Thea G. v. State, Department of Health & Social Services, Office of Children's Services ( 2013 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
THEA G., )
) Supreme Court No. S-14663
Appellant, )
) Superior Court Nos.
v. ) 3PA-09-00048/00049 CN
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 6742 – January 9, 2013
CHILDREN’S SERVICES, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Marjorie K. Allard, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for
Appellant. Megan R. Webb, Assistant Attorney General,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Appellee. Mara Rabinowitz, Assistant Public
Advocate, and Richard Allen, Public Advocate, Anchorage,
for Guardian ad Litem. Native Village of Kotzebue, through
its ICWA Representative, Clara Henry.
Before: Fabe, Chief Justice, Carpeneti and Stowers, Justices.
[Winfree and Maassen, Justices, not participating.]
FABE, Chief Justice.
CARPENETI, Justice, dissenting.
I. INTRODUCTION
Thea G. challenges the superior court’s order terminating her parental rights
to her two children, Zach, age 12, and Abbie, age six.1 The superior court terminated
Thea’s parental rights based on her unremedied substance abuse issues. Thea raises three
issues on appeal: First, she challenges the superior court’s finding that the Office of
Children’s Services (OCS) made active efforts to prevent the breakup of her family.
Second, she challenges the finding that if her custody over Zach and Abbie were
continued the children would likely suffer serious emotional or physical damage.
Finally, she challenges the finding that termination of her parental rights is in Zach’s and
Abbie’s best interests. Because each of these findings is supported by sufficient
evidence, we affirm the superior court’s order terminating Thea’s parental rights to Zach
and Abbie.
II. FACTS
Thea and her husband, Samuel, had two children, Zach, born in 1999, and
Abbie, born in 2005. Thea is a member of the Native Village of Kotzebue (the Tribe)
and her children are eligible for membership, so the children are Indian children for
purposes of the Indian Child Welfare Act2 (ICWA).
Thea has struggled with substance abuse and domestic violence since at
least 2003.3 In an incident that year, Thea, while intoxicated, physically assaulted her
mother and sister in a struggle over the mother’s medication. Zach was present during
1
Pseudonyms are used throughout to protect the privacy of the parties.
2
25 U.S.C. §§ 1901-1963 (2006).
3
Thea testified that she was raised in an alcoholic family and began drinking
as a teenager, but that her drinking problems worsened after Zach was born. In addition
to alcohol, her self-reported history of prescribed and non-prescribed drug use includes
cocaine, marijuana, opioids, sedatives, and tranquilizers.
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the scuffle. While being arrested, Thea kicked a corrections officer in the groin. Thea
was convicted on two counts of domestic violence assault. In other, unrelated, incidents
that year, Thea was convicted of assault and disorderly conduct.4 Since that time, Thea
has demonstrated a pattern of abusing substances — typically alcohol — resulting in run-
ins with law enforcement, followed by attempts at treatment and periods of sobriety, and
then, invariably, a relapse and descent into substance abuse again.
In July 2004, while Thea was pregnant with Abbie, Zach was taken into
OCS’s custody. OCS’s concerns included the family’s inadequate housing, Thea and
Samuel’s substance abuse, and repeated incidents of domestic violence between the
couple in Zach’s presence. OCS developed a case plan recommending that Thea
participate in substance abuse treatment, a domestic violence assessment, and parenting
classes. Thea completed a 35-day residential treatment program at Old Minto Family
Recovery Camp. OCS returned Zach to his parents’ physical care after about a month
but retained legal custody for a year. After completing treatment, Thea remained sober
for 18 months, but in January 2006 she relapsed and was arrested for driving while
intoxicated on alcohol and Valium with Zach and Abbie in her car. She was convicted
of DUI and resisting arrest.
Samuel died of natural causes in September 2008, and, following his death,
Thea’s substance abuse escalated dramatically. She testified that she began abusing
alcohol to the extent that her parenting was “terrible,” and she was often intoxicated
while caring for her children.
On May 8, 2009, Thea called the state troopers to report that Zach and
Abbie had been missing from her home for hours. According to the emergency
4
At the termination trial, Thea testified that she had been arrested multiple
times for domestic violence and that each incident involved alcohol or drugs.
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adjudication petition, the trooper who responded to her call found Thea to be “highly
intoxicated” and unable to care for her children. Thea later admitted that she had been
“caring for her children in an intoxicated state without a sober caretaker” and that she
was “unaware for a significant period of time” that the children were not in the home.
Because of Thea’s history of substance abuse, OCS took Zach and Abbie into its
custody. The agency placed the children with Thea’s neighbors, the Newtons. OCS
developed a case plan for the family; the plan required Thea to participate in substance
abuse treatment and urine analyses (UAs), refrain from misusing prescription and over­
the-counter medications, complete parenting classes, and participate in counseling. The
plan provided liberal opportunities for Thea to have contact with the children.
Within a month of the children’s removal, Thea was involved in a single-
car accident that resulted in another DUI conviction. Several days later, Thea was
remanded into custody for alcohol screening, where her breath alcohol content
registered .304.
In late June 2009, following a referral by OCS, Thea began substance abuse
treatment at Akeela House. She did not actively participate in the program, however, and
withdrew after only 12 days. Her discharge report recommended that she receive mental
health counseling and long-term treatment for mood-altering substances.
For several weeks after Thea left Akeela House, she remained sober, she
visited her children daily at the Newtons’ home, and she applied for admission to
treatment at Salvation Army Clitheroe Center. But before Thea entered that program,
she relapsed again.
By the close of 2009, Thea was once again sober. She attended AA
meetings, had a sober support system in place, participated in outpatient treatment at
Alaska Family Services (AFS), and worked with OCS to gain admission to a residential
treatment program at Southcentral Foundation Dena A Coy. As a result, on
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December 10, 2009, OCS placed Zach and Abbie with Thea for a trial home visit. In
disposition reports filed with the court in January 2010, Thea’s social worker and the
children’s guardian ad litem praised Thea’s performance leading up to and during the
trial visit. But the trial visit ended later that month because Thea again relapsed. The
children were returned to the Newtons’ home.
By spring 2010, Thea was again drinking heavily. In early March 2010,
she was incarcerated on a DUI charge and underwent alcohol detoxification treatment.
At the time, she reported that she was drinking half a bottle of vodka daily.
