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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. C.J. v. State, Dept. of Health & Social Services (3/16/01) sp-5372

C.J. v. State, Dept. of Health & Social Services (3/16/01) sp-5372

     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
                                 


C.J.,                         )
                              )    Supreme Court No. S-9518
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-98-95/6 CP
                              )
STATE OF ALASKA, DEPARTMENT OF)
HEALTH AND SOCIAL SERVICES,   )    O P I N I O N
                              )
             Appellee.        )    [No. 5372 - March 16, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        John Reese, Judge.


          Appearances: Thom F. Janidlo, Anchorage, for
Appellant.  Vennie E. Nemecek, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, and
Robert R. Polley, Assistant Public Advocate, Anchorage, and Brant
McGee, Public Advocate, Anchorage, for Appellee. 


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


          CARPENETI, Justice.



I.   INTRODUCTION
          C.J. appeals the decision of the superior court to
terminate his parental rights.  The superior court found that
C.J.'s children were in need of aid, that the state had made active
efforts to reunify C.J. with his children, and that placement with
C.J. was likely to result in serious physical or emotional damage
to the children.  Because the state did not produce evidence 
beyond a reasonable doubt that placement of the children with C.J.
is likely to result in serious emotional or physical damage to the
children, and because the state did not make active efforts to
reunify C.J. with his children, we reverse the termination of 
C.J.'s parental rights.       
II.  FACTS AND PROCEEDINGS
          J.J. (mother) and C.J. (father) are the biological
parents of T.J. and K.J.  Until February 1998 the children lived
with their mother in Anchorage, while C.J. resided in Florida with
another of his children, R.J., who is not involved in this case. 
T.J. and K.J. are Indian children as defined by the Indian Child
Welfare Act (ICWA), [Fn. 1] based on the tribal affiliation of
their mother. 
          On February 22, 1998, Anchorage police took T.J. and
K.J., then four and two years of age, into protective custody after
strangers found them wandering unsupervised in the street, dressed
only in underclothes in thirty-two degree weather.  Their mother
had left the children alone between 8:30 and 9:00 p.m., and did not
return home until after 10:00 p.m., at which time she was extremely
intoxicated.  She was arrested and charged with child abuse or
neglect.  
          The Department of Health and Social Services, Division of
Family and Youth Services (DFYS) assumed custody of the children
and subsequently filed a Petition for Adjudication of Children in
Need of Aid.  After a probable cause finding was made in March, the
children were placed into foster care.  At a full adjudication in
August, the court found that the children were in need of aid. 
          At the request of the parties and pursuant to the
Interstate Compact on the Placement of Children (ICPC), [Fn. 2] the
superior court ordered "the Compact Administrator for the State of
Florida" on three different occasions to conduct an expedited home
study of C.J.'s living situation.  DFYS social worker Larry
Overholser testified that he received two letters from the assigned
coordinator in Florida in response to these requests.  The first
letter, dated April 15, allegedly indicated that C.J. claimed to be
unable to care for the children at that time.  No further
explanation was provided by Mr. Overholser.  For his part, C.J.
testified that when he was first contacted about taking his
children, he was unable to do so because of travel required by his
work.  The second letter, dated October 12, stated that C.J. had
failed to respond to requests for basic personal and employment
information and had not been able to establish a stable home after
several months, but also stated that he wished to take his
children.  C.J. testified that he had quit his job in order to be
able to take his children, and that a home study of his house by
the Florida social worker was favorable: "She said that she thought
it would be fine, and a good place for the kids."  Nonetheless,
placement of the children with C.J. was denied by Florida
authorities. 
          C.J. maintained telephone contact with the children at
the foster home approximately once or twice a month during 1998. 
However, his phone calls ceased after Christmas of 1998.  Attempts
by the foster parent to contact C.J. a few months later failed. 
C.J. testified that "there is no excuse for me not contacting them
for that period of time," but he also said that he "really fell
apart after I was told I'm -- I wasn't going to get them, period." 
In April 1999 the court ruled that DFYS need not take further steps
to return the children to the home.  The social worker was able to
contact C.J. in October of 1999, at which time C.J. expressed an
interest in taking custody of the children. 
          A trial to terminate parental rights was held on November
8, 1999.  J.J. appeared in person, and C.J. participated
telephonically.  After hearing the evidence, the superior court
terminated the parental rights of both parents.  With respect to
C.J., the court found: (1) C.J. had abandoned his children as
defined by statute, (2) C.J.'s conduct caused the children to be
children in need of aid, which would continue unless parental
rights were terminated, (3) active and reasonable efforts had been
made to reunify C.J. and his children, and (4) return of the
children to C.J. was likely to cause serious emotional and/or
physical damage. 
          C.J. appeals.
III. STANDARD OF REVIEW
          When reviewing issues of termination for a child in need
of aid, findings of fact made by the superior court will be upheld
unless they are clearly erroneous. [Fn. 3]  Factual findings are
clearly erroneous if they leave the reviewing court with a definite
and firm conviction that a mistake has been made. [Fn. 4] 
          Whether the superior court's factual findings comport
with the requirements of the child in need of aid statutes or ICWA
are questions of law that this court will review de novo. [Fn. 5]
IV.  DISCUSSION
          The decision to terminate parental rights in this case is
governed by both state and federal statutes.  Alaska standards for
terminating parental rights are provided in AS 47.10.088, which
requires that the court find (1) by clear and convincing evidence
that the child is in need of aid, [Fn. 6] (2) by clear and
convincing evidence that the parent has not remedied the
circumstances that put the child in need of aid, [Fn. 7] and (3) by
a preponderance of the evidence that reasonable efforts were made
by DFYS to support reunification of the family. [Fn. 8]  In making
these findings, the court can also consider any factor that relates
to the best interest of the child. [Fn. 9] 
          In addition to the state requirements, the children in
this case fall under the more stringent protections of ICWA. [Fn.
10]  That federal statute requires that any party seeking a
termination of parental rights must satisfy the court that active
