Caitlyn E. v. State, Department of Health & Social Services, Office of Children's Services ( 2017 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
CAITLYN E., )
) Supreme Court No. S-16306
Appellant, )
) Superior Court Nos. 4BE-13-00001/
v. ) 00002 CN
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 7181 – June 16, 2017
CHILDREN’S SERVICES, )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Bethel, Dwayne W. McConnell,
Judge.
Appearances: William T. Montgomery, Assistant Public
Advocate, Bethel, and Richard Allen, Public Advocate,
Anchorage, for Appellant. Joanne M. Grace, Assistant
Attorney General, Anchorage, and Jahna Lindemuth,
Attorney General, Juneau, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
BOLGER, Justice.
I. INTRODUCTION
The superior court terminated a mother’s parental rights to two of her
Indian children. She now appeals, contesting the qualification of the ICWA-required
expert witness and the finding that OCS made active efforts to prevent the breakup of the
Indian family. Because the superior court’s decision to qualify the expert witness was
not an abuse of discretion, and because the superior court’s active efforts finding was not
erroneous, we affirm the termination of the mother’s parental rights.
II. FACTS AND PROCEEDINGS
Caitlyn E., a Yupik woman, lives in Bethel and is the mother of Maggie and
Bridget, ages nine and six at trial, who are Indian children within the meaning of the
Indian Child Welfare Act (ICWA) based on their affiliation with the Orutsararmiut Native
Council (the Tribe).1 Caitlyn has struggled with abuse of both legal and illegal drugs
since a young age. She regularly sought narcotics for back pain, and Maggie tested
positive for cocaine and marijuana when she was born. The Office of Children’s
Services (OCS) received other reports of harm; at a doctor’s visit when the girls were
toddlers, they reportedly had multiple impetigo sores on their bodies and had to be
cleaned by the doctor, and Caitlyn smelled like marijuana. Caitlyn was also reported to
have been violent toward both her daughters, kicking Maggie and giving her a bloody
nose, and, while drunk, swinging Bridget around “like a rag doll.”
OCS took emergency custody of Maggie and Bridget in January 2013 after
receiving reports that Caitlyn exposed Maggie to marijuana and, while intoxicated, took
Maggie from the safety of Caitlyn’s mother’s home and allowed her to be driven by a
drunk driver. The children were placed with Caitlyn’s mother, Sarah, who qualified as
1
See 25 U.S.C. § 1903(4) (2012). We use pseudonyms to protect the privacy
of the parties. The father relinquished his rights before trial.
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a preferred placement under ICWA.2 In the ensuing months, OCS worked extensively
with Sarah, helping get the family into better housing and obtain fuel oil and funding for
additional food.
Caitlyn initially participated in the case, but disengaged before long. She
apparently dropped out of contact with both OCS and her attorney until August 2013,
when she renewed her interest in parenting after initially consenting to allow Sarah to
adopt the children but later withdrawing that consent. During the spring of 2013, Caitlyn
was also diagnosed with active tuberculosis for which she refused treatment.
Although Caitlyn reengaged in services in August and later obtained a
substance abuse assessment, she was unable to start treatment due to her tuberculosis;
no treatment center would accept her while she had active tuberculosis. In June 2014,
a few days after finishing her tuberculosis medication, Caitlyn entered treatment at
Phillips Ayagnirvik Treatment Center (PATC) in Bethel, but she was discharged after
less than two weeks for possession of marijuana and unprescribed pills. PATC then
recommended a higher level of care, but instead Caitlyn proceeded to, in her own words,
“drink[] for three months straight.”
In November 2014 Caitlyn began treatment at Women and Children’s
Center for Inner Healing in Fairbanks. OCS completed her application, provided
transportation for her, and sent Bridget to join her within 30 days as required by the
program. OCS also made arrangements for Maggie to visit. Because Caitlyn initially
did well at Women and Children’s Center, OCS decided to hold a termination petition
in abeyance in January 2015. But Caitlyn was discharged in March for throwing a frozen
water bottle at a staff member. Sarah later testified that the sudden removal of Caitlyn
2
See 25 U.S.C. § 1915(b) (giving preference to “a member of the Indian
child’s extended family”).
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and Bridget from the facility when Bridget had been sleeping made Bridget become
withdrawn and scared.
