as: 118 P.3d 1)
Court of Alaska.
C. II, Appellant,
of Alaska, OCS, Appellee.
of Alaska, OCS, Appellee.
Robert D. Lewis, Lewis & Thomas, P.C., Nome, for Appellant
Wendell C. II.
William B. Oberly, the Law Offices of William B. Oberly,
Anchorage, for Appellant Vanessa G.
P. Stark, Assistant Attorney General, Anchorage, Scott J. Nordstrand, Acting
Attorney General, Juneau, for Appellee.
Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
issue in these appeals is whether the superior court improperly
considered social science research outside the record in terminating Wendell
C.'s and Vanessa G.'s parental rights to their four youngest
conclude that the superior court's consideration of the studies did
no harm because there is no reasonable likelihood that exclusion
of the studies would have affected the court's decision to
terminate the parents' rights. Consequently,
use pseudonyms to protect the privacy of the parties.
and Vanessa are appealing the termination of their parental rights
to four of their children, Paula (born 2/16/95), William (born
9/18/96), Donald (born 6/20/01), and Julius (born 10/9/02).FN2
four are Indian children for purposes of the Indian Child
Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963.
also has two older children for whom Wendell is the
Indian custodian. Although
these children also are in state care, the superior court
declined to terminate Vanessa's and Wendell's parental rights as to
them, and they are not involved in this appeal.
and Vanessa have received social services since 1998 because of
alcohol abuse and domestic violence. Wendell
testified that he started drinking alcohol when he was seventeen
or eighteen years old, and that the longest he has
been sober since then was for eight months when he
was nineteen or twenty. Wendell
has gone to jail at least four times and admits
that alcohol was involved every time. Additionally,
there was testimony that Wendell has assaulted Vanessa and his
parents many times while drunk, and the children have witnessed
some of these incidents.
Wendell and Vanessa attended two alcohol rehabilitation programs in 2002
but relapsed soon after each program. Vanessa
completed another rehabilitation program in December 2003 but attended only
one aftercare session and apparently resumed drinking. Her
landlord testified that after she completed the program he received
numerous complaints about drinking and fighting at her furnished apartment,
that each time he went to give her warnings he
found that she had been drinking, and that when she
moved out, the furnishings were broken and the apartment was
William, and Donald were placed in state care in April
2002 and have been together in a foster home since
July 2003. Julius
has been in state care since he was one month
old-since November 2002.
July 2004 the superior court terminated both parents' rights with
respect to the four children. In
its opinion, the court cited a number of studies detailing
the effect of alcoholism and domestic violence upon families, and
the developmental needs of children. The
studies were not admitted into evidence; neither
the parties nor the expert witnesses who testified at the
termination trial had even mentioned them.FN3
parents appeal, contending that the superior court improperly relied on
superior court distributed one of the articles to the parties.
Whether factual findings are
sufficient to satisfy the child in need of aid (CINA) statutes and rules
and the Indian Child Welfare Act (ICWA) is a question of law that we review
de novo, adopting “the rule of law that is most persuasive in light of
precedent, reason, and policy.” FN4
We also *3
apply our independent judgment when deciding due process claims.FN5
B. v. State, DFYS,
93 P.3d 403, 405 (Alaska 2004) (internal quotation marks omitted).
838 P.2d 259, 261 n. 4 (Alaska 1992).
and Vanessa argue that by citing the social science studies,
the court improperly considered evidence outside the record.
court may use extra-record facts to prove a fact or
element in the case by taking judicial notice of that
Evidence Rule 201(a) defines judicial notice of a fact as
court's on-the-record declaration of the existence of a fact normally
decided by the trier of fact, without requiring proof of
fact can be judicially noticed only if it is “not
subject to reasonable dispute in that it is either (1)
generally known within this state or (2) capable of accurate
and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”
parties can contest the taking of judicial notice: “Upon
timely request, a party is entitled to be heard as
to the propriety of taking judicial notice and the tenor
of the matter noticed. In
the absence of proper notification, the request may be made
after judicial notice has been taken.”
