as: 46 P.3d 986)
Court of Alaska.
of Alaska, DIVISION OF FAMILY AND YOUTH SERVICES, Appellee.
May 10, 2002.
the Department of Family and Youth Services (DFYS) complied with the "active
efforts" requirement of the Indian Child Welfare Act (ICWA) in a
child protection matter is a mixed question of fact and law. Indian
Child Welfare Act of 1978, § 102(d), 25 U.S.C.A. § 1912(d).
substantial evidence supports a court's conclusion, in a child protection
proceeding under the Indian Child Welfare Act (ICWA), that an Indian child
is likely to be seriously harmed if returned to his parent is a mixed
question of fact and law. Indian Child Welfare Act of 1978, §§ 2-113,
25 U.S.C.A. §§ 1901-1923.
expert testimony in a child protection proceeding under the Indian Child
Welfare Act (ICWA) satisfies ICWA requirements is a pure legal question.
Indian Child Welfare Act of 1978, §§ 2-113, 25 U.S.C.A.
Court reviews the trial court's factual findings in a child protection
proceeding under the Indian Child Welfare Act (ICWA) under the clearly
erroneous standard, and its legal conclusions de novo.
to the Indian Child Welfare Act (ICWA), prior to terminating parental
rights to a Native child,
the state must prove by a preponderance of the evidence that it made active,
but unsuccessful, efforts to provide remedial services and rehabilitative
programs designed to prevent the breakup of the family. Indian Child
Welfare Act of 1978, § 102(d), 25 U.S.C.A. § 1912(d).
of Family and Youth Services (DFYS) made requisite "active efforts"
under Indian Child Welfare Act (ICWA) prior to petitioning for
termination of mother's parental rights, despite its stipulated failure to
make active remedial efforts for part of one year and
to obtain updated psychological evaluation of mother, where third psychological
evaluation would have been of marginal value, mother's failure to
address substance abuse issues strongly indicated that she was not
interested in or capable of taking advantage of services, DFYS
made extensive remedial efforts before and after hiatus, and mother's
evasive, combative conduct rendered provision of services practically impossible. Indian
Child Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
efforts have been made to address a parent's substance abuse
problem, the parent has made no effort to change, and
parental rights have already been terminated as to one or
more children as a result, the superior court may consider
the degree of the state's efforts to prevent the breakup
of the entire family in assessing whether that effort was
sufficient under the Indian Child Welfare Act (ICWA). Indian Child
Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
to terminating parental rights in a child protection proceeding under
the Indian Child Welfare Act (ICWA), the state must prove
beyond a reasonable doubt that the child is likely to
suffer serious emotional or physical damage if placed with the
parent. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
a child protection proceeding under the Indian Child Welfare Act
(ICWA), proof that the child is likely to suffer serious
emotional or physical damage if placed with the parent must
include qualified expert testimony based upon the particular facts and
issues of the case. Indian Child Welfare Act of 1978,
25 U.S.C.A. § 1912(f).
expert testimony in child protection proceeding under Indian Child Welfare
Act (ICWA), in combination with substantial evidence in record, supported
determination that subject child would likely be harmed if returned
to his mother, despite experts' failure to evaluate or interview
mother prior to trial; both testifying experts, child's therapist and
a clinical psychologist, had substantial contact with child and spoke
to specifics of child's aberrant behavior, its connection to his
traumatic relationship with his mother, and likelihood of its recurrence
should child be returned to his mother. Indian Child Welfare
Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
lapse, in child protection proceeding under Indian Child Welfare Act
(ICWA), between expert witnesses' formulation of their opinions and their
testimony at trial did not render their testimony unreliable or
insufficient to support finding that child was likely to suffer
serious emotional or physical damage if returned to mother, in
absence of any evidence or argument contradicting experts' assessments and
in light of intervening events making successful reunification even less
unlikely. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
Child Welfare Act (ICWA) does not require that experts' testimony
provide the sole basis for the court's conclusion that the
subject child is likely to suffer serious emotional or physical
damage if placed with the parent; ICWA simply requires that
the testimony support that conclusion.
Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
child protection proceedings under the Indian Child Welfare Act (ICWA),
to prove that the parent's custody of the subject child
would likely cause the child harm, the state must prove
both that the parent's conduct is likely to harm the
child and that the parent is unlikely to change his
or her conduct. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
evidence of mother's chronic, unaddressed substance abuse, of child's fear
of returning to mother, and of connection between mother's substance
abuse and her poor parenting skills, was sufficient to support
findings, in child protection proceeding under Indian Child Welfare Act
(ICWA), that mother's conduct would likely harm child and that
her harmful conduct was likely to continue; child and his
older siblings were adjudicated children in need of aid (CINA)
due in part to their parents' substance abuse, mother had
received professional help for substance abuse for over a decade
without success, and mother could not address parenting issues without
achieving lasting sobriety. Indian Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
*988 Kathleen A. Murphy, Assistant Public Defender, and Barbara K. Brink,
Public Defender, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
A mother appeals the termination of her parental rights to
her Native child. We affirm the trial court's holding that
the state made active, unsuccessful efforts to prevent this termination.
Although the state failed to obtain an updated psychological evaluation
of the mother following her child's allegation that she had
abused him, an update would not likely have increased the
mother's chances for reunification given her inability to maintain long-term
sobriety and her resistance to receiving treatment. We also hold
that substantial evidence supports the superior court's finding that returning
the child to his mother's custody would likely result in
serious emotional harm. Two experts testified that the child feared
his mother and would regress if returned to her. Further,
the record clearly demonstrated that the mother had not successfully
overcome her substance abuse, and could not address her parenting
issues until she had done so. We therefore affirm the
superior court's termination decision.
FACTS AND PROCEEDINGS
This appeal arises from the termination of E.A.'s parental rights
to H.O., her six-year-old son. [FN1] H.O. is an Indian child within the meaning of
the Indian Child Welfare Act. [FN2]
E.A. is the biological mother of five children: three girls
and two boys. E.A. relinquished her parental rights to the
eldest three children as well as her youngest.
25 U.S.C. §§ 1901-23,
E.A. has led a troubled life. She claims to have
been physically abused by her adoptive parents' children and sexually
abused by a relative during her childhood, and she has
a long history of substance abuse.
The Division of Family and Youth Services (DFYS) assumed custody
of E.A.'s first
child shortly after birth due to his parents' substance abuse
and domestic violence problems. E.A.'s second child was born while
she was in treatment at the Dena-A-Coy residential *989 substance abuse treatment center, and her third was born a
year after she completed the treatment program. DFYS permanently removed
all three children in 1994 due to their parents' substantial
neglect and a dangerous home environment.
DFYS arranged for Dr. Michael Rose to conduct a psychological
evaluation of E.A. Dr. Rose found that E.A. had a
high potential for child abuse because of her negative attitudes
towards her children, untreated anger issues, and authoritarian parenting style.
He further found that E.A. was significantly addiction-prone, and especially
likely to abuse substances when acutely stressed. Dr. Rose concluded
that E.A. was "not currently capable of being a safe
and nurtur[ing] caregiver to her children," that her "prognosis [was]
very poor," and that her prospects for future treatment were
"dismal at best."
E.A. entered Dena-A-Coy for the second time in March 1995.
When H.O. was born later that year, the state filed
a non-emergency CINA petition, but there was no removal at
the time. [FN3] In 1996, pursuant to his parents' stipulation, H.O. was
adjudicated a child in need of aid due to his
parents' continuing substance abuse and domestic violence problems.
In 1996 E.A. successfully completed treatment at Dena-A-Coy and transitioned
to New Dawn, an aftercare residential substance abuse treatment program.
DFYS removed H.O. from E.A.'s custody in 1998 due to
E.A.'s "poor parenting skills, refusal to accept services, and use
of inappropriate care providers." E.A. was placed in the same
foster home as his three older siblings.
In October 1999 H.O. claimed that his mother harmed him
during a visit and that he was afraid of her. [FN4] DFYS suspended visitations and placed H.O. in therapy with
Dr. Michael Baldwin. Dr. Jeanne Bereiter performed a psychological evaluation
of H.O. and concluded that he suffered from post-traumatic stress
disorder. Over the next six months three psychologists (Dr. Baldwin,
Dr. Bereiter, and Dr. Susan LaGrande) all cautioned that renewed
visitation might result in further emotional harm.
