Opinion
Supreme Court No. S-16356 No. 1644
07-19-2017
KELLY C., Appellant, v. STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
Appearances: J. Adam Bartlett, Anchorage, for Appellant, and Kelly C., pro se, Anchorage, Appellant. Rebecca E. Hattan, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
NOTICE Memorandum decisions of this court do not create legal precedent. A party wishing to cite such a decision in a brief or at oral argument should review Alaska Appellate Rule 214(d). Superior Court No. 3PA-14-00206 CN MEMORANDUM OPINION AND JUDGMENT Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Kari Kristiansen, Judge. Appearances: J. Adam Bartlett, Anchorage, for Appellant, and Kelly C., pro se, Anchorage, Appellant. Rebecca E. Hattan, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee. Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
Entered under Alaska Appellate Rule 214.
I. INTRODUCTION
A mother appeals the termination of her parental rights to her daughter, an Indian child, who has significant medical needs requiring constant care and who was taken into state custody in poor health after incidents involving drugs and drug paraphernalia. Before the daughter's removal the mother sought medical services, but she frequently changed providers and was not receptive to medical advice. After removal the mother engaged in some, but not all, of her case plan elements, and she was often uncooperative or unwilling to follow the reunification steps OCS required. The trial court made all necessary termination findings; the mother's attorney filed a brief appealing only the court's active efforts finding, and the mother filed a supplemental brief appealing the court's other determinations. We affirm the trial court's termination decision.
Under the Indian Child Welfare Act (ICWA) and relevant Alaska Child in Need of Aid (CINA) statutes and rules, parental rights to an Indian child may be terminated at trial only if OCS shows, as outlined in CINA Rule 18(c)(1)-(4):
(1) by clear and convincing evidence that: (a) the child has been subjected to conduct or conditions enumerated in AS 47.10.011; (b) the parent has not remedied the conduct or conditions that place the child at substantial risk of harm or has failed within a reasonable time to remedy the conduct or conditions so that the child would be at substantial risk of physical or mental injury if returned to the parent; (c) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family; and
(2) beyond a reasonable doubt, including qualified expert testimony, that continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child; and
(3) by a preponderance of the evidence that the child's best interests would be served by termination of parental rights.
II. FACTS AND PROCEEDINGS
A. Facts
Kelly C. is an enrolled member of the Native Village of Diomede. Kelly's daughter, who was born in 2011, is an Indian Child as defined by the Indian Child Welfare Act (ICWA). This is Kelly's second appeal; her first related to the trial court's determination that her parents were not a safe placement for her daughter. This decision incorporates the facts of her daughter's medical conditions, removal, and placement in foster care as set out in that case.
We use a pseudonym to protect the party's privacy.
25 U.S.C. § 1903(4) (2012) (" 'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.").
Kelly C. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., No. S-15923, 2016 WL 281055 (Alaska Jan. 20, 2016).
See id. at *1-5.
1. Medical needs
Kelly's daughter was born prematurely and has since required significant medical attention for severe hearing and respiratory deficiencies; in early childhood she also suffered extreme tooth decay and displayed developmental delays. Kelly managed her daughter's medical needs by arranging for her to see many doctors and therapists, obtaining medication and medical equipment, and enrolling herself and her daughter in sign language classes. But Kelly displayed distrust of medical providers, noting "[w]hen I would bring her in and she's sick, they're focused on me instead of looking at my daughter right next to me."
Id. at *1 & n.4.
2. OCS involvement and removal
Before the Office of Children's Services (OCS) removed Kelly's daughter from Kelly's care it had received multiple reports of harm raising two primary concerns: Kelly's substance abuse and medical neglect of her daughter. Police found drugs in Kelly's car while her daughter was also in the car, but charges were dropped because the search was not legally justified. A home invasion and shooting occurred in Kelly's home in December 2014; her daughter was in the home during that event, and police later found drug paraphernalia, but no drugs, in the house. OCS then decided to remove Kelly's daughter.
Id. at *1.
Id.
Id. at *2.
Id.
Id.
Kelly's daughter was in poor physical condition when OCS removed her, and she was taken directly to the emergency room because her breathing was extremely labored. Doctors expressed concern about her tooth decay and emphasized her need for medical equipment to monitor her oxygen levels. OCS placed her with a non-Indian foster family who could provide for her special needs, including monitoring her oxygen levels and breathing. The foster mother later testified that when picked up from the hospital Kelly's daughter was "very lethargic, pale in color," and "had grey rings around her eyes." Kelly's daughter had a "very thick, smoky smell," and "[h]er teeth were very, very decayed"; her breathing was so difficult that the foster mother "spent multiple nights up with her, repositioning her head just so that she would have an airway."
