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(Cite as: 2003 WL 21117676 (Alaska))

Supreme Court of Alaska.

CRAIG F., Appellant,

v.

STATE of Alaska, Department of Health and Social Services, Division of Family

and Youth Services, Appellee.

No. S-10622.

May 14, 2003.

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Dale O. Curda, Judge.

Avraham B. Zorea, Anchorage, for Appellant.

Erin McCrum, Assistant Attorney General, Bethel, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.

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

MEMORANDUM OPINION AND JUDGMENT [FN*]

FN* Entered pursuant to Appellate Rule 214.

I. INTRODUCTION

*1 Craig F. [FN1] appeals the termination of his parental rights to his four children. Craig claims that many of the trial court's factual findings were clearly erroneous and that the evidence was insufficient to prove beyond a reasonable doubt, as required by the Indian Child Welfare Act, that continued custody by Craig would likely cause serious emotional or physical harm to the children. Because the challenged findings are not clearly erroneous and the evidence is sufficient to meet the state's burden of proof, we affirm.

FN1. We use pseudonyms for all family members to protect their privacy.

II. FACTS AND PROCEEDINGS

Craig and Elaine F. are both Yup'ik Native Alaskans. They were married on February 27, 1990 and lived in Bethel. The couple had four children: Natasha (age 13), Deborah (12), Christopher (10), and Erica (5). Craig and Elaine's relationship was marked by a long history of alcohol abuse by both spouses and domestic violence by Craig.

Between 1990 and 1994 Craig was convicted of four misdemeanor assaults against Elaine. In one of these incidents, Craig allegedly struck both Elaine and baby Natasha in the face, and the officer reported that the infant appeared to have a reddened area above the right eye. In 1995 a police officer reported that five-year-old Natasha "was crying as she stated that her daddy [Craig] had hit her mommy in the face with his hand."

The Division of Family and Youth Services first became involved with the family in 1995, when it received a report alleging that Craig was physically abusing Deborah and that Craig and Elaine were neglecting the children. When the division social worker arrived at the home, Craig was in police custody for assaulting Elaine, who was too intoxicated to care for the children. Deborah, who was four years old at the time, reportedly had bruises on her legs. The division took the children into custody but released them two days later to their grandmother.

After being convicted of driving while intoxicated in 1997, Craig entered the Phillips Ayagnirvik Treatment Center in July but left treatment three days later; he evidently re-enrolled but left again after only sixteen days.

In June 1998 eight-year-old Natasha called the police, stating that her parents were intoxicated and her father was beating up her mother. The police officer who responded reported that Natasha was shaking, crying, and scared; Craig was highly intoxicated; and Elaine's lip was swollen and cut.

The following month, while Craig was in custody for assaulting Elaine, the division received a report that Elaine had been drinking and could not take care of her children. A social worker found Elaine sitting on the floor nursing two-month-old Erica. Elaine had slurred speech and was unable to stand. The children's grandmother agreed to take them until Elaine was sober. Two days later, the division received another report of alcohol-related neglect; a social worker again found Elaine intoxicated and unable to care for Erica. The other children were not in the home. The division took emergency custody of Erica but returned her to Elaine five days later.

*2 In September 1999 Craig was convicted again for assaulting Elaine and was placed in custody at a Bethel halfway house, the Tundra Center. Soon after, on October 21, 1999, the division responded to a report that Elaine was intoxicated and neglecting her children. The division social worker found that Elaine was too intoxicated to care for the children and took them into emergency custody pending adjudication of a petition alleging that they were children in need of aid. By then the division had offered Craig and Elaine a wide variety of rehabilitative services including substance abuse treatment programs, parenting classes, marriage counseling, anger management classes for Craig, and victimization support groups for Elaine. In early 2000 Craig and Elaine stipulated that all four children were children in need of aid, acknowledged that their substance abuse placed the children at risk of harm, admitted that the state had made active efforts to prevent the breakup of the family, and agreed to two years of legal custody by the division.

