(Cite
as: 50 P.3d 395)
Supreme
Court of Alaska.
J.A.,
Appellant,
v.
STATE
of Alaska, DFYS, Appellee.
No.
S-10143.
July 5, 2002.
Whether
substantial evidence supports the court's conclusion in a termination of
parental rights proceeding under the Indian Child Welfare Act (ICWA)
that a parent's children would likely be seriously harmed if
they were returned to the parent is a mixed question
of fact and law. Indian Child Welfare Act of 1978,
§ 2
et seq., 25 U.S.C.A. § 1901
et seq.
Whether
expert testimony in a termination of parental rights proceeding under
the Indian Child Welfare Act (ICWA) sufficiently supports the court's
conclusion that a parent's children would likely be seriously harmed
if they were
returned to the parent is a legal question. Indian Child
Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Supreme
Court reviews the trial court's factual findings in a termination
of parental rights proceeding under the Indian Child Welfare Act
(ICWA) under the clearly erroneous standard and its legal conclusions
de novo. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
State's
psychological expert witness in termination of parental rights proceedings under
Indian Child Welfare Act (ICWA) properly relied upon substantiated allegations
of sexual abuse contained in records of Department of Family
and Youth Services (DFYS) in forming her opinions, irrespective of
whether such records contained hearsay, absent any evidence supporting father's
contention that allegations of harm in such reports were unreliable,
confusing, or unsubstantiated, where experts in witness' field reasonably relied
on such records
in forming opinions. Indian Child Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.; Rules of Evid., Rule 703.
Experts
in termination of parental rights cases may reasonably rely on
Department of Family and Youth Services (DFYS) records in forming
their opinions, regardless of whether those records are hearsay.
State's
experts in termination of parental rights proceedings under Indian Child
Welfare Act (ICWA) were sufficiently familiar with facts of case
to offer precise, reliable testimony supporting court's conclusion that children
would likely suffer serious harm if returned to father's custody,
where both experts were sufficiently apprised of facts by Department
of Family and Youth Services (DFYS) records and summaries of
relevant facts and testimony, one expert was qualified in substance
abuse evaluation and diagnosis and cultural dynamics of Native families,
and other expert was qualified as expert clinical psychologist with
specific expertise in child sexual abuse and neglect. Indian Child
Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Hypothetical
questions posed to expert witness in termination of parental rights
proceeding under Indian Child Welfare Act (ICWA) were sufficiently based
on facts of the case to enable qualified expert to
give testimony required by ICWA; questions included information relating to
general family history, parents' long history of substance abuse up
to time of trial, including failed treatment attempts, parents' substance
abuse and domestic violence in children's presence, allegations of sexual
abuse of two of the children, parents' choice to continue
to leave children in care of alleged perpetrators, and parents'
failure to obtain counseling for themselves or children. Indian Child
Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Experts'
specific testimony, directly related to most relevant issues before court
in termination of parental rights proceedings under Indian Child Welfare
Act (ICWA), was sufficient to support court's conclusion that children
would likely be seriously harmed if they were returned to
their father; experts testified concerning father's persistent abuse of alcohol
and marijuana, his history of drug use and domestic violence
with children's mother, his failure to obtain counseling for child
who alleged sexual abuse by father, and willingness to allow
another perpetrator of sexual abuse to supervise children. Indian Child
Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Evidence
of father's chronic substance abuse and consistent neglect of his
children's welfare, independent of experts' testimony, was sufficient to support
court's conclusion, required under Indian Child Welfare Act (ICWA), that
children would likely suffer serious harm if returned to father's
custody; father had four convictions for assaulting children's mother, on
each of which occasions he was drunk, and was aware
that at least one child had been sexually abused by
member of the community but continued to leave children under abuser's
supervision. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Substantial
evidence supported court's concern, in termination of parental rights proceedings