Id. at *3.
Id.
Id.
3. Current medical condition
The trial court described Kelly's daughter's progress in OCS custody under her foster mother's care as "enormous." The foster mother had been coordinating the daughter's medical care and activities, including school, occupational therapy, speech therapy, and physical therapy every week, as well as visits to her pediatrician, dietician, pulmonologist, and audiologist. The daughter had her tonsils and adenoids removed, significantly improving her breathing; during the same surgery she underwent dental restoration, relieving her tooth pain and allowing her to chew solid food. OCS also undertook the multi-step process to improve the daughter's hearing with cochlear implants. Kelly initially resisted both surgeries, but ultimately consented.
4. OCS case plan and Kelly's actions after removal
After the daughter's removal an OCS caseworker prepared a case plan for Kelly and her daughter's father. The plan included five goals for Kelly: (1) "[a]ddress substance abuse issues"; (2) "[m]aintain sobriety as evidenced by negative urine analysis (UA) results"; (3) improve parenting by "engag[ing] in parenting classes designed to address the stress of parenting a high needs child"; (4) "[f]ollow through with appointments related to child's health"; and (5) "[m]aintain bond and contact with child through a structured visitation setting." Kelly engaged with the last two goals, attending many of her daughter's medical appointments and being "fairly consistent" with visitation, improving over time.
The father's rights were terminated, and he did not appeal.
But Kelly made no progress with her other case plan goals. OCS referred Kelly to two possible substance abuse assessment providers, but she never went for an assessment. OCS provided Kelly a location, telephone number, and funding for random UAs and a hair follicle test, but Kelly never underwent testing. Although the trial court ordered her to undergo the UAs, and although OCS was willing to provide over $1,000 to pay for the tests over a 9-month period, Kelly still refused. Lastly, OCS referred Kelly to a class about parenting a high-needs child, but she did not participate.
A psychological evaluation later was added to Kelly's case plan. Although the initial case plan failed to require an evaluation, Kelly's OCS caseworker noted that it was "the main thing that I would want to see [Kelly] do." OCS secured a referral for Kelly to meet with an evaluator on very short notice; this was a concession by the doctor, who was typically booked months in advance. Kelly needed to call to confirm the appointment; she did not, claiming that the half-hour window she was given to make the call was insufficient.
B. Proceedings
OCS filed an emergency petition for temporary custody and adjudication of Kelly's daughter as a child in need of aid shortly after she was removed. In the petition OCS noted it believed the daughter was an Indian child. At the first probable cause hearing, before a superior court master, ICWA was not applied. Kelly later became an enrolled member of the Native Village of Diomede — making her daughter an "Indian child" under ICWA — and the trial court conducted further proceedings and found probable cause under the ICWA standard. At the same hearing the court deemed placement with Kelly's parents inappropriate; Kelly appealed that decision, and we upheld the trial court's ruling.
25 U.S.C. § 1903(4) ("eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe").
Kelly C., 2016 WL 281055, at *3-4, 7.
In August 2015 OCS petitioned for termination of Kelly's parental rights. By that point the daughter had been in OCS custody for eight months. Kelly dismissed her public defender and represented herself at the April 2016 termination trial. The trial court heard testimony from Kelly, an Alaska State Trooper, the foster mother, an OCS caseworker, and two experts, Brian Albright and Cheryl Blakney; Kelly also called two other witnesses on her behalf.
The foster mother testified about the daughter's condition when she entered foster care, her improvement over time, and her current regimen of therapy and doctor's visits. The OCS caseworker testified about Kelly's case plan, explaining the referrals and other attempts to get Kelly to engage with OCS. The caseworker testified that if Kelly were to fully engage in her case plan, it would take eight months to a year before it would be safe to reunify her with her daughter. The caseworker stated that Kelly "has always been aware that there were things that she could do to bring about some change," and that it was appropriate to terminate Kelly's parental rights because OCS could not force Kelly to make those changes.
Albright, a licensed clinical social worker, was qualified without objection as an expert in child development and testified about the detrimental effect of Kelly's pattern of exposing her daughter to drug paraphernalia and violence. Blakney, a psychiatric nurse employed by OCS, was qualified without objection as an expert on the physical and mental needs of children. Blakney testified about the importance of "continuity of care" for "a child who has high medical needs."
