as: 856 P.2d 468)
Court of Alaska.
of Alaska, Appellee.
July 23, 1993.
of ICWA apply in determining whether court may terminate parental
rights in Indian child even when Department of Family and
Youth Services (DFYS) is seeking to terminate parental rights of
non-Indian parent. Indian Child Welfare Act of 1978, §§ 2
et seq., 102(d, f), 25 U.S.C.A. §§ 1901
et seq., 1912(d, f).
of superior court in Child in Need of Aid (CINA)
cases will not be overturned unless Supreme Court, after reviewing
entire record, is left with definite and firm conviction that
mistake has been made. Child in Need of
supported finding in Child in Need of Aid (CINA) proceeding
that father's improper parental conduct was likely to continue respecting
his Indian children, despite expert testimony that father's condition was
less severe than paranoid schizophrenia and that it had not
deteriorated in recent years; examining psychiatrist who had diagnosed paranoid
schizophrenia respecting father testified that his negative assessment of father's
condition and prognosis did not change after reviewing expert's testimony
and father's current records. Child in Need of Aid Rule
illness alone is not "conduct" and may not form basis
of termination of parental rights order in Child in Need
of Aid (CINA) proceeding. Child in Need of Aid Rule
supported finding, in Child in Need of Aid (CINA) proceeding
for termination of father's parental rights respecting his Indian children,
that custody by father was likely to result in serious
emotional or physical harm to children; examining psychiatrist and children's
therapist considered that father's paranoia and related conduct would emotionally
harm children and there were numerous reports of excessive and
inappropriate discipline. Child in Need of Aid Rule 18(c)(2); Indian
Child Welfare Act of 1978, § 102(f),
25 U.S.C.A. § 1912(f).
appropriate burden of proof in Child in Need of Aid
(CINA) proceeding for termination of parental rights respecting Indian child
is question of law which Supreme Court reviews under substitution
of judgment standard. Child in Need of Aid Rule 18(c)(2);
Indian Child Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
of evidence is standard of proof required in Child in
Need of Aid (CINA) proceeding for termination of parental rights
respecting Indian child for meeting requirement of showing that active
remedial efforts have proven unsuccessful. Child in Need of Aid
Rule 18(c)(2); Indian Child Welfare Act of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
supported finding, in Child in Need of Aid (CINA) proceeding
for termination of father's parental rights respecting his Indian children,
that reasonable efforts had been made to reunite family and
that those efforts had proven unsuccessful; father refused to follow
examining psychiatrist's recommendations as outlined in treatment plan or cooperate
in setting up alternative plan and father repeatedly denied having
mental problems and resisted intervention of Department of Family and
Youth Services (DFYS). Child
in Need of Aid Rule 18(c)(2); Indian Child Welfare Act
of 1978, § 102(d),
25 U.S.C.A. § 1912(d).
Jacqueline Bressers, Anchorage, for appellant.
Steven D. DeVries, Asst. Atty. Gen., Anchorage and Charles E.
Cole, Atty. Gen., Juneau, for appellee.
Before MOORE, C.J., and RABINOWITZ, BURKE, MATTHEWS and COMPTON, JJ.
MOORE, Chief Justice.
In this Child In Need of Aid (CINA) proceeding, Mr.
N. appeals the superior court's order terminating his parental rights.
We find substantial evidence in the record supporting the court's
decision and affirm.
The N. family has had a troubled history. Ms. N.,
a native Alaskan, is an alcoholic who often leaves the
family home for extended periods of time. Mr. N. has
a history of mental instability which dates back to his
discharge from the Air Force for mental health reasons.
