Opinion
Supreme Court No. S-13066.
February 18, 2009.
Appeal from the Superior Court of the State of Alaska, First Judicial District, Petersburg, Michael A. Thompson, Judge, Superior Court No. 1PE-07-00002 CP.
Dianne Olsen, Law Office of Dianne Olsen, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Eastaugh, Carpeneti, and Winfree, Justices. [Matthews, Justice, not participating.]
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Jeremy S. appeals the superior court's judgment terminating his parental rights to his son Eddie. He contends that the superior court erred in finding: (1) that Eddie was a child in need of aid based on Jeremy's incarceration, the risk of physical harm and mental injury, and Jeremy's substance abuse; (2) that Jeremy failed to remedy the conduct that had placed Eddie at risk of harm; (3) that the Office of Children's Services made active efforts to preserve the Indian family; (4) that returning the child to Jeremy would likely result in serious emotional harm; and (5) that the termination was in the child's best interests.
Pseudonyms are used for all family members to protect their privacy.
Jeremy correctly points out that the superior court erroneously relied on his incarceration under AS 47.10.011(2) in finding Eddie to be a child in need of aid. This was, however, harmless error. The superior court's findings on the remaining three subsections of AS 47.10.011 were not clearly erroneous. Because the record contains sufficient evidence to support each of the superior court's other findings, we affirm the termination of Jeremy's parental rights.
II. FACTS AND PROCEEDINGS
Nancy and Jeremy are the parents of Eddie, an Indian child under the Indian Child Welfare Act. Jeremy has a history of alcohol abuse, violence, and incarceration. Nancy suffers from schizophrenia and discontinued her medication while pregnant with Eddie. Prior to Eddie's birth, Jeremy notified the Office of Children's Services (OCS) that he was concerned that Nancy would not be able to care for their unborn child because of her mental illness. Jeremy requested help from both OCS and Nancy's tribe, the Ketchikan Indian Community, and he hired a private attorney to file a custody action on his behalf.
25 U.S.C. §§ 1901- 1923 (2000).
Eddie was born on January 6, 2007, a month after a violent episode in which Nancy and Jeremy were both arrested for domestic violence assaults on each other. Jeremy was ordered to serve five days in jail as a result of a conviction for harassment and was required to obtain substance abuse treatment and to participate in a batterers' intervention program. During the first month of Eddie's life Jeremy provided the bulk of child care with assistance from OCS because Nancy's mental condition left her unable to care for Eddie for long periods of time.
A month after his birth, Nancy took Eddie to a medical appointment where she suffered an anxiety attack and expressed to the clinic staff that she was unable to care for Eddie by herself and that she needed some time alone from him. Nancy requested parenting help and asked to place Eddie in her therapist's care for a couple of days. Nancy's mental health clinician, Jessica Harrison, offered to care for Eddie and also suggested that Nancy contact Jeremy. Later that afternoon Jeremy twice came to the clinic while intoxicated and he angrily opposed Nancy's request for a respite from caring for Eddie. Harrison refused to give Eddie to Jeremy because he was too intoxicated to care for the child, and Jeremy left after Harrison threatened to call the police. Jeremy later returned to the clinic for the third time and was described as being even more intoxicated than before.
While Eddie was out of the house for the weekend, the police were called to a domestic disturbance between Jeremy and Nancy. Jeremy was severely intoxicated and was arrested and convicted of violating his conditions of release. He was sentenced to jail and Nancy moved into a safe home.
Out of concern about Nancy's mental health and Jeremy's alcohol use, OCS took custody of Eddie on February 12, 2007, and filed an emergency petition for adjudication of child in need of aid the following day. Superior Court Judge Larry C. Zervos held a temporary custody hearing on February 14 and 15, 2007. Jeremy was incarcerated at the time. The superior court found probable cause to believe Eddie was a child in need of aid based on Jeremy's current incarceration; the substantial risk of physical harm to Eddie given Jeremy and Nancy's conduct and the conditions in their home; Jeremy's "long history" of substance abuse; and Nancy's mental illness.
See AS 47.10.011(2), (6), (10), (11).