Following Caitlyn’s discharge from Women and Children’s Center, OCS
worked with her to try to get her back into treatment, completing applications to three
different facilities on her behalf. Caitlyn agreed to submit to urinalysis tests (UAs) and
was given cab vouchers for transportation to her appointments, but she completed no
UAs. In September 2015 Caitlyn completed an integrated intake assessment for
substance abuse treatment, at which she stated she used drugs on a daily basis and craved
heroin. Multiple therapies and inpatient residential treatment were recommended.
But the following month, Caitlyn again dropped out of contact with OCS.
Her caseworker continued to leave messages for her, but she did not respond until
February 2016. During that time Caitlyn had been working on her own — without the
knowledge or support of OCS — to get re-accepted to Women and Children’s Center
and had secured a bed date. Caitlyn filed a motion for a review hearing under Alaska
Child in Need of Aid (CINA) Rule 19.1(d),3 asking the court to order OCS to place
Bridget with her at Women and Children’s Center within 30 days, as required by the
program. The court held a hearing on her motion two weeks before the termination trial.
OCS opposed Caitlyn’s request, explaining that when Caitlyn had been discharged for
misconduct, Bridget was traumatized by being suddenly removed along with her mother.
OCS stated it was unwilling to risk the same result a second time. The superior court
declined to order OCS to place Bridget at Women and Children’s Center.
3
“At any time in a proceeding, the court may review matters not otherwise
covered by these rules upon motion of a party or on its own motion.” CINA Rule
19.1(d).
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A joint permanency hearing and termination of parental rights trial was held
over four days in February 2016.4 Five witnesses testified: Caitlyn; Sarah; two OCS
caseworkers, Collyn Symmes and Karen Johnson; and ICWA expert Robin Charlie, a
Yupik woman with six years of experience doing social services work for the Tribe. The
children’s guardian ad litem (GAL) and the Tribe also participated.
Caitlyn testified that she had been sober for 15 months, and she felt her
children were safe around her even when she was drinking as long as a sober person was
present. She stated that she smokes marijuana “whenever [she] feel[s] like it” and had
done so as recently as the day before trial. Her testimony revealed that she chose not to
attend UAs. She blamed OCS for interfering with her recovery by switching
caseworkers so frequently and for Bridget’s traumatizing removal from Women and
Children’s Center.
Sarah testified that Caitlyn only intermittently visited her daughters, stating
that when she visited in a bad mood, she yelled at Sarah in front of the girls and
frightened them. Sarah also testified that Bridget was “a changed little girl” who acted
“withdrawn” and “scared” following Caitlyn’s and Bridget’s discharge fromWomen and
Children’s Center. Sarah further testified that at least two OCS caseworkers had made
themselves available to her by phone to help her through verbal confrontations with
Caitlyn.
The OCS caseworkers testified regarding efforts they made to get services
for Caitlyn and her family, and their difficulty reaching her or securing her cooperation.
Symmes testified that he helped get the family into better housing and obtain fuel oil and
additional funding for food. OCS lost part of Caitlyn’s file while Symmes was assigned
4
The proceeding was continued twice, after being originally scheduled for
August and then December 2015.
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to her case, but he testified that Caitlyn could not have been in treatment during that
period because she had active tuberculosis. Johnson testified that, after working with
Caitlyn to apply to treatment programs, Caitlyn fell out of contact with OCS in the
months leading up to the termination trial.
The superior court qualified Charlie as an expert in Yupik child-rearing
practices and child protection over Caitlyn’s objection that Charlie lacked social work
education and substance abuse expertise. Charlie testified that it was her expert opinion
that the children would be at risk of harm if returned to Caitlyn’s custody because of her
substance abuse and verbal abuse. Charlie explained that substance use in front of
children and verbal abuse of family are not normal parts of Yupik culture. On cross­
examination Charlie conceded that Women and Children’s Center would benefit Caitlyn.
She also acknowledged that a delay in permanency would not change the children’s
situation, as they would be placed with Sarah whether or not Caitlyn’s parental rights
were terminated and they were old enough to know they were living with their
grandmother.