under Indian Child Welfare Act (ICWA), that father's unchecked substance
abuse contributed to his violent tendencies; father had four convictions
for assaulting his wife, wife testified that father was drunk
each time he assaulted her, one conviction included affidavit that
father exhibited many common symptoms of inebriation immediately after incident,
and one or more of the children were present for
at least two assaults. Indian Child Welfare Act of 1978,
§ 102(f),
25 U.S.C.A. § 1912(f).
Neither
Indian Child Welfare Act (ICWA) nor any state law imposed
heightened
requirement
upon Department of Family and Youth Services (DFYS) beyond ICWA's
requirement that DFYS make "active efforts" to provide rehabilitative services to
prevent permanent breakup of family; specifically, DFYS was not required
to offer rehabilitative services tailored to father's Native cultural background
or case plan adhering to traditional Native values. Indian Child
Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Father's
unsupported contentions, in termination of parental rights proceedings under Indian
Child Welfare Act (ICWA), that he was not permitted to
use his parents as sober support contacts and was required
to complete alcoholism aftercare in another city were insufficient to
support finding that Department of Family and Youth Services (DFYS)
failed to offer rehabilitative services sufficiently respectful of father's Native
values, especially where DFYS had reasonable basis for ordering father
to complete his aftercare away from his home village but
did not in fact so order. Indian Child Welfare Act
of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
*397 Avraham B. Zorea, Anchorage, for Appellant.
Christi A. Pavia, Assistant Attorney General, Bethel, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
*398 Before FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
OPINION
EASTAUGH, Justice.
I.
INTRODUCTION
J.A. appeals the termination of his parental rights to his
three Native children. We must determine whether expert testimony was
sufficient under the Indian Child Welfare Act to support the
trial court's conclusion that the children would likely suffer serious
harm if they were returned to J.A.'s custody. We hold
that the experts' testimony was sufficiently related to the facts
and issues of the case even though the experts based
their opinions on hypothetical scenarios and a limited review of
the family's case file. And because J.A. explicitly concedes that
the state provided active efforts to prevent the breakup of
his family, we also reject J.A.'s claim that the state's
rehabilitative services should have been better tailored to his Native
values.
II.
FACTS AND PROCEEDINGS
J.A. appeals the February 27, 2001 termination of his parental
rights to his three children, C.A., T.A., and C. All
three are Indian children within the meaning of the Indian
Child Welfare Act (ICW). [FN1] A.A., J.A.'s estranged wife
and mother of the three children, stipulated to the termination
of her rights at trial.
FN1.
25 U.S.C. §§ 1901-23,
1951 (1988).
The Alaska Department of Health and Social Services, Division of
Family and Youth Services (DFYS), obtained temporary legal custody of
C.A., the eldest child, in January 1998, based on reports
of sexual abuse and neglect. The parents stipulated in July
1999 that C.A. was a child in need of aid
under AS 47.10.011(7), (9), and (10), and acknowledged that their
substance abuse placed C.A. at risk of substantial physical harm. [FN2] Following a contested disposition hearing in September 1999, the
superior court awarded legal and physical custody of C.A. to
DFYS.
FN2.
Under AS 47.10.011,
the
court may find a child to be a child in
need of aid if it finds by a preponderance of
the evidence that the child has been subjected to ...
(7)
... sexual abuse, ...
(9)
... neglect[, or] ...
(10)
the parent['s] ability to parent had 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....
DFYS obtained temporary legal custody of the two younger children
in May 1999 after a social worker made an unannounced
visit to Kongiganak in March 1999 and found both parents
inebriated and unconscious; the youngest child, C., in the care
of W.J., one of C.A.'s alleged abusers; and T.A., then
five years old, playing outside unsupervised. Following C.A.'s removal from
her parents' custody in September 1999, J.A. and A.A. stipulated
that their two younger children, T.A. and C., were also
children in need of aid under AS 47.10.011(7) and (9).