OCS developed a case plan to facilitate Eddie's reunification with Nancy and Jeremy. The plan required Jeremy to attend relationship building and parenting classes as well as anger management counseling, obtain and follow recommendations of a substance abuse evaluation, and visit with Eddie. Jeremy, however, refused to discuss the plan with OCS.
The Ketchikan Indian Community intervened in Eddie's case. An adjudication hearing was held on May 30 and 31, 2007, before Superior Court Judge Michael A. Thompson. Eddie was found to be a child in need of aid under AS 47.10.011(10) and (11) as a result of Nancy's mental illness and Jeremy's alcohol use.
After the adjudication hearing, Jeremy's case plan was revised to specify that in addition to the previous requirements, he was also to attend substance abuse counseling at least once a week. In addition, OCS arranged for parenting classes for both Nancy and Jeremy. Jeremy did not attend the parenting classes and his visits with Eddie were sporadic.
Jeremy continued to abuse alcohol and have encounters with law enforcement. Less than a month after the adjudication trial, Nancy reported that Jeremy had poured alcohol on her and taken her cell phone. A week later, on June 22, 2007, Jeremy appeared for a visit with Eddie smelling of alcohol. On June 30, 2007, Nancy contacted the police after an altercation with Jeremy and he was arrested for domestic violence assault. Upon being arrested, Jeremy became violent and threatened to kill the arresting police officer. A week later, on July 5, 2007, the police attempted to serve an arrest warrant on Jeremy who had again been observed entering a bar in violation of his probation conditions. During his arrest and booking, he became violent and again threatened to kill the arresting officer.
A disposition hearing was held on August 28, 2007. Nancy was absent and Jeremy appeared telephonically because he was incarcerated. Nancy had not been engaging in her case plan. No witnesses testified but the court considered pre-disposition reports by OCS and the guardian ad litem. The guardian ad litem's report stated that "[a]ll efforts need to be focused on identifying a permanent placement" for Eddie and that Nancy and Jeremy's parental rights should be terminated. The court issued a disposition order giving custody to OCS for up to two years.
Jeremy's violent behavior continued. The police arrested Jeremy for disorderly conduct after two altercations in early September 2007. Jeremy resisted arrest and had to be threatened with a taser gun. At the police station, Jeremy again threatened to kill an officer. Following an updated assessment of Jeremy's pattern of alcohol use and frequent arrests, Jeremy began attending counseling more often. During one session on March 5, 2008, however, Jeremy threatened to kill an OCS case worker after being informed that he would not be able to reunite with one of his children then living in Oregon. Following this session, Jeremy stopped attending substance abuse treatment.
On October 23, 2007, OCS filed a petition to terminate Nancy and Jeremy's parental rights. Jeremy was in jail at the time and the petition cited his long-term alcohol abuse, stating: "[Jeremy] has failed to attend treatment services designed to remedy his assaultive conduct and abuse of alcohol. He has continued to abuse alcohol, which has resulted in repeated arrests for assaultive behavior." The petition was heard by Superior Court Judge Michael A. Thompson on March 25, 2008 and resulted in an order on March 27, 2008, terminating Nancy and Jeremy's parental rights to Eddie. Jeremy appeals.
III. STANDARD OF REVIEW
"In a child in need of aid case, we will affirm the superior court's factual findings unless they are clearly erroneous." "Findings are clearly erroneous if a review of the entire record in the light most favorable to the prevailing party leaves us with a definite and firm conviction that a mistake was made." "Conflicting evidence is generally insufficient to overturn the superior court, and we will not reweigh evidence when the record provides clear support for the superior court's ruling." We review de novo the legal question whether the superior court's findings comport with the requirements of the Indian Child Welfare Act (ICWA) or the child in need of aid (CINA) statutes and rules.
Carl N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 102 P.3d 932, 935 (Alaska 2004) (internal quotation marks omitted).
Thomas H. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 184 P.3d 9, 13 (Alaska 2008).
Maisy W. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008) (citation omitted).
See Carl N., 102 P.3d at 935.