efforts have been made to keep the family together and that those
efforts have proved unsuccessful. [Fn. 11]  In addition, the court
must find beyond a reasonable doubt, [Fn. 12] based on evidence
that includes testimony of a qualified expert, that placement with
the parents is likely to result in serious emotional or physical
damage to the children. [Fn. 13]        The superior court found
that all the requirements of both statutes had been satisfied in
this case.  C.J. argues that the court erred in each of those
findings. 
     A.   The State Did Not Present Sufficient Evidence to Support
a Finding Beyond a Reasonable Doubt that Placement with C.J. Is
Likely to Result in Serious Physical or Emotional Damage to the
Children.
          C.J. argues that the court erred in finding that serious
physical or emotional damage was likely to result from placement
with him.  C.J. claims that evidence that he is capable of being a
good father to the children creates a reasonable doubt.  The state
counters that the testimony of its expert, Dr. Sheila Carlson,
provides sufficient support for the court's finding on this point. 
          Despite the fact that C.J. communicated his renewed
interest in being a parent to the children a month before the
termination hearing, this last-minute position is weakened by
evidence that for several months C.J. did not show an interest in
caring for his children.  He had been completely out of contact
with his children for over ten months prior to the hearing, had not
been in contact with his attorney in this matter, had not responded
to requests for information from Florida representatives, and had
not personally participated in several previous hearings regarding
the children.  For a substantial period, it can accurately be said
that C.J. made no effort to demonstrate his fitness as a parent.  
          However, C.J. does not have the burden to show that he
would be a fit parent.  Instead, DFYS has the burden to show beyond
a reasonable doubt that failure to terminate parental rights is
likely to result in serious emotional or physical harm to the
children.  But the evidence presented by DFYS in this case is
insufficient to meet that standard, both in the sense that there is
limited evidence against him and substantial evidence in C.J.'s
favor.                   
          1.   The testimony of the state's expert was
insufficient to meet its burden.  
          ICWA explicitly requires that evidence establishing that
placement with the parent is likely to result in serious physical
or emotional harm to the children must "includ[e] testimony of
qualified expert witnesses." [Fn. 14]
          The expert presented by DFYS, Dr. Carlson, testified that
previous experiences of intermittent contact with their father had
been traumatic for the children.  In addition, Dr. Carlson
expressed concerns that additional similar experiences in the
future could lead to serious physical or emotional harm.  
          However, the conclusions of Dr. Carlson are considerably
weakened by the fact that she received all information about this
case from reading the file given to her by DFYS and never met or
spoke with either C.J. or the children prior to the hearing.  In
addition, her conclusions appear to be little more than
generalizations about the harms resulting from a parent's absence
and provide little discussion of the particular facts of this case. 
We do not hold that a meeting between the expert and the parties to
the termination proceeding is required in every case.  But the
expert opinion should be based on the particular facts and issues
of the case to a greater extent than occurred here, in order to
support a finding, beyond a reasonable doubt, that serious physical
or emotional harm will result.  Moreover, the insufficiency of the
expert's testimony becomes even more apparent when the evidence of
C.J.'s current living situation is considered in detail.
          2.   The state's evidence regarding C.J.'s current
living situation was insufficient. 
          C.J. alleged that his actions and the circumstances which
might have led the court to find that the children were in need of
aid in 1998 had changed by the time of trial in 1999, and there was
no reason to think that his inability or inattention to the task of
caring for his children would continue into the future.  C.J.
argues that the superior court's decision to terminate was improper
because he informed the court of his improved work situation and
expressed a willingness to take care of the children at the
termination hearing.  The state responds that C.J. continued to
evidence his abandonment of the children by continually failing to
participate in the Child in Need of Aid proceedings involving his
children.  
          We have said that a decision to terminate parental rights
will be reversed "if sufficient 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." [Fn. 15] 
          In this case there is unrebutted evidence in the record
that C.J. was successfully parenting his older child, as well as
evidence that he wished to parent T.J. and K.J. and had taken steps
to put himself in a position to do so.  He testified that, because
the state had made it a condition of gaining custody of his
children that he quit his job that required travel, he did so and
was in the process of relocating.  He testified that he obtained
steady employment with one company that provided insurance coverage
for his children, that he had a good home for the children that the
social worker had approved, and that he had been led to believe by
the social worker in Florida that he would get custody of the
children.  While the superior court is not required to credit
C.J.'s testimony or weigh it more heavily than contrary testimony,
we are struck by the paucity of contrary evidence regarding these
points in the record.  It consists only of Larry Overholser's
testimony as to the conclusory statements of unnamed Florida
officials to the effect that C.J. was not approved for placement of
the children.
          The state relied on the Florida social worker to
investigate the appropriateness of C.J.'s living situation for
placement of the children.  However, the only evidence of this
investigation that the state presented at trial was the testimony
of DFYS social worker Larry Overholser who reported the content of
communications with Florida officials.  The state failed to produce
any direct evidence from Florida officials or any documents from
Florida setting out what Florida officials had done.  In addition,
according to Overholser's testimony, the denial of placement by
Florida officials was based on the bare assertion that C.J. failed
to respond to requests for information and a statement from C.J.
that he was unable to care for the children at the time that he was
first contacted.  But as discussed above, there was substantial and
detailed evidence to the contrary in the record.  We conclude that
the evidence in this case was insufficient to show, beyond a
reasonable doubt, that placement of the children with C.J. was
likely to result in serious emotional or physical damage to the
children.  In short, the evidence was insufficient to support
termination of C.J.'s parental rights. 
     B.   The State Did Not Show that It Had Made Active Efforts To
Keep the Family Together.
     
