|
(Cite
as: 216 P.3d 1180) |
Supreme
Court of Alaska.
SANDY
B., Appellant,
v.
STATE
of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S
SERVICES, Appellee.
Leo
W., Appellant,
v.
State
of Alaska, Department of Health & Social Services, Office of Children's
Services, Appellee.
Nos.
S-13302, S-13310.
Sept.
25, 2009.
*1182
Angela Greene, Assistant Public Defender, and Quinlan Steiner, Public Defender,
Anchorage, for Appellant.
Sandy
B. Brooke Browning, Lewis & Thomas, P.C., Nome, for Appellant Leo W. Michael
G. Hotchkin, Assistant Attorney General, Anchorage, and Richard A. Svobodny,
Acting Attorney General, Juneau, for Appellee.
Before:
CARPENETI, Chief Justice, EASTAUGH, FABE, WINFREE, and CHRISTEN,
Justices.
OPINION
FABE,
Justice.
I.
INTRODUCTION
The
Office of Children's Services (OCS) removed three girls, who are Indian children
under the Indian Child Welfare Act, from the care of their parents in three
separate alcohol-related incidents between September 2005 and December 2007. The
parents began to participate in residential substance abuse treatment just three
weeks before the trial to terminate their parental rights. Before entering
residential treatment, the parents had repeatedly denied that they had problems
with alcohol, declined to communicate with OCS, failed to provide OCS with
current contact information, and expressed interest in relinquishing their
parental rights to the two oldest girls. Following a three-day termination
trial, the trial court issued two written orders terminating their parental
rights to all three children. The parents appeal the trial court's findings
concerning the adequacy of OCS's active efforts to reunify them with their
children and the sufficiency of the expert testimony. Given OCS's efforts
throughout its involvement with the family and the parents' lack of cooperation
and failure to acknowledge their problems with alcohol, the trial court's active
efforts finding was not erroneous. The trial court also did not err in giving
weight to the testimony of OCS's expert because the testimony was sufficiently
grounded in the case's facts and issues and was consistent with the other
evidence presented at trial. We therefore affirm the trial court's termination
of the parents' rights to the three children.
*1183
II.
FACTS AND PROCEEDINGS
A.
Facts
Sandy
is the mother of three girls, Vicki, Kathy, and Sarah.FN1
Leo is the father of Vicki, born in 2001, and Sarah, born in 2007. Kathy was
born in 2004 and her father, Trevor, is deceased. The three girls are Indian
children under the Indian Child Welfare Act (ICWA).FN2
FN1.
We adopt the pseudonyms used by the parties to protect the family members'
privacy.
FN2.
25 U.S.C. ?? 1901-1963 (2006). Although the parties agree that the girls are
Indian children under ICWA, it does not appear that the children's tribal
affiliation has been fully resolved.
The
children were removed from their parents' custody at different times. On
September 8, 2005, OCS filed an emergency petition for adjudication of Kathy as
in need of aid and for temporary custody. The petition alleged that during the
early morning of September 7 Sandy became intoxicated in the presence of Kathy
and then left Kathy in her apartment in Kotzebue with Kathy's father, Trevor,
who was also intoxicated. According to the petition, Trevor later left the
sixteen-month-old girl alone in the apartment and committed
suicide.
Sandy
was admitted to the Maniilaq Health Center in Kotzebue on September 8, 2005, due
to suicidal ideation, and she remained in the hospital for about a week. Between
September and December 2005, Sandy participated in residential drug and alcohol
treatment at the Maniilaq Recovery Center, but she left twice against treatment
advice. During substance abuse and mental health assessments at the center,
Sandy disclosed her extensive history of depression and alcohol and marijuana
use.
While
Sandy was in residential treatment, she routinely attended OCS-scheduled visits
with Kathy three times a week. But Sandy rarely visited Kathy after she left the
treatment program. In addition to scheduling supervised visits between Sandy and
Kathy, OCS enrolled them in the Early Learning Family program, which included
monthly visits with a program worker as well as monthly play groups for parents
and their children. OCS alleged in a September 2006 request and report for
permanency findings that it had ?attempted to get [Sandy] to commit to a regular
visitation schedule and was willing to provide transportation? and that ?[o]n
several occasions [she] agreed to times for visitation, home visits or office
visits and then was either not home or didn't arrive at the office at the
prearranged time.?
At
the termination trial, Sandy testified that she met regularly with OCS during
the winter of 2006 to talk about her desire to have Kathy adopted but that she
was told to wait. In February 2006 OCS received two reports of Sandy and Leo
being ?passed out drunk? and leaving their four-year-old daughter Vicki without
a sober care provider. In March OCS received a report that the police had
stopped Leo for intoxication and that Leo had failed to pick up Vicki from the
babysitters. At the time, Sandy was incarcerated after having been arrested for
criminal trespass when she refused to leave a residence while intoxicated. In
April OCS helped Sandy apply for an inpatient program in Fairbanks but she
declined to enter the program when a bed became available in June. That spring
Sandy and Leo were living in various places in Kotzebue and Fairbanks because
they did not have a permanent residence due to their frequent
drinking.
