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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. A.H. v. State, Dept of Health & Social Services (10/20/00) sp-5324

A.H. v. State, Dept of Health & Social Services (10/20/00) sp-5324

     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, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

A.H.,                         )
                              )    Supreme Court No. S-9412
             Appellant,       )
                              )    Superior Court Nos.
     v.                       )    1JU-97-65A/66A CP
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF HEALTH & SOCIAL SERVICES,  )
                              )    [No. 5324 - October 20, 2000]
             Appellee.        )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                      Larry R. Weeks, Judge.


          Appearances:  Roger D. Snippen, Law Offices of
Roger D. Snippen, Juneau, for Appellant.  Jan A. Rutherdale,
Assistant Attorney General, and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.


          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          FABE, Chief Justice.


I.   INTRODUCTION
          A.H. appeals the superior court's decision to terminate
his parental rights as to his two daughters.  The superior court
determined that A.H.'s children were children in need of aid due to
neglect, domestic violence, and mental illness; that A.H. had not
remedied the conduct that placed his children at risk of harm; that
the State made active remedial efforts which proved unsuccessful;
that continued custody by A.H. would likely result in serious
damage to the children; and that it was in the children's best
interests to terminate A.H.'s parental rights.  Because the record
supports each of the superior court's findings, we affirm the
superior court's decision.
II.  FACTS AND PROCEEDINGS
     A.   Factual Background
          A.H. and M.H. met in Juneau in 1991, where they both were
undergoing treatment with the Juneau Alliance for the Mentally Ill
(JAMI).  They married in Sitka in 1994.  They had their first
daughter, T., in 1995 and lived in Anchorage for about six months
before returning to Sitka.
          While the family lived in Anchorage, the Department of
Health & Social Services, Division of Family & Youth Services
(DFYS) reported that A.H. and M.H. were neglecting their daughter,
failing to provide adequate food, and that A.H. had not been
properly taking his psychotropic medications.  Consequently, DFYS
made referrals to various service agencies, including the Public
Health Service, the Agency for Families Enhancement Coordination
Teams (AFECT), and New Beginnings.
          When the family returned to Sitka, DFYS received more
reports concerning the H.s' care of their daughter.  Both A.H. and
M.H. were diagnosed with paranoid schizophrenia.  They also had
problems with money and housing.  During this time, A.H. was
hospitalized for his mental condition.  There were also reports
that A.H. and M.H. had harmed T. while living in Sitka.  The H.s
did not have any food, they improperly mixed the baby formula, and
A.H. allegedly dropped the baby "a short distance, six inches, onto
the bed . . . [w]hile he was hallucinating."  Although a DFYS
worker in Sitka began to coordinate services, the H.s decided to
move to Juneau.
          Several agencies became involved with the H.s in Juneau,
including the Southeast Alaska Regional Health Center (SEARHC), for
medical services; Healthy Families, for parenting services; Juneau
Public Health, for nursing services; City and Borough of Juneau,
for mental health services; and the Infant Learning Program (ILP),
for child development services.  DFYS put together a team to
coordinate these services, and the team met to discuss the H.s'
problems with housing and mental health.  M.H. was pregnant again
by this time, and the H.s' second daughter, K., was born in October
1996 in Juneau.
          From September 1996 to July 1997, DFYS held periodic
treatment meetings with the H.s and various service providers. 
After experiencing housing difficulties and living with relatives,
the H.s moved into an apartment in March 1997.  For the next three
months, a Child Care and Family Resources (CCFR) worker provided
intensive in-home parenting and homemaking services for the H.s,
working with them three or four times a week.
          During their time in Juneau, the H.s continued to have
difficulty caring for their children.  Both T. and K. are
developmentally delayed and have had significant health problems.
The superior court found that the H.s had provided neglectful care
in the areas of medical attention, food, clothing, shelter, basic