IV. DISCUSSION
Judge Thompson found by clear and convincing evidence that Eddie was a child in need of aid under AS 47.10.011(2), (6), (8), (10), and (11), and that Jeremy had not remedied the conduct or conditions that placed Eddie at substantial risk of harm. The superior court also found by clear and convincing evidence that OCS had made reasonable and active efforts to prevent the breakup of the Indian family in compliance with AS 47.10.086 and ICWA. The superior court considered expert testimony in finding beyond a reasonable doubt that returning Eddie to Jeremy would likely result in serious emotional or physical damage to the child. Finally, the superior court found that terminating Jeremy's parental rights was in Eddie's best interests. Jeremy challenges each of these findings. These challenges are addressed in turn.
See AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
See AS 47.10.088(a)(2)(A); CINA Rule 18(c)(1)(A)(i).
See 25 U.S.C. § 1912(d) (2000); CINA Rule 18(c)(2)(B).
See 25 U.S.C. § 1912(f); CINA Rule 18(c)(4).
See AS 47.10.088(c); CINA Rule 18(c)(3).
A. The Superior Court Did Not Err in Finding Eddie Was a Child in Need of Aid.
The superior court found that Jeremy's ability to parent was substantially impaired by the addictive or habitual use of an intoxicant and that the use had resulted in substantial risk of harm to Eddie. The superior court found that Eddie was a child in need of aid because Jeremy had subjected him to conduct or conditions listed in AS 47.10.011(2) (parental incarceration); (6) (risk of physical harm); (8) (risk of mental injury); and (10) (parental substance abuse). Jeremy challenges each of these findings as clearly erroneous. 1. It was error for the superior court to find Eddie to be a child in need of aid as a result of Jeremy's previous incarceration.
Jeremy asserts that the State relies on factual information that was not considered by the superior court, including charging documents and petitions. Jeremy argues that petitions should be excluded because they contain nothing more than allegations, and he cites to the commentary to Alaska Rule of Evidence 803(8)(b) instructing that "investigative reports by police and law enforcement [should be] excluded because they are often unreliable." See also Menard v. Acevedo, 418 P.2d 766, 767-68 (Alaska 1966). But the information in the challenged documents was also presented as evidence at the termination trial or included in Jeremy's excerpt. We have not relied on any of the challenged documents.
The superior court found that there was clear and convincing evidence that Eddie was a child in need of aid under AS 47.10.011(2), which provides that a child may be found in need of aid if a parent is incarcerated where certain conditions are met.
[A] trial court may determine that incarceration of the parent is sufficient grounds for determining that a child is a child in need of aid under AS 47.10.011 if it finds by clear and convincing evidence that: (1) the period of incarceration that the parent is scheduled to serve during the child's minority is significant; (2) there is no other parent who will care for the child; and (3) the incarcerated parent has failed to make adequate provisions for care of the child during the period of incarceration.
Stanley B. v. State, Div. of Family Youth Servs., 93 P.3d 403, 406 (Alaska 2004) (citing AS 47.10.080(o)).
Jeremy persuasively argues that this finding was erroneous because none of these conditions were met: Jeremy was not incarcerated at the time of the termination trial and was not scheduled to serve any additional time. Indeed, at the end of the termination trial, OCS withdrew its request that the court terminate Jeremy's parental rights based on subsection (2) and it concedes that relying on this factor as a basis for terminating Jeremy's parental rights was erroneous. Although the finding on subsection (2) was erroneous, the error was harmless. The superior court's findings that Eddie was a child in need of aid based on the remaining three subsections were supported by the evidence at trial.
2. The superior court did not err in finding Eddie was at substantial risk of substantial physical harm due to Jeremy's use of alcohol.
Alaska Statute 47.10.011(6) allows a trial court to find a child to be in need of aid when the child is at substantial risk of suffering substantial physical harm because of a parent's conduct. The court found that Jeremy's "substantial anger management problem," "violent and explosive" temper, and use of alcohol "substantially impair[ed] his parenting ability." Jeremy argues that this finding was erroneous as there was no evidence presented that he "had ever been inappropriate in his care of Eddie" or that he "had ever been intoxicated or consumed alcohol in the presence of Eddie or any of [his] children."