In order to terminate parental rights to an Indian child, the superior court
must make five factual findings.5 Here, the parties stipulated to the first two findings:
that Maggie and Bridget were children in need of aid under AS 47.10.011(6) (physical
harm), (9) (neglect), and (10) (substance abuse) and that Caitlyn had failed to remedy the
conduct placing them in need of aid. In addition the court made three oral and written
findings: (1) by clear and convincing evidence that OCS made active efforts to prevent
the breakup of the Indian family;6 (2) by a preponderance of the evidence that
5
See, e.g., Chloe W. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 336 P.3d 1258, 1264 (Alaska 2014).
6
Caitlyn argues that the superior court failed to make this finding by clear
(continued...)
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termination is in the best interests of the children; and (3) beyond a reasonable doubt that
continued custody of the children by Caitlyn is likely to result in serious emotional or
physical damage to them. Accordingly, the superior court terminated Caitlyn’s parental
rights to Maggie and Bridget.
Caitlyn now appeals, arguing that Charlie should not have been qualified
as an expert witness and that OCS did not make active efforts to prevent the breakup of
the Indian family.
III. DISCUSSION
A. The Superior Court Properly Qualified Robin Charlie As An Expert
Witness Under ICWA.
ICWA requires that the likelihood of harm finding be supported by the
testimony of a qualified expert witness.7 Caitlyn argues that Charlie, OCS’s sole expert
witness, did not possess “expertise beyond the normal social worker qualifications”8 —
specifically any expertise in the area of substance abuse — and as such should not have
been allowed to give an opinion regarding substance abuse. We review the superior
court’s decision to admit expert testimony for abuse of discretion,9 and we review
6
(...continued)
and convincing evidence as required by CINA Rule 18(c)(2)(B). After oral argument
to us, the superior court clarified that it used the appropriate standard to make its finding,
so we do not address this argument further.
7
25 U.S.C. § 1912(f).
8
Marcia V. v. State, Office of Children’s Servs., 201 P.3d 496, 504 (Alaska
2009) (quoting H.R. REP. NO. 95-1386, at 22 (1978), as reprinted in 1978 U.S.C.C.A.N.
7530, 7545).
9
Thea G. v. State, Dep’t of Health &Soc. Servs., Office of Children’s Servs.,
291 P.3d 957, 962 (Alaska 2013) (citing Barbara P. v. State, Dep’t of Health & Soc.
Servs., Office of Children’s Servs., 234 P.3d 1245, 1253 (Alaska 2010)).
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de novo whether that expert testimony satisfies the requirements of ICWA.10 We
conclude that the superior court properly qualified Charlie as an expert witness and
properly relied on her testimony to support ICWA’s likelihood of harm finding.
The superior court qualified Charlie under the 2015 Bureau of Indian
Affairs (BIA) Guidelines.11 Those guidelines explain that “[a] qualified expert witness
should have specific knowledge of the Indian tribe’s culture and customs” and list “in
descending order” four categories of persons “presumed to meet the requirements.”12
Unlike the earlier 1979 BIA Guidelines, all four of the presumptively qualified expert
categories in the 2015 BIA Guidelines include knowledge of prevailing social and
cultural standards or child-rearing practices within the tribe, or both.13
10
Id. (citing Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 244 P.3d 1099, 1111 (Alaska 2010)).
11
ICWA does not define the term “qualified expert witness.” See 25 U.S.C.
§§ 1903, 1912(f). In the absence of a statutory definition, we have looked to legislative
history and the BIA Guidelines as persuasive authority. See Marcia V., 201 P.3d at 504.
We note that the 2015 BIA Guidelines have since been superseded by new regulations
and guidelines issued in 2016, which do not apply to this case. See CINA Rule 1(f); 25
C.F.R. §§ 23.101-.144 (2016); Guidelines for Implementing the Indian Child Welfare
Act, 81 Fed. Reg. 96,476, 96,477 (Dec. 30, 2016).
12
Guidelines for State Courts and Agencies in Indian Child Custody
Proceedings, 80 Fed. Reg. 10,146, 10,157 (Feb. 25, 2015) [hereinafter 2015 BIA
Guidelines].