In a subsequent written order the trial court found by clear and convincing evidence that Kelly's daughter was a child in need of aid under AS 47.10.011(4) (medical neglect), (9) (neglect), and (10) (substance abuse), citing medical needs, exposure to drug activities, and Kelly's failure to remedy her conduct or "demonstrate[] any reform in her thought processes, decision-making, or behaviors." The court found by clear and convincing evidence that OCS made active efforts to prevent the breakup of Kelly's family, but that those efforts failed. The court found by a preponderance of the evidence that termination was in the daughter's best interests. The court's original order did not include a determination beyond a reasonable doubt that returning to Kelly's care would result in serious physical damage to her daughter, but the court later issued an amended order with that finding.
Kelly appeals the trial court's child in need of aid, active efforts, and best interests findings; the court's application of ICWA; and her daughter's removal and placement with the foster mother.
III. STANDARDS OF REVIEW
"The question whether OCS made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family is a mixed question of law and fact." The "determination of whether the trial court's findings comport with the requirements of ICWA involves a question of law and will be reviewed de novo." "Whether a child is in need of aid, whether a parent has remedied the conditions that placed the child in need of aid, and whether termination is in a child's best interests are factual determinations." We review the trial court's factual findings for clear error and will reverse "only if, after a review of the entire record in the light most favorable to the party prevailing below, we are left with a 'definite and firm conviction' that a mistake has been made."
Kyle S. v. State, Dep't of Health & Soc. Servs., 309 P.3d 1262, 1267 (Alaska 2013) (citing Thea G. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 291 P.3d 957, 961 (Alaska 2013)).
L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 2000) (citing E.M. v. State, Dep't of Health & Soc. Servs, Div. of Family & Youth Servs., 959 P.2d 766, 768 (Alaska 1998)).
Sherman B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 310 P.3d 943, 948-49 (Alaska 2013) (footnotes omitted) (first citing Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 249 P.3d 264, 270 (Alaska 2011); then citing Christina J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1103-04 (Alaska 2011); and then citing Thea G., 291 P.3d at 962).
Payton S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 349 P.3d 162, 167 (Alaska 2015) (quoting Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 322 P.3d 842, 849 (Alaska 2014)).
IV. DISCUSSION
On appeal Kelly's attorney initially filed a brief challenging only the trial court's active efforts finding. Kelly later requested leave to file her own supplemental brief. We granted Kelly's request and address her supplemental arguments disputing the trial court's application of ICWA, its child in need of aid and best interests findings, and her daughter's removal and placement.
Kelly also claims the trial court committed legal error by failing to apply the correct legal standard in its initial termination order. But Kelly made that argument to the trial court, and the court corrected its error. We see no need to address it further.
A. The Trial Court's Application of ICWA Was Not Erroneous.
Kelly claims that "[a]t every stage of these proceedings the [S]tate has failed to treat this case as ICWA." But this case's procedural history belies her assertion. As we noted in Kelly's first appeal, and as the trial court explained, the trial court began applying ICWA as of March 20, 2015, when Kelly became enrolled in the Native Village of Diomede. And any error was corrected after the court held a hearing for the express purpose of retroactively applying ICWA standards to the probable cause proceedings.
Kelly C. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., No. S-15923, 2016 WL 281055, at *3 & n.13 (Alaska Jan. 20, 2016).
Kelly also argues that "[t]here has not been a single expert witness qualified as an ICWA expert." She seems to argue that Albright and Blakney were unqualified because they did not claim any expertise in Native culture, but "ICWA does not require testimony from an expert in Native culture to terminate parental rights when there is 'clear evidence of physical neglect.' " Kelly also did not timely object to the qualification of Albright and Blakney as experts, and when an expert's qualifications are not challenged at trial, we review only for plain error. "Such plain error exists in a CINA case where 'an obvious mistake has been made which creates a high likelihood that injustice has resulted.' " Kelly's conclusory argument does not point to any mistake or injustice by the court's qualification of the witnesses as experts or its reliance on their testimony, and we discern no plain error.
Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 503 (Alaska 2009) (quoting L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 952 (Alaska 2000)).
Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1118 (Alaska 2010) (citing Marcia V., 201 P.3d at 503).
Id. (quoting Marcia V., 201 P.3d at 502).