Craig successfully completed an inpatient alcohol abuse treatment program at the end of March 2000. Less than a month later both he and Elaine were discharged from a continuing care program for failing to attend meetings. In April 2000 the division returned the children to Elaine on condition that Craig not live in the home and that both parents remain sober. But it took custody again six days later, after receiving reports of intoxication and domestic violence. The children have remained in foster care since then. Craig and Elaine were again reported to be drinking on October 6; in December they were too intoxicated for their scheduled home visit with the children; and in January 2001 police making a welfare check at the home found them intoxicated. The couple separated shortly thereafter in late January 2001.

The division petitioned to terminate Craig's and Elaine's parental rights in February 2001, alleging that they were unwilling or unable to care for their children, that they had failed to follow their treatment plans or remedy the conditions that placed the children at risk, and that termination of parental rights was necessary to protect the children from a continuing likelihood of serious physical and emotional harm that would occur if they returned home.

Elaine subsequently continued to drink and refused to cooperate with the division. Meanwhile Craig completed inpatient substance abuse treatment at the Ernie Turner Treatment Center in March 2001 but failed to complete his aftercare program. Less than two months later Craig became intoxicated and was arrested for assaulting Elaine's new boyfriend with a pointed metal bar. After pleading no contest to fourth degree assault, his eighth assault conviction, he was sentenced to serve a two-hundred-day term and was placed at the Tundra Center, where he was scheduled for release on January 2, 2002.

The termination hearing began on December 10, 2001. By then Craig had successfully completed an inpatient treatment program for the second time, had attended sixteen sessions of anger management therapy, had been sober for approximately seven months, and was enrolled in a continuing care treatment program. Craig and Elaine divorced shortly before the termination hearing.

*3 Special Master Margaret Murphy presided over the hearing. The division sought to prove that Craig and Elaine had failed to remedy their chronic alcohol abuse problems and that their drinking would place the children at substantial risk of harm. While acknowledging Craig's recent sobriety, the division maintained that his longstanding pattern of drinking and domestic violence was likely to recur once he was released from custody at the halfway house. Three lay witnesses testified: Craig, Elaine, and Deborah Thorne, the division social worker assigned to the family. In addition, four experts testified: Mike Cutter, Dr. Paula MacIan, and Nancy Bushey for the state and Mike Bricker for Craig. Cutter, Bushey, and Bricker testified as substance abuse experts regarding Craig's sobriety and likelihood of a relapse under his circumstances. Dr. MacIan, a psychologist, testified about the effect of the parents' conduct on the children's mental and emotional state.

The master issued her decision on April 22, 2002--about four months after concluding the hearing--finding that the children were at risk of harm and recommending termination of Craig's and Elaine's parental rights. On May 9, 2002, Superior Court Judge Dale O. Curda entered a termination order adopting the master's findings and recommendations.

Only Craig has appealed.

III. DISCUSSION

A. Statutory Requirements

Because all four children are Indian children under the Indian Child Welfare Act, [FN2] this case is governed by both state and federal statutes. Before terminating Craig's parental rights under the relevant provisions of these statutes, the court was required to find: by clear and convincing evidence that the children continued to be in need of aid [FN3] and that Craig had failed within a reasonable time to remedy the conditions that placed them at risk; [FN4] by a preponderance of evidence that the state had made active but unsuccessful efforts to prevent breaking up the family [FN5] and that termination was in the children's best interests; [FN6] and by evidence beyond a reasonable doubt, including qualified expert testimony, that continued parental custody was likely to cause serious emotional or physical damage to the children. [FN7]

FN2. 25 U.S.C. §§ 1901-23, 1951 (2002).

FN3. AS 47.10.088(a)(1)(A); see also CINA Rule 18(c)(1)(A).

FN4. AS 47.10.088(a)(1)(B); see also CINA Rule 18(c)(1)(A).

FN5. AS 47.10.088(a)(2); 25 U.S.C. § 1912(d) (2002); see also CINA Rule 18(c)(2)(A) & (B).

FN6. AS 47.10.088(b); CINA Rule 18(c)(2)(C).

FN7. 25 U.S.C. § 1912(f) (2002); see also CINA Rule 18(c)(3).