The Department of Family and Youth Services (DFYS) became involved
with the N. family in April 1987 after Mr. N.
was arrested for disorderly conduct, leaving no parent available to
care for the couple's first child, J.N. DFYS instituted CINA
proceedings and J.N. was subsequently adjudicated a child in need
[FN1] Although a DFYS caseworker expressed concern over the lack
of stability in the home, the case was dismissed in
September 1987 because there had been no further instances of
AS 47.10.010(a)(2)(A) provides, in part, that the court may find
a child in need of aid when there is "no
parent, guardian, custodian, or relative caring or willing to provide
Shortly after the birth of the N.'s second child, K.N.,
Jr., in November 1987, both children were adjudicated children in
need of aid after Mr. N. was arrested for disorderly
conduct a second time. The court placed the children in
the legal custody of DFYS but returned physical custody to
the parents. The court also ordered both Mr. N. and
Ms. N. to participate in counseling, to use homemaker services
provided by DFYS and to place the children in Intermission
rather than leave them unattended.
Intermission is a community program which provides child care to
parents for respite purposes.
Pre-disposition reports identified Ms. N.'s alcohol abuse as a major
cause of the family's problems and underlined her failure to
participate in an alcohol treatment program and counseling as ordered
by the court. Both the social worker, Buffy Gullberg-Williams, and
the guardian ad litem, Colleen Ray, recommended that the children
be placed with Mr. N. After a disposition hearing in
May, the court returned the children to the physical custody
of Mr. N. The court also ordered Mr. N. to
continue his VA counseling and to use homemaker services to
help him develop single parenting skills. Later that summer, the
N.'s youngest child, N.N., was born.
Gullberg-Williams visited Mr. N.'s home one to four times a
week after the court returned physical custody to Mr. N.
She described Mr. N. as very loud and rigid in
his views (especially regarding the police), but she never observed
any delusional behavior. She noted that Mr. N. was rigid
but not inappropriate in his treatment of the children. Finally
she observed that although Mr. N. followed the treatment plan,
he resented DFYS involvement and was not completely cooperative. Because
she observed no child protection issues, legal *471
custody was returned to Mr. N. in January 1989 at
DFYS kept in contact with Mr. N.'s family but did
not make any further home visits.
In the spring of 1989, Mr. N. entered into a
voluntary placement program with DFYS to enable him to work.
He also used other community resource programs such as Intermission.
In February 1989, J.N. participated in the Head Start program,
which ended when Mr. N. displayed inappropriate and threatening behavior
to staff members.
leading to final CINA petition
On April 24, 1990, Mr. N. drove his three children,
J.N. (age four), K.N., Jr. (age three) and N.N. (age
two), to Westchester Lagoon after having a fight with his
girlfriend. According to Mr. N.'s statement to the police, he
let the children out to play while he worked on
his stereo, put gasoline in the car tank and practiced
Kung-Fu. He stated that he first realized that his youngest
son was missing when K.N., Jr. asked him about N.N.
After looking around the area, Mr. N. concluded that someone
had kidnapped his son.
Mr. N. then took J.N. and K.N., Jr. to DFYS's
Anchorage office around 4:30 in the afternoon. Highly agitated, he
left his children with a caseworker, shouting, "You took my
one kid, now you're going to ... take my other
two...." He then returned to the lagoon with his girlfriend
and went to the Anchorage Daily News with a picture
of N.N. The Daily News staff called the police about
an hour after N.N. had disappeared. N.N.'s body was later
discovered in the lagoon.
Following N.N.'s death, DFYS filed its final CINA petition. After
a four-day temporary custody hearing,
[FN3] Judge John Reese directed DFYS to take temporary legal
and physical custody of J.N. and K.N., Jr. The court
also ordered Mr. N. to have no contact with the
children unless authorized by DFYS. Finally, the court found that
DFYS had made active, albeit unsuccessful, efforts to prevent the
break-up of the family before placing the children in foster
At the hearing, the Department presented the testimony of three
witnesses. Denise Albee, J.N.'s foster mother, testified to spontaneous statements
J.N. made to her in the days following N.N.'s death.
J.N. repeatedly told her that "Daddy put N.N. in the
water with the ducks." Albee also testified that J.N. said
that Mr. N. had hit and choked her when she
told him that N.N. was in the water.
social worker assigned to the case, Thomas Garlock, stated his
opinion that visitation with Mr. N. would be detrimental to
both children. He based his opinion on Albee's testimony and
Mr. N.'s emotional state when he dropped the children off
at DFYS's office on the day of the tragedy.