On
the morning of June 15, 2006, Vicki's babysitter tried to return Vicki to her
parents but they were intoxicated and fighting. Vicki's babysitter called the
Kotzebue police and said that she could not continue to care for Vicki or
identify other suitable care providers. Vicki received a mental status
evaluation after OCS took custody of her. According to the evaluation, Vicki
told an OCS supervisor that Leo had offered her alcohol but she declined to
drink it because she did not like the taste. The evaluation also reported that
Vicki recalled watching her father push her mother to the floor and
threaten*1184
to kill her. On June 16 OCS filed an emergency petition for adjudication of
Vicki as in need of aid and for temporary custody. The petition noted that Vicki
was ?clearly affected by the incident[,] making remarks such as[,] ?did you see
what my daddy did [to] my mommy?? ?
On
August 9, 2006, Sandy entered a treatment program in Fairbanks, but she left on
September 1. OCS subsequently lost track of Sandy and Leo, apparently because
OCS was unable to reach them using the phone numbers that Sandy and Leo had
provided. According to a December 18, 2006 OCS report, Sandy and Leo spent most
of the fall of 2006 in Fairbanks, living with relatives or in a homeless
shelter, and each had problems with the law that involved alcohol.
After
OCS discovered that Sandy was in the Kotzebue jail in late February 2007, it
resumed communication with her and Leo, though OCS continued to have difficulty
reaching them by phone. OCS also used radio announcements to try to contact
Sandy and Leo during 2006 and 2007, but OCS stopped trying to reach Leo through
the radio after he asked that an announcement be taken off the radio in late May
2007. OCS also sent the parents letters, some of which were
returned.
In
February 2007 OCS arranged seven supervised visits between the children and
their parents, but Sandy and Leo failed to make most of the visits even though
OCS had on some occasions been able to reach them by phone to remind them of the
visits. The parents' absence may have been due to their expressed desire to
relinquish their parental rights. After the parents missed several visits, OCS
cancelled the rest because, as their case worker explained, ?it's pretty
traumatic for the kids to continually show up for a visit and wait for their
parents to come and have nobody come.? In the spring of 2007, OCS scheduled two
substance abuse assessment appointments for Leo after he mentioned difficulty in
arranging them himself, but he failed to attend both. A June 2007 permanency
report for Vicki, which was incorporated into a superior court order, summarized
Sandy's three unsuccessful attempts at completing substance abuse treatment
while Vicki was in OCS's custody and observed that Leo had been ?offered
services to address substance abuse, [but] throughout the case he has adamantly
stated he does not have a substance abuse problem.? According to the report, the
parents had not maintained contact with Vicki or participated in their case
plans.
In
the summer of 2007, Sandy and Leo expressed to their case worker that they were
not interested in treatment, that ?they had given up on the older two children,?
and that they had focused their efforts on retaining their youngest daughter,
Sarah, who was born in August 2007. Within ten days of Sarah's birth, OCS
received a number of reports concerning Sandy and Leo. On August 6 Leo was
arrested for disorderly conduct after he was screaming at Sandy in the middle of
the road at 2:30 a.m. On August 14 a Kotzebue police officer reported that four
days before Sandy gave birth he had an interaction with her and she was
intoxicated. The same police officer found Sandy passed out in the road on
August 14. Sandy was admitted to the hospital for detox but she refused
services. During a home visit after these reports were made, Sandy declined to
talk with the family's case worker. Leo told the case worker that while Sandy
was hospitalized, he was caring for Sarah. The case worker testified that Leo
did not appear ?interested in ... talking about anything to alleviate the
concerns? of OCS and that the parents ?weren't interested in engaging in
services. They felt they didn't have a problem.?
On
October 9, 2007, OCS filed a petition for adjudication of Sarah as in need of
aid and for temporary custody, but OCS did not remove Sarah from her parents'
custody. The family's case worker again visited the parents at their home, but
this time Leo declined to talk to the case worker, and Sandy said that she was
not drinking and did not have a substance abuse problem. In November the
parents' case worker had *1185
some conversations with them over the phone and visited their home, but they did
not make any treatment progress and Leo did not appear to be more receptive to
OCS's efforts.
On
December 4, 2007, Sandy and Leo had arranged for a babysitter to care for
four-month-old Sarah while they were at a party, but unbeknownst to them, the
babysitter dropped Sarah off at the party while they were both intoxicated. The
parents discovered that their daughter was at the party when the police arrived,
and they arranged for a family member to take her to a home shared by some of
Sandy's relatives. OCS was concerned because there was a history of sexual abuse
in that home. Sarah was removed from her parents' custody on December 5. On
December 12 OCS filed a petition to terminate the parental rights of Sandy and
Leo to all of their children.