hygiene, and environment.  There were also two incidents of
domestic violence, one in which A.H. threatened to hit M.H. -- who
was holding T. -- with a backpack and then grabbed her wrists, and
one in which M.H. and A.H. engaged in a physical "scuffle" and had
to be separated by the police for the night.
          A.H. also failed to take his anti-psychotic medication
consistently, and he continued to have disturbing and paranoid
delusions.  For example, A.H. claimed to have seen "the devil"
nursing K., black worms crawling out of the sink, and people
walking in and out of their house at night.
          In July 1997 DFYS petitioned for temporary custody under
the statutes governing children in need of aid (CINA) and the
Indian Child Welfare Act, [Fn. 1] and the superior court granted
the order.  After the 1997 order for temporary custody, T. and K.
moved several times to different foster homes.  Because DFYS could
not find a stable home for the children in Juneau with relatives or
tribal members, it placed them with a non-native, licensed foster
parent, in Sitka in December 1997.  After this placement, DFYS
provided transportation and lodging for the H.s to visit their
children quarterly, although the H.s were free to visit more
frequently using their own funds.  The foster parent is a special
education teacher and has indicated that she wants to adopt the H.
children.
          But even after DFYS assumed custody of the children, A.H.
continued to have difficulties.  For example, in March 1998 the H.s
used an agency check -- which was intended to cover traveling
expenses to visit their children -- to buy alcohol.  Also, in June
1998 A.H. pled no contest to assaulting M.H.  As a condition of his
probation, A.H. agreed to attend anger management counseling, but
he broke probation by failing to attend.
          A.H. also has not maintained sobriety, has not
consistently taken his anti-psychotic medication and consequently
has suffered from paranoid and delusional thoughts.  In July 1999
A.H. was arrested for stalking M.H. and assaulting her boyfriend.
          A.H. and M.H. separated in February 1998 and have lived
apart ever since.
     B.   Procedural History
          The State filed a Petition for Adjudication and
Disposition of Children in Need of Aid on July 25, 1997.  On July
28, 1997, the court signed the Order for Temporary Custody and
awarded temporary custody to the State.  M.H. and A.H. stipulated
to adjudication and temporary custody pending the disposition
hearing on September 17, 1997.  The court held the disposition
hearing on January 16, 1998, and entered the Order of Disposition
Upon Finding a Child in Need of Aid, awarding the State custody for
up to two years.
          Then, on March 24, 1999, the State filed a Petition for
Termination of Parental Rights of both parents.  Trial was in July,
and on September 8, 1999, the court issued its Findings of Fact and
Conclusions of Law, terminating A.H.'s but not M.H.'s parental
rights.  After a hearing on visitation and placement later that
month, the court allowed M.H. limited visitation during the summer,
but ordered no further visits by A.H.  In addition, the court
ordered the children to remain in their current foster home.  The
court also ordered the establishment of a visitation schedule so
that the children could see their maternal grandparents in Angoon.
          A.H. appeals the order terminating his parental rights.
III. STANDARD OF REVIEW
          In CINA cases, this court upholds the superior court's
factual findings unless they are clearly erroneous. [Fn. 2] 
"Factual findings are clearly erroneous if a review of the entire
record leaves us 'with a definite and firm conviction that a
mistake has been made.'" [Fn. 3]  In addition, whether the superior
court's factual findings comport with the CINA statutes is a
question of law, which this court reviews de novo. [Fn. 4]  
IV.  DISCUSSION
          Under AS 47.10.088, a court may terminate parental rights
"for purposes of freeing a child for adoption or other permanent
placement." [Fn. 5]  In order to terminate, the court must find by
clear and convincing evidence that the child is in need of aid
under AS 47.10.011, and that the parent has not remedied the
conduct or conditions that place the child at substantial risk of
harm. [Fn. 6]  In addition, the court must find by a preponderance
of the evidence that the department "has made reasonable efforts to
support the family and foster the safe return of the child to the
family home." [Fn. 7]  And in determining whether to terminate
parental rights, "the court shall consider the best interests of
the child." [Fn. 8]
     A.   Did the Superior Court Err in Finding that the Children 
Were Children in Need of Aid?