13
Id. For instance, the fourth category is “[a] professional person having
substantial education and experience in the area of his or her specialty who can
demonstrate knowledge of the prevailing social and cultural standards and childrearing
practices within the Indian child’s tribe.” Id. (emphasis added). Compare id., with
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584,
67,593 (Nov. 26, 1979) [hereinafter 1979 BIA Guidelines], (listing three categories of
persons “most likely” to meet the requirements, the first two involving cultural
(continued...)
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Charlie was qualified under the second category as “[a] member of another
tribe who is recognized to be a qualified expert witness by the Indian child’s tribe based
on their knowledge of the delivery of child and family services to Indians and the Indian
child’s tribe.” At voir dire OCS emphasized Charlie’s Yupik upbringing as a member
of the Native Village of Tununak and her six years of work in social services for the
Tribe in Bethel. Charlie worked with children on cultural and subsistence awareness as
a youth coordinator for five years; the Tribe then promoted her to Social Services
Director, and she supervised the departments for ICWA, rural child welfare, and youth
services for a year and a half. The Tribe also approved Charlie’s participation as an
expert witness in this case. Caitlyn emphasized that Charlie was not a licensed social
worker and had not yet completed all her college-level social work classes. But the 2015
BIA Guidelines do not require that a cultural expert have additional subject matter
expertise,14 and the court qualified Charlie to testify regarding how substance abuse and
domestic violence affect child-rearing practices and child protection in the Tribe.
Caitlyn’s argument for such a subject matter expertise requirement is based
on our statement in Marcia V. that “more is required of an ICWA expert than simply
being ‘qualified’ as some kind of expert under the rules of evidence.”15 But that case
dealt with an expert qualified as “[a] professional person having substantial education
in the area of his or her specialty,” a category that did not require cultural knowledge
13
(...continued)
knowledge and the third category being “[a] professional person having substantial
education and experience in the area of his or her specialty”).
14
See 2015 BIA Guidelines, supra note 12, at 10,157.
15
Marcia V., 201 P.3d at 504.
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under the earlier guidelines.16 Charlie was qualified as an expert based on her knowledge
of the delivery of child and family services to the Tribe, not as a professional social
worker or substance abuse specialist; therefore, Caitlyn’s concession that Charlie is an
expert in Yupik culture limits the applicability of Marcia V.
Furthermore, we have stated that ICWA’s
[l]egislative history indicates that the primary reason for
requiring qualified expert testimony in ICWA termination
proceedings 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.[17]
We concluded that “[b]ecause ICWA does not always require testimony from witnesses
with both types of expertise, . . . so long as a termination proceeding does not implicate
cultural bias, ICWA’s proof requirements can be satisfied by a qualified expert witness
without any special familiarity with Native cultural standards.”18
Though the facts are reversed here, the same logic applies: Charlie has
expertise in Yupik child-rearing practices and thus was able to testify without needing
further “specialized professional education” that Caitlyn’s substance abuse and verbal
abuse were not a normal part of that culture and, combined with Caitlyn’s history of
aggression and verbal abuse, created a risk of harm to the children. ICWA’s legislative
16
Id. (alteration in original) (emphasis omitted) (quoting 1979 BIA
Guidelines, supra note 13, at 67,593).
17
L.G. v. State, Dep’t of Health & Soc. Servs., 14 P.3d 946, 952-53 (Alaska
2000) (emphasis in original) (first citing 25 U.S.C. § 1901(5); then citing H.R. REP. NO.
95-1386, at 10-11 (1978), as reprinted in 1978 U.S.C.C.A.N. 7530, 7532-33).
18
Id. at 953 (emphasis in original).
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history also indicates that a main concern of the law was that “social workers, ignorant
of Indian cultural values and social norms, make decisions that are wholly inappropriate
in the context of Indian family life.”19 This concern is reinforced by the 1979 BIA
Guidelines, which provide for cultural knowledge as a separate expert category from
professional expertise,20 and the 2015 BIA Guidelines, which prioritize cultural
knowledge over professional expertise.21 Charlie’s testimony addressed that concern
here, ensuring that the evidence supporting the likelihood of harm finding — which
properly came from both expert and non-expert sources22 — would not be interpreted in
a culturally misguided way. Specifically, Charlie noted Caitlyn’s tendency to become
aggressive while using substances rather than resolving conflicts in a culturally
appropriate way and testified that members of Yupik tribes “don’t raise our children
being verbally abusive.” We therefore conclude that the superior court properly admitted
and used Charlie’s testimony under ICWA.