H.O. later told a state psychologist that "[E.A.] was mean
a long time, she slapped me with [a book]."
DFYS filed a petition to terminate E.A.'s parental rights to
H.O. in August 2000. The parties significantly narrowed the issues
for trial by stipulating to most relevant facts. The only
issues in dispute were whether DFYS had provided active remedial
efforts directed towards reunifying E.A. and H.O. and whether
the state could prove beyond a reasonable doubt that returning
H.O. to his mother would likely cause him serious emotional
harm. The court found in favor of the state on
Standard of Review
Whether DFYS complied with the
"active efforts" requirement of the Indian Child Welfare Act
(ICWA) is a mixed question of fact and law. [FN5] Likewise, whether substantial evidence supports the court's
conclusion that an Indian child is likely to be seriously harmed if returned
to his parent is a mixed question of fact and law. [FN6] Whether expert testimony satisfies ICWA requirements is a
pure legal question. [FN7] We review the court's factual findings under the clearly erroneous
and its legal conclusions de novo. [FN9]
v. State, Div. of Family & Youth Servs., 19 P.3d 597, 600-01 (Alaska 2001) (citations omitted).
v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 949-50 (Alaska 2000) (holding that factual findings
in termination proceedings are reviewed under clearly erroneous standard, but
findings comport with ICWA requirements presents questions of law).
v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1217-18 (Alaska 2001).
FN8. L.G., 14 P.3d at 949-50 (citation omitted).
FN9. Id. (citation omitted).
The Trial Court Correctly Concluded that DFYS Made Active Efforts
To Prevent the Breakup of E.A.'s Family.
Prior to terminating parental
rights to a Native child, the state must prove by a *990 preponderance of the evidence that it made active, but unsuccessful, efforts
to provide remedial services and rehabilitative programs designed to prevent
the breakup of the family. [FN10] The trial court held that active efforts had been made in
this case, but without success. E.A. argues that DFYS's stipulated
failure to make active remedial efforts for the first half of 1999 and
its failure to obtain an updated psychological evaluation of E.A. after
H.O.'s allegation of harm in October 1999 compel us to conclude that the
state did not make active efforts.
25 U.S.C. § 1912(d)
(2000) (stating that court may terminate parental rights only if
it finds by preponderance of 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"); CINA Rule 18(c)(2); K.N.
v. State, 856 P.2d 468, 476 (Alaska 1993).
The trial court found that an
additional psychological evaluation of E.A. would have been of "marginal
value" because two had already been conducted and another simply
would have recommended services similar to those already being provided.
This finding is not erroneous. Arguably, DFYS
needed to conduct an updated evaluation to design an effective treatment
program in light of abuse issues brought into focus by H.O.'s allegations
in October 1999. Dr. LaGrande testified that an updated evaluation
might be helpful to "guide future treatment."
However, the state makes a compelling argument that even if
an updated evaluation might have ideally guided future treatment, E.A.'s
failure to address her substance abuse problems strongly indicates that
E.A. was not sufficiently interested in or capable of taking
advantage of such treatment. E.A. failed to curb her substance
abuse by the time of trial; in fact, multiple alcohol-related
encounters with the police in the year leading up to trial
indicate that she had taken a significant turn for the
worse. Dr. LaGrande testified that E.A. would have to maintain
sobriety for at least a year before she could expect
to successfully begin dealing with her parenting problems. She further
testified that E.A. had been provided many opportunities to obtain
therapy and substance abuse treatment and had failed to take
advantage of them. [FN11]
E.A.'s social worker testified similarly, further adding that even if
E.A. were fully cooperative it would take at least two
to three years of intensive treatment efforts before she would
be ready to be reunited with H.O.
Although the evaluation may well have provided new information, the
utility of that information was conditioned on E.A.'s ability to
overcome her serious substance abuse problems. The new evaluation's recommendations
would surely have been consistent with those of the earlier
evaluations regarding her need to maintain long-term sobriety, and the
record does not support a finding that E.A. is likely
to meet this critical requirement in the near future.