          The superior court found clear and convincing evidence
that T. and K. were children in need of aid under four provisions
of AS 47.10.011.  A.H. appeals the findings underlying the three
bases upon which the superior court made its determination: (1)
that the H.s subjected their daughters to neglect under AS
47.10.011(9); (2) that A.H. and M.H. placed the children at
substantial risk of mental injury as a result of repeated exposure
to domestic violence under AS 47.10.011(8)(B)(iii); and (3) that he
has a mental illness of a nature and duration that places his
daughters at substantial risk of physical harm and mental injury
under AS 47.10.011(10).
          A.H. does not dispute that his children were in need of
aid when the court initially made that determination in 1997.  He
states: "[t]he court could have properly found by clear and
convincing evidence that the children were subjected to conduct or
conditions described in AS 47.10.011 and were therefore CINA."
Indeed, the H.s stipulated in 1997 that their children were CINA. 
Because A.H. admits that his children were CINA, his argument on
this issue is unavailing.  And the record supports the superior
court's findings that A.H.'s children were CINA due to neglect,
domestic violence, and mental illness, although any one factor
suffices to render the children CINA under the statute. [Fn. 9]
          1.   Neglect
          The superior court found that M.H. and A.H. subjected
their daughters to neglect by failing to provide them "with
adequate food, clothing, shelter, medical attention or other care
and control necessary for the children's physical and mental health
and development." [Fn. 10]
          In this case, A.H. agrees that he has subjected his
daughters to neglect and that they were children in need of aid. 
He states: "[t]here is no dispute that the children were
unintentionally subjected to neglect by the [H.s].  In fact, they
stipulated that the children were CINA, in part because of
neglect."  And the record supports the superior court's findings
that the H.s subjected their children to neglect.
          A.H. next argues that "there is no rational basis for a
finding that . . . [A.H.] would continue to subject his children to
neglect."  But AS 47.10.088(a)(1)(A) provides that the court may
terminate parental rights if it finds by clear and convincing
evidence that "the child has been subjected to conduct or
conditions described in AS 47.10.011 [Children in Need of Aid]."
[Fn. 11]  As this court has stated, the inquiry regarding CINA
status at a termination hearing involves "all evidence of the
parent's pre-termination hearing conduct, including evidence of
parental conduct predating the CINA adjudication." [Fn. 12]  Thus,
the statute only requires a finding that the child "has been"
subjected to neglect, [Fn. 13] and in this case, A.H. admits that
his children were subjected to such neglect.
          2.   Domestic violence
          A.H. next disputes the superior court's determination
that the children were CINA under AS 47.10.011(8)(B)(iii) because
the H.s' conduct placed the children at substantial risk of mental
injury as a result of repeated exposure to domestic violence.
Although A.H. states that "it is clear that the children,
individually or collectively, have been exposed to domestic
violence on at least two occasions," he argues that two incidents
"[do] not rise to the level of 'repeated exposure' necessary to a
finding under AS 47.10.011(8)(B)(iii)."  Moreover, he argues that
even if two incidents did constitute repeated exposure, any risk of
further exposure to domestic violence "has been substantially
reduced due to a change in circumstance," namely, that the H.s are
now separated.
          Alaska Statute 47.10.011(8)(B)(iii) states that a child
is in need of aid when the parent has placed the child at
substantial risk of mental injury as a result of "repeated exposure
to conduct by a household member . . . against another household
member that is a crime" under domestic violence laws.  In addition,
we have recognized that because witnessing domestic violence has a
"devastating impact" on children, domestic violence need not be
directed toward the child or signify a significant risk of physical
harm to a child to support a CINA finding. [Fn. 14]
          Here, the superior court found that on August 21, 1996,
A.H. almost hit M.H. and T. with a backpack during an altercation.
This incident resulted in A.H. being convicted of the offense of
disorderly conduct.  The court also found that on July 23, 1997,
M.H. and A.H. had a physical altercation in their home while the
children were present, and that "[t]he children were in extreme
distress as a result of this incident, screaming and in a complete
state of shock for hours after the altercation ended."  The record
supports these findings.
          Nor does A.H. dispute these findings.  In fact, with
regard to the backpack incident, he states that he "actually,
although accidentally, struck" T. with the backpack.  With regard
to the July 23, 1997 incident, A.H. states that it "was an
altercation between [the parents] where the children were
traumatized by the incident."  A.H. also acknowledges that there
were other reported incidents of domestic conflict.  But he
maintains that "there is no record that the children may have been
present."
          Because the CINA status inquiry at the termination
hearing involves "all evidence of the parent's pre-termination
hearing conduct, including evidence of parental conduct predating
the CINA adjudication," [Fn. 15] and because A.H. admits to
multiple acts of domestic violence which the record reflects, the
superior court did not err in concluding that A.H.'s acts of
domestic violence against M.H. rendered his children CINA.
          3.   Mental illness
          The superior court also found clear and convincing
evidence that A.H.'s mental illness formed the basis for a finding
that his children were CINA.  The court found that A.H. suffers
from paranoid schizophrenia, the nature and duration of which is
"serious and life-long."  The court also found that "[a]s a result
of this illness, [A.H.] has experienced hallucinations and
delusions and a deteriorating ability to function in society."
          This court has stated 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.'" [Fn. 16]  In
this case, the superior court found that A.H.'s delusions have
directly impacted his family, creating "a substantial risk" that
A.H. will physically harm the children.
          In addition, the court found:
          In part due to his mental illness, [A.H.] has
great difficulty in meeting his own needs, much less the needs of
his children.  [A.H.] is unable to maintain steady housing,
employment, financial solvency and social relationships.