19
H.R. REP. NO. 95-1386, at 10, as reprinted in 1978 U.S.C.C.A.N. 7530,
7532.
20
1979 BIA Guidelines, supra note 13, at 67,593.
21
2015 BIA Guidelines, supra note 12, at 10,157.
22
Likelihood of harm “can be proved through the testimony of a single expert
witness, by aggregating the testimony of expert witnesses, or by aggregating the
testimony of expert and lay witnesses.” Diana P. v. State, Dep’t of Health & Soc. Servs.,
Office of Children’s Servs., 355 P.3d 541, 546 (Alaska 2015) (citing Chloe W. v. State,
Dep’t of Health & Soc. Servs., Office of Children’s Servs., 336 P.3d 1258, 1270 (Alaska
2014)). This precedent dispenses with Caitlyn’s argument that Charlie improperly
testified about subjects beyond her expertise. Even if Charlie’s testimony regarding
substance abuse and verbal abuse must be discounted, her testimony regarding Yupik
culture combined with other evidence such as Sarah’s testimony that Caitlyn’s substance
abuse hurt the family and her verbal abuse of Sarah in front of the children frightened
them also supported the likelihood of harm finding.
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We also note that in addition to her claim of error under ICWA, Caitlyn
argues that Charlie’s testimony was improperly admitted under Alaska Evidence Rule
702. Rule 702(a) provides: “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” “We confirmed long ago that ‘the
standard for admission of expert testimony in Alaska is whether the testimony would
appreciably assist the trier of fact.’ ”23 “And ‘[a]s a general rule, the trial judge retains
wide latitude in deciding whether to admit the testimony of an expert witness.’ ”24 In this
case, Caitlyn argues that even if Charlie was properly qualified as an expert on Yupik
child-rearing practices, the superior court abused its discretion by allowing her to offer
expert testimony about “substance abuse,” because, according to Caitlyn, “[s]ubstance
abuse is a specialty and requires some knowledge and experience in the area.”
But the superior court did not qualify Charlie to testify broadly about
“substance abuse” as a general topic. Instead, the superior court qualified Charlie to
testify on the more limited questions of “how substance abuse can affect the tribe” and
whether substance abuse “has an effect on the child rearing practices and child
protection” in the tribe. In fact, the superior court explicitly restricted the scope of
Charlie’s substance abuse testimony, noting that she would not be able to “giv[e]
diagnoses” as to Caitlyn’s substance abuse problems. We conclude that, given Charlie’s
knowledge and experience, the superior court did not abuse its discretion in qualifying
Charlie to testify about substance abuse in the limited context we have just described.
23
City of Hooper Bay v. Bunyan, 359 P.3d 972, 980 (Alaska 2015) (quoting
Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 350 (Alaska 2012)).
24
Id. (quoting Barton, 268 P.3d at 350).
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And since Caitlyn has not pointed to any specific trial testimony that went beyond this
limited context to which she objected at trial, we conclude there is no basis for reversal
under Evidence Rule 702.
B. The Superior Court Did Not Err In Finding That OCS Made Active
Efforts To Prevent The Breakup Of The Indian Family.
Before terminating parental rights to an Indian child, a court must find 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 The superior court made that finding here, acknowledging that “OCS
isn’t perfect” and has “certainly messed up”26 but emphasizing that Caitlyn refused to get
treatment for her tuberculosis or engage in services, was kicked out of PATC and
Women and Children’s Center, did not submit UAs, and fell out of contact with OCS.
“Whether OCS made active efforts as required by ICWA is a mixed
question of law and fact.”27 “We review the content of the superior court’s findings for
clear error, but we review de novo whether those findings satisfy the requirements of the
CINA rules and ICWA.”28 “Findings are clearly erroneous if review of the entire record
25
Jon S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
212 P.3d 756, 760-61 (Alaska 2009) (quoting 25 U.S.C. § 1912(d) and CINA Rule
18(c)(2)(B)).
26
“OCS’s duty to make active efforts for a family does not require perfect
efforts.” Christopher C. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 303 P.3d 465, 478 (Alaska 2013) (citing Pravat P. v. State, Dep’t of Health &
Soc. Servs., Office of Children’s Servs., 249 P.3d 264, 272 (Alaska 2011)).