B. Master's Decision

The master's report and recommendation thoughtfully summarized the evidence and addressed all the statutory issues. The master found by clear and convincing evidence that the children were in need of aid under AS 47.10.011(6), (8), and (10) because Craig's alcohol abuse and assaultive conduct placed them at risk of substantial physical harm, exposed them to a substantial risk of mental injury, and substantially impaired his ability to parent. [FN8] In finding a risk of substantial physical harm, the master noted the incident of domestic violence in which Craig injured Natasha, concluding: "Although there was no evidence that [Natasha] suffered substantial physical harm at that time, there was clearly a substantial risk that [Natasha] could have suffered substantial physical harm when [Craig] struck her in the face." The court also pointed to the parents' history of drinking until they became highly intoxicated, even to the point of blacking out, concluding that this conduct resulted in a substantial risk of serious physical harm because the children did not have adequate adult supervision.

FN8. Under AS 47.10.011 a child may be declared in need of aid if

(6) the child has suffered substantial physical harm, or there is a substantial risk that the child will suffer substantial physical harm, as a result of conduct by or conditions created by the child's parent ... or by the failure of the parent to supervise the child adequately;

....

(8) conduct by or conditions created by the parent ... have

(A) resulted in mental injury to the child; or (B) placed the child at substantial risk of mental injury as a result of

....

(ii) exposure to conduct by a household member ... against another household member that is a crime ...;

....

(10) the parent['s] ... ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant. and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child....

*4 Addressing the issue of mental injury, the master found that the children were in need of aid because of their "repeated exposure to domestic violence in the home." The master cited Craig's and Elaine's admissions that the children had frequently witnessed Craig's assaultive behavior, Natasha's calls to police reporting domestic violence, and Christopher's emerging behavioral problems.

Concerning Craig's and Elaine's parenting abilities, the master found the children to be in need of aid because "neither parent would remain sober and be available to protect the children or to insure that they did not hurt themselves."

Next, the master considered whether Craig and Elaine had failed to remedy their harmful behavior within a reasonable time. While recognizing that Craig had recently made renewed efforts to address his drinking and anger management problems and had managed to maintain sobriety in the setting of his halfway house treatment program, the master observed that it was too early to predict that he would succeed. In this regard, the master noted, "[t]he experts agreed it is necessary to wait at least 6 months after in-patient treatment in order to adequately gauge the potential for successful change in behavior." Finding that the children's best interests would be violated if they had to wait an additional six months to a year to determine whether Craig would succeed and that he had already received "ample opportunities" to address the issue, the master reasoned that Craig had failed to remedy his drinking problem within a reasonable time. Given these circumstances, the master looked to Craig's and Elaine's twenty-year history of alcohol abuse and their extensive record of failed attempts to maintain sobriety as the best measure of their future conduct, expressly finding that this measure established "a great likelihood" that their harmful conduct would continue:

Although it is difficult to determine the likelihood that the harmful conduct will continue in this case, the best way to determine the likelihood is by examining the past history of [Craig] and [Elaine]. Both have been sober for brief periods before, but neither one has been able to maintain sobriety for much more than five or six months. This means that there is a great likelihood that the harmful conduct will continue.

The master then considered the efforts that had been made to prevent the breakup of Craig and Elaine's family and the issue of the children's best interests. The master found that the division had made active efforts to reunify the family by providing rehabilitative services. Pointing to Craig's current incarceration, however, the master concluded that these active efforts had failed. With regard to the children's best interests, the master again observed that "the children have waited too long for [Craig] and [Elaine] to fix their problems." Emphasizing that "[t]he children have been in limbo long enough," the master found that their best interests called for termination of parental rights to "allow them to be placed in a stable environment."

*5 Last, with respect to the issue of future harm, the master reviewed the expert testimony and found beyond a reasonable doubt that continued custody by Craig and Elaine would likely cause serious emotional or physical damage to the children. The master emphasized the expert testimony indicating that the children were developmentally delayed, had special needs, and had difficulty trusting their parents as a result of the substance abuse and domestic violence in their home. Pointing again to the parents' unresolved alcohol abuse and domestic violence problems, the court predicted that parental custody would result in serious emotional damage and physical harm.