          . . . .

          [T]he court finds that [A.H.'s] mental illness
impairs his ability to parent.  Given the children's vulnerability
due to their young age and developmental disabilities, his mental
illness has resulted in a substantial risk of physical and mental
injury to the children while they were in his care and would result
in such harm if the state had not removed them from his care. 

The record supports the court's findings.  Thus, the superior court
did not err in finding that A.H.'s mental illness has resulted in
a substantial risk of physical and mental injury to the children.
          The termination statute requires a determination that the
children were CINA based on any of the factors listed in AS
47.10.011. [Fn. 17]  In this case, the superior court based its
CINA finding on three separate bases: neglect, domestic violence,
and mental illness.  Because the record supports each of these
bases, we conclude that the superior court did not err in
determining that the children were CINA.
     B.   Did the Superior Court Err in Finding that A.H. Had         Not
Remedied the Conduct and Conditions that Placed the  Children at
Risk of Harm?

          Under AS 47.10.088, a court may terminate parental rights
if it finds that the parent "has not remedied the conduct or
conditions in the home that place the child at substantial risk of
harm," [Fn. 18] or if the parent "has failed, within a reasonable
time, to remedy the conduct or conditions in the home that place
the child in substantial risk so that returning the child to the
parent would place the child at substantial risk of physical or
mental injury." [Fn. 19] 
          A.H. argues that he has made an effort to apply what he
has learned through agency services, and that he has never had a
reasonable opportunity to demonstrate that he has remedied the
conduct or conditions in the home that placed his children at
substantial risk of harm.  DFYS responds that to the contrary, it
gave A.H. "several years, both before and after the children were
removed from the home, to demonstrate that he could remedy the
conduct or conditions in the home that place the child at
substantial risk of harm." 
          The superior court found clear and convincing evidence
that A.H. has not remedied the conduct and conditions that placed
his children at risk of harm.  Specifically, the court found that
A.H.'s behavior "has deteriorated" since the children have been
removed from his care.  Each of these findings by the superior
court is supported by the record:
              A.H. continues to be involved in domestic
violence.  In June 1998 he was convicted of assaulting M.H.

              As of October 1998, A.H. had not gone to
court-ordered anger management counseling.