R. Evid. 201(a). See
Commentary to Alaska R. Evid. 201(a) ( “Rule
201 restricts only the power of the court to declare
on the record, without resort to formal proof, that a
particular fact exists, i.e., that something is actually true, where
the fact involved is one that would otherwise be decided
by the trier of fact upon submission of proof by
the parties. No
other practice falls within the scope of this Rule.”).
R. Evid. 201(b).
R. Evid. 203(a).
argues that the studies were not properly the subject of
judicial notice because they were subject to reasonable dispute. In
addition, he and Vanessa assert that even if the facts
were ones that could be judicially noticed, they were not
given an opportunity to challenge the taking of judicial notice
because they first discovered the court's use of the studies
in its memorandum opinion. Lastly,
Wendell and Vanessa contend that the lack of notice violates
their rights to due process.
Because we conclude that there
is no reasonable likelihood that the superior court's decision to terminate
parental rights would have been different absent the social science studies
cited in the opinion, we affirm the superior court's decision without
deciding whether or how Rule 201 should apply to this case.FN9
We hasten to add that even if the superior court's reliance on these
studies was not covered by Rule 201 at all, FN10
still the better practice would be to inform the parties in advance of
the studies the court intends to rely on, so as to give the parties an
opportunity to challenge this research.FN11
v. Iditarod Properties, Inc.,
104 P.3d 136, 142 (Alaska 2004) (“The
admission of evidence, even if erroneous, is harmless when there
is no reasonable likelihood that the admitted evidence had an
appreciable effect on the court's decision.”);
Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough,
527 P.2d 447, 451 (error in taking of judicial notice
was harmless). Specifically,
we do not decide whether the facts noticed based on
these social science materials were facts of a type “normally
decided by the trier of fact”
under Rule 201(a); if
so, whether the facts could be properly noticed under Rule
if so, whether a prior warning to the parties was
required under Rule 201(d).
Commentary to Alaska R. Evid. 201(a) (“One
aspect not covered by Rule 201 involves assumptions made by
the court in its determinations of policy; e.g.,
that a particular change in the law would probably do
more harm than good.”).
1 Joseph M. McLaughlin et al., Weinstein's Federal Evidence § 201.51,
at 201-87 (2d ed. 1987)
should proceed cautiously in taking judicial notice of legislative facts,”
by giving the parties “an
opportunity to present rebutting information”
in advance of the court's reliance on the fact.).
the CINA statutes and rules and ICWA, a trial court
must make several findings before it may terminate parental rights.
superior court cited to the challenged materials in making two
of these findings: (1)
that clear and convincing evidence shows that the parents have
not remedied the conditions or conduct placing the children at
risk, or have failed to make sufficient progress*4
in a reasonable period of time such that the children
remain at a substantial risk of harm;
(2) that a preponderance of the evidence shows that the
department has made active but unsuccessful efforts to provide services
to prevent the breakup of the family.FN13
consider the evidence in the record supporting each of these
U.S.C. § 1912(d);
and Convincing Evidence Establishes that the Parents Have Not Remedied
the Conduct and Conditions Within a Reasonable Time.
The parents challenge the superior
court's finding that the parents failed to remedy their conduct within
a reasonable time under AS 47.10.088(a)(1)(B).FN14
They point to the superior court's citation of social science data
suggesting that alcoholic parents who abuse each other also tend to abuse
their children; that attempts to recover from alcoholism are often
unsuccessful; and that young children tend to have pressing emotional
needs that cannot be put off. Although the superior court
provided numerous citations to this research, we think there
was no reasonable likelihood that these references changed any part of
the result. This is because the superior court made so many
other specific findings, based on admissible evidence, that were sufficient
to establish the parents' failure to take steps to recover from alcoholism
in time to meet the needs of their troubled children.