The following month, Thea began a four-month residential treatment
program at Dena A Coy, on referral by OCS. She successfully completed the program
in August 2010, and she was discharged with a recommendation for participation in
intensive outpatient care and attendance at AA/NA meetings. She was also referred to
AFS for continued substance abuse and mental health counseling. She participated in
the AFS program for a few months but did not complete it.
In the fall of 2010, Thea and the Newtons asked OCS to place the children
with Thea again for another trial home visit. Thea’s social worker, Fennisha Gardner,
denied the request, stating that Thea was not ready for such a visit and that she did not
want to set Thea up for failure. Despite OCS’s denial of the request, Thea and the
Newtons defied OCS and transferred the children to Thea, after which the Newtons left
town for a number of weeks.
On November 3, 2010, Thea was arrested for driving while intoxicated on
alcohol and Xanax with Zach and Abbie in her car. She pleaded guilty to felony DUI
and endangering the welfare of a minor and was sentenced to 34 months incarceration
with 31 months suspended. She received four years of felony probation, forfeited her
car, permanently lost her driver’s license, was fined $10,000 with $7,500 suspended, and
was ordered to participate in and graduate from mental health court. The children were
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not placed back with the Newtons; instead, they were placed with Thea’s sister and her
husband.
As a result of her conviction, the mental health court referred Thea to
treatment at Set Free Alaska, where she was assessed on March 28, 2011. During the
assessment, she repeatedly “attempted to convince staff she did not need to go to
[r]esidential [t]reatment and minimized issues.” Thea denied having problems with
alcohol or drug use, and she assessed her risk of relapse as low. The assessor, however,
diagnosed Thea as being dependent on alcohol, sedatives, and cocaine. She categorized
Thea as being in the “precontemplation” stage of treatment, assessed Thea’s relapse
potential as high, and categorized her motivation to participate in treatment as 100%
external. The assessor recommended that Thea participate in high-intensity residential
treatment.
While awaiting admission to a residential treatment program, Thea was
scheduled to begin outpatient treatment at Set Free Alaska on April 21, 2011. But a few
days before her treatment was to begin, Thea was hospitalized for suicidal ideation. Her
blood alcohol level at the time exceeded .250. Upon her release from the hospital, Thea
began the outpatient treatment program, but she missed appointments from mid-May
through mid-June due to yet another arrest, this time for driving with a revoked license,
without insurance, and for avoiding an ignition interlock device. On August 8, 2011,
Thea was discharged from Set Free Alaska for violating the program’s rules. Her
discharge summary graded her progress as “unsatisfactory” and referred her to
residential treatment. Late in September 2011, after the termination trial had begun,
Thea began residential treatment at Clitheroe Center. The program was to last 90 days,
following which Thea would be required to complete an aftercare program. At the time,
Thea admitted to having “a problem with alcohol and drugs,” but she denied needing
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residential treatment. She stated that she had entered the residential program at Clitheroe
in part because it was required by the terms of her felony probation.
III. PROCEEDINGS
In March 2011, OCS filed a petition to terminate Thea’s parental rights.
Trial was held during two days in September and October 2011. Thea testified, as did
her social worker and her counselor from Set Free Alaska. In addition, OCS supervisor
Karen Morrison testified as an expert regarding the risks of placing children with parents
who have substance abuse problems and the effects on children of delayed permanency.
The Tribe, which had intervened in the proceeding early on, participated in the
termination trial through its non-attorney tribal representative, Clara Henry. Following
the trial, the superior court terminated Thea’s parental rights to Zach and Abbie.
Thea appeals the termination order. She contests the superior court’s
findings that OCS made active efforts to preserve her family, that her continued custody
of the children would likely result in their suffering serious emotional or physical harm,
and that termination of her parental rights is in the children’s best interests.
IV. STANDARD OF REVIEW
A trial court’s determination that OCS made active, but unsuccessful,
efforts to provide remedial services and rehabilitative programs designed to prevent the
breakup of an Indian family presents a mixed question of fact and law.5 We review
factual findings under the “clearly erroneous” standard6 and conclusions of law — such
5
Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
244 P.3d 1099, 1111 (Alaska 2010) (citing Sandy B. v. State, Dep’t of Health & Soc.
Servs., Office of Children’s Servs., 216 P.3d 1180, 1186 (Alaska 2009)).
6
Id. (citing Marcia V. v. State, Office of Children’s Servs., 201 P.3d 496, 502
(Alaska 2009)).
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as whether the trial court’s findings satisfy the requirements of ICWA — de novo.7
Findings are clearly erroneous “if a review of the entire record in the light most favorable
to the party prevailing below leaves us with a definite and firm conviction that a mistake
has been made.”8
A trial court’s determination that a parent’s continued custody of a child
will likely result in the child suffering serious emotional or physical damage is a factual
finding that we review for clear error.9
A trial court’s decision to admit expert testimony is reviewed for an abuse
of discretion.10 We will find that the trial court abused its discretion if, after reviewing
the record as a whole, we are left with a definite and firm conviction that the trial court
erred.11 Whether expert testimony presented at trial satisfies the requirements of ICWA
is a legal question that we review de novo.12
7
Id. (citing Carl N. v. State, Dep’t of Health & Soc. Servs., Div. of Family
& Youth Servs., 102 P.3d 932, 935 (Alaska 2004)).
8
Brynna B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 88 P.3d 527, 529 (Alaska 2004) (quoting A.B. v. State, Dep’t of Health & Soc.
Servs., 7 P.3d 946, 950 (Alaska 2000) (internal quotation marks and citation omitted)).
9
Christina J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 254 P.3d 1095, 1103-04 (Alaska 2011) (citing Barbara P. v. State, Dep’t of
Health & Soc. Servs., Office of Children’s Servs., 234 P.3d 1245, 1253 (Alaska 2010)).
10
Barbara P., 234 P.3d at 1253 (citing Lynden, Inc. v. Walker, 30 P.3d 609,
612 (Alaska 2001)).
11
Richard B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth
Servs., 71 P.3d 811 (Alaska 2003) (quoting Peter Pan Seafoods, Inc. v. Stepanoff, 650
P.2d 375, 378-79 (Alaska 1982) (internal quotation marks omitted)).
12
Lucy J., 244 P.3d at 1111 (citing Ben M. v. State, Dep’t of Health & Soc.
Servs., Office of Children’s Servs., 204 P.3d 1013, 1018 (Alaska 2009)).