              In July 1999 A.H. was arrested for
stalking M.H. and assaulting her boyfriend.

              A.H. has not maintained sobriety, and as
of October 1998 had not gone to court-ordered alcohol counseling.

          
    A.H. has not consistently taken the
medication that could alleviate the symptoms of his mental illness. 
He continues to have disturbing delusional thoughts including
current delusions that revolve around computers causing bodily harm
to people.

              A.H. has refused to allow service workers
in the home since the children were removed and has not
demonstrated that he can provide his children with a stable, safe
and nurturing home.

              A.H. continues to have trouble budgeting
his finances and placing the needs of his children first.  In March
1998 he cashed an agency check that was meant to provide for
expenses during a visit with his children in Sitka and spent that
money on alcohol.

              A.H. arrived in Sitka to visit his
children with no money for food during the visit.

          Although A.H. argues that he has never had an opportunity
to demonstrate his ability to apply new skills, that is not the
relevant inquiry. [Fn. 20]  Rather, the question is whether A.H.
has remedied the conduct or conditions that placed his children at
substantial risk. [Fn. 21]  A.H. asserts that he has made an effort
to apply what he has learned, including preparing balanced meals
and developing skills in anger management, but the record suggests
that A.H. did not make any real, lasting improvements in his
behavior.  For example, Edward Jones, a case manager for JAMI,
stated that although A.H. had attempted to comply with
recommendations, he "honestly can't say that [A.H.] made any real,
real progress" in his "independent living skills," including such
things as cleaning, shopping, hygiene, and laundry.  In addition,
John McClure, a DFYS social worker stated that although A.H. had
been cooperative, he did not believe that A.H. could "maintain,
sustain, any type of long-term changes."  Thus, we conclude that
the superior court did not err in finding that A.H. failed to
remedy the conditions that placed his children at risk of harm.
     C.   Did the Superior Court Err in Finding that the State        Made
Active Remedial Efforts that Have Proved Unsuccessful?

          In termination proceedings, AS 47.10.086 requires the
State to make reasonable efforts to identify support services and
to actively offer those services to the parents. [Fn. 22]  In
addition, because A.H.'s children are Indian children within the
meaning of ICWA, [Fn. 23] the State was required to prove by a
preponderance of the evidence that its active efforts to provide
remedial services were unsuccessful. [Fn. 24]
          The superior court found by a preponderance of the
evidence that "the state made timely, reasonable and active efforts
to provide support services to the [H.s] to prevent out-of-home
placement and, once removed from the home, to provide support
services to enable the safe return of the children."  The superior
court found that the State satisfied its duty to provide reasonable
efforts under AS 47.10.086(a) by: "(1) identifying family support
services that would assist the parents in remedying the conduct or
conditions in the home that made the children in need of aid; (2)
actively offering the parents and referring the parents to such
services; and (3) documenting such actions."  The superior court's
findings on this issue occupy three pages of its decision.
          The court noted, for example, that DFYS "began providing
services within weeks of [T.'s] birth," and that at least fourteen
different types of services by different organizations were
provided for the H.s prior to the children's removal in 1997.
          Also, after removal from the home, the court noted that
various organizations continued to provide services to the H.s in
the areas of financial management, psychiatric care, counseling,
parenting and homemaking services -- "until the parents declined
further services," supervised visitation between the parents and
children, alcohol assessments, alcohol recovery support, two paid
trips to Sitka for visitation, and periodic treatment team meetings
between the main service agencies.  The record supports the court's
findings.
          In his brief, A.H. concedes that the State made "active
efforts" to return his children to the home.  He argues, however,
that the programs and services were "very stressful" and that "the
intensity of the H.s' program schedule was not reasonable." 
Consequently, he explains, the H.s "began isolating themselves more
and more from the services available to them."
          We have recognized that "a demonstrated lack of
willingness to participate in treatment [is a] relevant factor[] in
determining the reasonableness of the State's remedial efforts."
[Fn. 25]  In this case, DFYS and other agencies provided services
to A.H. in each area of concern: parenting, domestic violence, and
mental health.  And in order not to overload the H.s, the agencies
collectively scheduled all appointments for just three days a week.
          Because the State made a number of support services
available to the H.s, the superior court did not err in determining
that the State made active, reasonable efforts to promote the
children's safe return to their parents.  And despite these
efforts, the record indicates that A.H. continued to have
difficulty in his independent living skills, maintaining sobriety,
refraining from domestic violence, and achieving mental stability. 
Thus, the superior court did not err in concluding that the State's
efforts were active and reasonable, but that they were unsuccessful
in preventing the eventual breakup of the H. family. [Fn. 26]
     D.   Did the Superior Court Err in Finding that Continued
Custody by A.H. Would Likely Result in Serious Emotional and
Physical Damage to the Children?

