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In the Matter of J.W., W.W., and J.P.W. (7/19/96), 921 P 2d 604
Notice: This opinion is subject to formal correction before
publication in the Pacific Reporter. 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-
0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
IN THE MATTER OF: )
) Supreme Court No. S-7116
DOB: 01/02/85 ) Superior Court No.
) 1JU-90-60/61 CP
DOB: 12/21/88 )
Minors under the Age of ) O P I N I O N
Eighteen (18) Years. )
) [No. 4370 - July 19, 1996]
STATE OF ALASKA, )
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Philip M. Pallenberg,
Assistant Public Defender, Juneau, and John
B. Salemi, Public Defender, Anchorage, for
Appellant. Jan A. Rutherdale, Assistant
Attorney General, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
The superior court determined that J.W. and W.W. were
children in need of aid as a result of their having suffered
substantial neglect because of conditions created by their
parents. It terminated the rights of both parents to the
children. J.P.W., the children's natural father, appeals,
contending that the superior court erred in finding that (1) the
children were children in need of aid on the basis of their
father's conduct, (2) this parental conduct was likely to
continue, and (3) the State had made active remedial efforts. We
II. FACTS AND PROCEEDINGS
J.P.W. is the father and V.F. the mother of two minor
sons, J.W. and W.W. Both parents and children are Alaska
Natives. After the family moved from Hoonah to Juneau in 1989,
both J.P.W. and V.F. began having serious problems with alcohol.
By September 1990, J.P.W. was living in the streets, while V.F.
and the children were living at a shelter.
The State of Alaska, Department of Health and Social
Services, Division of Family and Youth Services (State or DFYS)
took the children into emergency custody in September 1990, after
the Juneau Police Department (JPD) notified DFYS that the
children had been abandoned at the shelter while both parents
were "intoxicated walking the streets." In January 1991 the
children were adjudicated children in need of aid under
AS 47.10.010(a)(2)(A). (EN1) They have been in continuous State
custody since then.
DFYS initially contemplated the eventual reunification
of the family. After efforts to rehabilitate the parents failed,
however, the case plan was changed from reunification to
termination of parental rights. In April 1995 the superior court
again determined that the children were children in need of aid,
this time on the basis of parental neglect under AS
47.10.010(a)(2)(F) (EN2), and ordered that the parental rights of
J.P.W. and V.F. be terminated as to both children. J.P.W.
A. Standard of Review
On appeal J.P.W. argues that the superior court erred
in three of its findings. We review the findings of the superior
court under the "clearly erroneous"standard; we will overturn
such findings only if, after reviewing the entire record, we are
left with a definite and firm conviction that a mistake has been
made. E.J.S. v. State, 754 P.2d 749, 750 n.2 (Alaska 1988).
However, if a question of statutory interpretation is raised, we
will apply our independent judgment and adopt the rule of law
that is most persuasive in light of precedent, reason, and
policy. In re J.L.F., 828 P.2d 166, 168 n.5 (Alaska 1992),
overruled on other grounds by In re S.A., 912 P.2d 1235, 1241
B. The Trial Court Did Not Err in Finding that the
Children Were Children in Need of Aid on the Basis of
Neglect as a Result of Their Father's Conduct.
A child may be adjudicated in need of aid on the basis
of "the child having suffered substantial physical abuse or
neglect as a result of conditions created by the child's parent,
guardian, or custodian." AS 47.10.010(a)(2)(F). The superior
court determined that the children were in need of aid "as a
result of having suffered substantial neglect because of
conditions created by the parents, i.e., their failure to provide
the necessary food, care, clothing and shelter."
This determination is supported by clear and convincing
evidence in the record, (EN3) as summarized in two of the
findings of the court:
2.1. On September 9, 1990, the evening
that DFYS first took custody of [J.W. and
W.W.],[ (EN4)] [J.P.W. and V.F.] were with
their children in downtown Juneau in a very
intoxicated state and were determined by the
police to be in no condition to care for
. . . .
2.4. On July 1, 1991, at 12:45 a.m.,
[J.P.W. and V.F.] were found with their
children under the parking garage in downtown
Juneau when the children were supposed to
have been returned to the care of the foster
parents. It was hazardous to reach this area
because of the large boulders and debris at
the entrance. The area itself was a health
hazard due to the unsanitary conditions and
communicable disease of the people known to
frequent the area. When the children were
found, they were awake and out of bed while
their parents were in bed, asleep and
intoxicated. The children were inadequately
clothed and fed and were potentially at risk
of harm from other individuals in the area.