C. Craig's Arguments

Craig challenges the sufficiency of the evidence, under ICWA's standard requiring proof beyond a reasonable doubt, to support the master's statutorily required finding that his continued custody would likely cause physical or emotional damage to his children. In addition, Craig disputes a number of more specific findings supporting the master's broader statutory findings, contending that these supporting findings cast doubt on the ultimate decision to terminate his parental rights. We first consider Craig's challenges to specific findings, [FN9] then turn to his arguments contesting the broader statutory finding of future harm.

FN9. We review the trial court's factual findings only for clear error. E.g., M.W. v. State, Dep't of Health & Soc. Servs., 20 P .3d 1141, 1143 (Alaska 2001).

1. Challenges to specific findings

a. Future physical abuse and emotional harm

In determining that continued custody by Craig would likely cause serious emotional or physical damage to the children, the master noted: "If [Elaine] is not in the home, [Craig] may physically abuse the children." The master further found that "Dr. MacIan testif[ied] that continued custody by the parents is likely to result in serious emotional damage." Craig argues that these findings are unsupported by the evidence or misstate the record. But Craig reads the findings out of context and characterizes the evidence in the light most favorable to his position.

Despite Craig's prior involvement in only one confirmed incident of physical harm to his children, the record as a whole strongly supports the conclusion that his chronic intoxication and penchant for domestic violence have posed a serious and ongoing risk of substantial physical injury to the children. As we separately conclude below, the evidence further supports the master's finding that Craig's past conduct is likely to continue and will therefore pose the same risk in the future. It follows that the finding of potential physical abuse is not clearly erroneous.

The same conclusion holds true as to the disputed finding addressing Dr. McIan's testimony concerning potential emotional harm. Dr. MacIan testified that the three oldest children had suffered serious mental harm from their parents' substance abuse and domestic violence. When asked whether the children would be likely to suffer continued emotional harm if returned to their parents, Dr. MacIan responded: "If there is an episode of domestic violence or drinking, they would be severely harmed." Because Dr. MacIan testified only that Craig would pose a continuing risk if he continued drinking, Craig insists that the master erred in construing Dr. MacIan's testimony to say that Craig actually will pose a continuing risk. But Craig mistakenly reads the disputed finding in isolation, ignoring the master's separate finding of "a great likelihood that [Craig's] harmful conduct will continue." Given this finding, which we uphold below, the master accurately portrayed the significance of Dr. MacIan's testimony.

b. Craig's sobriety

*6 At the time of the termination hearing, Craig had been sober for about seven months while in treatment at the Tundra Center. In determining that Craig had failed to remedy his chronic drinking problem within a reasonable time, the master gave "some weight" to his sobriety while in custody but found that it was "too early ... to determine whether there [was] any possibility of success," noting that "the experts agreed the better test to determine if [Craig's] conduct has changed will be after he is released from custody." Craig challenges these findings, arguing that his custodial sobriety was entitled to greater weight because the evidence established that he could have easily purchased alcohol during his daily walk from the Tundra Center to work.

But the expert testimony supports the master's findings. Even Craig's expert, Bricker, acknowledged that the risk of relapse increases exponentially for persons departing a structured and supervised living situation. Given that Craig was in custody for an alcohol-related domestic assault that occurred shortly after Craig successfully completed an earlier period of custodial treatment and sobriety, the master's reliance on this expert testimony was not clearly erroneous.

Craig also claims that the master erred in observing that he had been unable "to maintain sobriety for much more than five or six months." He asserts that this finding disregards that he managed to remain sober for seven months at the time of the termination hearing. But the master's findings demonstrate that she knew the length of Craig's current period of sobriety. Moreover, this seven- month period falls within the limit described in the challenged finding--a period of sobriety not lasting " much more than five or six months." (Emphasis added.)

c. Craig's divorce

In determining that Craig had failed to remedy the conduct or conditions placing his children at risk, the master described various risks that the children had been exposed to in their previous home setting but did not explicitly recognize that Craig and Elaine had recently divorced. Craig asserts that the master erred in failing to recognize that, because of the divorce, the children would be in a different home setting if they were returned to Craig's custody. But the record belies this assertion. The master expressly took judicial notice of Craig and Elaine's divorce, disclosed that she had handled the divorce hearing, and explicitly found that "[r]eturning the children to either [Craig] or [Elaine] at this time would place them at substantial risk of physical or mental injury." (Emphasis added.)