In
late December 2007 Leo received his first substance abuse assessment. During the
assessment, Leo denied experiencing alcohol problems in the thirty days prior to
the assessment and reported that he used alcohol fewer than eight times per
month. OCS was given a copy of the assessment but did not have an opportunity to
provide the assessor with additional information. The assessment ?rate[d]
[Leo's] potential for continued substance use as Low? and recommended that Leo
participate in outpatient treatment. In January 2008 Leo went to jail after
pleading guilty to driving under the influence, and he was then reassessed. Leo
requested inpatient treatment, but both assessments recommended outpatient
treatment.
In
February 2008 Leo began participating in outpatient treatment. On March 14,
about three weeks before the trial to terminate Sandy's and Leo's parental
rights began, the parents entered inpatient treatment at the ?Spud Farm,? which
is a recovery program outside of Kotzebue that emphasizes subsistence
living.FN3
At the termination trial, Sandy testified that she was trying to control her
alcohol problem. But Leo denied that he was dependent on alcohol and that he had
ever placed his need for alcohol before the needs of his children.
FN3.
The Spud Farm, which is the colloquial name for the Maniilaq Association's
Mavsigviq Program, is not a State-approved treatment facility.
B.
Proceedings
On
September 8, 2005, OCS filed an emergency petition for adjudication of Kathy as
in need of aid and for temporary placement. Following an adjudication hearing in
early January 2006, Superior Court Judge Richard H. Erlich found that Kathy was
in need of aid. On June 16, 2006, OCS filed an emergency petition for
adjudication of Vicki as in need of aid and for temporary placement. The
superior court found that Vicki was in need of aid after an adjudication hearing
in late October 2006. The superior court also held a permanency hearing for
Kathy in late October 2006. The superior court subsequently found that Kathy
continued to be in need of aid and that the permanent plan for her was adoption.
Following a permanency hearing for Vicki in mid-June 2007, the superior court
found that Vicki continued to be in need of aid and that the permanent plan for
her was adoption.
On
October 9, 2007, OCS filed a petition for adjudication of Sarah as in need of
aid and for temporary custody. OCS did not remove Sarah from her parents'
custody. On November 9 the superior court issued a temporary supervision order
that determined that Sarah was a child in need of aid but ordered that she
remain in her parents' custody. On December 5 Sarah was removed from her
parents' custody and the superior court issued a temporary custody order later
that month.
On
December 12, 2007, OCS filed petitions to terminate the parents' rights to all
three children. The parties agreed to address the adjudication of Sarah as a
child in need of aid and the termination of the parental rights to Vicki, Kathy,
and Sarah in a single trial that *1186
was held during the spring of 2008. Dr. Raymond Droby testified as OCS's
ICWA-required expert. At the conclusion of the trial, the superior court
instructed the parties to address the factual issues in their closing arguments
and ?to write a legal brief on the issues in contention.? Post-trial briefs were
filed by Sandy, Leo, the children's guardian ad litem, and OCS.
The
superior court issued two written orders terminating Sandy's and Leo's parental
rights. The superior court's initial order on September 29, 2008, found that
Sarah was a child in need of aid, ?adopt[ed] the State's arguments as to all
uncontested issues,? and addressed the issues that were disputed by Sandy, Leo,
or both of them.
The
superior court issued a second written order terminating Sandy's and Leo's
parental rights on October 21, 2008. In doing so, the superior court found by
clear and convincing evidence that: the children were in need of aid; Sandy and
Leo had not remedied the conduct or conditions that put their children at
substantial risk of harm within a reasonable time; and OCS made active but
unsuccessful efforts to provide services and programs designed to prevent the
family's breakup. The superior court also found by a preponderance of the
evidence that termination of Sandy's and Leo's parental rights was in the
children's best interests. Finally, the superior court found that there was
evidence beyond a reasonable doubt, including the testimony of a qualified
expert pursuant to ICWA, that the children would likely suffer serious emotional
and physical damage if returned to their parents.
Both
parents appeal. Sandy challenges the superior court's finding concerning OCS's
active efforts and the sufficiency of the expert testimony to support its
finding that her children would likely suffer serious harm if they were returned
to her care. Sandy also argues that she was denied due process by the cumulative
effect of the alleged errors in the case. We granted Leo's unopposed motion to
join Sandy's opening brief.FN4
FN4.
Accordingly, the arguments made in Sandy's opening brief are referred to as
Sandy and Leo's arguments. But because Leo did not file a motion to join Sandy's
reply brief and Sandy clarified in this brief that her ?arguments are distinct
from any that may be advanced by the father should he choose to file a separate
reply to the state's arguments,? we refer to Sandy's arguments in her reply
brief as her own.
III.