B. The Trial Court's Child In Need Of Aid Finding Was Not Clearly Erroneous.
The trial court was required to find by clear and convincing evidence that Kelly's daughter had "been subjected to conduct or conditions described in AS 47.10.011." The court found Kelly's daughter was a child in need of aid under AS 47.10.011(4) (medical neglect), (9) (neglect), and (10) (substance abuse). Kelly claims that those findings are erroneous, pointing to the attention and care she gave her daughter and the alternative courses of medical treatment she was pursuing or considering. "Because only one statutory basis is required for a CINA finding," we need to affirm on only one ground.
AS 47.10.088(a)(1).
Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 212 P.3d 756, 762 (Alaska 2009) (citing G.C. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648, 651 (Alaska 2003)).
Alaska Statute 47.10.011(4) allows the court to find a child is in need of aid if "the child is in need of medical treatment to cure, alleviate, or prevent substantial physical harm . . . and the child's parent . . . has knowingly failed to provide the treatment." Although the trial court found that Kelly "made significant efforts" to meet her daughter's medical needs — including visiting specialists, scheduling physical therapy, and obtaining medications and medical equipment — the court's findings show that Kelly knowingly failed to provide her daughter with other needed medical treatment. The court found, among other things, that Kelly "failed to act on recommendations that [her daughter] receive dental surgery for her rotted teeth[ and] failed to act on or follow up with a recommendation that [her daughter] undergo adenoidectomy for her obstructed airway." The court concluded that Kelly's "medical inattention exacerbated [her daughter's] fragile condition, compromising [her daughter's] abilities to eat and breathe."
Kelly has not shown that the court's findings relating to her daughter's medical needs are clearly erroneous. She argues that "[t]he [S]tate has failed to recognize all the achievements made," because "at the time of removal [Kelly's daughter] was only . . . three years old." She emphasizes that, rather than ignoring doctors' recommendations, she "very cautiously and after a significant amount of research chose to live a life in the deaf community," and that she put together a "plan of care" to meet her daughter's medical needs after reunification. Even accepting those statements as true, Kelly has not refuted the trial court's findings that she knowingly failed to provide her daughter needed medical treatment to alleviate her daughter's significant respiratory and dental problems. We therefore affirm the trial court's finding that Kelly's failure to provide needed medical treatment placed her daughter in need of aid.
See In re T.W.R., 887 P.2d 941, 946 (Alaska 1994), overruled on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996) (holding — under prior version of CINA statute — that although mother sometimes provided needed medical care, evidence of her children's rashes, anemia, and "rapid gains" after foster care placement supported finding of medical neglect).
C. The Trial Court Did Not Err In Its Application Of The Law And Its Active Efforts Finding Was Not Clearly Erroneous.
In an ICWA case OCS must prove by clear and convincing evidence that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." We determine whether OCS made active efforts "on a case-by-case basis." We will generally "find that active efforts have been made where OCS 'takes the client through the steps of the plan for reunification of the family' but decline to find active efforts where 'OCS develops [a] case plan, but the client must develop his or her own resources towards bringing it to fruition.' " When reviewing active efforts we "may consider 'a parent's demonstrated lack of willingness to participate in treatment' and look 'to the state's involvement in its entirety.' "
25 U.S.C. § 1912(d); CINA Rule 18(c)(2)(B).
Lucy J., 244 P.3d at 1114 (citing Wilson W. v. State, Office of Children's Servs., 185 P.3d 94, 101 (Alaska 2008)).
Id. (alteration in original) (footnote omitted) (quoting Wilson W., 185 P.3d at 101).
Id. (footnote omitted) (quoting Maisy W. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008)).
The trial court found by clear and convincing evidence that OCS made "active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of this family." OCS provided Kelly services including: a case plan; referrals for a substance abuse assessment; referral and funding for hair follicle testing and UAs; referral for parenting classes; referral and an appointment time for a psychological evaluation; visitation (including increased time at Kelly's request); and communication about her daughter's medical appointment schedule. The trial court noted all of those efforts in its termination decision, as well as Kelly's refusal to participate in hair follicle and UA testing, psychiatric evaluation, and parenting classes. The court further noted that OCS "provided many services directly to [the daughter]," such as arranging multiple surgeries and overseeing ongoing medical treatment and therapy.
See id. at 1115 (considering services offered to children as part of active efforts determination).
Kelly acknowledges that she refused to work her case plan and that her refusal reduced OCS's active efforts burden. She argues, however, that "[t]his is not a case where the parent was apathetic," and "OCS should not be relieved of its duty to make efforts to reunify the family simply because executing that duty is difficult." She claims OCS should have recognized that her "opposition to authority" would prevent her from working her case plan until OCS assisted her in obtaining a psychological evaluation. Kelly argues that OCS instead provided her a "standardized case plan" and failed to communicate with her its "relevance or importance." She further argues that OCS failed to make active efforts by not keeping her updated about her daughter's medical appointments.