27
Pravat P., 249 P.3d at 270 (quoting Dale H. v. State, Dep’t of Health &
Soc. Servs., Office of Children’s Servs., 235 P.3d 203, 210 (Alaska 2010)).
28
Philip J. v. State, Dep’t of Health &Soc. Servs., Office of Children’s Servs.,
314 P.3d 518, 526 (Alaska 2013) (citing Pravat P., 249 P.3d at 270).
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leaves us with ‘a definite and firm conviction that a mistake has been made.’ ”29 Caitlyn
argues that the superior court erred by finding that OCS made active efforts to prevent
the breakup of the Indian family, noting several instances in which OCS either was not
providing services to her or “obstructed [her] from getting the services she needed.” But
Caitlyn’s arguments primarily consist of competing inferences, and she ignores both her
own unwillingness to participate in services and OCS’s efforts toward the entire family.
We have stated that “[c]onflicting 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.”30 This principle disposes of four of
Caitlyn’s arguments. First, Caitlyn argues that OCS failed to make active efforts when
(almost a year into the case) it allegedly lost her file for six months. Though testimony
did establish that OCS lost part of the file during this time, the superior court’s
conclusion that this issue did not defeat active efforts was supported by testimony that
Caitlyn could not be in treatment during that period because she had active tuberculosis,
that no treatment center would accept her until her tuberculosis was addressed, and that
OCS was able to get Caitlyn into treatment at PATC “within a matter of days” after she
completed her tuberculosis medication.
Second, Caitlyn argues that OCS failed to make active efforts when it
placed her at PATC even though she needed a higher level of care. But as the superior
29
Sherman B. v. State, Office of Children’s Servs., Dep’t of Health & Soc.
Servs., 290 P.3d 421, 427-28 (Alaska 2012) (quoting Barbara P. v. State, Dep’t of
Health & Soc. Servs., Office of Children’s Servs., 234 P.3d 1245, 1253 (Alaska 2010)).
30
Maisy W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 175 P.3d 1263, 1267 (Alaska 2008) (first citing Brynna B. v. State, Dep’t of
Health & Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004);
then citing D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 214 (Alaska
2000)).
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court noted, a caseworker testified that Caitlyn wanted to stay close to home for
treatment; he also testified that starting with the “level of care that is as minimally
invasive as possible” is preferable, and OCS tried to offer “the best therapeutic care we
could, as close to home as possible.” The superior court properly considered Caitlyn’s
placement at PATC as part of OCS’s active efforts.
Third, Caitlyn argues that OCS failed to make active efforts when it failed
to help her get back into Women and Children’s Center, which Charlie, the expert
witness, had testified would benefit Caitlyn.31 But OCS had determined, and Sarah’s
testimony showed, that Bridget was traumatized by Caitlyn’s and Bridget’s previous
discharge from Women and Children’s Center; OCS was therefore reluctant to risk the
same result a second time. The superior court could have reasonably credited OCS’s
position over Caitlyn’s.32
Fourth, Caitlyn argues that OCS failed to make active efforts when it
assigned her multiple caseworkers over the lifetime of the case. But Caitlyn worked
closely with two caseworkers for approximately one year each and was evasive
throughout other time periods. It was therefore not error for the court to acknowledge
the turnover in this case and nonetheless conclude that OCS made active efforts.
31
Caitlyn also argues that OCS conceded that her application to Women and
Children’s Center was not last minute and that nevertheless the superior court improperly
characterized her attempt as coming on the eve of trial. However, the court reasonably
looked at the lifetime of the case, concluding that Caitlyn “waited simply too long over
this three-year period” and citing Caitlyn’s periods of lost contact with OCS and failure
to submit UAs. See, e.g., S.H. v. State, Dep’t of Health & Soc. Servs., Div. of Family &
Youth Servs., 42 P.3d 1119, 1126 (Alaska 2002) (calling “too little, too late” a parent’s
attempts to get into treatment that would start after the trial).
32
We further note that the same facts support the court’s decision to decline
to order OCS to place Bridget with Caitlyn at Women and Children’s Center after
Caitlyn moved for a review hearing under CINA Rule 19.1(d).