STANDARD OF REVIEW
[1][2][3]
We will affirm the trial court's factual findings in a child in need of aid
(CINA) case unless they are clearly erroneous.FN5
?Findings of fact are clearly erroneous if a review of the entire record in the
light most favorable to the party prevailing below leaves us with a definite and
firm conviction that a mistake has been made.? FN6
Whether OCS made active efforts as required by ICWA is a mixed question of law
and fact. FN7
Here, the parents argue that the trial court's active efforts finding failed to
comport with ICWA's requirements. This is a question of law that we review de
novo.FN8
We will also review de novo the legal question whether an expert's testimony
satisfies the standards of ICWA. FN9
We will not review issues that were not raised below unless there is plain
error, which exists where there is ?a high likelihood that injustice has
resulted? from an ?obvious mistake? made below.FN10
FN5.
Audrey
H. v. State, Office of Children's Servs.,
188 P.3d 668, 672 (Alaska 2008).
FN6.
Id.
(internal quotation marks omitted).
FN7.
N.A.
v. State, Div. of Family & Youth Servs.,
19 P.3d 597, 600-01 (Alaska 2001).
FN8.
See
Carl
N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs.,
102 P.3d 932, 935 (Alaska 2004) (?Whether the superior court's findings comport
with the requirements of ICWA or the CINA statutes and rules is a question of
law that we review de novo.?).
FN9.
Marcia
V. v. State, Office of Children's Servs.,
201 P.3d 496, 507 (Alaska 2009).
FN10.
Ted
W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
204 P.3d 333, 337 (Alaska 2009).
IV.
DISCUSSION
The
trial court must make five findings to terminate parental rights to an Indian
child *1187
in a CINA case.FN11
The trial court must find by clear and convincing evidence that: (1) the child
is in need of aid under AS 47.10.011; FN12
(2) the parent has not remedied the conduct or conditions in the home that place
the child at substantial risk of physical or mental injury or has failed to do
so within a reasonable time; FN13
and (3) OCS has made active but unsuccessful efforts to provide services and
programs designed to prevent the Indian family's breakup.FN14
The trial court must find by a preponderance of the evidence that (4)
termination of parental rights is in the child's best interests.FN15
Finally, the trial court must find by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that (5) the Indian child is
likely to suffer serious emotional or physical harm if the child remains in the
parent's custody.FN16
Sandy and Leo challenge the trial court's active efforts finding and the
sufficiency of the expert testimony.
FN11.
See
25 U.S.C. ? 1912(d), (f) (2006) (listing required findings to terminate parental
rights to an Indian child); AS 47.10.088 (listing required findings to terminate
parental rights to a child); CINA Rule 18(c) (listing required findings to
terminate parental rights to a child, including additional requirements if the
child is an Indian child).
FN12.
AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
FN13.
AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i)-(ii).
FN14.
25 U.S.C. ? 1912(d); CINA Rule 18(c)(2)(B).
FN15.
CINA Rule 18(c)(3).
FN16.
25 U.S.C. ? 1912(f); CINA Rule 18(c)(4).
A.
The Trial Court's Active Efforts Finding Was Not Erroneous.
ICWA
requires that before a court may terminate parental rights to an Indian child,
OCS must have made ?active efforts ... to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.? FN17
Under Alaska Child in Need of Aid Rule 18(c)(2)(B), the trial court's active
efforts finding must be supported by clear and convincing evidence.
FN17.
25 U.S.C. ? 1912(d).
Sandy
and Leo argue that the trial court did not make the required active efforts
finding. They correctly point out that the trial court's initial written order
terminating their parental rights lacks any reference to OCS's active efforts.
But as OCS explains, the trial court made clear in its September 29, 2008 order
that it was ?only addressing the issues that [were] in dispute? and that it was
?adopt[ing] the State's arguments as to all uncontested issues.? Neither parent
contested whether OCS made active efforts during their closing arguments or in
their post-trial briefing. In fact, Leo's attorney told the trial court to
?skip? the question whether OCS had proved by ?clear and convincing evidence
active efforts were made to provide remedial services? because ?[w]e're okay
with that.? In failing to object when Leo's attorney conceded that OCS had met
its active efforts burden and in contesting only the finding concerning whether
the parents remedied within a reasonable time their conduct that put their
children at substantial risk of harm, Sandy did not indicate that she disagreed
with Leo and OCS that OCS had made active efforts to prevent the family's
breakup. Sandy's silence certainly could have been taken as acquiescence in
Leo's position that this issue was not in dispute.
In
any event, the trial court entered a second written order that found that OCS
had made active efforts and that provided support for its finding. FN18
The trial court found ?[b]y clear and convincing evidence, *1188
[that] active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family?
and that ?[t]hese efforts have proven unsuccessful.? In support of its finding,
the trial court highlighted OCS's efforts to ?contact[ ] and communicat[e] with
the parents,? schedule visitation with their children, and OCS's ?attempts to
get the parents into treatment programs.? Thus, it is clear that the trial court
made the required active efforts finding.
FN18.
Cf.