AS 47.10.011(6) allows a court to find a child to be in need of aid if "the child has suffered substantial physical harm, or there is a substantial risk that the child will suffer substantial physical harm, as a result of conduct by or conditions created by the child's parent, guardian, or custodian or by the failure of the parent, guardian, or custodian to supervise the child adequately. . . ."
The superior court's finding is supported by Jeremy's criminal history. Since 2001 Jeremy's criminal record includes multiple convictions for assault, harassment, and violating a domestic violence court order. Jeremy has a history as a perpetrator of domestic violence, and his violent acts and threats have been directed towards Eddie's mother, police officers, social workers, and medical personnel. Jeremy's case plan recognized his violent history and called for anger management counseling.
He was sentenced to attend batterers' intervention programs, but he never complied with this requirement.
Jeremy seems to contend that the court must hear evidence that he directly exposed Eddie to violence. But we rejected that argument in Martin N., where a father argued that the trial court's finding that he posed a risk of physical harm to his child was erroneous because he had never acted inappropriately around the child. Martin N. had abused and threatened his child's mother and had also threatened a social worker. In rejecting his argument, we recognized that under AS 47.10.011(6), the risk of harm to the child should be evaluated in light of the totality of the evidence and that the father had "violent tendencies that pose a risk of future harm" to his child. We have also recognized that violence between parents is a basis for finding a risk of harm and that the violent behavior need not have been directed at the child in order to place the child in physical danger.
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 54-55 (Alaska 2003).
Id. at 54.
Id.
In re J.A., 962 P.2d 173, 178-79 (Alaska 1998).
Jeremy has a well-documented history of violent behavior against partners, police officers, and an OCS case worker. Because Jeremy did not comply with his case plan and other court-ordered requirements to address his anger, the superior court did not clearly err in finding that Eddie would be at a substantial risk of substantial physical harm if he were placed back in Eddie's home. 3. The superior court did not err in finding Eddie was placed at substantial risk of mental injury as a result of Jeremy's chaotic lifestyle.
Alaska Statute 47.10.011(8) allows a trial court to find a child to be in need of aid if the parent's conduct "placed the child at substantial risk of mental injury as a result of . . . a pattern of rejecting, terrorizing, ignoring, isolating, or corrupting behavior that would, if continued, result in mental injury." The superior court also found that Eddie was a child in need of aid pursuant to AS 47.10.011(8) because he was placed at substantial risk of mental injury as a result of the "chaos and instability" in Jeremy's lifestyle. Specifically, the court stated, "[g]rowing up in chaos, I think would be a substantial risk of having a child risk mental injury, and that's what I think would happen certainly [with Nancy] and probably also with [Jeremy]."
Jeremy argues that no evidence supported the trial court's finding of "a pattern of rejecting, terrorizing, ignoring, isolating, or corrupting behavior that would, if continued, result in mental injury." Yet Jeremy's violent interactions with his family members and authority figures and his pattern of incarcerations amounts to a pattern of terrorizing behavior.
AS 47.10.011(8).
In Martin N., we stated that even though the father's previous acts of violence were never directed at the child, they nonetheless constitute "terrorizing behavior" and that "[t]here was clear and convincing evidence that [the father's] acts toward [the mother] create a significant risk of mental injury to [the child] if continued." And in Winston J., we found that a father's acts of domestic violence committed before his children were born placed his children "in risk of exposure that we know causes mental harm [and] that could cause physical harm," and these acts constituted a "pattern of rejecting, terrorizing, ignoring, isolating, or corrupting behavior that would, if continued, result in mental injury."
Winston J. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 134 P.3d 343, 348 (Alaska 2006) (internal quotation marks omitted).
Jeremy seeks to distinguish the facts of his case from those in Martin N. and Winston J. by noting that he had "significant periods" where he "did not engage in any violent behavior" and that he "was engaged in services periodically throughout the case." While the superior court heard evidence that Jeremy received services for substance abuse and anger management for three months, we have previously stated that the key issue in these cases is not whether parents participated in their case plans but whether they actually benefit from the services and remedy their behaviors. Given the testimony presented at trial about Jeremy's assaultive behavior and his alcohol problem, the superior court did not err in finding Eddie to be a child in need of aid under AS 47.10.011(8).