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A trial court’s determination that termination of parental rights is in a
child’s best interests is a factual finding that we review for clear error.13
V. DISCUSSION
A. The Superior Court Did Not Err In Determining That OCS Made
Active But Unsuccessful Efforts To Provide Services And Programs To
Prevent The Breakup Of The Family.
Thea argues that the superior court erred in finding that OCS made active
efforts to provide remedial services and rehabilitative programs designed to prevent the
breakup of her family, as required by ICWA.14 She does not discuss the court’s finding
or the evidence supporting it; instead she argues that the court erred by entering its
finding without taking into account assertions made by the Tribe in its closing
argument.15
Thea’s argument fails for several reasons. First, her argument is
unpersuasive because it does not address the trial court’s finding or the evidence
supporting it. The record provides abundant support for the trial court’s finding that
OCS provided Thea and her family with active reunification efforts. These efforts
consisted of multiple case plans; multiple referrals for substance abuse evaluations and
support for treatment programs; multiple referrals for mental health evaluations and
13
Pravat P. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 249 P.3d 264, 270 (Alaska 2011) (citing Dashiell R. v. State, Dep’t of Health &
Soc. Servs., Office of Children’s Servs., 222 P.3d 841, 850 (Alaska 2009)).
14
25 U.S.C. § 1912(d) (2006).
15
The Tribe joins Thea’s brief on appeal, specifically as to this issue.
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counseling; medical, dental, and mental health services for the children; regular family
contact between Thea and the children; and a trial home visit.16
Thea seems to argue that despite the evidence demonstrating that OCS
provided these numerous services over the years that this case was pending, the trial
court could not properly have found OCS’s reunification efforts to be adequate without
addressing certain claims made by the Tribe in its closing argument. But Thea is
incorrect in light of an examination of the Tribe’s arguments.
The Tribe’s first claim was that, early in the case, OCS delayed in holding
a placement decision meeting and in obtaining paternity testing. The Tribe asserted that
by these actions OCS hindered the Tribe’s ability to advocate for the children to be
placed with paternal relatives. But even if the Tribe’s assertions were accurate, this
argument goes to placement, not reunification efforts. Our caselaw establishes that
placement is a separate issue from active efforts, and that the two issues must be
analyzed separately.17 The exception to that rule — under which a placement decision
16
The superior court considered efforts made on Thea’s behalf by the
Department of Corrections and the mental health court, as well as those made by OCS.
This is consistent with the language of ICWA, which does not specify that any particular
entity must make active efforts, see 25 U.S.C. § 1912(d) (requiring a showing that
“active efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family”), and with our prior decisions.
See, e.g., Jon S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 212
P.3d 756, 765 (Alaska 2009) (efforts made by a parent’s parole officers count as active
efforts for purposes of ICWA); Martin N. v. State, Dep’t of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 56 (Alaska 2003) (“While [a parent] is in prison,
the Department of Corrections rather than [OCS] has primary responsibility for
providing services to him[.]”).
17
See, e.g., Roy S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 278 P.3d 886, 891 (Alaska 2012) (“[F]ailure to follow ICWA’s placement
preferences cannot provide a basis for determining that OCS failed to undertake active
(continued...)
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may be relevant to an active efforts analysis — applies when a child’s placement directly
impacts a parent’s ability to participate in remedial efforts.18 That exception is not
implicated here. Indeed, in this case OCS placed the children with the Newtons at
Thea’s request so that the family could remain close, in order to support family contact,
which was a core element of Thea’s case plan.19
The Tribe also claimed that OCS’s efforts were flawed because the agency
delayed in obtaining mental health services for the children. But the record does not
support this allegation. Instead, the record reflects that the children received appropriate
mental health services throughout the duration of the proceedings.
Finally, Thea’s argument fails because her allegation that the trial court
ignored the Tribe’s closing argument is rebutted by the court’s statements on the record
that “[t]he parties at trial included . . . the Native Village of Kotzebue,” and “the parties
submitted closing argument briefing . . . and the Court has reviewed all those
arguments.”20 The trial court did not err in finding that OCS provided Thea with active
efforts to prevent the breakup of her family.
17
(...continued)
efforts.”); David S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
270 P.3d 767, 780 (Alaska 2012) (“[P]lacement decisions present a separate analytical
question from termination decisions.”).
18
David S., 270 P.3d at 779.
19
The superior court approved the non-relative placement, finding that OCS’s
objective constituted good cause to deviate from ICWA’s placement preferences.
20
Thea provides no legal authority to support her implied assertion that the
trial court must individually address every assertion made by a party in a closing
argument, and we have never required the trial court to do so.
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B. The Superior Court Did Not Err In Finding That Thea’s Continued
Custody Would Likely Result In The Children Suffering Serious
Emotional Or Physical Harm.
Thea argues that the superior court erred in finding that the children would
likely suffer serious emotional or physical damage if returned to her care. She raises two
challenges to the finding, which, by the terms of ICWA, must be supported by evidence
beyond a reasonable doubt, including the testimony of one or more qualified expert
witnesses.21 First, Thea argues that OCS supervisor Karen Morrison was not qualified
to testify as an ICWA expert because (1) Morrison was not an expert in Native culture,
and (2) as an employee of OCS, Morrison was unable to testify neutrally. Second, Thea
argues that even if Morrison satisfied the qualifications to testify as an ICWA expert, her
testimony was flawed because it was based solely on her review of the OCS file and the
trial exhibits and was not sufficiently specific to this case.
1. The superior court did not abuse its discretion in qualifying
Karen Morrison to testify as an expert witness for purposes of
ICWA.
a. Morrison’s lack of expertise in cultural matters did not
preclude her from testifying as an ICWA expert.