Further, DFYS's failure to make active efforts from January to
July 1999 is insignificant in light of the extensive remedial
efforts the state has provided throughout its involvement with E.A.'s
children apart from this seven-month period.
E.A. has participated in six substance abuse treatment programs, parenting
education, anger management classes, relationship and self-esteem classes, couples therapy,
twelve-step programs, family counseling, ACF home-based services, the ACF preschool
program, and CITC home-based services and therapy. E.A. also has
a history of either refusing services altogether or abandoning treatment
plans prior to completion.
E.A. admits that DFYS resumed active efforts in the two
months before the October 1999 incident. Although DFYS's efforts thereafter
consisted largely of failed attempts to contact E.A. or obtain
information from her rather than the provision of services, E.A.'s
evasive, combative conduct rendered provision of services practically impossible. [FN12]
She repeatedly failed to apprize DFYS of her contact information
and ultimately refused to give her new telephone number to
DFYS, skipped her custody extension hearing, was verbally abusive toward
her social worker, and failed to adhere to DFYS's instructions
to obtain a substance abuse assessment, curb her substance abuse,
or attend AA meetings.
*991 We have consistently 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." [FN13]
Further, where efforts have been made to address a substance abuse
problem, the parent has made no effort to change, and parental rights
have already been terminated as to one or more children as a result, the
superior court may 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. [FN14] DFYS has expended substantial efforts over the last decade
to prevent the breakup of E.A.'s family, without success. There
is no reason to think that either an additional psychological evaluation
or an additional seven months of intervention would have prevented this
result. [FN15] Accordingly, we affirm the trial court's conclusion that
active efforts were made.
FN13. N.A., 19 P.3d at 603-04; A.M.
v. State, Div. of Family & Youth Servs., 891 P.2d 815, 827 (Alaska 1995), overruled
on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996); K.N., 856 P.2d at 477.
FN14. N.A., 19 P.3d at 603-04 (citations omitted).
FN15. Id. (stating that there is no reason to think DFYS's failure
to enroll parent in yet another residential dual-treatment program would have
resulted in more successful outcome); see
also K.N., 856 P.2d at 477 (noting that "[a]lthough ... DFYS might
have done more, it is unlikely that further efforts by
DFYS would have been effective in light of [the parent's]
The Trial Court Properly Concluded that H.O. Would Likely Be
Harmed if Returned to E.A.'s Custody.
state must further prove beyond a reasonable doubt that H.O. is likely
to suffer serious emotional or physical damage if placed with E.A. prior
to terminating her rights to him. [FN16] This proof must include qualified expert testimony based
upon the particular facts and issues of the case. [FN17] We hold that qualified expert testimony in combination with
substantial evidence in the record supported the court's determination
that H.O. would likely be harmed if returned to E.A.
25 U.S.C. § 1912(f)
C.J., 18 P.3d at 1218.
Dr. Baldwin, H.O.'s therapist,
testified at trial, as did Dr. LaGrande, a clinical psychologist who was
asked by H.O.'s guardian ad litem to review
the case. E.A. argues that both experts' testimony was insufficient
under our decision in C.J.
v. State, Dep't of Health & Soc. Servs., [FN18]
because neither expert evaluated or interviewed E.A., and because the
information they relied on to render their opinions was outdated. [FN19]
The state correctly responds, however, that the testimony nonetheless
supports the court's conclusion because both experts had substantial contact
with H.O. [FN20] In contrast, the expert in C.J. relied exclusively on the DFYS case file. [FN21]
18 P.3d 1214 (Alaska 2001).
E.A. further notes that Dr. LaGrande testified that she lacked
sufficient knowledge to evaluate E.A.'s capacity as a parent. Similarly,
Dr. Baldwin testified that he had not had sufficient contact
with E.A. to evaluate her parenting abilities.
Dr. Baldwin conducted fifteen or sixteen therapy sessions with H.O.
over the course of seven months. Dr. LaGrande relied upon
several sources in preparing her report, including her observations of
H.O. playing with his foster mother, interviews with Dr. Baldwin,
H.O.'s social worker, his foster mother, and his preschool teacher,
and her review of DFYS records.
