incarcerated at the Tundra
Center in Bethel for his fourth DWI in February 2003. His incarceration is relevant
to the active-efforts requirement of ICWA. Incarceration does not relieve the
state of its burden, but the practicalities of incarceration such as "the
difficulty of providing resources to inmates generally, the unavailability of
specific resources, and the length of
incarceration" can have a bearing on what services are realistic .
[FN13]
FN13.
A.A.,
982 P.2d at 261.
Cash testified that she mailed
applications for three different alcohol treatment programs to Nelson at the Tundra
Center. Nelson testified that he did not understand how to complete the applications,
but he did not ask for assistance or notify DFYS that he was having trouble.
Prior to incarceration, Nelson completed
his assessment at Four Rivers. His assessment counselor testified that he developed
a plan that included individual and recreation therapy as an outpatient and recommended
an intensive inpatient alcohol treatment program. However, he had to close Nelson's
file when Nelson was incarcerated because Four Rivers was not capable of working
with Nelson while he was outside McGrath.
*7
The Department of Corrections's
efforts are combined with DFYS's actions in determining whether the state met
the active efforts requirement of ICWA. [FN14]
Nelson testified that since he has been in custody at the Tundra Center, he has
been offered many short-term treatment programs. The Tundra Center certified that
he completed a twenty-hour drug education program, a ten-hour stress and anger
management program, and an eight-hour family dynamics program. Nelson testified
that he attended both Narcotics Anonymous and Alcoholics
Anonymous meetings while incarcerated.
FN14.
A.M. v. State,
945 P.2d 296, 305 (Alaska 1997) ("It
is of no particular consequence that the Department of Corrections (DOC), rather
than DFYS, made these active remedial efforts.").
Much of Nelson's testimony
was directly disputed by testimony from Brennda Cash. Nelson testified that he
was always willing to go to treatment and do whatever was necessary to regain
custody of Jason. But Cash testified that Nelson was not willing to enter treatment,
refused to sign case plans, did not visit Jason often, and generally resisted
her assistance. Nelson testified that he was unsure who his social worker was
and that he rarely had contact with DFYS. Cash testified that she met in person
with Nelson eight to ten times and that the three social workers assigned to his
case worked as a team. Nelson argues that one reason he did not enter treatment
for his alcohol problem was that he did not know how much treatment was going
to cost or who was going to pay for it. Cash testified that a social worker at
DFYS had answered Nelson's questions about treatment costs and had told him that
the division's policy was to pay for one-way travel to the treatment location.
The superior court found it "hard
to believe" that Nelson did not understand how to fill out treatment applications
and generally discredited most of his testimony.
Factual findings are always reviewed for clear error and we give particular deference
to factual findings based mostly on oral evidence because "[i]t is the function
of the trial court, not of this court, to judge witnesses' credibility and to
weigh conflicting evidence." [FN15]
The superior court's finding that DFYS provided active efforts to reunify Jason
and Nelson was not clearly erroneous.
FN15.
Knutson v. Knutson,
973 P.2d 596, 599-600 (Alaska 1999).
B.
The Superior Court Did Not Clearly Err in Finding that It Was in the Child's Best
Interests To Terminate Dora's Parental Rights.
Dora argues that the superior court
clearly erred in finding that termination of Dora's parental rights would serve
Jason's best interests. She maintains that the court should allow her a period
of time to "demonstrate a continuation of her sobriety." Alternatively,
she argues that a guardianship would serve Jason's interests better than adoption.
The superior court must consider
whether a preponderance of the evidence shows that it is in the "best interests
of the child" to terminate parental rights. [FN16]
Alaska Statute 47.10.088(b) lists the factors that may be considered in the best
interests analysis as:
FN16. AS 47.10.088(c); Alaska Child
in Need of Aid Rule 18(c)(2)(C).
(1) The likelihood of returning the
child to the parent within a reasonable time based on the child's age or needs;
*8 (2) the amount of effort made by the parent to remedy the conduct or conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the parent.
The superior court made findings related to each of the five factors and the record supports these factual findings. [FN17]
FN17.
Dora does not make a legal argument that the superior court misapplied the statute
or misinterpreted its meaning. Instead, Dora argues that the superior court erred
in making some factual findings under the enumerated factors in AS 47.10.088(b).
The superior court found that
Jason would have to wait at least six months before the state could consider returning
him to his parents and that, given his young age, this delay was against his best
interests. Dr. MacIan, a clinical
psychologist for DFYS, testified that Dora would have to be sober for at least
six months before the division would consider placing Jason back in her custody.
She testified that Dora was not prepared to get into treatment and had not demonstrated
a desire to give up drinking. Dr. MacIan testified that, based on Dora's history
with alcohol, her drinking "could go on for an indefinite period of time."
Cash testified that even if Dora remained sober for six months, she still might
not recommend reunification because Dora's alcohol program did not treat her anger,
domestic violence, or parenting issues. Jason's guardian ad litem testified that
Jason was excited about going to stay with his aunt and that it was better for
Jason to be in a secure, permanent setting.
[FN18] Dr. MacIan testified that Jason wanted to live with his aunt and that it
was important for Jason to be in a permanent home.
FN18.
Jason's permanency plan calls for his adoption by his aunt.