2. Sufficiency of the evidence to prove future risk of harm beyond a reasonable doubt

ICWA forbids the termination of parental rights to an Indian child unless the court finds "by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child." [FN10] The qualified expert testimony required under this provision must address the particular facts and issues of the case. [FN11] Craig argues that the evidence relating to likelihood of future harm is insufficient to meet these requirements because the expert testimony was not based on the particular facts of the case and because none of the experts specifically testified that Craig was likely to continue abusing alcohol or would likely cause serious harm to his children. [FN12]

FN10. 25 U.S.C. § 1912(f) (2002); see also CINA Rule 18(c)(3).

FN11. C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1218 (Alaska 2001).

FN12. Whether substantial evidence supports the trial court's conclusion that the children would likely be seriously harmed if they were returned to Craig is a mixed question of fact and law. E .g., J.A. v. State, Div. of Family & Youth Servs., 50 P.3d 395, 399 (Alaska 2002). Factual findings are reviewed for clear error, but whether the findings satisfy applicable CINA or ICWA requirements is a question of law subject to de novo review. L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 949-50 (Alaska 2000). Likewise, whether expert testimony sufficiently supports the court's conclusion is a legal question reviewed de novo. E.g., J.A ., 50 P.3d at 399.

a. Expert testimony

*7 At trial, the division's child psychologist, Dr. MacIan, testified that the children would be harmed if they were returned to Craig and he continued to abuse alcohol. The division's substance abuse experts, Cutter and Bushey, testified that Craig's recent sobriety was significant, but that it was too early to predict whether he was likely to relapse.

b. Lack of case-specific expert knowledge

Craig first contends that the expert testimony was insufficient because it was not based on actual familiarity with his case. He primarily cites C.J. v. State, Department of Health & Social Services [FN13] to support his argument.

FN13. 18 P.3d 1214 (Alaska 2001).

In C.J., we held that the expert testimony was insufficient to meet ICWA's qualified expert testimony requirement because the expert received all information about the case from reading the division's file, had never met or spoken with the father or children before the hearing, and gave general opinions not sufficiently grounded in the facts and issues of the case. [FN14] Given these circumstances, we described the expert's opinions as "little more than generalizations about the harms resulting from a parent's absence." [FN15] In J.J. v. State, Department of Health & Social Services, the companion case to C.J., we rejected the same expert's testimony on similar grounds, adding that the expert had relied on outdated information and was unaware of the mother's recent significant steps that improved her ability to parent her children.[FN16]

FN14. Id. at 1218.

FN15. Id.

FN16. 38 P.3d 7, 10 (Alaska 2001).

Here, by contrast, two of the division's three experts, Dr. MacIan and Bushey, had significant experience with the family members before they testified. More important, all three of the division's experts grounded their testimony on the particular facts and issues of the case by answering hypothetical questions that accurately detailed Craig's present circumstances, including the length and quality of his sobriety. As we recently held in J.A. v. State, Division of Family & Youth Services, hypothetical questions are a proper technique for presenting qualified expert testimony when the questions describe hypothetical facts in sufficient detail to elicit opinions based on the particular facts and issues before the court. [FN17] The expert testimony in this case met these criteria.

FN17. 50 P.3d 395, 400-01 (Alaska 2002).

c. Experts' failure to predict likelihood of a relapse

Craig also argues that the expert testimony failed to meet ICWA's requirement of proof beyond a reasonable doubt because none of the expert witnesses testified that Craig was likely to relapse; they merely testified that it was difficult to predict whether he would relapse.