ICWA requires that before a court may terminate parental rights, the court
must find “beyond a reasonable doubt . . . that the continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or physical damage to
the child.”22 The finding, which must be supported by expert testimony, requires proof
that the parent’s conduct is unlikely to change and will likely cause serious harm to the
21
25 U.S.C. § 1912(f) (2006).
22
Id.-12­ 6742
child in the future.23 These elements may be proved through the testimony of one or
more expert witnesses, or by aggregating the testimony of lay and expert witnesses.24
The strict standard of proof required for this finding reflects Congress’s
goal to prevent the breakup of Native families “solely on the basis of testimony from
social workers who lack[] the familiarity with Native culture necessary to distinguish
between ‘the cultural and social standards prevailing in Indian communities and families’
and actual abuse or neglect.”25 A witness may be qualified to testify as an expert under
ICWA based on the witness’s personal experiences or professional expertise in Native
culture.26 But:
When the basis for termination is unrelated to Native
culture and society and when any lack of familiarity with
cultural mores will not influence the termination decision or
implicate cultural bias in the termination proceeding, the
qualifications of an expert testifying under § 1912(f) need not
include familiarity with Native culture.[27]
In the present case, OCS supervisor Morrison was qualified to testify as an
expert without a showing that she was an expert in Native culture. Instead, her expertise
was in the effects of substance abuse on families and the effects of delayed permanency
23
Marcia V. v. State, O ffice of Children’s Servs., 201 P.3d 496, 503 (Alaska
2009) (citing L.G. v. State, Dep’t of Health & Soc. Servs., 14 P.3d 946, 9 50 (Alaska
2000)).
24
L.G., 14 P.3d at 950 (Alaska 2000).
25
Id. at 951 (citation omitted) (quoting 25 U.S.C. § 1901(5)).
26
Id. at 951-52.
27
Marcia V., 201 P.3d at 503.
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on children.28 Our decisions indicate that, in general, cases involving issues of parental
substance abuse do not implicate cultural mores.29 Thea does not argue that her case is
different, and she points to nothing to suggest that cultural issues or cultural bias played
a role in OCS’s actions, in expert witness Morrison’s testimony, or in the superior court’s
decision to terminate her rights. The superior court thus properly allowed Morrison to
testify as an expert despite her lack of expertise in Alaska Native culture.
b. Thea has waived her argument that Morrison was
disqualified from testifying as an ICWA expert because
of her status as an employee of OCS.
Thea’s brief contains a single sentence alleging that Morrison should have
been precluded from testifying as an ICWA expert because, as an OCS employee, she
“lacked the impartiality and outside neutrality that the ICWA expert is supposed to
provide.” Thea points to nothing in the record, nor does she cite any legal authority, to
support this allegation.30 As such, Thea’s argument is inadequately briefed and thus is
28
Thea does not challenge Morrison’s expertise in the specified areas, so we
do not review her qualifications to testify as an expert on those topics.
29
See, e.g., Christina J. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 254 P.3d 1095, 1111 (Alaska 2011); Lucy J. v. State, Dep’t of Health
& Soc. Servs., Office of Children’s Servs., 244 P.3d 1099, 1118 (Alaska 2010); Marcia
V., 201 P.3d at 503; L.G., 14 P.3d at 953-54.
30
In support of her allegation, Thea cites an online publication of the Native
American Rights Fund. That publication contains a “Practice Tip” discouraging the use
of an employee of an agency seeking termination of parental rights as an expert witness
for ICWA purposes, but the practice tip explicitly concedes that using such an employee
as an ICWA expert is “not prohibited by the ICWA.” N ATIVE A M . RIGHTS FUND , A
P RACTICAL G UIDE TO THE INDIAN CHILD W ELFARE A CT (online ed. rev. Sept. 2011)
Practice Tip at Topic 14, Expert W itnesses, Question 14.7,
http://narf.org/icwa/faq/expert.htm#Q7 (emphasis added).
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deemed waived.31
2. The superior court’s finding that the children would suffer
harm if returned to Thea’s custody was supported by sufficient
evidence.
Thea argues that the superior court’s finding that her continued custody
would likely result in serious harm befalling the children was not supported by sufficient
evidence. She limits her argument to complaints about Morrison’s expert testimony,
averring specifically that the testimony was defective because (1) Morrison based her
testimony on a review of the OCS file and trial exhibits, having had no personal
interactions with Thea or the children, and (2) Morrison’s testimony was “overly
generalized” and not grounded in the specific facts and issues of this case. Both
arguments are based on this court’s decision in C.J. v. State, Department of Health &
Social Services32 and its companion case, J.J. v. State, Department of Health & Social
Services, Division of Family & Youth Services.33 Neither argument has merit.
As to the first argument, it is well settled that an ICWA expert may testify
based on a review of documents in the record, without having had any personal contact
with the parties, as long as the witness’s testimony is grounded in the facts and issues
specific to the case before the court.34 Thea’s argument is based on an erroneous
interpretation of our decisions in C.J. and J.J. and is an argument that we have repeatedly
31
See Frank E. v. State, Dep’t of Health & Soc. Servs., Div. of Family &
Youth Servs., 77 P.3d 715, 719 n.14 (Alaska 2003) (citing Martinson v. ARCO Alaska,
Inc., 989 P.3d 733, 737 (Alaska 1999)).
32
18 P.3d 1214 (Alaska 2001).
33
38 P.3d 7 (Alaska 2001).
34
See, e.g., Sandy B. v. State, Dep’t of Health & Soc. Servs., Office of
Children’s Servs., 216 P.3d 1180, 1192 (Alaska 2009); Ben M. v. State, Dep’t of Health
& Soc. Servs., Office of Children’s Servs., 204 P.3d 1013, 1020 (Alaska 2009).
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rejected in the past.35
As to the second argument, the expert’s testimony in this case was
grounded in the specific facts and issues facing this family. Witnesses other than
Morrison established that Thea struggled with a longstanding alcohol abuse problem that
was sometimes coupled with domestic violence; that she was locked in a repetitive cycle
of abusing substances, participating in treatment, experiencing a period of sobriety, and
relapsing; that she had twice been convicted of driving while intoxicated with her
children in her car; and that her potential for future relapses into abusive behaviors was
high. Thea does not challenge this testimony.
Morrison then testified that children living with a parent who exhibited this
conduct were at risk of harm. She testified that such a lifestyle is particularly alarming
for children who are present when their parent is arrested for DUI or who witness the
parent’s involvement in domestic violence, both of which occurred in this case. She
noted that issues facing children who live with such parents include not “know[ing]
when their mom’s going to be sober, if the mom’s going to be able to take care of them,
if they’re going to be safe, if mom’s going to make sure they have all their needs met.”
In addition, because parents who are in denial about an unsafe situation are unlikely to
protect their children from the dangers it poses, Morrison expressed particular concern
about Thea’s recent statement that she did not require treatment. In summary, Morrison
testified that given this family’s history, if Zach and Abbie were returned to Thea’s care,
they would be likely to suffer serious emotional or physical harm.
