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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. N.A. v. State (3/23/01) sp-5374

N.A. v. State (3/23/01) sp-5374

     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
                                 


N.A.,                         )
                              )    Supreme Court No. S-9578
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-91-100 CP
                              )
STATE OF ALASKA, DFYS,        )    O P I N I O N
                              )
             Appellee.        )    [No. 5374 - March 23, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                    Ralph R. Beistline, Judge.


          Appearances: Robert S. Noreen, Law Office of
Robert S. Noreen, Fairbanks, for Appellant.  Susan Paterson,
Assistant Attorney General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.


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


          CARPENETI, Justice.


I.   INTRODUCTION
          The superior court terminated N.A.'s parental rights to
her two daughters because of N.A.'s alcohol dependency, her mental
impairment causing an inability to control her rage, and her
continuing choice to live with a convicted sex offender.  N.A.
appeals, arguing that the superior court's failure to hold a
permanency hearing violated due process and that the court erred in
concluding that the state made active efforts to provide remedial
services and rehabilitative programs designed to prevent the
termination of her parental rights.  We affirm.
II.  FACTS AND PROCEEDINGS
     A.   N.A.'s General Background
          N.A. is the biological mother of five children: three
girls, currently ages thirteen, seven, and five; and two boys, ages
eleven and ten. 
          At various times between 1988 and 1997, doctors have
diagnosed N.A. with alcohol dependency, borderline personality
disorder, organic brain disorder, and alcohol amnestic disorder. 
Paul Craig, Ph.D., a neuropsychologist who diagnosed N.A. with
alcohol amnestic disorder, stated that N.A. "may not be capable of
learning the skills necessary to function adequately as a parent." 
At least once, N.A. admitted to physically and verbally assaulting
her sons. 
          In the past ten years, N.A. has entered substance abuse
treatment programs three times.  She completed the first program
successfully, staying sober during her 1993 pregnancy.  The last
two attempts were unsuccessful: one program discharged her for
disruptive behavior, and N.A. left the other.  While N.A. had some
periods of sobriety, she had at least three relapses between May
1998 and the termination hearing in November 1999. 
          N.A. lived with Reginald Smith, a convicted sex offender. 
Their relationship began in 1988.  At that time, Smith was on
probation after serving a year in jail on the felony charge of
second degree sexual abuse of a minor.  One condition of Smith's
probation prohibited him from being alone with children.  Smith is
the father of N.A.'s last four children.  At one time, N.A. alleged
that Smith sexually abused her youngest daughter, but N.A. has
since recanted that statement. 
          N.A. and Smith's relationship has been marked by violent
episodes.  N.A. alleged that Smith struck her with his fist and
broke her jaw in 1990.  In 1992 N.A. stabbed Smith in the chest;
Smith was hospitalized for several weeks but recovered.  In a later
argument with Smith, N.A. broke the windshield of Smith's car and
tried to slash his tires. 
     B.   State Involvement with N.A. and Her Children
          The Division of Family and Youth Services has been
involved with N.A. since the birth of her first child, a daughter,
in 1987.  After several reports of parental neglect, this child was
placed with her biological father. 
          In 1989 N.A. and Smith had their first child, a boy.  In
1990 N.A. gave birth to their second son. 
          In 1991 N.A. left her home intoxicated, leaving her two
infant sons alone with Smith, a violation of Smith's parole
conditions.  The state took temporary custody of the boys.  While
in state custody, doctors examined the boys and diagnosed them as
being at high risk for developmental problems.  The court found the
boys to be children in need of aid and committed the boys to state
custody. 
          In August 1992 N.A. was convicted of felony assault.  She
thereafter violated her probation and was court-ordered into a
residential alcohol treatment program.  From late 1992 through mid-
1993, she successfully completed the Dena A. Coy residential
alcohol program for pregnant women in the Northstar Center in
Anchorage.  In May 1993 she gave birth to a girl.  N.A. completed
an alcohol treatment aftercare program in Fairbanks with the
Regional Center for Alcohol and Other Addictions. 
          In 1994 the superior court terminated N.A.'s parental
rights to the boys because her alcohol dependency and mental
impairment caused her sons to be severely developmentally delayed
and to require special care that she was incapable of giving. 
While the appeal of the termination decision was pending, N.A. gave
birth to a second baby girl in June 1995. 
          In early 1996 this court reversed the termination of
N.A.'s parental rights to the boys.  We interpreted former AS
47.10.010(a)(2)(A) to require the state to show that a child had no
parent able and willing to provide care. [Fn. 1]  Because N.A.,
though unable to provide care, was willing to do so, we reversed
the termination of her parental rights. [Fn. 2]  We also held that
the evidence did not support the finding that the boys would face
"an imminent risk of substantial physical harm." [Fn. 3]  In June