Reeder testified that before J.N. knew that N.N. had been
found in the lagoon, she told him that her father
had put N.N. in the water because N.N. got his
feet wet. Audiotapes of Officer Reeder's talks with J.N. were
played into evidence. He also testified that Mr. N. displayed
bizarre and erratic behavior during the police investigation.
At the July interim review hearing, social worker Thomas Garlock
testified that Mr. N. had told him that he wanted
his children back and would do whatever necessary. However, Garlock
also stated that Mr. N. was very reclusive and had
not initiated any contact with DFYS. The court ruled that
all previous orders would remain in effect and again found
that DFYS was making reasonable efforts to reunite the family.
At the August review hearing, DFYS informed the court that
both J.N. and K.N., Jr. were in counseling and that
DFYS was seeking a psychiatric evaluation of Mr. N. DFYS
also noted that it was evaluating possible placement of the
children with Mr. N.'s relatives in Ohio. The court again
found that DFYS was making reasonable efforts to reunite the
In September DFYS filed a written case treatment plan for
Mr. N. This plan identified three objectives. First, DFYS sought
an updated psychological assessment of Mr. N. and required Mr.
N. to follow any recommendations the examining psychologist might have.
Once Mr. N. had made initial progress in individual therapy,
DFYS planned to initiate family therapy in order *472
to work toward DFYS's second stated objective--allowing Mr. N. visitation
with the children. The final objective--helping Mr. N. develop a
consistent and stable home
environment--was to be implemented by providing Mr. N. with homemaker
services once visitation had been established and by requiring Mr.
N. to participate in parenting classes.
In November DFYS filed a Motion for a Psychological and
Psychiatric Examination after Mr. N. failed to sign the proposed
treatment plan. Mr. N. opposed this request on the grounds
that DFYS was seeking this evaluation with a view to
terminate his parental rights rather than to reunite him with
his family. Superior Court Judge Peter Michalski granted DFYS's motion
on November 14, 1990.
Despite this order, Mr. N. refused to obtain a psychiatric
or psychological evaluation until DFYS moved for sanctions. Doctor Gregory
McCarthy ultimately evaluated Mr. N. during two sessions in March
At the three-day adjudication hearing in March, Officer Reeder reiterated
his earlier testimony concerning his investigation of N.N.'s death and
J.N.'s statements about the tragedy (that her father had put
N.N. in the water because N.N. had gotten his feet
wet). Denise Albee, J.N.'s foster mother, also testified to J.N.'s
similar unsolicited statements to her. Albee also testified that J.N.
had told her of several incidents where Mr. N. had
hit the children. On cross-examination, Albee confirmed that J.N. had
also given other explanations of the tragedy and that she
no longer said that her father had
put N.N. in the water.
J.N.'s therapist, Christy Williams, testified that, in her expert opinion,
J.N. had suffered numerous episodes of traumatic stress in addition
to N.N.'s death and that these episodes were related to
Mr. N.'s inappropriate parenting (i.e. excessive discipline and anger). She
stated that it would be contrary to J.N.'s best interests
to have any contact with Mr. N. until he could
understand the impact his behavior had had on J.N. She
stated that J.N. was afraid of her father and did
not want to see him.
DFYS also presented the testimony of a number of persons
who had witnessed Mr. N. exhibiting inappropriate behavior toward his
Doctor Gregory McCarthy, qualified as an expert in clinical psychiatry,
testified at length concerning his evaluation of Mr. N. He
stated that his opinion was based primarily on his clinical
evaluation of Mr. N., but that he also had relied
on the referral materials provided by DFYS. Dr. McCarthy noted
that Mr. N. demonstrated paranoia in his thinking and ideas
of reference, reality distortion, and looseness of association. He stated
that Mr. N. denied having any psychiatric problems and projected
blame for his problems onto others. According to Dr. McCarthy,
these symptoms were consistent with a diagnosis of paranoia or
Dr. McCarthy observed that there is no cure for paranoid
schizophrenia, which is characterized by slow mental deterioration. He expressed
his opinion that Mr. N.'s mental condition had deteriorated significantly
in the last few years and that his prognosis was
poor. In his view, Mr. N. would have to be
stabilized by appropriate medication before therapy could possibly help him.