In reviewing a trial court’s finding that a parent’s continued custody poses
a future risk of harm to a child, we are mindful that “ICWA does not require that the
35
E.g., Ben M., 204 P.3d at 1020; Marcia V. v. State, Office of Children’s
Servs., 201 P.3d 496, 507 (Alaska 2009); J.A. v. State, DFYS, 50 P.3d 395, 401 (Alaska
2002).
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experts’ testimony provide the sole basis for the court’s conclusion; ICWA simply
requires that the testimony support that conclusion.”36 Regarding expert testimony in
particular, “the issues are whether the expert disregarded or was unaware of contrary
evidence, and whether the testimony was so vague and generalized that the trial court
clearly erred in according weight to it.”37 Thea points to no evidence to contradict the
lay testimony establishing her ongoing substance abuse and her relapse potential, and her
conclusory statement that Morrison’s testimony was “overly generalized” is not
supported by the record. Aggregating the testimony of all the witnesses, substantial
evidence demonstrated beyond a reasonable doubt that Thea’s pattern of substance abuse
was unlikely to change, and that those behaviors would place a child in Thea’s custody
at serious risk of physical or emotional damage. Thus, the superior court did not err in
finding, beyond a reasonable doubt, that Zach and Abbie would likely suffer serious
physical or emotional damage if Thea were to retain custody of them.
C. The Superior Court Did Not Err In Finding That Termination Of
Thea’s Parental Rights Was In Zach’s And Abbie’s Best Interests.
Alaska Statute 47.10.088(c) requires that a court considering whether to
terminate a parent’s parental rights must “consider the best interests of the child.”
Alaska Child in Need of Aid Rule 18(c)(3) provides that before a court may terminate
a parent’s rights, the court must find “by a preponderance of the evidence that
termination of parental rights is in the best interests of the child.” Neither the statute nor
the rule defines best interests, but guidance is found in AS 47.10.088(b), which lists five
factors “relating to the best interests of the child” that a court may evaluate in
determining whether a parent has timely remedied conduct or conditions that endanger
36
E.A. v. State, Div. of F amily & Youth Servs., 46 P.3d 986, 992 (Alaska
2002).
37
Ben M., 204 P.3d at 1020.
-17­ 6742
a child.38 The factors are not exclusive, nor is consideration of each factor mandatory.
In addition, we have noted that the “best interests” finding required by AS 47.10.088(c)
and CINA Rule 18(c)(3) requires a more comprehensive judgment than does determining
whether the parent has timely remedied endangering conduct or conditions.39
Nevertheless, in an appropriate case, the factors listed in AS 47.10.088(b) provide a
logical beginning for a trial court’s consideration of best interests under AS 47.10.088(c).
Here, the trial court addressed each of the listed factors. First, given Thea’s
history, the court found little likelihood that the children could be returned to her care
“within a reasonable time based on their age and need.”40 Second, the court found that
although Thea had participated in substance abuse treatment programs multiple times
38
AS 47.10.088(b) provides:
In making a determination under (a)(2) of this section,
the court may consider any fact relating to the best interests
of the child, including
(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.
39
Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 186 (Alaska 2008).
40
In making this determination, the court took into account that the treatment
program Thea began during the trial would require 90 days of residential treatment,
followed by nine months of aftercare.
-18- 6742
over the course of the case, her motivation was “simply to make the Court happy.” She
disagreed with the recommendations of her current treatment provider, her probation
officer, and OCS that she required residential treatment, and she was in denial about the
period of sobriety she had demonstrated leading up to the termination trial. Third, the
court found that Thea’s behaviors had harmed the children by causing them trauma,
subjecting them to removal from their home three different times, requiring them to
experience their mother’s incarceration, experiencing physical danger at the hands of an
intoxicated driver, and, at least as to Zach, being exposed to domestic violence. Fourth,
the court analyzed Thea’s history and found that Thea had neither remedied, nor made
significant progress in remedying, her substance abuse addiction and that given her
history, “there [was] a . . . strong likelihood that this harmful conduct [would] continue.”
Finally, the superior court recounted in detail Thea’s history of harmful conduct.
We have held that “a superior court may consider ‘any fact relating to the
best interests of the child’ in its best-interests analysis,”41 and that the superior court need
not accord a particular weight to any given factor.42 The superior court’s analysis in this
case conformed to this approach. The court did not stop its analysis with the
AS 47.10.088(b) factors but went on to note that Zach and Abbie, who had been
traumatized and were in need of trusting relationships, were presently living with Thea’s
sister and her husband in a safe and protective preadoptive relationship. The court
observed that the children were reported to be doing well in this home. The court noted
41
Hannah B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 289 P.3d 924, 932 (Alaska 2012) (quoting Doe v. State, Dep’t of Health & Soc.
Servs., Office of Children’s Servs., 272 P.3d 1014, 1025 (Alaska 2012)).
42
Id. at 933 (quoting Doe, 272 P.3d at 1025).
-19- 6742
that the children had been in OCS’s custody for 29 months, a significant portion of their
lives, and that further delays in permanency would cause them additional trauma.43
The superior court also considered Thea’s conduct, noting that even though
she understood that OCS would not tolerate her abuse of substances around her children,
she physically endangered the children by driving intoxicated with them in her car. The
court noted that not only had Thea failed to remedy her substance abuse behavior but she
had made no significant progress toward that end and had demonstrated that she was not
inclined to change those behaviors. The superior court observed that Thea’s ongoing
abusive behaviors were likely to result in the children suffering serious emotional or
physical damage.
This case resembles J.H. v. State, Department of Health & Social Services,44
in which we affirmed the superior court’s best interests finding based on evidence that
the mother had repeatedly returned to using drugs following her unsuccessful attempts
at treatment. In J.H., the mother, like Thea, “remained at high risk of returning to
substance abuse.”45 There, we noted that there was “little doubt that a relapse by [the
mother] would have placed [the child] at risk had she been returned to her mother’s
43
Additional support for the trial court’s finding is provided by social worker
Gardner’s testimony that “the children are in dire need of permanency . . . . They should
just be happy and peaceful and know a stable lifestyle. Have to worry about little kid
problems like studying and stuff instead of where is my mom, is she in jail or is she
relapsed,” and by expert witness Morrison’s testimony that the children would be at risk
if they did not quickly achieve permanency, because they had been unsettled for so much
of their lives, and “when you’re unsettled and you don’t know where you’re going to be,
you don’t know if you’re going back, you don’t know if you’re going to stay, you don’t
know who your parents are going to be and who’s going to take care of you, that’s a
pretty scary situation to be in.”