Stone
v. Stone,
Mem. Op. & J. No. 1341, 2009 WL 1564154, at *3-4 (Alaska, June 3, 2009)
(holding that the superior court did not abuse its discretion when it made
supplemental oral findings five days after it had made its initial oral
findings); D.H.
v. State, Dep't of Health & Soc. Servs.,
929 P.2d 650, 654-55 (Alaska 1996) (affirming the trial court's finding
concerning the State's reunification efforts, which was the sole additional
finding included in the trial court's amended order). In their briefing and
during oral argument, the parents repeatedly described the trial court's second
written order as a ?form order,? which is in reference to the fact that the
order was submitted by OCS and similar to proposed orders submitted by OCS in
other cases. Because Alaska Civil Rule 78(a) requires ?counsel for the
successful party? to ?prepare in writing and file ... proposed findings of fact,
conclusions of law, judgments and orders,? OCS properly submitted a proposed
order with factual findings and legal conclusions that terminated Sandy's and
Leo's parental rights after the trial court entered its initial written order
that decided each of the disputed issues in OCS's favor. As Sandy's counsel
acknowledged during oral argument, once the trial court signed OCS's proposed
order, it was the court's order. See
Indus.
Indem. Co. v. Wick Constr. Co.,
680 P.2d 1100, 1108 (Alaska 1984) (?A trial court is ... entitled to adopt
findings and conclusions prepared by counsel, so long as they reflect the
court's independent view of the weight of the evidence.?).
[4][5][6][7][8]
We turn next to the parents' argument that the trial court's active efforts
finding was insufficient with respect to their daughter Sarah. We evaluate OCS's
efforts to reunite an Indian family on a case-by-case basis.FN19
Although there is ?no pat formula ... for distinguishing between active and
passive efforts,? we have recognized that what is critical is OCS's involvement
with a parent after it has drawn up the parent's case plan.FN20
OCS makes active efforts to reunite a family when it helps the parents develop
the resources necessary to satisfy their case plans, but its efforts are passive
when it requires the parents to perform these tasks on their own.FN21
A parent's willingness to cooperate is relevant to the scope of active efforts
required.FN22
?Where services have been provided and a parent has demonstrated a lack of
willingness to participate or take any steps to improve, [we have] excused minor
failures by the state and rejected arguments that the state could possibly have
done more.? FN23
In evaluating whether OCS has taken active efforts, we consider OCS's
?involvement in its entirety.? FN24
FN19.
Ben
M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
204 P.3d 1013, 1021 (Alaska 2009).
FN20.
A.A.
v. State, Dep't of Family & Youth Servs.,
982 P.2d 256, 261 (Alaska 1999) (internal quotation marks omitted).
FN21.
Id.
(citing CRAIG J. DORSAY, THE INDIAN CHILD WELFARE ACT AND LAWS AFFECTING INDIAN
JUVENILES MANUAL 157-58 (1984)).
FN22.
Id.
at 262; see
also N.A.
v. State, Div. of Family & Youth Servs.,
19 P.3d 597, 603 (Alaska 2001) (?This court has held that a parent's
demonstrated lack of willingness to participate in treatment may be considered
in determining whether the state has taken active efforts.?); In
re J.W.,
921 P.2d 604, 609 (Alaska 1996) (determining that OCS's ?less active efforts?
after the father moved ?were justifiable in light of [his] continuing
unwillingness to participate in treatment in any meaningful or ongoing
way?).
FN23.
Ben
M.,
204 P.3d at 1021.
FN24.
Maisy
W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
175 P.3d 1263, 1268 (Alaska 2008).
[9]
Sandy and Leo argue that the facts fail to support an active efforts finding for
their youngest daughter, Sarah.FN25
The question before us is a narrow one: When a child *1189
is born while OCS is involved with the family in an ongoing case, should the
trial court view OCS's efforts toward each child in isolation rather than in the
context of its efforts toward all of the children? The answer to that question
is ?no.? The trial court properly considered all of OCS's efforts from the time
that it first became involved with the family in September 2005 when it filed an
emergency petition for adjudication of Kathy as in need of aid and for temporary
custody until the trial on termination of Sandy's and Leo's parental rights
began in April 2008.
FN25.
The parents also argue that OCS conceded this at trial when it discussed OCS's
involvement with the parents in its opening argument:
I've
been doing this case for about two and a half years now on the eldest daughter.
We've had two and a half years to correct the behaviors. That [ ] hasn't
happened, which is why we're seeking termination today. And on the youngest
girl, ... it's a continuation of these problems that have been going on for the
last two and a half years. The department had to take custody [of Sarah], in
December, for drinking by both parents. The department doesn't see a need to
work with the family on this particular child given its history of two and a
half years.
The
most recent removal shows that the history of CINA conditions
persist.
But
as OCS responds and as we discuss in greater detail below, OCS was arguing, as
it continues to argue on appeal, that it made active efforts with regard to
Sarah in light of the parents' history of failing to cooperate and to complete
substance abuse treatment as well as its efforts between Sarah's birth and her
removal from their care.