18 P.3d at 1218.
Further, while the expert's testimony in C.J. amounted to "little more than generalizations about the harms resulting
from a parent's absence," [FN22]
both experts here spoke to the specifics of H.O.'s aberrant
behavior and its connection to his traumatic relationship with his
mother. Dr. Baldwin testified that H.O. exhibited significant behavioral difficulties,
including nightmares in which he was being harmed, aggression towards
his siblings, and repetitive play reenacting harmful incidents. Dr. Baldwin
further stated that H.O. became very agitated when his mother
was mentioned, and expressed fear during therapy sessions that his
mother was coming to get him. H.O. would "shut down" *992 or become non-verbal when the subject of his dreams or
his mother arose. Dr. Baldwin testified that H.O. was emotionally
fragile as a result of his traumatic experiences. He concluded
that any contact between H.O. and E.A. would very likely
trigger a substantial regression, and therefore had a "high potential"
to cause H.O. "serious emotional harm."
Dr. LaGrande testified that H.O. was a psychologically fragile child,
and that he needed a high degree of stability and
consistency in order to overcome his traumatic experiences and successfully
reach his developmental milestones. She was concerned that E.A. would
not provide the structured, consistent environment H.O. needed to maintain
his psychological growth. She concluded that returning H.O. to an
environment in which he would predictably experience fear would prevent
him from gaining the sense of comfort and security necessary
for healthy psychological growth.
The state argues that the one-year
lag between the experts' formulation of their opinions and their trial
testimony is immaterial where E.A. has provided no evidence (or even argument)
contradicting the experts' assessments. In fact, it seems
clear that both experts would have been even more concerned about reunification
of H.O. with E.A. if they had known of recent events. In contrast,
the parent in C.J. introduced unrebutted evidence that he was successfully parenting his
older child and that he had taken steps to put himself in a position to
parent his younger children. [FN23]
FN23. Id. at 1219.
Finally, there is substantial
evidence of E.A.'s instability and parental
incapacity outside of the experts' testimony in this case. ICWA
does not require that the experts' testimony provide the sole basis for
the court's conclusion; ICWA simply requires that the testimony
support that conclusion. [FN24]
Accordingly, there is no basis for holding the experts' testimony
25 U.S.C. § 1912(f)
E.A. further argues that the
court improperly focused on her substance abuse in concluding that H.O.
would likely be seriously harmed if returned to her custody. To
prove that E.A.'s custody of H.O. would likely cause him harm, the state
must prove both that E.A.'s conduct is likely to harm H.O. and that E.A.
is unlikely to change her conduct. [FN25] E.A. argues that the state never proved a connection between
her substance abuse and her parenting capacity, and therefore the court
had no basis for concluding that E.A.'s harmful conduct was likely to
continue, even if it had sufficient grounds to believe that E.A.'s substance
abuse would continue.
FN25. L.G., 14 P.3d at 950 (citation omitted).
However, the record contains substantial
evidence linking E.A.'s alcohol
and drug abuse and her parenting abilities. H.O. and his three
older siblings were adjudicated children in need of aid due in part to
their parents' substance abuse. E.A.'s substance abuse has
been a factor in multiple DFYS interventions throughout the 1990s, and
has been the principal focus of E.A.'s long history of receiving professional
help. Finally, as noted above, [FN26]
Dr. LaGrande and E.A.'s social worker both testified that E.A. had to
achieve lasting sobriety prior to addressing her parenting issues, and
both were very skeptical that she would ever do so given her significant
supra Part III.B.
Thus, the record gives every indication that E.A.'s poor parenting
skills are highly related to her substance abuse problems, and
that E.A. is unlikely to achieve lasting sobriety. The extensive
evidence of E.A.'s chronic, unaddressed substance abuse, taken together with
the unequivocal opinions of the two experts and H.O.'s documented
fear of returning to his mother, provide the requisite proof
both that E.A.'s conduct would likely harm H.O. and that
E.A. is unlikely to permanently change that conduct.
For these reasons, the superior court's decision is AFFIRMED.