Clear and convincing evidence in the record supports
the superior court's determination that J.P.W. created conditions
on these two occasions that resulted in the substantial neglect
of the children. J.W. and W.W. were "two small children"at the
time of the first incident, one five years old and the other less
than two; J.P.W. exposed these children to the dangers of a
downtown area at a time when he was "very intoxicated"and unable
to care for them. J.P.W.'s inability to provide adequate parental
care and supervision for the children at the time can be inferred
from the fact that the responding police officer determined that
it was necessary to leave the children in their grandmother's
custody for the night. In the second incident, J.P.W. exposed
the children to the hazards of an unlit area littered with broken
bottles and feces and inhabited by people with tuberculosis and
scabies. When a JPD officer found the family, both children were
inadequately dressed and complained of being extremely hungry;
they were taken to the police station to be dressed, fed, and
The superior court's finding that the children were in
need of aid on the basis of substantial neglect is supported by
clear and convincing evidence; it is not clearly erroneous.
C. The Trial Court Did Not Err in Finding by Clear and
Convincing Evidence that the Parental Conduct Was
Likely to Continue.
A termination of parental status is clearly erroneous
if "[s]ufficient evidence does not exist to support the
conclusion that the parental conduct which resulted in the
determination that the children were in need of aid was likely to
continue." In re R.K., 851 P.2d 62, 66 (Alaska 1993).
The superior court determined that the conduct of
J.P.W. that led to the neglect of the children was likely to
continue, and supported this determination with the following
4. The main parental conduct that
causes the conditions leading up to the
neglect of the children is severe and chronic
substance abuse of [V.F. and J.P.W.]. This
conduct is likely to continue because after
four and a half years of state involvement,
the parents have been unable to maintain
sobriety for any demonstrated length of time.
The facts leading up to this conclusion
. . . .
4.2. [J.P.W.] has a history of doing
well when institutionalized and then
returning to his previous behavior when
released. After [J.P.W.'s] alcohol relapse
within days of his return from [a halfway
house] in January 1992, it was one and a half
years before he entered an in-patient
treatment program. Even then, he was unable
to complete the program or maintain an
alcohol or drug-free lifestyle. A
psychological report prepared at [J.P.W.'s]
request states that [J.P.W.] continues to
choose relationships that doom his ability to
succeed, and that his present fiance [sic]
suffers from alcohol abuse problems and has
difficulty maintaining sobriety. The
evaluation recommends that [J.P.W.] attend a
long term residential chemical abuse
treatment program such as Akeela House in
order to change his faulty reasoning
patterns. The report concludes that "the
progress for such a change is guarded to poor
based on history and his present
Evidence in the record supports this finding and provides clear
and convincing support (EN5) for the superior court's
determination that the conduct of J.P.W. that caused the
substantial neglect of the children will likely continue.
"[M]ental illness alone is not conduct and may not form
the basis of a termination order." K.N. v. State, 856 P.2d 468,
475 (Alaska 1993); see Nada A. v. State, 660 P.2d 436, 440
(Alaska 1983) ("impulsive personality disorder"not conduct).
J.P.W. argues that alcoholism is an illness, that K.N. and Nada
A. require that a "termination of parental rights must be based
on conduct, not on a diagnosis,"and that "alcohol abuse in and
of itself does not . . . constitute parental conduct by
The State responds by correctly observing that, while
mental illness alone cannot form the basis of a termination
order, when "the record links the [parent's] continuing mental
illness with his past instances of extreme neglect"there may be
a basis for finding that "improper parental conduct [is] likely
to continue." K.N., 856 P.2d at 475. The State argues there is
such a link in this case.
The State's reliance on K.N. is not necessary, however,
because the superior court did not base its termination decision
on "continuing mental illness." The superior court did not base
its decision on J.P.W.'s alcoholism itself, but on his "severe
and chronic substance abuse." Substance abuse is conduct, even
if the alcoholism that may underlie it is an illness. Because
the superior court based its termination order on willful
parental conduct, we need not consider the issue of "continuing
J.P.W. also argues that the two episodes of neglect
that led the court to determine that the children were in need of
aid were isolated episodes so limited in extent and duration as
to defeat any predictive finding regarding continuing parental
conduct. In R.K., where "the state's case [was] based on one
episode of neglect,"we held that "the evidence of . . . neglect
[was] too limited both as to its extent and duration to sustain a
prediction by clear and convincing evidence that [the parent was]
likely to continue to be unable to provide appropriate parental
care for the children." 851 P.2d at 66.
While the episodes of neglect that led to the child in
need of aid determination in this case were also limited in
extent and duration, R.K. is distinguishable. The key difference
is that the predictive finding in R.K. was based solely on the
single episode of neglect itself; the trial court did not support
its predictive finding with any further evidence, but merely
relied on its own assessment of the parent's level of "insight"
into his problems. Id. at 65-66. In contrast, there is
considerable evidence supporting the superior court's predictive
finding that J.P.W.'s conduct would likely continue. The court
did not base its predictive finding solely on the two isolated
incidents of neglect that formed the basis for the determination
that the children were in need of aid.