We
addressed a similar issue in E.A.
v. State, Division of Family & Youth Services.FN26
In E.A.,
a mother relinquished her parental rights to each of her five children except
for her six-year-old son.FN27
In the case to terminate her parental rights to that son, the mother pointed to
the failure of the Division of Family and Youth Services (DFYS), which is now
known as the Office of Children's Services (OCS),FN28
to make active efforts during a seven-month period to support her argument that
DFYS had failed to provide active efforts toward unifying her with her
son.FN29
We determined that it was proper for the trial court to ?consider the degree of
the state's efforts to prevent the breakup of the entire family in assessing
whether that effort was sufficient under ICWA? and that DFYS's efforts regarding
her son were active in light of the totality of DFYS's efforts during its
involvement with her family.FN30
FN26.
46 P.3d 986 (Alaska 2002).
FN27.
Id.
at 988 & n. 1.
FN28.
Smith
v. Stafford,
189 P.3d 1065, 1068 (Alaska 2008).
FN29.
E.A.,
46 P.3d at 990.
FN30.
Id.
at 990-91; see
also Kyra
K. v. State, Office of Children's Servs.,
Mem. Op. & J. No. 11426, 2005 WL 1189553, at *1-2 (Alaska, May 18, 2005)
(holding that the superior court did not err in finding that OCS had made active
efforts toward the mother's youngest child in light of ?the total history? of
OCS's efforts during its fourteen-year involvement with her family);
N.A.
v. State, Dep't of Health & Youth Servs.,
19 P.3d 597, 598-99, 603-04 (Alaska 2001) (highlighting many of DFYS's efforts
throughout its involvement with the mother and her five children, including
efforts made before her two youngest daughters were born, to hold that DFYS's
efforts toward a mother's two youngest daughters were ?more than active? and in
fact ?exemplary?).
The
trial court's finding that OCS made active but unsuccessful efforts to prevent
the breakup of Sandy and Leo's family is amply supported by the record. Before
Sarah was born, OCS tried to provide remedial services and rehabilitative
programs designed to prevent the termination of Sandy's relationship with Vicki
and Kathy that included enrolling Sandy and Kathy in the Early Learning Family
program, identifying treatment programs that allow participants to have their
children with them, helping Sandy apply for an inpatient program in Fairbanks,
scheduling supervised visits with Vicki and Kathy, and making repeated and
varied efforts to contact and communicate with Sandy. OCS also made efforts to
provide remedial services and rehabilitative programs designed to prevent the
termination of Leo's relationship with Vicki that included scheduling two
appointments for substance abuse assessments, scheduling supervised visits with
Vicki, and making repeated and varied efforts to contact and communicate with
him.
But
OCS's efforts were hindered by the parents' lack of cooperation, which was
largely due to their failure to acknowledge their problems with alcohol as well
as their desire to relinquish their parental rights to Vicki and Kathy. Sandy
acknowledges in her opening brief that ?[i]n this case, it is undisputed that,
for the first two children, [she] did not entirely cooperate with the treatment
she clearly needed.? Sandy twice declined substance abuse treatment when it was
available to her, and on the two occasions when she entered treatment, she left
without completing the programs. Leo failed to attend the two appointments for
substance abuse assessments that OCS had made for him before Sarah was born and
did not receive an assessment or participate in treatment until after Sarah was
removed from his care. And despite having spent nearly three weeks in
*1190
residential treatment for substance abuse, Leo testified at the trial that he
was not dependent on alcohol and that he had never placed his need for alcohol
before the needs of his children.
Following
Sarah's birth, her parents' unwillingness to cooperate continued to impede OCS's
efforts to guide them through their case plans. Though Sandy and Leo had told
their case worker that ?they had given up on the older two children? and that
they would focus their efforts on retaining the new baby, a police officer
reported that Sandy was intoxicated when he saw her four days before Sarah's
birth. On August 6 Leo was arrested for disorderly conduct, and on August 14 a
police officer found Sandy passed out in the road.
The
case worker responded to the reports of these alcohol-related incidents
involving Sandy and Leo by visiting their home. But Sandy declined to talk with
the case worker, and Leo did not address her concerns regarding their alcohol
consumption. According to the case worker, ?they weren't interested in engaging
in services. They felt they didn't have a problem.? The case worker visited the
parents' home again in October. Yet this time Leo declined to talk to the case
worker, and Sandy claimed that she was not drinking and did not have a substance
abuse problem. In November the case worker called the parents and visited them,
but they had not made progress in their treatment, and Leo did not appear to be
any more receptive to OCS's efforts. As Sandy's attorney conceded at oral
argument before us on appeal, ?the State clearly wanted to at least try. They
kept the child in the home for a few months until [Sandy] got
drunk.?
OCS
removed Sarah from Sandy and Leo's care after her babysitter dropped her off at
a party where they were both intoxicated. Between Sarah's removal in December
2007 and commencement of the trial on termination of Sandy's and Leo's parental
rights in April 2008, it does not appear that OCS was involved with the parents.
But OCS's failure to continue its efforts toward the family during those four
months is insignificant in light of the substantial efforts that OCS made to
assist the parents in receiving substance abuse assessments and treatment,
schedule visitation with their children, and communicate with them in a variety
of ways that were often rebuffed or ignored.