They acknowledged that their substance abuse placed both children at
risk of substantial physical harm and neglect. The court placed
the children in DFYS's custody for two years in November
1999.
In February 2000 DFYS removed T.A. and C. from their
parents' home due to continued substance abuse and domestic violence
in the children's presence, as well as the parents' decision
to continue to leave the children with A.A.'s mother and
W.J. despite DFYS's warnings not to do so. The court
made findings supporting the removal.
DFYS filed a petition to terminate both parents' rights to
their three children in August 2000, and a termination trial
was conducted in Bethel in January and February 2001. The
Native Village of Kongiganak intervened and participated
at trial. The village did not take a position at
trial on the issue whether J.A.'s rights should be terminated.
Rather, the village seemed principally interested in ensuring that the
children be permanently placed in Kongiganak.
The superior court orally granted DFYS's petition with respect to
A.A. following her decision not to contest termination at trial,
and issued a written order granting DFYS's petition with respect
to J.A. Following Alaska *399 Child in Need of Aid Rule 18(c), the court concluded
that DFYS proved that C.A., T.A., and C. were children
in need of aid under six subsections of AS 47.10.011.
The court further found that J.A. had not remedied the
conduct that caused his children to be in need of
aid despite the department's active efforts to provide rehabilitative services.
The court specifically noted J.A.'s recent relapses and failure to
complete aftercare following his most recent substance abuse treatment program.
Finally, the court concluded that there was "no doubt [J.A.'s]
continued custody of these children is likely to result in
serious emotional and physical damage to them."
J.A. appeals. The village does not join in J.A.'s appeal
and has not filed a separate appeal. [FN3]
FN3.
The permanent placement issue is not presently before us. For
this reason, and because the village did not participate in
this case on appeal,
we do not consider the village's position regarding permanent placement
in this opinion.
III.
DISCUSSION
A.
Standard of Review
J.A. limits his appeal to ICWA
issues. [FN4] Whether substantial evidence supports the court's conclusion
that J.A.'s children would likely be seriously harmed if they were returned
to him is a mixed question of fact and law. [FN5] Whether expert testimony sufficiently supports this conclusion
is a legal question. [FN6] We review the court's factual findings under the clearly erroneous
standard [FN7]
and its legal conclusions de novo. [FN8]
FN4.
Accordingly, J.A. does not challenge the superior court's conclusions that
the state has proven by clear and convincing evidence that
his children continue to be in need of aid and
that he has not remedied the conduct that would place
the children at substantial risk of harm if returned to
him.
FN5. See
L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 949-50 (Alaska 2000) (holding factual findings in
termination proceedings
are reviewed under clearly erroneous standard, but whether those findings
comport with ICWA requirements is question of law).
FN6. See
C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1217-18 (Alaska 2001) (reviewing sufficiency of expert
testimony de novo).
FN7. L.G., 14 P.3d at 949-50 (citation omitted).
FN8. Id. (citation omitted).
B.
The Superior Court Did Not Err by Relying on the
Experts' Testimony.
J.A. argues that the experts' testimony was improperly based on
hearsay. J.A. further contends that the experts' testimony was insufficiently
related to the facts and issues of the case to
support the court's conclusion under ICWA that the children would
likely suffer serious emotional or physical damage if they were
placed with him. Finally, J.A. argues that the court over-relied
on the experts' testimony in reaching its ultimate conclusion.
1.
J.A.'s objection to Dr. MacIan's reliance on hearsay reports of
sexual abuse is meritless.
J.A.
argues that DFYS's expert psychologist, Dr. Paula MacIan, improperly
relied on hearsay allegations of sexual abuse in forming her opinions.
This objection fails because experts in termination cases
may reasonably rely on DFYS records in forming their opinions, regardless
of whether those records are hearsay.
