Not Reported in P.3d, 2010 WL 5129190 (Alaska)

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NOTICE: UNPUBLISHED OPINION

NOTICE Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d)

Supreme Court of Alaska.
CHARLES J., Appellant,
v.
STATE of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.

No. S-13794.
Dec. 15, 2010.


Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, William F. Morse, Judge.Caitlin Shortell, Anchorage, for Appellant.

Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for Appellee.

Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Guardian Ad Litem.

Before: CARPENETI, Chief Justice, FABE, WINFREE, and STOWERS, Justices.

MEMORANDUM OPINION AND JUDGMENT FN*

FN* Entered pursuant to Appellate Rule 214.

I. INTRODUCTION
*1 A father challenges the trial court's decision to terminate his parental rights to two children. Because the evidence supports the court's findings and the court correctly applied relevant law, we affirm the termination of parental rights.

II. BACKGROUND
Charles J. and Eloise S. had two children, Michelle, born in 2001, and Daniel, born in 2005.FN1 Under the Indian Child Welfare Act of 1978 FN2 (ICWA), each child falls within the definition of an “Indian child.” FN3 The State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS) became actively involved with the family in 2008. Given the nature of this appeal we do not need to detail at this point OCS's history of involvement with the family, but after taking custody of the children and making subsequent unsuccessful family reunification efforts, OCS petitioned to terminate Charles's and Eloise's parental rights. Eloise then voluntarily terminated her parental rights. After a termination trial in February 2010, the court found that OCS met its burden of proof to terminate Charles's parental rights.FN4

FN1. Pseudonyms are used for all family members for privacy protection.

FN2. 25 U.S.C. §§ 1901-1963 (2006). ICWA establishes “minimum Federal standards for the removal of Indian children from their families and [for] the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.” 25 U.S.C. § 1902.

FN3. See 25 U.S.C. § 1903(4).

FN4. Under ICWA and relevant Alaska Child In Need of Aid (CINA) statutes and rules, parental rights to an Indian child may be terminated only if the court finds:

(1) by clear and convincing evidence that:

(a) the child has been subjected to conduct or conditions enumerated in AS 47.10.011 (CINA Rule 18(c)(1)(A));

(b) the parent has not remedied the conduct or conditions that place the child at substantial risk of harm or has failed within a reasonable time to remedy the conduct or conditions so that the child would be at substantial risk of physical or mental injury if returned to the parent (CINA Rule 18(c)(1)(A)(i)-(ii));

(c) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family (CINA Rule 18(c)(2)(B)); and

(2) beyond a reasonable doubt, including qualified expert testimony, that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child (CINA Rule 18(c)(4)); and

(3) by a preponderance of the evidence that the child's best interests would be served by termination of parental rights (CINA Rule 18(c)(3)).

Charles does not appeal the trial court's findings that: (1) the children were children in need of aid due to his substance abuse and related violent behavior; (2) by failing to maintain sobriety despite repeated efforts at treatment, he did not remedy the conditions that rendered the children in need of aid; and (3) the termination of his parental rights was in the children's best interests. Charles appeals the findings that: (1) OCS made active efforts to prevent the breakup of his Alaska Native family; and (2) returning the children to Charles would likely result in serious damage to them.

III. STANDARD OF REVIEW
In a case involving the termination of parental rights we review a trial court's findings of fact for clear error.FN5 Findings are clearly erroneous if, after reviewing the record in the light most favorable to the prevailing party, we are left with a “definite and firm conviction that a mistake has been made.” FN6 When reviewing a factual finding “we ordinarily will not overturn a trial court's finding based on conflicting evidence,” FN7 and we will not re-weigh evidence “when the record provides clear support for the trial court's ruling.” FN8 “[I]t is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence.” FN9

FN5. Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003).

FN6. Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (quoting A .B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).

FN7. Martin N., 79 P.3d at 53 (citing In re Friedman, 23 P.3d 620, 625 (Alaska 2001)).

FN8. D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 214 (Alaska 2000).

FN9. Tessa M. v. State, Dep't of Heath & Soc. Servs., Office of Children's Servs., 182 P.3d 1110, 1114 (Alaska 2008) (quoting In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001)).