Rick P. v. State, Office of Children's Servs, 109 P.3d 950, 956 (Alaska 2005).
4. The superior court did not err in finding Eddie was a child in need of aid as a result of Jeremy's alcohol use.
Finally, AS 47.10.011(10) allows a trial court to find a child to be in need of aid when the parent's "ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child." The court found that Jeremy's alcoholism rendered him incapable of being a single parent. Jeremy argues this finding is erroneous because no nexus was drawn between his drinking and any danger to Eddie, and because at the adjudication hearing, the superior court had given him permission to drink outside of Eddie's presence. Neither of these arguments has merit. We have held that a parent may not deny the potential danger of conduct that is described in AS 47.10.011 by claiming that the child was not present when the conduct occurred, and that OCS "is not required to wait to intervene until a child has suffered actual harm." In Stanley B., we upheld a child in need of aid determination where, as here, the substance abuse problem was partially responsible for a parent's incarcerations because "frequent and prolonged absences" from the home while incarcerated "substantially impair" a person's ability to parent and are harmful to children.
Jeremy also argues that this finding is erroneous because he had stopped drinking by the time of the termination trial. This argument goes to whether Jeremy remedied his conduct, which is addressed in subpart B.
See J.A., 962 P.2d at 178-79; Winston J., 134 P.3d at 348.
Martin N., 79 P.3d at 54.
Stanley B. v. State, Div. of Family Youth Servs., 93 P.3d 403, 407 (Alaska 2004).
Jeremy argues that he should not be penalized for drinking while his child was not in his care after the superior court remarked at the adjudication hearing, "I'm not prepared to sit here and be highly critical of him drinking when the child's not around." But the superior court recognized that Jeremy's drinking had caused Eddie to be taken into state custody; that his case plan required treatment that Jeremy had yet to complete; and that he had not changed his behavior in the time since Eddie had been removed, but instead continued to drink heavily "to the point of intoxication, as recently as three days prior to the adjudication hearing." Indeed, an alcohol assessment concluded that Jeremy was significantly disabled by his alcohol abuse but that Jeremy's denial of his addiction rendered him not amenable to treatment. His therapist testified that by the time of the termination trial, he had not by "any stretch of the imagination" completed any of the substance abuse treatments that had been mandated by the court and his case plan. In addition, Jeremy continued to abuse alcohol after the adjudication hearing and was involved in numerous violent incidents, including domestic violence and multiple arrests, some of which resulted in his threatening the lives of the arresting police officers and some of which involved alcohol.
Jeremy argues that he attended treatment programs and that he "rarely missed an appointment." But given Jeremy's failure to participate fully in treatment and his assaultive behavior between the adjudication and termination hearings, the superior court's findings that Jeremy's drinking exacerbated his anger problems, substantially impaired his ability to parent, and placed Eddie at substantial risk of harm were supported by the evidence.
B. The Superior Court Did Not Err in Finding that Jeremy Had Not Remedied His Conduct.
Alaska Statute 47.10.088 provides for termination of parental rights where the State proves by clear and convincing evidence that the parent has not remedied harmful conduct or conditions, or the parent has failed to make enough progress within a reasonable time such that there is still a substantial risk of harm to the child if returned to the parent. In making these determinations AS 47.10.088(b) provides that the trial court may consider any fact concerning the best interests of the child, including:
Clear and convincing evidence is evidence more than a preponderance but less than proof beyond a reasonable doubt. Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 530 n. 12 (Alaska 2004).
AS 47.10.088 provides in relevant part:
Involuntary termination of parental rights and responsibilities. (a) Except as provided in AS 47.10.080(o), the rights and responsibilities of the parent regarding the child may be terminated for purposes of freeing a child for adoption or other permanent placement if the court finds by clear and convincing evidence that
. . . .