Dr. MacIan based her opinion in part on DFYS records,
including documents containing allegations of sexual abuse against C.A. and
C. committed by Kongiganak community members and J.A., respectively. Dr.
MacIan explained several criteria she used to determine whether the
allegations were "substantiated," and testified that she only relied on
the substantiated allegations to form her opinion. The trial judge
ruled that although these "substantiated" allegations are hearsay, Dr. MacIan
could rely on them because the court was satisfied with
her testimony that experts in her field would reasonably do
so.
This ruling was neither legal error nor an abuse of
discretion. [FN9]
Alaska Evidence Rule *400 703 explicitly allows experts to rely on otherwise inadmissible evidence
so long as the material is "of a type reasonably
relied upon by experts in the particular field in forming
opinions or inferences upon the subject." We held in Broderick
v. King's Way Assembly of God Church that " '[h]earsay can be a permissible basis for opinion
testimony' provided the reasonable reliance test is satisfied," [FN10]
and further held that experts can reasonably rely on information
from other case workers
to form their opinions. [FN11] J.A. asserts that the allegations of harm relied on
by Dr. MacIan were unreliable, confusing, or unsubstantiated, but J.A.
does not endeavor to explain these conclusory assertions, or explain
why he thinks Dr. MacIan's methods for determining reliability are
faulty or unreasonable. Accordingly, we are satisfied that the trial
court did not abuse its discretion in ruling that Dr.
MacIan could rely on the "substantiated" allegations of harm.
FN9. See
Liimatta v. Vest, 45 P.3d 310, 313 (Alaska 2002) (citation omitted) (reviewing trial
court's decision to admit or exclude evidence for abuse of
discretion).
FN10.
808 P.2d 1211, 1217 (Alaska 1991) (quoting Norris
v. Gatts, 738 P.2d 344, 349 (Alaska 1987)).
FN11. Id. (noting that had witness's testimony been offered as expert testimony,
court could have admitted hearsay statements of other social workers
and counselors that formed basis for expert opinion under Alaska
Evidence Rule 705(c)) (citing In
re J.R.B., 715 P.2d 1170, 1174 (Alaska 1986)).
2.
The experts' opinions were sufficiently related to the facts and
issues of the case to support the trial court's conclusion
that the children would likely suffer serious harm if returned
to J.A.
J.A. argues that the state's experts,
Dr. MacIan and Professor Michael Daku, were not sufficiently familiar
with the facts of this case to offer precise, reliable testimony supporting
the court's conclusion, required under ICWA, that the children would likely
suffer serious harm if returned to their father's custody. [FN12] We disagree.
FN12.
25 U.S.C. § 1912(f)
requires a court to determine "that the continued custody of
the child by the parent ... is likely to result
in serious emotional or physical damage to the child" before
terminating parental rights to the child. This determination must be
"supported by evidence beyond a reasonable doubt, including testimony
of qualified expert witnesses."
Id. (emphases added).
J.A. relies on C.J.
v. State, Department of Health & Social Services, 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. [FN13] We first noted that the expert's conclusions were "considerably
weakened by the fact that
she received all information about this case from reading the
file given to her by DFYS and never met or
spoke with either C.J. or the children prior to the
hearing." [FN14]
We then observed that "her conclusions appear to be little
more than generalizations about the harms resulting from a parent's
absence and provide little discussion of the particular facts of
the case." [FN15]
In the companion case, J.J.
v. State, Department of Health & Social Services, we again rejected the expert's testimony, noting that she based
her opinion on outdated information and was therefore unaware of
the parent's recent successful efforts to maintain sobriety for a
significant length of time. [FN16]
FN13.
18 P.3d 1214, 1218 (Alaska 2001); see
also J.J. v. State, Dep't of Health & Soc. Servs., 38 P.3d 7, 10 (Alaska 2001) (reaching same conclusion regarding
same expert's testimony concerning mother).
FN14.
18 P.3d at 1218.
FN15. Id.
FN16.