However, he expressed pessimism that Mr. N. would follow through
consistently with either counseling or medication.
Although Dr. McCarthy emphasized that he had never seen Mr.
N. interact with his children, he believed that it would
be very difficult for a young child to grow up
with a parent as psychotic as Mr. N.
Gary Muromoto, a social worker at the VA hospital, testified
that Mr. N. had been attending counseling at the VA
since 1984 but that he had stopped in November 1989.
Muromoto stated that Mr. N.'s treatment issues were still unresolved
at that time.
Mr. N. presented the testimony of social workers who had
worked with his family during the 1988-89 adjudication proceedings. These
professionals observed that *473
they had never seen Mr. N. use inappropriate discipline and
that they had considered the children safe with Mr. N.
at that time. Several friends of Mr. N. also testified
that he treated the children appropriately.
In her written closing statement, Kathleen Wilson, the guardian ad
her pessimism regarding "[Mr. N.'s] desire and ability to undertake
treatment, given his paranoia, hostility, and need for medication." Although
she recognized that, in the past, Mr. N. had been
a "conscientious and caring parent," she did not believe that
Mr. N. could be relied on "to maintain a mental
state sufficiently stable ... to enable him to be an
On April 2, 1991, the court adjudicated J.N. and K.N.,
Jr. as children in need of aid, by clear and
convincing evidence, pursuant to AS 47.10.010(a)(2)(A), (C), and (F).
These sections provide, in part, that a child may be
found in need of aid when (1) there is no
parent, guardian, custodian, or relative caring or willing to provide
care (AS 47.10.010(a)(2)(A)); (2) the child has suffered or is
in an imminent danger of suffering substantial physical harm as
a result of the actions of or conditions created by
the child's parent, guardian, custodian (AS 47.10.010(a)(2)(C)); and (3) the
child has suffered substantial physical abuse or neglect as the
result of conditions created by the child's parent, guardian or
custodian (AS 47.10.010(a)(2)(F)).
At a May review hearing, Ms. N. reappeared and asserted
her desire to be reunited with her children.
[FN6] The court again found that DFYS was making reasonable
efforts to reunite the family.
A hearing was held in May 1991 to determine whether
Ms. N. could visit her children. After the hearing, Brianne
Surrey, the social worker, discussed a treatment plan with Ms.
N. and set up a June appointment for her to
sign the plan and get the necessary referrals. Ms. N.
did not appear at the appointment and has not been
heard from since.
In June 1991 Mr. N. telephoned the Anchorage Daily News
and talked to the night editor, Andrew Ryan, about DFYS's
involvement with his children. Concerned by the nature of Mr.
N.'s comments, Ryan reported this call to the police department.
As a result DFYS decided that the children were not
safe in their present location and moved them to a
new foster home. This placement was unsuccessful. DFYS then decided
to place them with Mr. N.'s relatives in Ohio. Mr.
N. opposed DFYS's motion for out-of-state placement and requested a
placement review hearing.
At the placement hearing, Christy Williams, the children's therapist, testified
that J.N. still expressed fear of her father and needed
a stable environment.
In her view, J.N.'s fears were related to excessive discipline
which was abusive.
Williams testified that in therapy K.N., Jr. had expressed more
positive feelings about his father. However, she also testified that
K.N., Jr. exhibited symptoms of fetal alcohol syndrome which increased
his need for a stable and permanent environment.
Finally Williams stated her opinion that Mr. N. could not
meet these needs as a single parent given his diagnosed
mental problems. She concluded that a permanent family placement would
be in both children's best interests.
The social worker assigned to the case, Brianne Surrey, testified
that Mr. N. had discontinued visitation with K.N., Jr. in
February 1991 and had discontinued his parenting classes. In June
and July, Surrey talked to Mr. N. about his treatment
plan and Dr. McCarthy's recommendations (possible hospitalization and medication) but
Mr. N. maintained that he had been misdiagnosed and refused
to take medication. Finally she testified that she had tried
to set up a treatment plan with Mr. N., but
that he had refused to cooperate.