(2) the parent
(A) has not remedied the conduct or conditions in the home that place the child at substantial risk of harm; or
(B) has 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 injury; and
(3) the department has complied with the provisions of AS 47.10.086 concerning reasonable efforts.
(1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs;
(2) the amount of effort by the parent to remedy the conduct or the conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the parent.
The superior court found that Jeremy failed to remedy his harmful conduct because he continued to consume alcohol and did not complete substance abuse or anger management counseling as required by his case plan. The superior court acknowledged that Jeremy took "baby steps" and "attended counseling for a few months" but noted that he stopped attending weeks before the termination trial and that such counseling was designed as a starting point "to break down his denial that he has an anger or substance abuse problem." The superior court also remarked that Jeremy took "a step forward and two steps back" and found that he did not do "a whole heck of a lot to remedy these conditions."
Jeremy challenges this finding as clearly erroneous by arguing that the likelihood that his alcohol abuse would continue was low given his "significant" period of sobriety prior to the termination trial. Jeremy also notes that he was engaged in treatment throughout the case and that his counselor had testified that he had been making progress.
Jeremy further argues that the State did not give him enough time to remedy his conduct, and that if the State had made active efforts to re-engage him in treatment, his "history shows he was likely to have re-engaged and made progress." These arguments are also raised in his challenge to the finding that OCS made active efforts to preserve his family and are addressed in subpart C.
Jeremy's arguments are unpersuasive. Jeremy did not start to participate fully in counseling until after Eddie had been in foster care for over seven months. The superior court heard evidence that he never completed any of the substance abuse or anger management programs despite being required to do so by various court orders and his OCS case plan. As the superior court recognized, when Jeremy received unfavorable feedback or information, he had a "very explosive reaction completely out of keeping with . . . what was presented to him." At a counseling appointment on March 5, 2008, Jeremy threatened the life of a social worker who was the bearer of unwelcome news. Shortly thereafter he chose to stop attending treatment. Jeremy disputes this characterization and describes this incident as an "outburst" where he "controlled his anger and committed no violent act" and thus "demonstrated that he benefited from counseling." Jeremy's counselor, however, testified that he "shut down," and that even though he was "stable" before he left her office, he had calmed down in part because she told him that she would call the police if he continued his threatening behavior. This testimony that Jeremy was unable or unwilling to meaningfully participate in long-term treatment supports the court's finding that he did not remedy his conduct.
C. The Superior Court Did Not Err in Finding that Active Efforts Had Been Made To Prevent the Breakup of the Indian Family.
Because Eddie is an Indian child, the State was required to prove by clear and convincing evidence that it made active efforts to provide remedial services to avoid the breakup of the family. "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." In addition, Alaska law requires the State to prove that it made reasonable efforts to provide family support services. The superior court found that OCS had made "complex" and "expensive" efforts, including "extensive supervised visitation, and financial assistance for transportation, day care, and counseling."
25 U.S.C. § 1912(d) (2000); CINA Rule 18(c)(2)(B).
N.A. v. State, Div. of Family Youth Servs., 19 P.3d 597, 602-03 (Alaska 2001) (internal quotation marks omitted).
AS 47.10.086.
Jeremy acknowledges that the State offered him "many services" but he claims that it failed him in several respects: by failing to offer him residential treatment for substance abuse; by failing to re-engage him in treatment after his March 5, 2008 therapy session despite his previous progress; and by failing to encourage him to continue with treatment "instead of simply forging ahead to the termination trial." Jeremy also faults the State for failing to provide sufficient time for him to remedy his harmful conduct.
Jeremy also notes several times in his brief that no permanency hearing as required by AS 47.10.080(1) and CINA Rule 17.2 was ever held. Yet it appears Jeremy has not raised this argument before. Thus, to the extent that he is arguing that the superior court terminated his rights without holding a permanency hearing, that argument should be deemed waived under C.G. v. State, Department of Health Social Services, Division of Family Youth Services, 67 P.3d 648, 655 n. 25 (Alaska 2003).