Clear and convincing evidence supports the superior
court's prediction that J.P.W.'s substance abuse is likely to
continue. In R.K., the father claimed that he no longer used the
illegal drugs and alcohol that led to the isolated incident of
neglect; this claim was not contradicted by the state, and its
truthfulness was left to possible future monitoring to determine.
Id. at 66-67. In contrast, J.P.W. makes no such claim on appeal;
instead, it is his continued inability "to maintain sobriety for
any demonstrated length of time"that is uncontradicted on the
record. While the father in R.K. had "never been given a chance
to demonstrate his conduct after the night in question,"id. at
66, J.P.W.'s ongoing conduct is well-documented in the record.
As the superior court observed, J.P.W. "has a history
of doing well when institutionalized and then returning to his
previous behavior when released." J.P.W. was incarcerated two
days after DFYS first took custody of the children; he was
released from a halfway house in April 1991 and was drinking
again by July, when he was found under the parking garage with
the children. After another period of incarceration, J.P.W. was
released from the halfway house in January 1992. Within days he
returned to drinking and was incarcerated in January and March on
twelve hour protective custody holds. After another stay in the
halfway house, J.P.W. went to Anchorage and entered an inpatient
alcohol treatment program in mid-1993, which he failed to
complete. After leaving this program, he continued to drink.
A January 1995 psychological evaluation of J.P.W.
concluded that "[u]ntil [J.P.W.] accepts that it is his
responsibility to stay sober and establish the foundation for a
stable life, [he] will stay stuck in a Catch-22 largely of his
own making." It found that the prognosis for change was "guarded
to poor based on history and his present psychological stance."
This evidence provides clear and convincing
support for the superior court's predictive finding that J.P.W.
is likely to continue engaging in severe substance abuse, the
conduct that resulted in the neglect of the children. (EN6)
D. The Trial Court Did Not Err in Finding that the State
Had Made Active Remedial Efforts.
Because J.W. and W.W. are Alaska Native children, the
Indian Child Welfare Act (ICWA), 25 U.S.C. sec. 1901 et seq.,
prohibits the termination of J.P.W.'s parental rights to these
children unless the State can show that "active efforts have been
made to provide remedial services and rehabilitative programs"to
preserve the family that have proven unsuccessful. (EN7) 25
U.S.C. sec. 1912(d)(1988). J.P.W. concedes that the State made
active efforts to help him secure aid and housing. He argues,
however, that "[a]bsolutely nothing was done in the realm of
active efforts to deal with the root problem -- alcohol."
"[F]or purposes of determining the sufficiency of the
State's remedial efforts, the superior court may properly
consider a parent's demonstrated lack of willingness to
participate in treatment." A.M. v. State, 891 P.2d 815, 827
(Alaska 1995), overruled on other grounds by In re S.A., 912 P.2d
1235, 1241 (Alaska 1996). However, this lack of willingness
cannot be assumed until after the State has already made active
efforts to provide remedial or rehabilitative services:
We have never suggested that the scope of the
State's duty to make active remedial efforts
should be affected by a parent's motivation
or prognosis before remedial efforts have
commenced. To vary the scope of the State's
ICWA duty based on subjective, pre-
intervention criteria such as a parent's
motivation or treatment prognosis might
defeat the purpose of the active remedial
effort requirement, for it would allow the
State to argue, in all doubtful and difficult
cases, that it had no duty to make active
A.M., 891 P.2d at 827. The State made sufficiently active
remedial efforts initially, when J.P.W. was in Juneau. While its
efforts after J.P.W. came to Anchorage were less active, these
less active efforts were justifiable in light of J.P.W.'s
continuing unwillingness to participate in treatment in any
meaningful or ongoing way.
The State did make active remedial efforts to
rehabilitate J.P.W. initially. DFYS took active steps to
supplement the treatment J.P.W. received while incarcerated and
facilitate treatment after he was released. DFYS provided him
with transportation assistance so he could attend AA meetings.
DFYS tried to steer him towards a Native sobriety group when it
concluded that this group would provide a more effective support
group for him. In preparation for J.P.W.'s release from the
halfway house, DFYS contacted and met with a substance abuse
officer for the City and Borough of Juneau who was assigned to
the apartments where J.P.W. was to have lived. Finally, after
J.P.W.'s post-release relapse, a DFYS social worker tried on a
number of occasions to reinitiate contact with J.P.W. when J.P.W.
was encountered in the streets. These efforts were sufficiently
active to meet the requirements of the ICWA.