the boys were placed back in N.A.'s care. 
          In April 1997 a division social worker found N.A.
intoxicated while attempting to care for a child.  The police
arrested N.A. for probation violation, and the division petitioned
for temporary custody of all four children.  N.A. agreed to enter
residential alcohol treatment; pending an opening in such a
program, N.A. was released from jail.  The girls were returned to
N.A. shortly thereafter, but the state retained temporary custody
of the boys. 
          In October of the same year, N.A. agreed to state custody
for her boys for two years or until she would be permitted to take
physical custody of them again in a residential alcohol treatment
program.  In November, when N.A. entered the Women's and Children's
Residential Program (WCRP), N.A.'s daughters were placed in state
custody while N.A. began the alcohol treatment program. 
          Within two months, N.A.'s placement at WCRP ended. 
Program counselors transported her to the Fairbanks Memorial
Hospital mental health ward after she confronted another patient,
threatened to hit a patient with a coffee pot, and used profane
language toward another patient and staff in front of children. 
Three days later, WCRP discharged N.A. and recommended a dual
treatment center -- a center that could provide treatment for both
alcoholism and mental health problems -- in Anchorage.  N.A.
preferred to stay in Fairbanks.  Her case worker agreed and had
N.A. placed at the Tanana Chiefs Conference (TCC) Paul Williams
House.  N.A.'s children remained in state custody.
          In late January 1998 N.A. entered the Fairbanks Rescue
Mission Fresh Start Program, which had experience working with
dual-diagnosis patients.  She left the program without completion
in mid-April 1998.  The Fairbanks Rescue Mission concluded that
N.A. did not benefit from group living situations and recommended
individual assisted living and an adult conservator.  N.A. was
placed back at the TCC Paul Williams House.  N.A.'s children
remained in state custody.
          On May 8 N.A. began a weekend drinking binge.  On May 10
N.A. arrived at the Paul Williams House intoxicated.  After
assaulting another client, N.A. was told to leave, and to return
when sober.  N.A.'s parole officer and police located her the
following day, found her intoxicated, and arrested her for
violating probation.  N.A. was placed in the Fairbanks Correctional
Center.  N.A. was released from jail on August 3. 
          On October 5, 1998, Judge Ralph R. Beistline held an
"Annual Review" hearing.  The division filed an "Annual Review of
Children in Need of Aid Report," which included its permanency plan
to terminate N.A.'s parental rights and free the children for
adoption.  On November 18 the superior court issued its decision to
continue state custody. 
          In the following six months, the division started to
implement its permanency plan.  The division filed a petition to
terminate N.A.'s parental rights to her sons.  The division
prepared a case plan for N.A.  This plan generally continued the
previous plan activities but added a new task of encouraging N.A.
to consider relinquishing parental rights to all four of her
children by Smith.  N.A. later relinquished her parental rights to
the boys. 
          The division also filed a termination petition for N.A.'s
daughters.  The termination trial was scheduled to start on
September 13, 1999.  In August, N.A.'s counsel moved to continue
the trial because he was recovering from major surgery.  The
superior court granted the motion and rescheduled trial to November
22. 
          During the months before trial, N.A. admitted to her
social worker that she had been beaten and raped during a drinking
incident.  As recently as three weeks before the termination trial,
N.A. admitted to another drinking episode. 
          A week before trial was scheduled to begin, N.A. filed a
motion asking for a permanency hearing and a continuance of the
termination trial.  The superior court denied the motion.  Trial
began on November 17.  On January 21, 2000, the trial court issued
its ruling to terminate N.A.'s parental rights to her daughters. 
III. STANDARD OF REVIEW
          Whether the state has complied with the "active efforts"
requirement of the Indian Child Welfare Act (ICWA) [Fn. 4] presents
a mixed question of law and fact. [Fn. 5]   Whether N.A.'s due
process rights have been violated is a question of law. [Fn. 6]  We
defer to the trial court's factual findings unless clearly
erroneous and review de novo any questions of law. [Fn. 7]
IV.  DISCUSSION
          N.A. argues two points in this appeal.  She contends that
the superior court (1) violated her due process rights by failing
to hold a permanency hearing; and (2) erred in concluding that the
state made active efforts to provide programs and services to
reunite N.A. with her children.
     A.   The Superior Court Did Not Violate Due Process.
          N.A. argues that the superior court's failure "to conduct
a permanency plan hearing as required by AS 47.10.080(l)" violated
her right to due process.  The state argues that the annual review
report, the October 5, 1998 hearing, and the superior court's
findings fulfilled the statutory requirements for a permanency plan
hearing. 
          Alaska Statute 47.10.080(l) [Fn. 8] provides that the
court shall hold a permanency plan hearing within twelve months
after the date a child enters foster care and hold review hearings
at least annually. [Fn. 9]  Under the Alaska Child in Need of Aid
Rules, permanency hearings require a state-generated report and
specific judicial findings. [Fn. 10]