38 P.3d 7, 10 (Alaska 2001).
J.A.'s attempts to analogize this case to C.J. and J.J. are unavailing. First, the fact that neither Dr. MacIan nor
Professor Daku met with the parties is not determinative. We
explicitly noted in C.J. that such pretrial interviews are not required in every case. [FN17] Here, both experts were sufficiently apprised of the facts
by their review of selected DFYS records and by DFYS
counsel's summaries of relevant facts and of the testimony of
other witnesses. These summaries also served to keep the experts'
testimony sufficiently grounded in the facts and issues of the
case.
FN17.
18 P.3d at 1218.
*401 Professor Daku was qualified as an expert in substance abuse
evaluation and diagnosis and the cultural dynamics of Native Alaskan
families. Dr. MacIan was qualified as an expert clinical psychologist
with specific expertise in child sexual abuse and neglect.
DFYS's attorney posed several
hypothetical questions to Professor Daku. These questions included information
relating to general family history; the parents' long history of
substance abuse right up to the time of trial (including failed treatment
attempts); J.A.'s failure to complete his aftercare plan following
his second stay at the Phillips Alcoholism Treatment Center (PATC) in
Bethel; the parents' substance abuse and domestic violence in the
presence of the children; and allegations of sexual abuse of C.A.
and C., including the parents' choice to continue to leave the children
in the care of alleged perpetrators as well as the parents' failure to
obtain counseling for themselves or their children. The court
denied J.A.'s attorney's motion for mistrial made in the midst of DFYS
counsel's presentation of these hypothetical questions, ruling that they
were sufficiently based on prior testimony and that they comported with
the court's notes. [FN18] Dr. MacIan received the same information in the form of DFYS
counsel's summary of prior testimony. In addition, Professor
Daku reviewed discharge summaries from the PATC program for both parents.
Dr. MacIan reviewed various DFYS records, including a "family
chart" containing allegations of sexual abuse and reports from the
social worker's visits with the family. [FN19]
FN18.
J.A. does not explicitly challenge this ruling on appeal. Nonetheless,
we hold that DFYS counsel's hypothetical questions were sufficiently based
on the facts of the case to enable a qualified
expert to give the testimony required by ICWA. See 25 U.S.C. § 1912(f);
see
also Parts II and III.B.3 for record corroboration of the facts
assumed by these hypothetical questions.
FN19.
The family chart contained the five "substantiated" reports of sexual
abuse involving C.A. described in Part III.B.1.
Both experts gave specific testimony
directly related to the most relevant issues before the court: the
parents' chronic, unabated substance abuse and resulting neglect of their
children, including their inability to protect their children against
the risk of sexual abuse.
Professor Daku expressed concern that J.A. had relapsed following his
second residential substance abuse treatment program in the summer of
2000 and had not completed his aftercare program. He was
even more concerned that J.A. continued to smoke marijuana up
to the time of trial. [FN20] Professor Daku testified that J.A.'s likelihood of future relapse
into alcohol use was potentially higher due to his continued
marijuana use. [FN21] In fact, Professor Daku did not consider J.A. in
recovery or sober at the time of trial as a
result of his ongoing substance abuse.
FN20.
At the termination trial, J.A. admitted to "getting stoned" with
friends on a near-weekly basis.
FN21.
He explained that marijuana and alcohol are "cross-addictive" and "cross-tolerant,"
meaning that someone recovering from an alcohol addiction would be
more likely to resume abusing alcohol if he continued to smoke
marijuana--the marijuana would lead the user back to his drug
of choice, alcohol.
Like Professor Daku, Dr. MacIan was concerned that J.A. had
not demonstrated an ability to remain sober for an extended
period of time. Both experts testified that J.A. would need
to maintain a significant period of sobriety, complete his aftercare
program, and associate only with sober individuals before reunification could
be attempted. But both experts thought it very unlikely that
J.A. would achieve such a transformation given his history of
substance abuse, and both agreed that the children should not
have to wait for J.A. to continue to try to
achieve long-term sobriety.