44
30 P.3d 79, 87 (Alaska 2001).
45
Id.-20- 6742
home.”46 And in Hannah B., we recognized that a child’s need for permanence and
stability should not be sacrificed indefinitely in order to allow the child’s parents to
rectify circumstances that placed their child in danger.47
The evidence presented to the superior court supported the court’s finding
that termination of Thea’s parental rights, in order to free Zach and Abbie for adoption,
was in the children’s best interests. The superior court thus did not err in making that
finding by a preponderance of the evidence.
The dissent argues that the superior court erred because additional evidence,
not presented to the court, might have demonstrated that a permanency goal other than
adoption — presumably a goal such as guardianship or placement with a fit and willing
relative — would have better served the children’s interests. The dissent is correct in
noting that state and federal laws allow CINA cases to be resolved through permanency
outcomes other than reunification or adoption.48 But as we have held, the law does not
require a court, in the context of a termination proceeding, to consider alternative
outcomes, “except to the extent that the statute requires the court to order an arrangement
that is in the child’s best interest.”49
Indeed, in Dashiell R. v. State, Department of Health & Social Services,
Office of Children’s Services,50 we expressly rejected a father’s argument that it was error
to find that termination of his parental rights was in his children’s best interests because
46
Id.47
289 P.3d at 933 (quoting Kent V. v. State, Dep’t of Health & Soc. Servs.,
Office of Children’s Servs., 233 P.3d 597 (Alaska 2010)).
48
See, e.g., AS 47.05.065, .10.080(c) & (l); 42 U.S.C. § 675(5)(C) (2006).
49
C.W. v. State, Dep’t of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001).
50
222 P.3d 841 (Alaska 2009).
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the children would likely remain with their paternal grandparents even if the father’s
parental rights were terminated. We concluded that because the grandparents’ custody
would be temporary, the children would remain “under the cloud of continuing
uncertainty, [and] the children’s need for permanence and security would not be met.”51
Similarly, in Hannah B., we rejected the mother’s argument that the superior court’s best
interests finding was erroneous because the child was placed with his maternal
grandmother, who supported reunification with the mother.52 In affirming the superior
court’s best interests finding, we noted that it was “very uncertain whether Hannah
would be able to assume responsibility for Jacob, given the significant amount of
treatment remaining and her pattern of relapse following residential treatment.”53 Like
Hannah, Thea has demonstrated a repeated pattern of relapse following treatment and,
at a minimum, has a significant amount of treatment remaining before reunification could
even be considered.
Thea asserts that in some cases a child’s best interests require preserving
rather than severing ties to an unfit parent. While such cases may exist, this is not one
of them. Zach and Abbie have been in OCS’s custody — in effect, in limbo — for nearly
two and one-half years, waiting for Thea to act responsibly and step into her role as their
parent. These children are not teenagers, on the verge of making their way in the
world.54 They are children who require the guidance and direction that is best provided
51
Id. at 851.
52
289 P.3d at 933-34.
53
Id. at 934.
54
We note that while Zach was 12 years old at the time Thea’s rights were
terminated, he was only nine when Thea’s conduct caused OCS to remove him from her
care.
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in a loving, stable family headed by functioning, trustworthy parents. After years of
living in uncertainty, these children are finally in a position to be adopted into a
permanent family with competent, stable parents, a resolution not available to them under
any permanency goal other than adoption.55 Preserving Thea’s parental rights, in order
to ensure maintenance of the children’s ties to her, would continue to expose the children
to Thea’s potentially dangerous behaviors and would deprive them of the chance to
become part of a permanent, stable family. As the superior court noted, trust is very
important for children, as is a sense of permanency, and the lack of this trust and stability
may be traumatic and may heighten the risk that a child will engage in antisocial
behaviors.
The dissent argues that the superior court lacked pertinent information
when it found that termination of Thea’s parental rights was in her children’s best
interests. We appreciate the concern that the trial court did not hear about the children
from their former or current caregivers or, more importantly, from their therapist. Such
testimony, when available, is likely to result in a better-informed decision by a trial court
called upon to decide whether to terminate a parent’s rights. But here, the superior court
based its decision on a preponderance of all of the evidence presented to it.56 OCS
55
Adoption requires termination of Thea’s parental rights. See
AS 25.23.130(a)(1); AS 47.10.088(a).
56
The dissent claims that evidence in the record demonstrates that Zach and
Abbie were “strongly” or “extremely” bonded to Thea “just before” the termination trial,
and that Zach “continually” expressed a fervent desire that the family be kept together.
Yet the evidence cited by the dissent consists primarily of a permanency report authored
by the children’s guardian ad litem nearly a year and a half before the termination trial
was held. In her more recent report, authored six months before the trial, the guardian
ad litem stated that while the children “remain bonded with their mother . . . [t]hey
cannot continue to wait” for her to become ready to parent them. This report went on to
(continued...)
-23- 6742
presented sufficient evidence to demonstrate that termination of Thea’s rights would
serve her children’s best interests. Thea declined the opportunity to present any contrary
evidence despite her current argument that such evidence was indispensable to the trial
court’s decision. We thus cannot conclude that based on the record before it, the trial
court clearly erred in determining that termination of Thea’s rights was in the best
interests of Zach and Abbie.
Compelling evidence was presented to the trial court that continued custody
of the children by Thea would likely result in serious emotional or physical damage
befalling them. Evidence was also presented that termination of their parent’s rights
would provide the children with the opportunity to be welcomed into a permanent, stable
family. Absent evidence to the contrary, termination of Thea’s parental rights was in the
best interests of the children. The trial court’s finding is affirmed.
D. Thea’s Remaining Arguments Are Without Merit.
Thea’s brief contains several arguments in addition to those addressed
above. She argues that the superior court erred by failing to solicit, sua sponte, 12-year­
old Zach’s preferences regarding termination of Thea’s rights or to appoint counsel to
represent Zach in the termination proceedings. But these matters, which are properly
within the superior court’s discretion, were not raised in that court. Thea has not alleged
or demonstrated that the superior court committed plain error on these matters, so these
arguments are not properly before us.
56
(...continued)
recommend that Thea’s parental rights be terminated, so that Zach and Abbie could be
adopted. In reaching this recommendation, the report stressed that these children “need
permanency. They need stability, consistency and to always be safe — they cannot
worry if their mother is going to start drinking again and if they are going to be removed
from her again.”