          Next, in order for the court to terminate parental rights
for an Indian child, ICWA requires the State to prove that "the
continued custody of the child by the parent . . . is likely to
result in serious emotional or physical damage to the child." [Fn.
27]  Here, the superior court did find evidence "beyond a
reasonable doubt that continued custody by [A.H.] is likely to
result in serious emotional and physical damage."  The superior
court based this finding "on all the evidence presented, including
expert testimony; the vulnerability of the children given their age
and developmental disabilities; and the long-standing history and
complexity of the parents' problems that prevent them from meeting
their children'[s] physical and emotional needs."
          A.H. argues that "after June, 1998 there is virtually
nothing in the record to demonstrate that A.H.'s conduct was such 
that it would pose a threat of serious emotional and physical
damage to the children."  But, to the contrary, the record suggests
that A.H. has not remedied his inability to meet his children's
needs, and that they would continue to suffer emotional and
physical damage as a result.
          For example, testimony at trial indicated that A.H. had
not made any real progress in his "independent living skills,"
including cleaning, shopping, hygiene, and laundry.  He also has
not maintained steady housing.  In June 1999 he was charged with
stalking M.H. and assaulting her boyfriend. Moreover, A.H.
continues to suffer from paranoid delusions.  In June 1999 he wrote
a letter to Judge Weeks in which he stated that evil spirits live
in the computer network and that there are "treatment teams" that
are released from institutions to rape and molest children, and to
stalk, rape, and "electro-shock" others.
          The record indicates that when the H.s visited the
children in Sitka after they had been living with their foster
mother, the children exhibited severe emotional distress.  Eric
Wharton, a child protection social worker who was present during
the H.s' visits, testified that the girls "were clearly
uncomfortable with their relationship" with the H.s.  He stated
that "there were several times that . . . [A.H.] had tried to place
[K.] on [his] lap and she wanted to get off right away."  He also
stated that when A.H. made a physical move around K., she
"flinched," and had "a real visible physical reaction . . . her
body moved back . . . and then her head also moved back as if she
was trying to avoid something."  M.H.'s response to K. was, "no
baby doll, Daddy won't hit you."
          Mr. Wharton also testified that after the initial
December 1997 visit, the girls experienced "a regression."  He
stated:
          There was a lot of progress in -- in certain
areas, but there was a definite regression back to when they were
first placed, and a real clingy-ness to [the foster mother].  A lot
of tears.  The nightmares were real extreme again.  And also both
of them had gone back to that, it's almost like a comatose reaction
to any -- any kind of interaction with [the H.s].

          After the H.s visited again in April 1998, the girls
regressed once more.  They had "extreme nightmares," and T. made
"blood-curdling screams in the night where [their foster mother]
would get up and try and settle the girls down and assure them that
things were fine."
          Based on the evidence in the record, we conclude that the
superior court did not err in finding that the continued custody by
A.H. would likely result in serious emotional and physical damage
to the children.
     E.   Did the Superior Court Err in Finding that Terminating
A.H.'s Parental Rights is in the Children's Best Interests?