Finally, both experts were concerned that J.A. might get back
together with A.A., thereby jeopardizing his long-term recovery chances. Professor
Daku testified that the parents' history of drug use and
domestic violence, as well as A.A.'s lack of commitment to
achieving sobriety, creates risks of future relapses into drug abuse
and violence. He further opined that when one member of
a couple commits to recovery and the other does not,
the committed member has a more *402 difficult time maintaining sobriety because of the other's continued drug
or alcohol use.
Dr. MacIan testified that she was concerned that the parents
had not obtained counseling for C. after C. alleged that
J.A. sexually abused her when she was three-and-a-half
years old. Dr. MacIan explained that children who do not
receive counseling are more likely to be abused in the
future and more likely to engage in sexually acting-out behavior
because they do not learn appropriate boundaries for physical contact
with others. She testified that children with histories of sexual
abuse need heightened supervision. She was also concerned that the
parents continued to place their children in W.J.'s care despite
allegations that he was one of the perpetrators of sexual
abuse against C.A.
Professor Daku testified that the children had already been harmed
by their parents' destructive behavior, and would more likely than
not suffer additional serious harm if returned to J.A.'s custody.
Dr. MacIan testified that the children would likely be neglected
if returned to J.A., and that they would suffer harm
as a result. She testified that J.A. would be unavailable
to the children during episodes of substance abuse, leaving the
children at risk of exploitation by others.
Both experts recommended that J.A.'s rights to his three children
be terminated. Professor Daku recommended adoption rather than reunification for
the children because their parents continued to abuse substances and
showed no signs of being able "to assume the responsibility
of being parents anytime soon." Dr. MacIan recommended that J.A.'s
rights to C. and T.A. be terminated because J.A.'s likely
continued substance abuse placed the children at risk of further
neglect. Dr. MacIan further recommended that J.A.'s rights to C.A.
be terminated
for the same reasons, including the parents' decision to continue
to allow W.J. to associate with her.
In conclusion, Professor Daku and Dr. MacIan's testimony was "based
on the particular facts and issues of the case to
a [much] greater extent than occurred" in C.J. and J.J. Accordingly, their testimony was more than sufficient to support the
trial court's conclusion under ICWA that J.A.'s children would likely
be seriously harmed if returned to him.
3.
The trial court did not over-rely on expert testimony in
concluding that the children would likely suffer serious harm if
returned to J.A.'s custody.
J.A. also argues that the court
over-relied on expert testimony in reaching this conclusion. But
the record is replete with evidence of J.A.'s chronic substance abuse
and consistent neglect of his children's welfare independent of the experts'
testimony.
The trial court explicitly noted that J.A. had an "abysmal
track record, time after time neither following through with aftercare
nor abstaining from mind/body altering substances." The court further found
that J.A.'s "priorities are horribly skewed; substances obliterate any modicum
of common sense and care for his children and expose
them to neglect, domestic violence, and sexual abuse." Based on
these findings, as well as the experts' testimony described above,
the court concluded that "[J.A.'s] custody of the children would
be disastrous." The trial court's findings regarding J.A.'s substance abuse
and its adverse consequences on his children are fully supported
by the record.
Both parents have long histories of substance abuse that continued
relatively unabated right up to the time of trial. J.A.
completed his second residential treatment program at the PATC in
Bethel in September 2000, but failed to complete his prescribed
aftercare program and relapsed within three weeks of his discharge.
He claimed to have abstained from alcohol for six to
eight weeks before the February 2001 termination trial, but admitted
to continued near-weekly marijuana use.
Substantial evidence supports
the court's concerns that J.A.'s substance abuse contributes to his violent
tendencies. J.A. has been convicted of assaulting his wife
four times, most recently in February 2000. A.A. testified that J.A. was
drunk each time he assaulted her, and one of J.A.'s convictions includes
an affidavit that J.A. exhibited many common symptoms of inebriation immediately *403 after the incident. One or more of the children were present
on at least two of these occasions.