We
conclude that in this case the trial court properly took into account all of
OCS's efforts on behalf of the entire family in determining that active efforts
were made on Sarah's behalf. We agree with OCS's view, expressed at oral
argument, that the determination of whether OCS may rely on active efforts made
on behalf of older children in support of a petition to terminate parental
rights as to a younger child, born after those efforts were made, is ?heavily
fact dependent.? In this case, OCS was justified in relying in part on the
efforts it made in Kathy's and Vicki's cases in its petition to terminate
parental rights as to Sarah. There was no interval between the older siblings'
CINA proceedings and the CINA proceedings for Sarah, and the evidence
established that the extensive efforts OCS had made with respect to the older
girls in the nearly two years before Sarah's birth did not effect a change in
the parents' conduct toward any of their children. We therefore conclude that
the trial court did not err in finding that OCS made active but unsuccessful
efforts to prevent the breakup of Sandy and Leo's family.
B.
The Trial Court Did Not Err in Finding by Evidence Beyond a Reasonable Doubt,
Including Dr. Droby's Testimony, that Continued Custody by the Parents Would
Likely Harm the Children.
[10]
ICWA requires that before a court may terminate parental rights to an Indian
child, the court must find ?by evidence beyond a reasonable doubt, including
testimony of qualified expert witnesses, that the continued custody of the child
by the parent or *1191
Indian custodian is likely to result in serious emotional or physical damage to
the child.? FN31
The court's finding may be supported ?through expert testimony alone or through
aggregating expert testimony with other evidence such as testimony of lay
witnesses.? FN32
FN31.
25 U.S.C. ? 1912(f) (2006).
FN32.
Ben
M. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
204 P.3d 1013, 1020 (Alaska 2009).
The
parents contest the qualifications of Dr. Droby as the State's ICWA-qualified
expert and express concern that his testimony was by phone. The parents argue
that Dr. Droby ?was not qualified as an expert in child development, alcohol
treatment or abuse, or on any subject specifically facing the court.? But as OCS
points out, Dr. Droby was qualified as an expert in psychology and his testimony
was well within his expertise. At trial Dr. Droby addressed the psychological
harm that the children have suffered and would likely continue to suffer if they
were returned to Sandy and Leo's care and their parents continued to
drink.
[11]
Sandy further argues in her reply brief that even if Dr. Droby was qualified
under the Alaska Rules of Evidence, ?testimony from an expert who is generally
qualified to testify under the Rules of Evidence is not sufficient to meet the
requirements of the Indian Child Welfare Act.? Sandy cites Marcia
V. v. State, Office of Children's Services,
in which we explained that although ?ICWA ? 1912(f) heightens the requirements
for an expert's qualifications beyond those normally required to qualify an
expert,? one way to meet ICWA's requirements is ?by virtue of substantial
education in the area of [the expert's] specialty. The legislative history of
ICWA provides further guidance, stating that the education and training of the
expert should constitute ?expertise beyond the normal social worker
qualifications.? ? FN33
Having earned master's and doctorate degrees in clinical psychology, Dr. Droby
received ?substantial education? in his specialty of psychology that meets this
standard.
FN33.
201 P.3d 496, 504 (Alaska 2009) (quoting H.R. REP. NO. 95-1386, at 22 (1978),
as
reprinted in
1978 U.S.C.C.A.N. 7530, 7545).
[12]
The parents also claim that Dr. Droby's testimony was ?compromised by the fact
that he appeared telephonically,? but they fail to cite any authority in support
of this contention. Although Sandy asserts in her reply brief that she is not
arguing that ?the trial court erred in allowing Dr. Droby to testify by
telephone under CINA Rule 3(g),? she subsequently complains that ?[t]he
psychologist literally phoned it in from Nome.? Dr. Droby's testimony by phone
was proper under CINA Rule 3(g), which provides that ?[t]he court may conduct
any hearing with telephonic participation by one or more parties, counsel,
witnesses, foster parents or out-of-home care providers, or the
judge.?
[13]
Sandy and Leo raise their objections to Dr. Droby's qualifications as well as
his telephonic testimony for the first time on appeal. We will not review issues
that were not raised below absent plain error, which is an obvious mistake
?creat[ing] a high likelihood that injustice has resulted.? FN34
The trial court made no mistake in qualifying Dr. Droby as an expert in
psychology and in permitting his testimony by phone. Thus, there was no plain
error.
FN34.