To meet ICWA's requirement of establishing a likelihood of future harm, the state must prove beyond a reasonable doubt both that a parent has acted in a way likely to cause harm to the child and that the parent's harmful conduct is likely to continue if the child is returned to parental custody. [FN18] But in E.A. v. State, Division of Family & Youth Services, we expressly recognized that the state's expert testimony standing alone need not satisfy this requirement: "ICWA does not require that the experts' testimony provide the sole basis for the court's conclusion; ICWA simply requires that the testimony support that conclusion." [FN19] There we held that the qualified expert testimony concerning the child's fragile mental state and fear of his mother, together with substantial evidence concerning the mother's substance abuse, instability, and parental incapacity, supported the trial court's determination beyond a reasonable doubt that the child would likely be seriously harmed if returned to the mother:

FN18. E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 992 (Alaska 2002); L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000).

FN19. E.A., 46 P.3d at 992.

*8 The extensive evidence of E.A.'s chronic, unaddressed substance abuse, taken together with the unequivocal opinions of the two experts and [the child]'s documented fear of returning to his mother, provide the requisite proof both that E.A.'s conduct would likely harm [the child] and that E.A. is unlikely to permanently change that conduct. [FN20]

FN20. Id.

Under E.A., then, the expert testimony in this case must be viewed in light of all the other relevant evidence in the record.

And when measured by E.A.'s standard, the master's finding beyond a reasonable doubt that continued custody by Craig would likely result in serious emotional and physical harm was amply supported by qualified expert testimony. The expert testimony reflected substantial uncertainty as to Craig's future prospects. But in addition to that testimony the master considered the substantial evidence of Craig's past failures at rehabilitation and his long history of substance abuse and domestic violence. Based on the evidence as a whole, the master found that "there is a great likelihood that the harmful conduct will continue." The master went on to conclude beyond a reasonable doubt that the children would likely suffer serious physical and emotional damage if returned to Craig's custody. Because this conclusion is supported by the record as a whole, including the testimony of qualified expert witnesses, it complies with ICWA's requirements.

3. Deferral of the termination proceedings

Relying on our decision in J.J., Craig lastly argues that since he demonstrated a substantial period of sobriety prior to trial, the superior court should have deferred its decision in the termination proceedings to see if he could maintain his sobriety for a sufficient time to establish his successful rehabilitation.

In J.J., after holding that the expert testimony was overly general, [FN21] we went on to observe that the trial 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." [FN22] We emphasized that this option was available because a deferral could be ordered "without interrupting an established relationship, as the children had not been permanently placed." [FN23]

FN21. J.J., 38 P.3d at 8-10.

FN22. Id. at 10.

FN23. Id. at 10-11.

The present case bears some similarity to J.J. but differs in important respects. [FN24] In J.J., we discussed the option of deferral after holding that the expert testimony was insufficient to support termination. No similar evidentiary deficiency militates in favor of deferral here. Additionally, J.J.'s period of sobriety was considerably longer than Craig's; J.J. had demonstrated her ability to maintain sobriety in a completely non- custodial setting; and J.J. did not have a documented history of failed attempts at rehabilitation. Finally, J.J. had moved for a continuance of her termination hearing; [FN25] in contrast, Craig never suggested the option of delaying either the termination hearing before the master or the superior court's ruling on the master's recommendation, which the master issued four months after the hearing had ended. These points of distinction lead us to conclude that J.J. does not control Craig's situation.

FN24. Like the mother in J.J., Craig had completed inpatient substance abuse treatment and had maintained a substantial, albeit inconclusive, period of sobriety at the time of the termination hearing. Moreover, Craig's children had not been permanently placed at the time of the hearing, and the division presented no evidence identifying any specific physical or emotional harm that the children might experience in the event of a brief deferral. Notably, the children's situation continued to be unsettled well after the superior court approved the master's recommendation in May 2002. As of November 25, 2002, the children remained together in an adoptive placement with relatives, but the division was reinvestigating the placement because of reports that two of the children had been sexually abused by a non-relative residing in the same rural community.

FN25. J.J., 38 P.3d at 8.

IV. CONCLUSION

*9 Finding no clear error in the trial court's findings and substantial evidence to support the trial court's finding of proof beyond a reasonable doubt under ICWA, we AFFIRM the superior court's order terminating Craig's parental rights.

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