We are not persuaded that OCS could or should have done more to fulfill its active efforts burden. OCS cannot force a parent to accept the services it offers. And "[w]here services have been provided and a parent has demonstrated a lack of willingness to participate or take any steps to improve, [we have] excused minor failures by the [S]tate and rejected arguments that the [S]tate could possibly have done more." In Ben M. v. State, Department of Health & Social Services, Office of Children's Services the father frequently missed UAs, and OCS "arrang[ed] an assessment with a psychiatrist, but he did not call the number [the caseworker] gave him to arrange an appointment." The father also declined to obtain a substance abuse screening and missed visitation. We upheld the trial court's determination that OCS's efforts — setting up visitation, creating a case plan, and providing numerous referrals — satisfied the active efforts requirement in light of the father's unwillingness to participate. OCS was not excused from making any efforts, but the burden was less onerous given that it had "no reason to believe that additional efforts would have made a difference."
See Chloe O. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 309 P.3d 850, 857 (Alaska 2013) (citing with approval testimony that "it is not possible to force an unwilling client to participate in mental health treatment").
Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1021 (Alaska 2009) (citing E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 990 (Alaska 2002); Thomas H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 184 P.3d 9, 17 (Alaska 2008)).
Id. at 1022.
Id.
Id. at 1022-23.
Id. at 1022.
Here there was no reason for OCS to believe that the approach Kelly suggests — prioritizing a psychological evaluation to facilitate Kelly's participation in the rest of her case plan — would have made a difference. As in Ben M. OCS secured a referral for Kelly and arranged an appointment time for a psychological evaluation, but Kelly did not make the call. She refused to attend a substance abuse assessment or parenting classes. The trial court repeatedly ordered Kelly to take UAs, paid for by OCS, and she always refused.
See id.
Nor was there reason for OCS to believe that more "meaningful communication" between Kelly and OCS caseworkers would have changed her behavior and attitude toward OCS. Kelly insists that she was provided a "standardized case plan" that "had not been tailored to her family needs." But Kelly points to no evidence that the case plan was "standardized"; each goal was related to the issues leading to her daughter's removal, particularly Kelly's substance abuse and failure to provide for her daughter's medical needs. Kelly's OCS caseworker tried repeatedly but without success to explain the case plan's purpose: "It's pretty much the same pattern at each time we visit, and I explain why the department requests the things that we request and she continues to believe that there is never anything wrong, so we don't get anywhere." The court likewise prepared written findings after earlier proceedings "to try to explain to [Kelly] more fully . . . how we got where we were, so [she] would understand why the case plan was in place." Despite those efforts, Kelly continued to claim that she did not "understand how what [she] was doing wasn't enough."
Finally the record shows that OCS made consistent efforts to keep Kelly apprised of her daughter's appointments. The trial court noted in its termination order that Kelly had raised concerns about "a lack of accurate and open communication" from OCS about the daughter's medical appointments. In response OCS "renewed efforts to provide [Kelly] with accurate appointment information but had some difficulty as a result of [her daughter's] complicated and frequently[ ]changing schedule." The process was not without flaws, and Kelly indicated that she had to find out directly from providers about appointments. "But the active efforts requirement does not require perfection." OCS therefore met its burden by making and renewing its efforts to communicate with Kelly about appointments.
Pravat P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 249 P.3d 264, 272 (Alaska 2011).
Kelly stresses on appeal that she was not apathetic, but the trial court never suggested she was. The court instead was concerned by Kelly's flat refusal to accept the services OCS offered even after multiple court orders. OCS attempted to take Kelly through the steps of her case plan, but Kelly rejected the services provided. Those attempts, as well as the extensive medical care OCS provided to Kelly's daughter, support the court's determination that OCS made active efforts to reunite Kelly's family, and that those efforts failed.
D. The Trial Court's Best Interests Finding Was Not Clearly Erroneous.
In a termination proceeding OCS must prove "by a preponderance of the evidence that termination of parental rights is in the best interests of the child." The court may consider in its best interests analysis "any fact relating to the best interests of the child," such as:
CINA Rule 18(c) (3); see AS 47.10.088(c) ("[T]he court shall consider the best interests of the child."); see also Sylvia L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 343 P.3d 425, 431 (Alaska 2015) (noting foregoing statute and rule apply "in both ICWA and non-ICWA cases").