Whether the trial court's factual findings satisfy the requirements of the CINA and ICWA statutes, including whether any required expert testimony sufficiently supported the trial court's findings, is a question of law. FN10 We review questions of law de novo.FN11

FN10. E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 989 (Alaska 2002); L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000).

FN11. A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 259 (Alaska 1999).

IV. DISCUSSION

A. The Trial Court Did Not Err In Finding That OCS Made Active Efforts To Prevent The Breakup Of This Alaska Native Family.

[1] Before a court may terminate parental rights to an Indian child, it must find by clear and convincing evidence “that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” FN12 Whether OCS made active efforts is determined on a case-by-case basis.FN13 “Active efforts occur where the state caseworker takes the client through the steps of the plan rather than requiring that the plan be performed on its own.” FN14 Active efforts are required even if a parent is incarcerated, but the trial court must look to the circumstances surrounding the incarceration.FN15 When evaluating active efforts, the trial court may consider “a parent's demonstrated lack of willingness to participate in treatment.” FN16 The trial court should look at OCS's entire involvement in the case,FN17 and a temporary lapse in active efforts is not necessarily dispositive when looking at the entirety of OCS's efforts.FN18

FN12. 25 U.S.C. § 1912(d); CINA Rule 18(c)(2)(B).

FN13. Wilson W. v. State, Office of Children's Servs., 185 P.3d 94, 101 (Alaska 2008).

FN14. N.A. v. State, Div. of Family & Youth Servs., 19 P.3d 597, 602-03 (Alaska 2001) (internal quotation marks omitted).

FN15. Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 222 P.3d 841, 849 (Alaska 2009) (citing A.M. v. State [I], 891 P.2d 815, 827 (Alaska 1995)).

FN16. Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008).

FN17. Id.

FN18. See Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 235 P.3d 203, 213-14 (Alaska 2010) (rejecting father's argument that OCS failed to provide active efforts when it did not assign him a secondary caseworker because when viewing all of OCS's involvement it provided sufficient active efforts); Maisy W., 175 P.3d at 1269 (holding trial court properly concluded OCS made active efforts by looking at entire three years OCS was involved even though OCS failed to make active efforts for three months).

*2 Charles contends OCS failed to make active efforts and only provided him with a bus pass, a telephone card, a “handful of referrals,” visitation scheduling, and a generic case plan of the same type that a non-ICWA client would receive. Charles contends OCS failed to provide active efforts during his repeated incarcerations and in December 2009 when his caseworker gave him a telephone number to arrange substance-abuse treatment but “did nothing to set up an appointment.”

The fundamental flaw in Charles's arguments is his failure to appreciate the central reason for his inability to parent his children and to follow the case plans designed to reunify him with his children-his failure to maintain sobriety. Charles entered treatment after being assessed in April 2008, but only “partially” engaged. He entered treatment again in September 2008, completed treatment in January 2009 and transferred to continuing care, but relapsed in February 2009. He re-entered treatment later that month but walked away in May. Twelve days before the termination hearing in February 2010, Charles again relapsed, fully demonstrating his inability to remain sober.

Charles's failure to maintain sobriety is not the result of OCS's alleged lack of active efforts. Overall the record shows that OCS: (1) referred Charles at least three times to alcohol assessments or treatment; (2) referred him to parenting and anger-management classes; (3) sent collateral information to each of Charles's providers; (4) maintained contact with each provider; (5) arranged visitation for Charles and his children; (6) provided him with multiple bus passes and telephone cards; and (7) contacted Charles's father and attorneys about helping Charles remain sober.

Charles's argument that OCS made a generic case plan that a non-ICWA client would receive is unfounded. Charles's first and second caseworkers worked with him to develop a case plan to fit his specific needs, which included substance-abuse treatment, a mental-health assessment, anger-management treatment, domestic-violence-awareness training, parenting classes, and visitation with his children. The caseworkers also recommended and repeatedly referred Charles to “Native providers.”