47.10.088(a)(1)(B) says that parental rights cannot be terminated unless the
superior court finds that the parent:
not remedied the conduct or conditions in the home that
place the child at substantial risk of harm; or
failed, within a reasonable time, to remedy the conduct or
conditions in the home that place the child in substantial
risk so that returning the child to the parent would
place the child at substantial risk of physical or mental
making this determination, the court may consider “the
likelihood of returning the child to the parent within a
reasonable time based on the child's age or needs.”
the superior court found that the parents drink and engage
in domestic violence with each other, and that this behavior
an impact on the children,”
irrespective of any potential for physical abuse of the children.
effects on the children include attachment disorders that clearly preclude
a lengthy, contingent return to parental custody. For
example, the superior court found that Julius is at risk
for fetal alcohol spectrum disorder, that he has attachment problems
and is attached only to his foster mother; that
Daniel is at risk for attachment problems; that
William was affected by the family violence, noting testimony that
his relationship with his parents was “confusing”
and that he saw Paula as his protector; and
that Paula was similar to William, noting testimony that her
problems had become “more
(e.g., she was “striking
superior court further found that these emotional problems became less
severe as some of the children entered foster care and
began bonding with foster parents. We
believe these findings are primarily what led the superior court
to conclude that the “children
for their parents to recover from their alcoholism, and we
think there is no reasonable likelihood that this conclusion would
have been different absent the social science citations.
the superior court found, citing testimony by specialists familiar with
the parents' treatment history, that both parents would need to
undertake lengthy treatment for alcoholism (e.g., of “one
to two years”
in Vanessa's case), and that “success
did not seem likely”
in either case. It
is clear to us that this conclusion was also based
on the trial evidence, and that it would not have
been different had the superior court not consulted the academic
these findings are sufficient to sustain the legal conclusion that
the parents failed to remedy their conduct in a reasonable
superior court found (in a part of its opinion that
the parents do not challenge) that the children were children
in need of aid under (among other provisions) AS 47.10.011(10),
which permits a CINA adjudication*5
where the parents' use of alcohol has “substantially
their ability to parent and “resulted
in a substantial risk of harm to the children.”
findings recited above establish a failure to remedy this conduct
in a reasonable time: the
parents would have to engage in a treatment procedure of
one to two years, the prospects for success were poor,
and the children's attachment problems made it imperative to eliminate
contingencies in their relationships with their care givers. These
circumstances suffice to establish a failure to remedy conduct, in
light of the low likelihood of “returning
the child to the parent within a reasonable time based
on the child's age or needs.”
R. v. State, Dep't of Health & Soc. Servs., Div.
of Family & Youth Servs.,
74 P.3d 896, 902-03 (Alaska 2003).
Preponderance of the Evidence Supports that the Department Made Active
but Unsuccessful Efforts To Reunify Wendell and Vanessa with Their
Wendell argues that no evidence
in the record supports the superior court's finding that there were “active
efforts” to provide remedial programs designed to prevent the break-up
of the family and he contests the use of another social science study
in this portion of the court's opinion.
argued before the superior court that the department should have
considered alternatives other than that he needed to quit drinking
alcohol to reunify his family, such as developing a safety
net for the children when he and Vanessa were drinking.
superior court discounted Wendell's “safety
argument by pointing out that his testimony was replete with
statements that he agreed he needed to stop drinking in
order to retain custody of his children, and by noting
that Wendell presented no evidence that a “safety
approach would work. The
superior court then quoted a social science study indicating that
maternal alcoholism may result in negative impacts on the mother-child
relationship, apparently to support a conclusion that the feasibility of
be difficult to prove.”
conclude that this study is a harmless side note that
has nothing to do with the court's determination that Wendell
was provided with active efforts in the form of alcohol
treatment programs. In
light of the harm to the children that had already
resulted from alcoholism (as recounted above), we also believe that
the department's decision to make Wendell's abstinence a precondition to
reunification was reasonable, and that the superior court did not
err in finding that efforts based on this precondition were
to reunify the family within the meaning of the statute.
also argues that the record does not support the “active
finding because when she was progressing through her third treatment
program, the department did not support her but instead changed
her case plan goal from reunification to adoption. The
finding in her case is supported by the two alcohol
treatment programs provided to Vanessa in 2002. Although
she completed both programs, she relapsed soon after each one.
that point, the department sought permanency for the children. We
agree with the superior court that the department engaged in
sufficiently active efforts by helping place Vanessa in two alcohol
treatment programs essential to reunifying her with her children. After
two relapses, it was not required to do more, even
if its change of course was abrupt.
AFFIRM the superior court's decision to terminate Wendell's and Vanessa's
parental rights over Paula, William, Donald, and Julius.