-24- 6742
Finally, Thea argues that the trial court erred in allowing the children’s
guardian ad litem, a non-attorney staff member of the state Office of Public Advocacy,
to be “represented” by an OPA staff attorney during the termination proceedings. We
reject this argument, noting that OPA, not a named individual, was appointed to act as
the children’s guardian ad litem in these proceedings. This is in accord with state law.57
We have reviewed the record and have found no impropriety in the actions of either OPA
representative.
VI. CONCLUSION
For the reasons discussed above, the decision of the superior court
terminating Thea’s parental rights to her children, Zach and Abbie, is AFFIRMED.
57
AS 25.24.310(c), 47.10.050(a).
-25- 6742
CARPENETI, Justice, dissenting.
I disagree with today’s opinion because the State provided the trial court
with virtually no specific, particularized information concerning (1) the children who
were before the court and (2) whether termination of their mother’s parental rights was
in their best interests. This failure left the court in an information vacuum which made
it impossible for the court to make an informed decision about whether termination was
in these children’s best interests. I would therefore remand for the taking of evidence
specific to Zach and Abbie’s particularized situations, including the extent to which they
have bonded with their mother, their current needs and developmental states, and (at least
as to Zach) their preferences in the matter.
Zach and Abbie, the children before the court, lost their father to cancer in
2008. At the time of trial they were not infants but were children who had passed the age
that, according to the legislature, is most critical to parental bonding.1 Both children, and
especially Zach, had already formed strong bonds with their mother. The guardian ad
litem’s Permanency Report of April 14, 2010 — about 17 months before the termination
trial — said this about Zach’s bonding with his mother:
[Zach] is very attached to his mother and
continues to do well with her close by —
regular contact, interaction on a daily basis, her
participation in his school and extracurricular
activities, etc. With the loss of his father, he
has continually expressed his concern to the
1
In AS 47.05.065(5)(A) the legislature found that “children undergo a
critical attachment process before the time they reach six years of age.” Zach was 12 at
the time of the trial, while Abbie was six.
-26- 6742
GAL that “my family” (himself, his mother and
sister) all stay together.
(Emphasis added.) The guardian ad litem’s Disposition Report of January 2010 noted
that the children had been placed with family friends who were very close neighbors and
that this allowed the children to remain in close proximity to their mother. It noted that
the children “need stability, consistency and permanency with their mother as quickly
as possible — they share an extremely strong bond and this needs to be nurtured as a
family unit.” (Emphasis added.) The March 2011Permanency Report from the guardian
ad litem — six months before the termination trial — reported that “[b]oth children
remain bonded with their mother.”
Despite the overwhelming evidence that Zach and Abbie shared strong
bonds with their mother, the State presented no evidence to the superior court as to the
effect of terminating their mother’s parental rights on the children. Moreover, a review
of the testimony presented to the court shows that the State’s case was almost entirely
based on generalizations:
• The State’s expert had never met the children, had never met the
mother, and had never observed her with her children. The expert’s
testimony was in effect based on a review of the record. While we
have endorsed the idea that expert testimony may be based on a
record review,2 the record review here was remarkably skimpy. The
expert conceded that she “didn’t read a lot about the kids,” while
stating that they were in a secure placement. Upon cross­
2
See C.J. v. State, Dep’t of Health & Soc. Servs., 18 P.3d 1214, 1218 (Alaska
2001) (declining to hold that a meeting between the expert and the parties to the
termination proceeding is necessary in every case, but reversing termination because the
expert’s opinion was not sufficiently based on the particular facts of the case); J.J. v.
State, Dep’t of Health & Soc. Servs., 38 P.3d 7, 9-10 (Alaska 2001) (same).
-27- 6742
examination, she admitted that she had not read anything else about
the children other than that they were in a secure placement. The
expert commented on the amount of time the children were out of
the home in placement, but admitted that she did not know that for
some of that time they lived with their mother or were cared for by
her. (Indeed, the State admitted at trial that the children were in their
mother’s care for enough of the time that the children were in foster
care that the State sought to recover part of its foster care payments
from the foster parents for that time.) The expert was unaware of
the amount of time the children had visited with their mother, and
she did not know how frequently visitation took place, or how the
visits went.
• The one social worker called by the State was not the assigned
social worker, but was instead her supervisor. Almost all of her
testimony consisted of generalizations about what kinds of harmful
effects on children might be expected by the particular acts of
parental neglect that were found in this case. While her testimony
was strong in a general sense, it could not establish that these
children suffered the harmful effects that might generally be
expected.
In comparison with the generalizations upon which the State relied, the
record contains substantial evidence that these children, especially Zach, were extremely
bonded with their mother. The evidence showed that (1) Zach was very attached to his
mother 17 months before the trial and that this attachment continued through the time of
trial; (2) Zach had continually expressed his desire that his family (himself, his mother,
and his sister) all stay together; (3) Abbie shared an extremely strong bond with her
-28- 6742
mother; and (4) this bond continued up until the trial. Yet no evidence was produced
at the trial as to the effect of a termination of parental rights on Zach and Abbie.3 In light
of this evidence of the strong connections between the children and their mother, the
superior court should have weighed the loss of that bond in the best interests analysis.
But it was unable to do so, because the State had not presented any evidence of the effect
that termination of parental rights would have on the children.
Other than generalities, the court did not hear any testimony about these
particular children, their needs and desires, their developmental states, or their progress
in therapy. The court heard testimony from the social worker that termination can,
depending on the child, result in trauma to a child, but the court heard no testimony about
how these particular children might be impacted by termination of their mother’s parental
rights. The testimony and the trial court’s findings in this case appear to have been based
on the best interests of children in general, rather than on the best interests of Zach and
Abbie in particular. The State’s failure to present the court with evidence about the
effect of termination on these particular children points up what I believe to be the legal
error here: the reduction of the best interests finding to mere surplusage.
The legislature has set out five findings that a superior court must make
before parental rights can be terminated: (1) that the child is in need of aid; (2) that the
parental conduct remains unremedied; (3) that the State has made reasonable (or, in the
case of Indian children, active) efforts to reunite the family; (4) that serious harm to the
child will likely occur without termination; and (5) that termination is in the best interests
of the child.4 The testimony and the trial court’s best interests findings in this case were
3
Indeed, when counsel for the mother attempted to bring before the court
evidence of the children’s preference at the time of trial, the State successfully resisted.