Doctor Leon Janis, a VA psychiatrist, testified on Mr. N.'s
behalf. Dr. Janis started seeing Mr. N. regularly in July
1991. In his opinion, Mr. N. suffered from a schizo-typal
personality disorder, a condition less disabling than paranoid schizophrenia. He
did not believe that Mr. N.'s condition required
hospitalization, but recommended supportive therapy and medication. *474
He did not consider Mr. N. to be a danger
to his children in a supervised setting, but admitted that
Mr. N. could appear grossly psychotic at any time. In
his own words, his assessment of Mr. N. differed more
quantitatively than qualitatively from Dr. McCarthy's.
At the close of evidence, Judge Reese ruled, based on
clear and convincing evidence, that contact between Mr. N. and
his children would be harmful. In denying Mr. N.'s motion
to prohibit out-of-state placement of the children, Judge Reese emphasized
that the children needed a stable environment and observed that
Mr. N. had voluntarily suspended visitation with K.N., Jr. The
children were then placed with Mr. N.'s Ohio relatives.
In August 1991 DFYS filed a petition to terminate Mr.
N.'s parental rights and a hearing was held in December.
[FN7] At the termination trial, Valerie Miller, Mr. N.'s first
cousin, testified that J.N. and K.N., Jr. had adjusted well
to their new environment and that she and her husband
hoped to adopt the children. She also stated that J.N.
continued to express fear of Mr. N.
The parties agreed that the court could consider all the
testimony and evidence presented in earlier proceedings at the termination
The children's therapist, Williams, reiterated her opinion that the children
had special needs and that their need for stability, continuity
and security was very great.
Dr. McCarthy testified that his diagnosis of Mr. N. was
unchanged after reviewing Dr. Janis's testimony at the out-of-state placement
hearing and Mr. N.'s current VA medical records. He characterized
Mr. N. as actively delusional, extremely paranoid and unable to
meet the needs of a young child. He reiterated his
view that Mr. N.'s prognosis was poor, and concluded that
lengthy treatment would be required to stabilize Mr. N.
Dr. Janis again testified on Mr. N.'s behalf. He had
seen Mr. N. five times since the September hearing. He
reiterated his earlier diagnosis of Mr. N. and his view
that Mr. N.'s condition was not deteriorating. He testified that
Mr. N. had agreed to take an anti-psychotic drug. However,
he did not know if Mr. N. had started taking
Surrey, the social worker, reiterated by video deposition her earlier
testimony that Mr. N. had refused to cooperate with his
treatment plan or get a second psychological assessment. She testified
that she first learned that Mr. N. was seeing Dr.
Janis at the September hearing. She admitted that she never
had tried to contact Dr. Janis concerning Mr. N. but
stated that she would have worked to develop a new
treatment plan if either Mr. N.'s attorney or
Dr. Janis had contacted her.
At the close of trial, the trial court terminated Mr.
N.'s parental rights. The court entered its written findings of
fact and conclusions of law in December 1991. This appeal
a court may terminate parental rights in an Indian child, [FN8]
DFYS must prove:
The ICWA requirements apply even when, as in this case,
DFYS is seeking to terminate the parental rights of a
non-Indian parent. See,
e.g., In re Adoption of T.N.F.,
781 P.2d 973 (Alaska 1989), cert.
denied, Jasso v. Finney,
494 U.S. 1030, 110 S.Ct. 1480, 108 L.Ed.2d 616 (1990)
(ICWA applied to adoption of child by Indian father and
his wife, even though child's biological mother was not Indian).
by clear and convincing evidence that the parental conduct that
caused the child to be adjudicated a child in need
of aid is likely to continue unless parental rights are
terminated. CINA Rule 18(c)(1); In
715 P.2d 1170, 1172 (Alaska 1986).
by evidence beyond a reasonable doubt that custody of the
child by the parent or Indian custodian is likely to
result in serious emotional or physical damage
to the child. CINA Rule 18(c)(2); 25 U.S.C. § 1912(f)
(3) by a preponderance of the evidence that the party
requesting the termination of parental rights has shown that active
efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the break-up of the Indian family
and that these efforts have proved unsuccessful. CINA Rule 18(c)(2);
25 U.S.C. § 1912(d).
On appeal, Mr. N. argues that the superior court erred
in finding that DFYS had met its burden of proof
on each of these requirements.