          1.   The superior court fulfilled the requirements of a
permanency hearing.
          A permanency hearing must be held: (1) within twelve
months after the date the child entered foster care as calculated
under AS 47.10.088(f); (2) within thirty days after the court
determines pursuant to CINA Rule 17.1 that reasonable efforts are
not required; or (3) upon application by a party, when good cause
is shown. [Fn. 11]  According to AS 47.10.088(f), a child is
considered to have entered foster care on the earlier of the date
of a judicial finding of abuse or neglect or sixty days after the
date of removal from the child's home. [Fn. 12]  
          N.A.'s daughters entered state custody on November 3,
1997.  On that occasion, N.A.'s daughters were taken into state
custody to allow N.A. to enter a residential substance abuse
treatment program.  There was no judicial finding of neglect or
abuse.  Thus, the date on which the girls entered foster care is
January 2, 1998, sixty days after removal from N.A.'s home. 
Accordingly, AS 47.10.080(l) required that a permanency hearing be
held before January 2, 1999.
          What the court and the division have named the annual
review of 1998 fulfills the requirements of a permanency hearing. 
The court held a hearing on October 5, 1998, within twelve months
of the girls' entry into foster care.  As required by CINA Rule
17.2(c) and (e), the division filed a report including a proposed
permanent plan of terminating parental rights and supporting facts, 
and the court made appropriate findings.  Thus, the superior court
fulfilled the requirements of a permanency hearing.
          2.   The superior court did not err by failing to hold a
review within one year of the permanency hearing.
          Although her argument is unclear, N.A. may be basing her
due process claim on the superior court's failure to hold an annual
review before the termination hearing.  Alaska Statute
47.10.080(l)(5) requires that the superior court hold a review at
least annually after the permanency hearing.  The equivalent of a
permanency hearing was held on October 5, 1998.  There is no record
of an annual review on or before October 5, 1999.
          A failure to timely hold an annual review is normally
error.  In this case, however, the court originally scheduled the
termination hearing for September, before the statute required an
annual review.  N.A.'s counsel requested the continuance that
resulted in delaying the termination hearing to a date more than
twelve months from the permanency hearing.  Thus, by delaying the
termination trial, N.A. in effect artificially manufactured the
need for an annual review.  Under these circumstances, the superior
court did not err in failing to hold an annual review before the
termination trial.
     B.   The Superior Court Did Not Err in Concluding that the
State Made Active Efforts to Reunite N.A. with Her Children.
     