Charles's argument that OCS failed to provide active efforts during his repeated incarcerations is unfounded when considering the circumstances surrounding his incarcerations, the central problem Charles needed to address, and OCS's efforts as a whole. Charles was typically incarcerated only for a few weeks at a time, and while Charles was incarcerated, his caseworker telephoned him although she was not always able to reach him. She also worked with the jail system in November 2009 to establish regular telephone visitation for Charles and his children. Perhaps the caseworker should have visited Charles in jail or had contact with him during the approximately four months he was incarcerated in 2009, but these potential lapses are insignificant in light of OCS's other efforts, which resulted in Charles completing the majority of his case plan except for staying sober.

*3 Charles's final argument that his caseworker failed to make active efforts when she gave him a treatment provider's telephone number in December 2009 but did not make an appointment also fails. Charles had not required such assistance before and the caseworker asked him if he needed additional help, rendering any potential error by the caseworker insignificant when considering the entirety of OCS's efforts.FN19

FN19. See Dale H., 235 P.3d at 213-14.

We therefore conclude that the record amply supports the trial court's active efforts finding.

B. The Trial Court Did Not Err In Finding That Returning The Children To Charles's Care Would Likely Result In Serious Harm To The Children.
[2] Before a court may terminate parental rights to an Indian child, ICWA requires the court to find “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.” FN20 Relying on the expert testimony of Christopher Wahl, a licensed professional counselor whose areas of expertise include substance abuse, the trial court found beyond a reasonable doubt that returning the children to Charles would likely result in serious emotional or physical damage to them. Charles asserts the trial court erred in relying on Wahl's testimony, arguing that Wahl provided only a “generalized opinion devoid of specific knowledge of the case” based solely on a records review.

FN20. 25 U.S.C. § 1912(f).

We have recognized that an expert's opinion “should be based on the particular facts and issues of the case” rather than “generalizations” about harm, but we have “not [held] that a meeting between experts and the parties to the termination proceeding is required in every case.” FN21 In addition, an expert's opinion should not be significantly undercut by other evidence at the trial.FN22

FN21. C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1218 (Alaska 2001).

FN22. See Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1020 (Alaska 2009).

Wahl's testimony was sufficiently grounded in important case facts to comply with ICWA requirements. Wahl specifically addressed Charles's history of alcohol abuse, Charles's history of domestic violence, and the likely effects on the children of Charles's continued drinking and untreated anger problems. Wahl explained his concerns about Charles's ability to care for his children because Charles displayed a pattern of “not fully appreciating the severity of his ... alcohol use.” Wahl testified the records showed that “several times” Charles could remember drinking but nothing else. Thus Wahl believed Charles “was not caring for the physical, emotional, [and] safety needs of his children.” Wahl noted that if Charles drank with the children present he could put them in risky situations, could accidently hurt them if physical violence occurred, and they could follow his example of “how to live life.” He testified the children could develop anger-management or substance-abuse disorders by following their father's example. Wahl concluded that the children were likely to suffer emotional and physical harm if Charles took custody of them before he demonstrated sobriety, showed an ability to manage his anger, and learned “healthy adaptive skills to prevent domestic violence.”

*4 Although Wahl did not speak directly to Charles or the caseworkers, he reviewed medical, behavioral-health, OCS, police, and substance-abuse treatment records. Nothing in the record before us suggests Wahl was unaware of any progress Charles might have recently made, and there is no evidence in the record significantly inconsistent or contradictory to Wahl's testimony that would call it into question. Indeed, Wahl's testimony was supported by Charles's treatment records, the testimony of Charles's caseworkers, and the testimony of police and probation officers who interacted with Charles, all of which demonstrated Charles's inability to remain sober and manage his anger.

We therefore conclude that Wahl's expert testimony was legally sufficient to support the trial court's finding that evidence beyond a reasonable doubt, including testimony by a qualified expert witness, established that Charles's continued custody of the children would likely result in serious emotional or physical damage to the children.

IV. CONCLUSION
We AFFIRM the trial court's termination of Charles's parental rights.

CHRISTEN, Justice, not participating.

Alaska,2010.
Charles J. v. State, Dept. of Health & Social Services, Office of Children's Services
Not Reported in P.3d, 2010 WL 5129190 (Alaska)


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