None of Jeremy's arguments is persuasive. OCS required that Jeremy receive a substance abuse assessment and follow its recommendations. This assessment resulted in a recommendation that Jeremy should begin with outpatient therapy to acknowledge his substance abuse problem before entering residential treatment. While Jeremy made some progress once he began attending therapy regularly, it took months for him to fully engage in counseling and he then cancelled his sessions after the incident on March 5, 2008.
Jeremy argues that neither his counselor nor his social worker made any effort to re-engage him in treatment after his March 5, 2008 therapy session despite his previous progress. Yet Jeremy phoned his therapist to cancel scheduled appointments and had not returned for treatment by the time of trial. We have held that a superior court may properly consider a parent's demonstrated lack of willingness to participate in determining the sufficiency of the State's remedial efforts.
K.N. v. State, 856 P.2d 468, 477 (Alaska 1993).
Jeremy argues that it was error for the court to find that his rehabilitative efforts were unsuccessful. He notes that his therapist testified that he was making progress and he argues that "the efforts provided were successful and would likely have continued to be successful if the state had encouraged [him] instead of simply forging ahead to the termination trial." But the superior court heard testimony from Jeremy's therapist that while he had begun to show progress in therapy, he had not fully addressed his anger issues. The therapist also testified that he still needed long-term therapy and that he had not reached a point where he would be amenable to such treatment. The superior court recognized Jeremy's efforts as well as his ultimate lack of progress: "he didn't have the follow through[;] a couple of things happened and it blew up and . . . his life returned to what it was before."
Finally, Jeremy argues that he was not given adequate time to remedy his conduct. If a parent does not make adequate progress by the time the child has been in foster care for fifteen out of the most recent twenty-two months, then the state is required to file a petition to terminate parental rights. In this case, OCS and the guardian ad litem announced a plan to terminate Jeremy and Nancy's parental rights six months after OCS took custody of Eddie, OCS petitioned for termination of parental rights eight months after the initiation of the case, and the termination order was issued thirteen months after Eddie was taken into custody. But the statutory period included in AS 47.10.088(d) of fifteen months is not a minimum; instead it sets an upper limit of the time a child may spend in state custody before OCS must petition to terminate parental rights. Alaska Statute 47.10.080(g) specifies that OCS is not precluded "from filing a petition to terminate the parental rights and responsibilities to a child . . . at an earlier time than those specified in (d) of this section, if the department determines that filing a petition is in the best interest of the child." In addition, Alaska law recognizes the need for the expeditious resolution of proceedings involving young children. Because "children undergo a critical attachment process before the time they reach six years of age" and children who have not "attached with an adult caregiver during this critical state will suffer significant emotional damage," it is important that children under the age of six "who have been removed from their homes are placed in permanent homes expeditiously."
AS 47.10.088(d).
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 56 (Alaska 2003).
AS 47.05.065(5).
The superior court characterized OCS's efforts at reunification as "`Herculean' in comparison to efforts seen in other cases," and it noted that OCS provided a variety of referrals, services, and supervised visitation opportunities. Given the testimony on Jeremy's limited progress, the superior court did not err in finding that OCS made active but unsuccessful efforts to provide reunification services to the family.
D. The Superior Court Did Not Err in Finding that There Was Evidence Beyond a Reasonable Doubt that Returning Eddie to Jeremy's Care Was Likely To Result in Serious Emotional Damage to the Child.
In order to terminate a parent's rights to an Indian child, the superior court must find, based on "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." In reviewing
25 U.S.C. § 1912(f) (2000).
ICWA's legislative history, we have observed that the primary reason for requiring expert testimony "was to prevent courts from basing their decisions solely upon the testimony of social workers who possessed neither the specialized professional education nor the familiarity with Native culture necessary to distinguish between cultural variations in child-rearing practices and actual abuse or neglect." The expert's opinion must be based on the particular facts of the case and must involve more than generalized statements regarding harm. In addition, a finding that the parent's continued custody of their child is likely to cause the child serious harm requires proof that the parent's conduct is likely to harm the child and proof that it is unlikely that the parent will change their conduct.