          One requirement of terminating parental rights under 
ICWA is proof by a preponderance of the evidence that the state has
made active, but unsuccessful, efforts to provide remedial services
and rehabilitative programs designed to prevent the breakup of the
family. [Fn. 13]  Active efforts occur "where the state caseworker
takes the client through the steps of the plan rather than
requiring that the plan be performed on its own." [Fn. 14]  The
determination of active efforts is done on a case-by-case basis.
[Fn. 15]
          In this case, the state's efforts were more than active;
they were exemplary.  The division and the Department of
Corrections worked together with the Tanana Chiefs Conference to
provide numerous and varied types of assistance to N.A. [Fn. 16] 
A partial list of recent efforts includes: placing N.A. at the TCC
Paul Williams House; enrolling N.A. in three different substance
abuse treatment programs (Fairbanks Rescue Mission, Women's and
Children's Residential Program, Regional Center for Alcohol and
Other Addictions); completing a psychiatric evaluation; providing
psychiatric therapy (monthly visits scheduled with Dr. Gooding); 
encouraging attendance at Alcoholics Anonymous meetings (weekly
attendance scheduled); enrolling N.A. in parenting classes; 
allowing weekly visitation with her children; arranging
transportation for the visits; and taking temporary custody of the
children so that N.A. could receive medical care. 
          Efforts before 1997 have included: enrolling N.A. in
substance abuse treatment and aftercare (Nugen's Ranch, Dena A.
Coy, Regional Center for Alcohol and Other Addictions); providing
parenting classes (including TEACH to instruct on caring for her
boys);  providing anger management classes (Alternatives to
Violence);  facilitating visitation with her children; referring
N.A. to Developmental Disability, Vocational Rehabilitation;
completing a neurological evaluation; arranging daycare for her
children; giving parent aid through Resource Center for Parents and
Children; and providing counseling for both N.A. and Smith. 
          N.A. now argues that the state has not provided a
sufficient dual-treatment program to deal with both her addiction
and mental health problems, pointing to treatment programs
available in Anchorage that have not been attempted.  However, her
argument conflicts with the facts in two ways.  First, N.A. was
placed in the Fairbanks Rescue Mission program, which had
experience working with dual-diagnosed patients and had sufficient
resources to accommodate N.A. at her own pace.  That effort failed
when N.A. decided to leave the program before completion.  Second,
when the Anchorage programs were first considered, N.A. had
expressed reluctance to leave the Fairbanks area for treatment. 
There was no failure by the state in regard to dual-treatment
programs.
          N.A. also notes that the division did not develop a case
plan for her after she relinquished parental rights to her sons on
April 26, 1999.  She appears to argue that this change in
circumstances required the state to make additional efforts. 
However, the boys had been in foster care since April 25, 1997;
N.A.'s failed attempts at rehabilitation and her eventual relapses
occurred without the extra burden of caring for them.  N.A. knew
that the state had previously attempted to terminate her parental
rights and would likely do so again if she failed to complete a
rehabilitation program.  There is no objective reason to think that
trying another residential dual-treatment program at that time
would have had a successful outcome.
          This court has held that a parent's demonstrated lack of
willingness to participate in treatment may be considered in
determining whether the state has taken active efforts. [Fn. 17] 
Other courts have expressly held that where efforts have been made
to address a substance abuse problem, the parent has shown no
desire to change, and parental rights were terminated with respect
to one child, ICWA allows the superior court to consider all of the
efforts made by the state to avoid the breakup of the family in
assessing whether those efforts were reasonable. [Fn. 18]  We
conclude that the state made active efforts to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the family and thereby avoid the termination of N.A.'s
parental rights.
V.   CONCLUSION
          Because the superior court met the statutory requirement
that a permanency hearing be held within one year after the
children entered state custody and correctly determined that the
state made active efforts to provide remedial services and
rehabilitative programs designed to prevent the termination of
N.A.'s parental rights, we AFFIRM.


                            FOOTNOTES


Footnote 1:

     See In re S.A., 912 P.2d 1235, 1242 (Alaska 1996).


Footnote 2:

     Id.  The legislature would later expressly override our
decision by the 1998 revision of the CINA statutes, which allowed
termination of parental rights when a parent was willing but unable
to care for a child and eliminated the requirement that the risk of
harm to the child be imminent.  See ch. 99, sec. 1, SLA 1998.


Footnote 3:

     S.A., 912 P.2d at 1238.  


Footnote 4:

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


Footnote 5:

     See A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d
256, 259 (Alaska 1999) (citing A.M. v. State (A.M. II), 945 P.2d
296, 304 n.10 (Alaska 1997)).


Footnote 6:

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


Footnote 7:

     See id.; see also A.H. v. State, Dep't of Health & Social
Servs., 10 P.3d 1156, 1160 (Alaska 2000).