[FN9] Mr. N. also maintains that ICWA requires DFYS to
prove "beyond a reasonable doubt" that DFYS's active remedial efforts
have been unsuccessful and that this higher burden of proof
preempts the preponderance burden set forth in CINA Rule 18(c)(2).
Mr. N. also argues that the superior court erred in
finding that he had an "extensive criminal history." However the
record does not show that the court made any such
finding or that the court relied on any statements concerning
Mr. N.'s "criminal history" in the CINA and termination petitions.
The findings of the superior court
in CINA cases will not be overturned unless this court, after reviewing
the entire record, is left with a definite and
firm conviction that a mistake has been made. In
re S.D., Jr., 549 P.2d
1190, 1195 (Alaska 1976).
the superior court err in finding that Mr. N.'s inappropriate
parenting is likely to continue?
The trial court found by clear and convincing evidence that
Mr. N.'s conduct, a product of his mental illness, was
likely to continue, and indeed worsen, in light of the
seriousness of his condition and the increasing stress of parenting
his growing children. The court commented that
N.'s] explosiveness, his tendency toward violence as well as his
preoccupation with the paranoid delusional thoughts which allow him to
neglect the children are all going to continue and in
On appeal, Mr. N. contends that
the evidence demonstrates that he could successfully parent his children
given appropriate support services. Relying on Dr. Janis's
expert testimony, he argues that his condition is less severe than paranoid
schizophrenia and that it has not deteriorated since 1988. He
then concludes that the 1988-89 positive evaluations of his parenting
capacity are compelling evidence of his future ability to parent.
On the record presented, we conclude that the court did
not err in finding that Mr. N.'s inappropriate parenting was
likely to continue. At the termination trial, Dr. McCarthy stated
that even after reviewing Dr. Janis's testimony and Mr. N.'s
current VA medical records, his negative assessment of Mr.
N.'s condition and prognosis remained unchanged.
Because the record links Mr. N.'s
continuing mental illness with his past instances of extreme neglect,
Judge Reese understandably found that Mr. N.'s improper parental conduct
was likely to continue. We emphasize, however, that mental
illness alone is not conduct and may not form the basis of a termination
Nada A. v. State, 660
P.2d 436, 440 (Alaska 1983) (trial court erred in terminating a mother's
parental rights simply because she suffered from an impulsive personality
the superior court err in finding that custody by Mr.
N. is likely to result in serious emotional or physical
harm to the children?
The trial court concluded that
N.] has harmed the children emotionally and physically in the
past. And I believe that the evidence shows beyond a
reasonable doubt that the children would continue to suffer substantial
and serious harm in the future, physical and emotional, if
they were placed with him.
N. attacks this finding in several ways. First, he argues
that the evidence of past physical harm is based solely on the children's
unsubstantiated hearsay statements. Second, Mr. N. argues
that DFYS *476
has failed to show that the children have been emotionally harmed by his
conduct. He emphasizes that K.N., Jr. has positive feelings
about him and wants to see him. He attributes J.N.'s negative
feelings to the fact that J.N.
has not seen him since the day N.N. died. He suggests that
her fears stem from this single incident. Finally Mr. N. attacks
the children's therapist's assessment on the grounds that her information
on Mr. N. was filtered through DFYS.
Mr. N.'s arguments are unpersuasive. Both Dr. McCarthy and the
children's therapist clearly considered that Mr. N.'s paranoia and related
conduct would emotionally harm the children. There were also numerous
reports of excessive and inappropriate discipline. Taking the record as
a whole, there is sufficient evidence to support Judge Reese's
the superior court err in finding that active remedial efforts
had proven unsuccessful?