The superior court found that
Dora had made no effort to correct her problem with alcohol, except for her "[eleventh]
hour entry into treatment." The court relied on her unwillingness to cooperate
with DFYS in implementing her case plan and her refusal to acknowledge that she
has a drinking problem. Cash testified that Dora was drinking up to the day that
she left for treatment, to the extent that she was almost turned away by the airline
flying her to Anchorage for her
treatment program. Even after nearly completing treatment, Dora wouldn't admit
at trial to being an alcoholic. The permanency report stated that Dora was not
actively working her case plan and would not maintain contact with DFYS. Dora
testified that she was unwilling to sign any of the three case plans developed
by DFYS and that she was uncooperative because she was angry with the division.
The superior court found that Jason
suffered physical harm from his parents' neglect and that he was at risk of suffering
"serious" physical harm. The court noted that Jason wanted to sleep
in the same bed as his foster parents when he was first removed from his parents'
custody but that he has now "flourished" and become "self-assured."
Dr. MacIan testified that Jason experienced nightmares from "the neglect
that [he] experienced, which included being exposed to domestic violence, seeing
his parents inebriated, having his parents injured [in] snowmachine accidents,
not knowing where they are, not knowing about their well-being, and the concern
that that caused him." She also testified about a report that Jason had fallen
off a snowmachine that Nelson was driving after drinking. Dora admitted to drinking
in front of Jason, exposing him to domestic violence, and not visiting him very
often while he was in foster care. Nelson testified that he and Dora have gone
off to drink and left Jason at home alone. Dora testified about an incident in
which she and four or five other adults, including her brother, were drinking
on the lower level of her home.
Jason was downstairs with Dora and her friends while they were drinking. Nelson
was upstairs. Her brother picked up a loaded gun and it went off with Jason standing
nearby. The bullet went through the ceiling and hit Nelson in the leg.
*9
Dr. MacIan testified that Jason's
overall wellness had improved since moving in with his foster parents. She informed
the court that Jason's teacher reported improvement in his work, attitude, and
relationship with other students a month after he was taken into DFYS custody.
The superior court found that Dora's
"attitude about not wanting to go to a long-term residential treatment facility
and inability to realize she needs
treatment are setting her up
to fail again." (Emphasis in original.) The court said that Dora's desire
to continue her relationship with Nelson was setting up her failure because neither
of them has had any treatment for anger management, parenting, or domestic violence.
During her testimony, Dora repeatedly refused to acknowledge that she had a drinking
problem. She testified that she had previously tried to quit drinking at least
ten times and has been in residential treatment programs three times. Dora admitted
that her longest period of sobriety since Jason's birth was three to four months.
Dora testified that her alcohol treatment program did not offer parenting, domestic
violence, or anger management classes. Dora testified that she would like to continue
her relationship with Nelson once she completes alcohol treatment and Nelson finishes
serving his jail time.
The superior court found a history
of domestic violence, neglect of Jason, and alcohol abuse by Dora. The court noted
that Dora and Nelson physically and verbally abused each other while Jason was
present. The court also found that Dora chose to spend money on alcohol instead
of paying bills, left Jason at home alone while she went out drinking, and skipped
visitation with Jason. Dora testified that when both she and Nelson were drinking,
they would argue and generally acted aggressively. Dora admitted to hitting Nelson
and to being hit by him. Dora testified that she sometimes could not afford to
pay bills, even though she was spending about $100 a month on alcohol. Dora admitted
drinking in front of Jason and Nelson testified that he and Dora had left Jason
home alone so that she could go the bar and drink. Dora testified that she would
sometimes call Jason at his foster home and schedule a time to visit but would
not always show up or even call to tell Jason that she wasn't going to make it.
Dora also argues that Jason's guardian
ad litem failed to protect Jason's best interests. It is true that Jason's guardian
did not fully investigate his case. In fact, the guardian spoke to Jason only
once and did not address the issue of how Jason felt about his parents' rights
being terminated. Perhaps the guardian ad litem should have more thoroughly investigated
Jason's case. However, it is the role of the superior court, not the guardian
ad litem, to determine whether or not it is in the best interests of the child
to terminate the parent's rights.
[FN19]
FN19.
AS 47.10.088(c); CINA Rule 18(c)(2)(C).
Dora further argues that guardianship
would have better served Jason's interests than adoption. Because Dora did not
raise the guardianship issue in the superior court, this issue is not properly
before us. [FN20]
FN20.
See G.C. v. State, Dep't of
Health & Soc. Servs., Div. of Family & Youth Servs.,
67 P.3d 648, 655 n. 25 (Alaska 2003) (holding that father could not argue that
state was required to place his child with relative under AS 47.14.100(e) because
it was not raised in superior court); Erica
A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs.,
66 P.3d 1, 11 (Alaska 2003) (refusing
to review issues argued in brief that were not presented to lower court);
D. E.D. v. State,
704 P.2d 774, 780 (Alaska 1985) (stating in ICWA parental rights termination case
that "[s]ince the issue was never properly raised below, we do not consider
it here.").
*10
The superior court found that
it was in Jason's best interests to terminate Dora's parental rights under AS
47.10.088(b). This finding is supported
by the record and was not clearly erroneous.
V.
CONCLUSION
Because we find support in the record
for the superior court's determination that (1) the state made active efforts
to prevent the breakup of an Indian family and (2) termination of parental rights
was in the best interests of the child, there was no clear error. We AFFIRM the
superior court's decision to terminate Nelson and Dora's parental rights.