4
See AS 47.10.011; AS 47.10.086; AS 47.10.088.
-29- 6742
based on the best interests of children in general, but not these particular children. But
if courts were justified in determining only the best interests of “generic children” in
making a best interests finding, it would appear that whenever all the other termination
findings are satisfied — a child in need of aid finding, parental conduct remaining
unremedied, reasonable efforts, and a substantial risk of harm to the child without
termination — the best interests of the generic child will always be served by
termination. But because we presume that the legislature intended that every part of a
statute have some purpose, force, and effect,5 the court must look at the best interests of
the particular children before it.6 That did not happen here.
Given the specific evidence in the record that these children were closely
bonded to their mother just before the termination trial began 7 and the lack of evidence
on this subject at trial, along with the lack of evidence regarding the children’s particular
5
See Mechanical Contractors of Alaska, Inc. v. State, Dep’t of Pub. Safety,
91 P.3d 240, 248 (Alaska 2004) (holding that when court engages in statutory
construction it will presume every provision of statute “to have some purpose, force, and
effect, and that no . . . provisions are superfluous.”).
6
Perhaps in the case of an infant removed from a parent at or close to birth,
who has had no opportunity to bond with the parent, a “generic child” analysis might
suffice. But in the case of a 12-year-old like Zach, who was “very attached” to his
mother and who “continually expressed his concern . . . that [his] family all stay
together,” a generic analysis is insufficient.
7
The strongest evidence in this regard pertains to Zach. But the evidence
concerning Abbie is also substantial: When she was almost five, she was described as
having “an extremely strong bond” with her mother, which remained unchanged when
she was a month short of six. And in light of the legislative findings contained in
AS 47.05.065(5)(a) — “children undergo a critical attachment process before the time
they reach six years of age . . .” — the superior court should have been provided updated
information regarding Abbie’s bonding with her mother at the time of the termination
trial.
-30- 6742
situations, including the preference of at least Zach in the matter,8 I believe that we
should vacate the superior court’s best interest finding and remand so that the court can
be provided with specific evidence pertaining to these children’s best interests. Such
evidence should include testimony by an expert who is at least well-versed in the facts
pertaining to these children, and preferably one who has actually met Zach and Abbie
and who can give expert testimony on the effect of termination on them: What is the
state of their bonds with their mother? How will termination of the parent-child
relationship affect their development? Are there permanency options available that
might better serve the interests of these children than termination? It could include
evidence by a social worker who has actually worked with these children, who knows
their outlook and preferences, and can provide this information to the court. Armed with
such information, the court could make an evidence-based decision on these children’s
best interests.
In evaluating what is in Zach and Abbie’s best interests, the court would
have options other than termination or reunification of the children with their mother.
Although the testimony of the social worker suggested that these were the only options,
the choice in a case such as this is not so simple. Federal and state law contemplate
permanency outcomes in addition to termination or reunification, including guardianship
and placement with a fit and willing relative.9 We have stated that a trial court need not
8
Cf. AS 25.23.040(a)(5) (requiring court to obtain consent of minor child to
adoption if child is ten years of age or older unless court dispenses with minor’s consent
in best interests of minor).
9
With regard to federal law, see 42 U.S.C. § 675(5)(C) (listing reunification,
adoption, legal guardianship, placement with a fit and willing relative, and “another
planned permanent living arrangement” as possible permanency outcomes). With regard
to state law, see AS 47.10.083 (gradual reunification); AS 47.10.084 (legal custody and
(continued...)
-31- 6742
consider such arrangements in the course of termination proceedings “except to the
extent that [AS 47.10.088] requires the court to order an arrangement that is in the
child’s best interest.”10 This is such a case. While we have, on numerous occasions,
reiterated this holding in rejecting appellants’ claims that a trial court erred in failing to
consider or order guardianship in lieu of termination, in each such instance the trial court
had, at some point, considered whether guardianship was an appropriate permanency
outcome for the child, or had at least examined the particulars of the child’s situation and
found that continued contact between the child and the parent was not justified given the
particular facts of the case.11 In this case, the trial court conducted no such analysis or
examination. Today’s opinion also relies on J.H. v. State, Department of Health and
Social Services12 and Hannah B. v. State, Department of Health and Social Services,
9
(...continued)
guardianship); AS 47.10.080(c)(2) (placement with a fit and willing relative).
10
C.W. v. State, Dep’t of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001).
11
See Doug Y. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 243 P.3d 217, 219 (Alaska 2010) (child wanted father to go to jail “so his dad
would quit beating him”); A.J. v. State, Dep’t of Health & Soc. Servs., Div. of Family &
Youth Servs., 62 P.3d 609, 615 (Alaska 2003) (parent had “history of interfering with
the children’s placements” justifying termination over guardianship); Lucretia G. v.
State, Dep’t of Health & Soc. Servs., 2006 WL 668725 at *6 (Alaska 2006) (unpublished
opinion) (child regarded further contact with mother as “cause for alarm”); Matthew B.
v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 2005 WL 628809 at
*4 (Alaska 2005) (unpublished opinion) (superior court specifically considered
guardianship but found that proposed guardian was unavailable for at least 12 months);
Christopher D. v. State, Dep’t of Health & Soc. Servs., 2004 WL 243556 at *3 (Alaska
2004) (unpublished opinion) (guardianship not in best interests of severely emotionally
disabled children dealing with attachment disorders who needed stable home
environment).
12
30 P.3d 79 (Alaska 2001).
-32- 6742
Office of Children’s Services13 as cases that resemble Thea G.’s case. But the children
in J.H. and Hannah B. were only three years old and four years old respectively, and
those cases clearly did not involve the types of mature bonding issues and expressed
preferences as does the present case.
I agree with the superior court and today’s opinion that Zach and Abbie’s
mother has failed them terribly in many ways and that she is not now fit to act as their
parent. But that is not the question before us. The question is whether it is in the best
interests of these children — both of whom are strongly bonded with their mother and
one of whom has expressed the fervent desire that what remains of their family following
their father’s death be “kept together” — to sever the parental bond without considering
the effect of doing so on the children, or even hearing from them, and without
considering alternatives to termination. Before that decision can be made, the superior
court should be provided direct evidence on this issue so that it can make an informed
decision on what is in the best interests of these children. Because the court was not
provided with that information, I respectfully dissent.
13
289 P.3d 924 (Alaska 2012).
-33- 6742