The State did make some efforts after J.P.W. came to
Anchorage and entered the inpatient treatment program. DFYS
actively sought out J.P.W. after contact with him was lost, and,
once contact was regained, DFYS set up a telephone visitation
plan so J.P.W. could communicate with his children while
undergoing treatment. These efforts were less active than the
efforts in Juneau had been, however. DFYS sought out J.P.W. only
after J.W. asked what had happened to his father; essentially,
DFYS had let itself lose contact with J.P.W. before then. While
J.P.W. was in the inpatient alcohol treatment program, DFYS did
not send any DFYS workers in Anchorage to monitor his treatment,
and failed to contact the treatment center itself. DFYS simply
relied on the court system to "assure that he would follow
through,"since J.P.W.'s attendance in the program was court-
ordered; it took no active steps to ensure this follow-through
itself. DFYS did not contact either the district attorney's
office or the city to see to it that J.P.W. was complying with
the order. Finally, after J.P.W. left the program, DFYS neither
obtained a discharge summary nor coordinated any efforts with the
city regarding J.P.W.'s failure to complete his treatment.
Arguably the efforts DFYS made to facilitate J.P.W.'s
rehabilitation after he came to Anchorage were not sufficiently
"active"efforts for ICWA purposes.
J.P.W.'s continued unwillingness to participate in
treatment in any meaningful way must be considered in determining
the sufficiency of the State's remedial efforts after he came to
Anchorage, however. By the time J.P.W. came to Anchorage, he had
already demonstrated to DFYS that he was unwilling to
meaningfully participate in treatment. He had been assigned to
counseling, but had refused to attend. A 1991 alcohol assessment
had recommended that he receive inpatient treatment, but he had
been unwilling to enter such a treatment program. After his
relapse within days of his January 1992 release from the halfway
house, J.P.W. had avoided contact with DFYS, despite the efforts
of DFYS to reinitiate contact. J.P.W. told a social worker at
DFYS that he did not want to attend the Anchorage inpatient
treatment program, and the social worker told him he did not have
a choice. By the time J.P.W. came to Anchorage, he had
demonstrated his unequivocal unwillingness to participate in
treatment on a number of occasions. DFYS had made active
rehabilitative efforts in the past. J.P.W.'s ongoing
unwillingness to participate in treatment justified the State's
failure to pursue aggressive remedial efforts once he came to
A preponderance of the evidence supports the finding
that the State made active remedial and rehabilitative efforts,
thereby satisfying ICWA requirements.
The judgment of the superior court is AFFIRMED.
1. Sec. 47.10.010. Jurisdiction. (a) Proceedings relating to a
minor under 18 years of age residing or found in the state are
governed by this chapter, except as otherwise provided in this
chapter, when the court finds the minor
. . .
(2) to be a child in need of aid as a result of
(A) the child . . . having no parent, guardian, custodian
or relative caring or willing to provide care, including physical
(i) both parents . . . .
2. (F) the child having suffered substantial physical abuse or
neglect as a result of conditions created by the child's parent,
guardian, or custodian.
3. The superior court's determination that the children were in
need of aid as a result of parental conduct must be supported by
clear and convincing evidence. R.C. v. State, 760 P.2d 501, 504
4. The abandonment of the children at the shelter later that
night, which was the basis for DFYS's initial assumption of custody
over the children, was a separate incident. The officer who had
found the parents and children in downtown Juneau earlier in the
night had left the children in their grandmother's custody and had
told J.P.W. and V.F. that they could pick the children up in the
morning when sober.
5. Like the determination that the children were in need of aid
as a result of parental conduct, the superior court's determination
that the parental conduct is likely to continue must be supported
by clear and convincing evidence. R.C. v. State, 760 P.2d 501, 504
6. In addition to providing the necessary clear and convincing
support for the finding that the parental conduct resulting in the
neglect is likely to continue, the record also supports the
inference that the actual neglect itself is likely to continue as
well. While trapped in the "Catch 22"of his alcohol problems,
J.P.W. has failed to maintain visitation with the children or
communicate with them on a regular basis; he has disappeared from
their lives without explanation on a number of occasions, once for
as long as a year. Whether these failures constitute neglect in
and of themselves, they suggest that, if J.P.W. has been unable to
meet even these minimal responsibilities towards the children, he
would be even more likely to fail at the more involved
responsibilities of providing adequate food, care, clothing, and
shelter for the children.
7. The State must make this showing by a preponderance of the
evidence. A.M. v. State, 891 P.2d 815, 826 (Alaska 1995),
overruled on other grounds by In re S.A., 912 P.2d 1235, 1241