The record also contains substantial evidence that the children are
at risk of sexual abuse as long as they are
in their parents' care. J.A. argues on appeal that past
allegations of sexual abuse were not proved at trial. But
AS 47.10.011(7) requires only that conduct by the child's parent
place the child at substantial
risk of sexual abuse. [FN22] J.A. does not argue that his
children are not at risk. J.A. also does not challenge
the court's 1999 findings that C.A. "ha[d] been sexually abused
by several members of her home community," and that she
was at risk of further abuse as a result of
her parents' substance abuse and resulting neglect. [FN23] These uncontested findings are sufficient proof of risk, and
there is no doubt that the parents were on notice
of that risk. At the termination trial, both parents testified
that they knew W.J. and other members of his village
may have abused C.A., yet they both admitted that they
continued to leave their children with W.J. despite DFYS's repeated
warnings not to do so.
FN22.
Indeed, DFYS makes no claim on appeal that the children
were actually abused. Rather, it argues that the parents ignored
the risk of possible abuse in the past and are
very likely to continue to do so.
FN23.
The court's order terminating J.A.'s parental rights explicitly incorporated the
court's findings from prior hearings regarding J.A. and his family.
Accordingly, the trial court did not err when it found
in its February 2001 termination order that although J.A. was
aware that C.A. had "probably been sexually abused ... and
was at continued substantial risk of abuse," he "could not
articulate anything he had done to protect any of the
children amidst his drinking, smoking, and Bethel travel."
Thus, substantial evidence in addition to the experts' testimony supported
the trial court's conclusion that, beyond a reasonable doubt, J.A.'s
substance abuse and resulting neglect would continue to place his
children at risk of serious emotional and physical harm were
they returned to his custody.
C.
DFYS Did Not Fail To Offer Rehabilitative Services that Were
Sufficiently Respectful of J.A.'s Native Values.
J.A. argues that DFYS should have offered rehabilitative services that
were better tailored to his cultural background, and that this
court should generally require a closer fit between DFYS case
plans and traditional Native values. J.A.'s only specific complaints in
this regard are that he should have been allowed to
use his parents as his sober support group and to
complete the aftercare component of his substance abuse treatment program
in Kongiganak rather than Bethel.
J.A. concedes that the superior
court correctly determined that DFYS made sufficient active efforts to
provide rehabilitative services to prevent the permanent breakup of J.A.'s
family as required by ICWA. [FN24] Because there is no other legal basis under ICWA or elsewhere that
would justify imposing heightened requirements on DFYS in this case, J.A.'s
argument fails.
FN24.
25 U.S.C. § 1912(d).
But
even if we could reach the merits of this claim, J.A. would not prevail.
J.A. presented no evidence that DFYS forbade him from using
his parents as sober support contacts. [FN25] J.A. also presented no evidence that DFYS required J.A. to
stay in Bethel for aftercare following completion of his second residential
substance abuse program at the PATC. This is not to say the state would
not have had good reason to impose such a requirement: all of J.A.'s
assault convictions arose out of incidents in Kongiganak, and most of
the documented instances of substance abuse and child neglect took place
there as well. Therefore, the state could *404 have required J.A. to relocate temporarily to Bethel as part of its case
plan notwithstanding J.A.'s preference to live in his Native community.
FN25.
J.A. suggests that the state's expert condemned this arrangement. But
Professor Daku simply opined that he thought family members should
not be Alcoholics Anonymous (AA) sponsors because they could not
be counted on to be sufficiently objective. Professor Daku made
no negative remarks about J.A. using his parents as part
of his sober support community, and clearly distinguished sober contacts
from AA sponsors.
IV.
CONCLUSION
For these reasons, we AFFIRM the superior court's termination of
J.A.'s parental rights to his three children.
50 P.3d 395
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