See
Ted
W. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs.,
204 P.3d 333, 337 (Alaska 2009) (internal quotation marks omitted).
[14]
Sandy and Leo's final challenge goes to the sufficiency of Dr. Droby's
testimony. They argue that his testimony failed to satisfy the standards of ICWA
because it consisted of generalizations due to his lack of personal knowledge of
the family. But Dr. Droby's testimony is like that of Dr. Michael Rose in
Ben
M. v. State, Department of Health & Social Services, Office of Children's
Services,
in which we rejected a father's argument that the trial court
erroneously*1192
relied on the testimony of an expert who had not evaluated him or his
daughter.FN35
We observed that ?[i]t is possible that Dr. Rose's testimony would have been
stronger or more detailed had he evaluated [the father] in person? but
emphasized that ?[o]ur case law is clear that in-person meetings are not
required and the requirement for expert testimony is that it support the
ultimate conclusion.? FN36
We concluded that Dr. Rose's testimony was not ?so vague and generalized? or
contrary to other evidence presented at trial ?that the trial court clearly
erred in according weight to it.? FN37
Dr. Rose testified that the father was likely to relapse based on the father's
treatment and relapse history and identified likely problems faced by parents
who care for their children while intoxicated.FN38
Dr. Rose further testified that the father needed to resolve his psychological
problems and dysfunctional personality features reflected in his criminal
history and that ?children exposed to domestic violence can suffer negative
effects to their self-esteem and emotional stability.? FN39
Yet Dr. Rose was explicit that without examining the father he could not
diagnose him with any particular disorder.FN40
FN35.
204 P.3d at 1019-21.
FN36.
Id.
at 1020; accord
Marcia
V.,
201 P.3d at 507 (explaining that pre-trial interviews of the family members are
not required when the expert's testimony is sufficiently grounded in the case's
particular facts and issues but that an expert's testimony may be weakened by
exclusive reliance on the case file).
FN37.
Ben
M.,
204 P.3d at 1020-21.
FN38.
Id.
at 1020.
FN39.
Id.
at 1020-21.
FN40.
Id.
at 1021.
Here,
Dr. Droby's testimony was grounded in the facts and issues of this case. Dr.
Droby testified that his review of the materials provided by OCS suggested that
Sandy and Leo had ?a strong orientation towards using alcohol at the expense of
parenting,? though he acknowledged that because he had not directly evaluated
the family members, he could not diagnose the parents' consumption of alcohol as
either alcohol dependent or alcohol abuse. Dr. Droby cited the parents' criminal
records, their missed visits with their children, and the incident that led to
Sarah's removal as examples of their behavior that suggested that they had an
alcohol problem. Dr. Droby further testified that ?[i]t seems ... from the
treatment notes on the children that they have been affected emotionally and
that they have suffered, to some extent, emotionally from their relationship
with their parents.? In particular, Dr. Droby mentioned Vicki's response to
seeing her father push down her mother and threaten to kill her, and Vicki's
diagnosis of post-traumatic stress disorder. Dr. Droby explained how parents'
alcohol problems can hinder bonds between them and their children and can cause
the children to be anxious, insecure, and depressed. Finally, after Dr. Droby
was told of the parents' participation in treatment for the past sixty to ninety
days, he testified that if they were released and continued to drink, the
children might be at harm. Dr. Droby also discussed the likely adjustment
problems that the children would experience if they were returned to their
parents after their parents completed eighteen months of treatment and six
months of being sober in the community or if their parents relapsed and the
children were again removed from their parents' care.
Dr.
Droby's testimony is also consistent with the evidence that the trial court
cited in finding that the children would likely suffer serious harm if returned
to Sandy and Leo's care. In support of Dr. Droby's conclusions, the trial court
cited: the foster mother's testimony about Vicki's displays of sadness and
insecurity related to her jealousy of her foster mother's natural children,
which had improved significantly during her time with her foster family; the
treatment plan and mental status evaluation for Vicki, which contained her
diagnosis of post-traumatic stress disorder and adjustment disorder; the
guardian ad litem's December 2006 pre-disposition*1193
report that mentioned Vicki's bed-wetting problem at the age of five; the
guardian ad litem's February 2006 pre-disposition report that discussed Kathy's
assessments, which determined that she had delays in various areas, including
language; the foster mother's testimony about Kathy's inability to count past
two when she was about four years old and about her progress since living with
her foster family; and Sarah's young age and need to attach with an adult
caregiver to prevent her from suffering significant emotional damage, based on
legislative findings concerning the attachment process of children under the age
of six.FN41
FN41.
See
AS 47.05.065(5)(A)-(C) (discussing the problems associated with children who
have not attached with an adult caregiver before they are six years old and the
importance of expedited placement in permanent homes for these
children).
Because
Dr. Droby's testimony is particular to facts and issues in this case and
consistent with the other evidence presented at trial, the superior court did
not err when it relied on his testimony in combination with other evidence to
find beyond a reasonable doubt that ?[b]ased upon the ages and developmental
needs of the children and the parents' history of unsuccessful engagement in
treatment, ... continued custody by the parents would result in emotional harm
to the children.? FN42
FN42.
Because we conclude that the parents' allegations of error are unfounded, their
argument that they were denied due process by the cumulative effect of these
alleged errors is without merit.
V.
CONCLUSION
For
these reasons, we AFFIRM the trial court's termination of Sandy's and Leo's
parental rights to their children.