Footnote 8:

     AS 47.10.080(l) sets out the requirements for permanency  and
annual review hearings:

               Within 12 months after the date a child
          enters foster care as calculated under AS
47.10.088(f), the court shall hold a permanency hearing.  The
hearing and permanent plan developed in the hearing are governed by
the following provisions:

               . . . .
          
               (5) the court shall hold a hearing to
review the permanent plan at least annually until successful
implementation of the plan;  if the plan approved by the court
changes after the hearing, the department shall promptly apply to
the court for another permanency hearing, and the court shall
conduct the hearing within 30 days after application by the
department.


Footnote 9:

     See AS 47.10.080(l).


Footnote 10:

     CINA Rule 17.2 requires the division to file a report and the
court to make findings:
          
               (c) Report.  The Department shall file
and serve a permanency report no later than ten days prior to the
permanency hearing. In the report, the Department shall specify its
proposed permanent plan for the child with a detailed statement of
the facts and circumstances supporting the proposed permanent plan.

               . . . .
 
               (e) Findings.  The court shall make
written findings, including findings related to
               (1) whether the child continues to be a
child in need of aid;
               (2) whether the child should be returned
to the parent or guardian, and when;
               (3) whether the child should be placed
for adoption or legal guardianship and whether the Department is in
compliance with AS 47.10.088(d) relating to the filing of a
petition for termination of parental rights;
               (4) whether the child should be placed in
another planned, permanent living arrangement and what steps are
necessary to achieve the new arrangement; and
               (5) in the case of a child who has
attained age 16, the services needed to assist the child to make
the transition from foster care to independent living or adult
protective services.
               If the court is unable to make a finding
required under this paragraph, the court shall schedule and hold
another permanency hearing within a reasonable period of time as
defined in AS 47.10.990(23).

               (f) Additional Findings.  In addition to
the findings required under paragraph (e), the court shall also
make written findings related to
               (1) whether the Department has made
reasonable efforts required under AS 47.10.086 or, in the case of
an Indian child, whether the Department has made active efforts to
provide remedial services and rehabilitative programs as required
by 25 U.S.C. Sec. 1912(d);
               (2) whether the parent or guardian has
made substantial progress to remedy the parent's or guardian's
conduct or conditions in the home that made the child a child in
need of aid; and
               (3) if the permanent plan is for the
child to remain in out-of-home care, whether the child's
out-of-home placement continues to be appropriate and in the best
interests of the child.

               . . . .

               (i) Subsequent Review.  The court shall
hold a hearing to review the permanent plan at least annually until
successful implementation of the plan.


Footnote 11:

     See CINA Rule 17.2(a); AS 47.10.080(l).  Parts (2) and (3) do
not apply here.  On appeal, N.A. relies only on Part (1) to support
her position that she was entitled to a permanency hearing.


Footnote 12:

     AS 47.10.088(f) indicates how to determine the date that a
child entered foster care:

               A child is considered to have entered
foster care under this chapter on the earlier of
               (1) the date of the first judicial
finding of child abuse or neglect;  or
               (2) 60 days after the date of removal of
the child from the child's home under this chapter.     


Footnote 13:

     See 25 U.S.C. sec. 1912(d) ("Any party seeking to effect a
foster
care placement of, or termination of parental rights to, an Indian
child under State law shall satisfy the court that active efforts
have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.").


Footnote 14:

     A.A., 982 P.2d at 261 (quoting Craig J. Dorsay, The Indian
Child Welfare Act and Laws Affecting Indian Juveniles Manual 157-58
(1984)).  


Footnote 15:

     See id.


Footnote 16:

     In determining whether the state took active efforts, the
Department of Correction's efforts are added to the division's
efforts.  See A.M. II, 945 P.2d at 305 ("It is of no particular
consequence that the Department of Corrections (DOC), rather than
DFYS, made these active remedial efforts.").


Footnote 17:

     See A.M. II, 945 P.2d at 306; see also A.A., 982 P.2d at 262-
63.


Footnote 18:

     See Letitia V. v. Superior Court, 97 Cal. Rptr. 2d 303, 308-09
(Cal. App. 2000); People in Interest of A.R.P., 519 N.W.2d 56, 60
(S.D. 1994).