Thomas H. v. State, Dep't of Health Soc. Servs., Office of Children's Servs., 184 P.3d 9, 17 (Alaska 2008) (quoting L.G. v. State, Dep't of Health Soc. Servs., 14 P.3d 946, 952-53 (Alaska 2000) (emphasis omitted)).
E.A. v. State, Div. of Family Youth Servs., 46 P.3d 986, 991 (Alaska 2002).
L.G., 14 P.3d at 952-53.
The superior court found that Eddie was likely to suffer emotional damage caused by the parent's "failure to put [Eddie's] needs first and the likely exposure to instability and domestic discord and violence." Jeremy argues that the expert testimony relied on by the court was defective because it was based on generalities and that there was "no attempt to demonstrate how [his] behavior would result in serious emotional harm to Eddie." He argues that OCS supervisor Deborah Downs "totally ignored" the progress he made in treatment and the fact that "there were no additional incidents of alcohol use or criminal acts, making the accuracy of her testimony suspect and biased." Jeremy points to testimony given by Downs that there were no signs of abuse or neglect by Jeremy, that the visits Jeremy had with Eddie went well, and that "there was no information that Jeremy was not doing a good job as a parent." Jeremy also cites testimony given by mental health and substance abuse clinician Kimberly Kilkenny that he had made great strides in his treatment up until March 5, 2008, and he argues that with treatment "he was a work in progress, not a lost cause."
Yet Jeremy's criticism of the expert testimony is unfounded. Many witnesses testified about Jeremy's participation in repeated incidents of domestic violence and his unpredictable and violent behavior. Kilkenny testified that Jeremy was living in "survival mode," and that due to his issues with alcohol and anger, he was "not able to sustain a long period of . . . functioning as an appropriate citizen in our community" and was incapable of caring for a young child. Downs testified that Jeremy's alcohol abuse and history of domestic violence "clearly place[d] [Eddie] at serious risk of harm."
The finding that the child will likely suffer harm if returned to the parent can be based on "the testimony of a single expert witness, by aggregating the testimony of expert witnesses, or by aggregating the testimony of expert and lay witnesses." Because the court heard from two experts and numerous lay witnesses who were familiar with the facts of the case and testified about Jeremy's specific behavior, the finding that returning Eddie to Jeremy would place Eddie at risk was not erroneous.
Id. at 950 (citations omitted).
E. The Superior Court Did Not Err in Finding that It Was in Eddie's Best Interests To Terminate Jeremy's Parental Rights.
The superior court found that it was in Eddie's best interests to have Jeremy's parental rights terminated because Eddie had been in a foster home for thirteen months and "[t]he parental bond he has, at this point, is with his foster parents and not with his biological parents." The court also stated that "there is no bond between" Eddie and Jeremy because "the parents were not able to parent well enough to let that bond be created." Jeremy challenges this conclusion as clearly erroneous.
Jeremy notes that Eddie was placed in state custody over his objections and that Jeremy continued to challenge Eddie's foster care placement. Jeremy also claims that the bulk of the court's findings pertained to Nancy and that those pertaining to Jeremy "were equivocal and weak." But Jeremy's behavior caused Eddie to be removed from the home, Jeremy participated only belatedly and briefly in his case plan, and he stopped participating entirely before the termination trial. Eddie is still an infant who has been in custody since he was five weeks old. The trial court heard testimony from Bruce Westre, a children's services specialist, on the importance of a permanent placement for young children. The superior court's finding that the termination of Jeremy's parental rights was in Eddie's best interests was not erroneous.
V. CONCLUSION
The superior court's erroneous reliance on AS 47.10.011(2) in finding Eddie to be a child in need of aid was harmless error. The superior court's findings on the remaining three subsections of AS 47.10.011 were not clearly erroneous. The superior court heard ample evidence regarding both Jeremy's failure to remedy the conduct or conditions that put Eddie at substantial risk of harm and OCS's active efforts to preserve Jeremy's relationship with Eddie. The trial court's findings that Eddie would likely suffer serious emotional or physical harm if returned to Jeremy's custody and that termination of Jeremy's parental rights is in Eddie's best interests are also supported by the evidence at trial. Accordingly, we AFFIRM the decision to terminate Jeremy's parental rights.