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We also have stated that courts may consider “a parent’s demonstrated lack
of willingness to participate in treatment” in evaluating the sufficiency of OCS’s
efforts.33 Caitlyn argues that OCS failed to make active efforts when it failed to apply
to any rehabilitation programs on her behalf and timely update a case plan and family
contact plan during the last six months before trial.34 But an OCS caseworker testified
that she filled out three applications with Caitlyn in the OCS office only to have Caitlyn
drop out of communication around four months before trial, despite multiple calls and
messages. Its inability to contact Caitlyn also prevented OCS from being able to set up
a new visitation schedule after Sarah expressed safety concerns about hosting visits
around the same time. And in evaluating OCS’s efforts, the court properly considered
Caitlyn’s lack of participation over the course of the case when it emphasized Caitlyn’s
delay in getting treatment for her tuberculosis, discharge from PATC and Women and
Children’s Center, failure to submit UAs, and other periods of lack of contact with OCS.
Courts may also consider OCS’s efforts toward the family as a whole in
evaluating active efforts.35 The superior court noted that during many of the time periods
33
Maisy W., 175 P.3d at 1268 (quoting N.A. v. State, Div. of Family & Youth
Servs., 19 P.3d 597, 603 (Alaska 2001)).
34
Caitlyn also argues that OCS’s failure to file an updated permanency report
is further evidence of a failure to make active efforts. We accept the superior court’s
reasoning that OCS’s omission “doesn’t change [the] findings on the termination”
because (1) the parties agreed that the children were still in need of aid and (2) Caitlyn
was aware that the termination petition had been filed even as of the previous
permanency report.
35
Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
244 P.3d 1099, 1115 (Alaska 2010). See also 2015 BIA Guidelines, supra note 12, at
10,150 (listing “[i]dentifying community resources including housing [and] financial
. . . services and actively assisting the Indian child’s parents or extended family in
(continued...)
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in question, OCS was providing services to Sarah, Maggie, and Bridget. For example,
during the time period that Caitlyn argues that the lost file constituted a lack of active
efforts, OCS was helping get the family into better housing and obtain fuel oil and
additional food. Similarly, Sarah testified about the support she received from OCS
caseworkers who assisted her with confrontations with Caitlyn, including some during
the last year of the case.36 The superior court properly considered OCS’s efforts toward
the family as a whole.
Caitlyn’s remaining argument, that OCS’s failure to monitor her progress
while she was at Women and Children’s Center constitutes a lack of active efforts, is
factually unavailing. Her attorney acknowledged that Women and Children’s Center is
a “long-term inpatient treatment program” which provides group and family therapy,
mental health services, and anger management services in addition to substance abuse
treatment. As such, it is not clear what additional services OCS could have provided
during this time, other than arranging and paying for Caitlyn’s travel to and from the
program and arranging for Maggie to visit, which it did.37 Caitlyn further argues that
more detailed reports from her stay in this facility should have been included in the
record, citing to the 2015 BIA Guidelines for the proposition that “[a]ctive efforts must
35
(...continued)
utilizing and accessing those resources” as an example of active efforts); 1979 BIA
Guidelines, supra note 13, at 67,592 (efforts “shall also involve and use the available
resources of the extended family”).
36
The court did not find credible Caitlyn’s testimony that Sarah, not she,
instigated these confrontations.
37
Cf. A.M. v. State, 945 P.2d 296, 306 (Alaska 1997) (calling “superfluous”
any additional efforts OCS’s predecessor could have made while an incarcerated parent
was undergoing therapeutic services from the Department of Corrections).
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be documented in detail,”38 but it was not error for the superior court to credit OCS
caseworkers’ sworn testimony about the extent of services provided to Caitlyn and her
family without requiring additional documentation.39
We therefore affirm the superior court’s finding that OCS made active
efforts to prevent the breakup of the Indian family.
IV. CONCLUSION
For the reasons explained above, the superior court’s decision to terminate
Caitlyn’s parental rights is AFFIRMED.
38
2015 BIA Guidelines, supra note 12, at 10,156.
39
Cf. Kent K. v. State, Dep’t of Health & Soc. Servs., No. S-15708, 2016 WL
483254, at *8 (Alaska Feb. 3, 2016) (construing requirement broadly).
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