          Finally, in order for the court to terminate parental
rights, it "shall consider the best interests of the child." [Fn.
28]  And "the best interests of the child, not those of the
parents, are paramount." [Fn. 29]  In this case, the superior court
found that "it is in the best interests of the children to
terminate the rights of [A.H.] but not the rights of [M.H.]."  A.H.
argues that because there were no reports of physical abuse of the
children by A.H., even though "there were forms of neglect of the
children," nothing suggests that "the neglect was willful . . . or
that [A.H. was] unable to learn and apply new parenting skills."
          But A.H. has been physically abusive towards M.H. in the
children's presence, and although no one argues that his neglectful
behavior was purposeful, he did, in fact, fail to provide basic
care for his children.  And as discussed above, the record
indicates that A.H. was not able to remedy the harmful conditions
that triggered DFYS involvement and his children's CINA status,
even if he has not had a direct opportunity to try parenting again.
          As the State points out, the present case is
distinguishable from this court's recent decision in A.B. v. State,
Department of Health & Social Services. [Fn. 30]  In that case,
this court vacated the superior court's best interests finding
because it failed to make clear whether it decided to terminate the
mother's rights "for the purposes of freeing [the child] for
adoption or other permanent placement." [Fn. 31]  This court
concluded that, "[f]or the same reason, it is unclear whether
terminating [the mother's] parental rights is in the best interests
of [the child]." [Fn. 32]
          We reached that decision in A.B. because although the
State petitioned to terminate the mother's parental rights, it
sought to reunite the child with her father. [Fn. 33]  We further
observed that the facts of A.B. were "unusual," and that "[w]ith
her biological father as her custodian, losing [her rights of
inheritance] from her other natural parent would not appear to be
in [the child's] best interests." [Fn. 34]  Here, by contrast, the
State petitioned to terminate the parental rights of both A.H. and
M.H., planning to free the children for adoption.  And the superior
court ordered the children to remain with their foster mother,
limiting M.H.'s visitation rights.
          Given the significant needs of the children, their
attachment to their foster mother, and A.H.'s failure to improve
his behavior, substantial evidence exists to support the superior
court's best interests finding.
V.   CONCLUSION
          The superior court did not err in its findings (1) that
the children were in need of aid, (2) that A.H. failed to remedy
the conduct or conditions that placed the children at risk, (3)
that DFYS made reasonable but unsuccessful efforts to support the
H.s and foster the safe return of the children to the family home,
(4) that continued custody by A.H. would likely result in serious
emotional and physical damage to the children, and (5) that
terminating A.H.'s parental rights is in the children's best
interests.  We therefore AFFIRM the superior court's decision.


                            FOOTNOTES


Footnote 1:

     See AS 47.10.011; 25 U.S.C. sec. 1915 (1994).

 


Footnote 2:

     See A.B. v. State, Dep't of Health & Soc. Servs., ___ P.3d
___, Op. No. 5312 at 8 (Alaska, September 8, 2000).


Footnote 3:

     Id.


Footnote 4:

     See D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 207 (Alaska 2000).


Footnote 5:

     AS 47.10.088(a).


Footnote 6:

     See AS 47.10.088(2)(1)(A)-(B)(i).  Also, in determining
whether the parent has remedied the conduct or conditions that
place the child at substantial risk of harm, AS 47.10.088(b)
provides that 

          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.


Footnote 7:

     A.B. v. State, Dep't of Health & Soc. Servs., ___ P.3d ___,
Op. No. 5312 at 7-8 (Alaska, September 8, 2000); see also AS
47.10.086.  AS 47.10.086(a) provides, in relevant part:

          {T]he department shall make timely, reasonable
efforts to provide family support services to the child and to the
parents . . . of the child that are designed to prevent out-of-home
placement of the child or to enable the safe return of the child to
the family home, when appropriate, if the child is in an out-of-
home placement.  The department's duty to make reasonable efforts
under this subsection includes the duty to 

               (1)  identify family support services
that will assist the parent or guardian in remedying the conduct or
conditions in the home that made the child a child in need of aid;

               (2)  actively offer the parent . . . and
refer the parent . . . to, the services identified under (1) of
this subsection; the department shall refer the parent . . . to
community-based family support services whenever community-based
services are available and desired by the parent . . . ; and 

               (3)  document the department's actions
that are taken under (1) and (2) of this subsection.