(1) Burden of proof [FN10]
Determining the appropriate burden of proof is a question of
law which this court reviews under the substitution of judgment
591 P.2d 1281, 1284 n. 6 (Alaska 1979); see,
e.g., In re J.R.B.,
715 P.2d 1170, 1172 (Alaska 1986).
On appeal, Mr. N. argues that
ICWA requires proof beyond a reasonable doubt that active remedial efforts
have been unsuccessful. Further he argues that the preponderance
burden set forth in CINA Rule 18(c)(2) is preempted because
it is inconsistent with the fundamental purpose of ICWA--to prevent the
breakup of Indian families.
Section 1912(d) of ICWA provides:
party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State
law shall satisfy the court 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.
25 U.S.C. § 1912(d)
(1983). On its face, this section does not conflict with
the preponderance burden required under CINA Rule 18(c)(2). However, a
number of courts have ruled, albeit without much analysis, that
the beyond a reasonable doubt burden also applies to proof
of active remedial efforts. See
In re S.R.,
323 N.W.2d 885, 887 (S.D.1982) (where the South Dakota Supreme
Court "assume[d] that the same burden required to prove serious
emotional or physical harm under § 1912(f),
beyond a reasonable doubt, would also be required to prove
active efforts by the party seeking termination."); see
also In re Kreft,
148 Mich.App. 682, 384 N.W.2d 843, 848 (1986) (adopting the
holding without analysis); In
371 N.W.2d 366, 372 (S.D.1985).
We are unpersuaded by these authorities
and conclude that this interpretation is inconsistent with both the plain
language of the statute and the
relevant legislative history.
1912(d) ] provides that a party seeking foster care placement
or termination of parental rights involving an Indian child must
satisfy the court that active efforts have been made to
provide assistance designed to prevent the breakup of Indian families.
The committee is advised that most State laws require public
or private agencies involved in child placements to resort to
remedial measures prior to initiating placement or termination proceedings, but
that these services are rarely provided. This subsection imposes a
Federal requirement in that regard with respect to Indian children
H.R.Rep. No. 95-1386, 95th Cong., 2d Sess. 22 (1978), U.S.Code
Cong. & Admin.News 1978, pp. 7530, 7545; see
also In re Charles,
70 Or.App. 10, 688 P.2d 1354, 1354 (1984) (finding that
the purpose of § 1912(d)
is to require an affirmative
showing by the state that active efforts to reunite the
family had failed). Thus we reject Mr. N.'s argument and
hold that the standard of proof required is a preponderance
of the evidence.
(2) Sufficiency of the Evidence
The trial court found that DFYS had met its burden of proving that reasonable
efforts had been made to reunite the family. Mr. N. maintains
that DFYS decided to terminate Mr. N.'s parental rights immediately after
N.N.'s death and that all DFYS's subsequent efforts were geared toward
termination rather than reunification.
However the record indicates that Mr. N. refused to follow
Dr. McCarthy's recommendations as outlined in the September 1990 treatment
plan or cooperate in setting up an alternative plan. He
repeatedly denied having mental problems and resisted DFYS's intervention. Although
it is true that DFYS might have done more, it
is unlikely that further efforts by DFYS would have been
effective in light of Mr. N.'s attitude. See
In re Brown,
112 Idaho 901, 736 P.2d 1355, 1358 (1987) (holding that
state made reasonable efforts to reunite family where mother refused
to cooperate with state's efforts and where there was no
evidence that other efforts would have been productive).
Although this is the most difficult issue presented by this
case, taking the record as a whole, there is sufficient
evidence that the state tried to keep Mr. N.'s family
In this tragic case, the legal standards for terminating parental
rights imposed by the ICWA and the Alaska Statutes as
complied in CINA Rule 18(c) have been fully satisfied. Moreover,
the state met its burden of proving that it had
made reasonable efforts to prevent the break-up of the N.
family. The judgment is therefore AFFIRMED.
856 P.2d 468, 4 NDLR P 424