          The paucity of evidence regarding what occurred in
Florida is especially troubling in light of ICWA's requirement that
the state engage in active efforts to prevent the breakup of the
family. [Fn. 16]  Generally, active efforts require that "the state
caseworker take[] the client through the steps of the plan [for
reunification of the family]." [Fn. 17]  The state's efforts to
work with C.J. toward reunification in this case are minimal.  It
appears that the state was satisfied with allowing Florida
officials to investigate the case and make reports on their
efforts.  It is not clear that Florida officials understood that
the high standards of  ICWA applied to this case or that active
efforts were required.
          As noted, ICWA requires that a court be able to determine
beyond a reasonable doubt that placement of the children with the
parent is likely to result in serious damage. [Fn. 18]  The
evidence in this case leaves so much uncertainty about C.J.'s
present circumstances that such a finding cannot be sustained.  And
ICWA requires that the state make "active efforts . . . to provide
remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family." [Fn. 19]  Again, there is
insufficient evidence here to sustain that finding.     
V.   CONCLUSION
          DFYS did not present the superior court sufficient
evidence for it to find that the demanding standards of ICWA had
been met in this case.  We are left with the firm conviction that
it was a mistake for the superior court to find, beyond a
reasonable doubt, that the children are likely to suffer serious
physical or emotional damage if returned to the care of their
father.  Therefore we REVERSE the decision to terminate C.J.'s
parental rights.   


                            FOOTNOTES


Footnote 1:

     25 U.S.C. sec.sec. 1901-23 (2000). 


Footnote 2:

     AS 47.70.010.


Footnote 3:

     See A.B. v. State, Dep't of Health & Social Servs., 7 P.3d
946, 950 (Alaska 2000); A.A. v. State, Dep't of Family and Youth
Servs., 982 P.2d 256, 259 (Alaska 1999). 


Footnote 4:

     See A.B., 7 P.3d at 950.


Footnote 5:

     See id.; A.A., 982 P.2d at 259. 


Footnote 6:

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


Footnote 7:

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


Footnote 8:

     See AS 47.10.088(a)(2).


Footnote 9:

     See AS 47.10.088(b).


Footnote 10:

     ICWA applies even though this case concerns termination of the
rights of a non-Indian parent. See In re Adoption of T.N.F., 781
P.2d 973, 978 (Alaska 1989), cert. denied, Jasso v. Finney, 494
U.S. 1030 (1990).


Footnote 11:

     See 25 U.S.C. sec. 1912(d).


Footnote 12:

     ICWA's requirement that this element be established "beyond a
reasonable doubt" does not conflict with the findings required
under AS 47.10.088, which generally require "clear and convincing
evidence," because ICWA and the state statute assess different
considerations.  See In re J.R.B., 715 P.2d 1170, 1172 (Alaska
1986).  


Footnote 13:

     See 25 U.S.C. sec. 1912(f).


Footnote 14:

     25 U.S.C. sec. 1912(f).


Footnote 15:

     In re J.W., 921 P.2d 604, 607 (Alaska 1996) (internal
quotation marks omitted). 


Footnote 16:

     25 U.S.C. sec. 1912(d). 


Footnote 17:

     Craig J. Dorsay, The Indian Child Welfare Act and Laws
Affecting Indian Juveniles Manual 157-58 (1984) (citation omitted),
quoted with approval in A.A., 982 P.2d at 261; see also A.M. v.
State, 945 P.2d 296, 306 (Alaska 1997).


Footnote 18:

     25 U.S.C. sec. 1912(f).


Footnote 19:

     25 U.S.C. sec. 1912(d).