Footnote 8:

     AS 47.10.088(c). 


Footnote 9:

     See AS 47.10.011.


Footnote 10:

     AS 47.10.011(9) provides that a court may find CINA status
when it finds "conduct by or conditions created by the parent . .
. have subjected the child . . . to neglect."


Footnote 11:

     AS 47.10.088(a)(1)(A) (emphasis added).


Footnote 12:

     D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205,
209 (Alaska 2000).


Footnote 13:

     See id.


Footnote 14:

     In re J.A., 962 P.2d 173, 178 (Alaska 1998).


Footnote 15:

     D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205,
209 (Alaska 2000).


Footnote 16:

     J.P.W. v. State, 921 P.2d 604, 608 (Alaska 1996).


Footnote 17:

     See AS 47.10.088(a)(1)(A).


Footnote 18:

     AS 47.10.088(a)(1)(B)(i).


Footnote 19:

     AS 47.10.088(a)(1)(B)(ii).


Footnote 20:

     See J.P.W. v. State, 921 P.2d 604, 608 (Alaska 1996) (superior
court's predictive finding that father's neglect would continue was
proper because his ongoing conduct was "well-documented in the
record," even though father never had a chance to further
demonstrate his conduct).


Footnote 21:

     See A.B. v. State, Dep't of Health & Soc. Servs., ___ P.3d
___, Op. No. 5312 at 13-14 (Alaska, September 8, 2000).


Footnote 22:

     AS 47.10.086(a) provides, in relevant part, that 

          the department shall make timely, reasonable
efforts to provide family support services to the child and to the
parents . . . of the child that are designed to prevent out-of-home
placement of the child or to enable the safe return of the child to
the family home, when appropriate, if the child is in an out-of-
home placement.  The department's duty to make reasonable efforts
under this subsection includes the duty to

               (1)  identify family support services
that will assist the parent or guardian in remedying the conduct or
conditions in the home that made the child a child in need of aid;

               (2)  actively offer the parent . . . and
refer the parent . . . to, the services identified under (1) of
this subsection; the department shall refer the parent . . . to
community-based family support services whenever community-based
services are available and desired by the parent or guardian; and 

               (3)  document the department's actions
that are taken under (1) and (2) of this subsection.


Footnote 23:

          25 U.S.C. sec.sec. 1901-1923 (1994).


Footnote 24:

     See 25 U.S.C. sec. 1912(d) (1994) (the State must make "active
efforts . . . to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and
[show] that these efforts proved unsuccessful"); Child in Need of
Aid Rule 18(c)(2) (establishing preponderance of evidence
standard). 


Footnote 25:

     A.M. v. State, 945 P.2d 296, 304 (Alaska 1997) (also
cautioning 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").


Footnote 26:

     The superior court did not make an express finding that the
State's efforts had proved unsuccessful, as required by 25 U.S.C.
sec. 1912(d), but the rest of its findings make that point self-
evident.  Nor does A.H. argue on appeal that the State failed to
establish that its efforts were unsuccessful.


Footnote 27:

     25 U.S.C. sec. 1912(e) (1994).

 


Footnote 28:

     AS 47.10.088(c); see also CINA Rule 18(c)(2)(C) (before the
court may terminate parental rights, the Department must prove by
a preponderance of the evidence that termination of parental rights
is in the best interests of the child).


Footnote 29:

     A.B. v. State, Dep't of Family & Youth Servs., 982 P.2d 256,
260 (Alaska 1999).


Footnote 30:

     ___ P.3d ___, Op. No. 5312 (Alaska, September 8, 2000).


Footnote 31:

     Id. at 16.


Footnote 32:

     Id. at 16-17.


Footnote 33:

     Id. at 1-2.


Footnote 34:

     Id. at 19.