(1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs;"The factors listed in the statute are not exclusive, and the trial court need not accord a particular weight to any given factor."
(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.
AS 47.10.088(b).
Shirley M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 342 P.3d 1233, 1243 (Alaska 2015) (citing Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 234 P.3d 1245, 1263 (Alaska 2010)).
The trial court here did not expressly list the factors it considered when making its best interests determination, but it concluded that "[n]either parent is available to safely parent." Kelly argues that terminating her parental rights is not in her daughter's best interests, noting that she was holding out for a "less intrusive approach" to fixing her daughter's rotted teeth, "was involved in all of [her daughter's] cares and treatments," and "researched all options for her daughter's success, choosing to live a life in the deaf community."
Kelly's statements are largely consistent with the trial court's factual findings. The trial court was sympathetic to many of Kelly's choices, noting for example that getting cochlear implants "is always a difficult decision, and [Kelly] had valid criticisms and concerns," and that Kelly "demonstrated significant investment in the decision-making process." The court likewise detailed Kelly's "significant efforts to care for [her daughter's] high medical needs."
We accept for purposes of this appeal that Kelly's resistance to her daughter's cochlear implantation surgery reflected a conscious parenting choice to "live a life in the deaf community," and it does not weigh against Kelly in the best interests analysis.
But the trial court also made many factual findings supporting its determination that terminating Kelly's parental rights was in her daughter's best interests, and Kelly has not shown that those findings were clear error. For example, Kelly has not refuted the court's finding that "it would take eight months to a year for [Kelly] to reach a parenting level that would be safe for [her daughter] if [Kelly] fully committed to her case plan." As the court noted, Kelly's daughter then would return to her mother after over two years in foster care, "a very long time for a child of [the daughter's] age." The court also found that Kelly "has not demonstrated any change in behavior or thinking since this case began," a statement amply supported by the record.
In addition to the statutory factors "[a] child's special needs, and the harm caused by a parent's failure to timely address those needs, have weighed heavily in our analysis of whether termination is in the child's best interests." The trial court described in detail the daughter's needs, as well as Kelly's failure to address those needs. The court acknowledged that Kelly was uncomfortable with the idea of her daughter undergoing surgery, causing Kelly to "fail[] to act on recommendations that [her daughter] receive dental surgery for her rotted teeth" and "undergo adenoidectomy for her obstructed airway," ultimately "exacerbating [an] already medically fragile condition." Kelly does not demonstrate that those findings were clearly erroneous. Because the evidence shows that Kelly cannot meet her daughter's extensive needs, the trial court's best interests finding was not erroneous.
Sherry R. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 332 P.3d 1268, 1275 (Alaska 2014) (citing Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1119 (Alaska 2010)).
E. Kelly's Other Claims
1. Kelly's Probable Cause Argument Is Moot.
Kelly disputes her daughter's original removal, but that claim is moot. We have held that "claims concerning [OCS's] decision to take custody . . . and the probable cause hearing are moot in light of the superior court's later decision adjudicating [the child] a child in need of aid." That reasoning applies equally in an ICWA termination proceeding, where the relevant standard of proof required to terminate — evidence beyond a reasonable doubt — is higher than the clear and convincing evidence standard required at the probable cause stage. In light of the trial court's termination finding that returning to Kelly's care would cause her daughter physical harm, Kelly's claim of error at the removal stage is moot.
Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 165 P.3d 605, 610 (Alaska 2007).
CINA Rule 18(c)(4).
CINA Rule 10(c)(3); see Jennifer L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 357 P.3d 110, 114-15 (Alaska 2015) (noting that in many CINA cases, "the superior court will likely proceed with adjudication, mooting the probable cause determination").
2. Kelly's Placement Argument Is Irrelevant At This Stage.
Kelly raises several claims contesting her daughter's current placement. But placement issues are irrelevant to this appeal: "[A] termination of parental rights may not be invalidated by showing a violation of the ICWA placement preferences." At this stage even a showing that OCS failed to fulfill its duty to seek a preferred placement would not be a sufficient basis to reverse the trial court's termination decision.
David S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 270 P.3d 767, 779 (Alaska 2012).
See id. at 780 (holding that "[t]here is no support in ICWA for an attempt to graft § 1915's placement preferences onto § 1912"). --------
V. CONCLUSION
We AFFIRM the trial court's decision terminating Kelly's parental rights.