Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. V.S.B. v. State (2/15/2002) sp-5537

V.S.B. v. State (2/15/2002) sp-5537

     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

V.S.B.,                       )
                              )    Supreme Court No. S-9817
             Appellant,            )
                              )    Superior Court No.
     v.                       )    4FA-97-284 CP
                              )
STATE OF ALASKA,              )    O P I N I O N
DEPARTMENT OF HEALTH          )
AND SOCIAL SERVICES,          )    [No. 5537 - February 15, 2002]
DIVISION OF FAMILY AND        )
YOUTH SERVICES,               )
                              )
             Appellee.             )
________________________________)



          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Mary E. Greene, Judge.

          Appearances:   Alex Koponen,  Fairbanks,  for
          Appellant.    D.   Rebecca  Snow,   Assistant
          Attorney  General, Fairbanks,  and  Bruce  M.
          Botelho,   Attorney  General,   Juneau,   for
          Appellee.

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

          FABE, Chief Justice.

I.   INTRODUCTION

          Vivian1 appeals the termination of parental rights over

her four children.  She has been diagnosed with Bipolar Disorder,

which  had  previously made effective parenting  difficult.   The

State  asserts,  and Superior Court Judge Mary E. Greene  agreed,

that despite the fact that Vivian is now stabilized on medication

for  her  mental  illness, she is still  unfit  to  serve  as  an

adequate  parent  for  her four children,  all  of  whom  exhibit

psychological  and/or  developmental  difficulties  that  require

special attention.  Because all four children at issue are Indian

children,  the  standards of proof required by the  Indian  Child

Welfare  Act (ICWA) apply.  While Vivian made significant efforts

at  rehabilitation,  the superior court adequately  examined  the

record  and applied the correct standards of proof in determining

that  it  was in the best interests of the children to  terminate

Vivian's  parental  rights.  Consequently, the  decision  of  the

superior court is affirmed.

II.  FACTS AND PROCEEDINGS

     A.   Parties at Issue

          Vivian,  the  appellant,  is the  mother  of  the  four

children (Scott, Amy, Michael, and Veronica) in dispute.   Keith,

who  had  been  involved  in the Division  of  Family  and  Youth

Services  (DFYS) action and in the action in the superior  court,

is the father of Scott, Amy, and Michael;  the father of Veronica

is  deceased.   Both Vivian and Keith had their  parental  rights

terminated  in superior court by Judge Mary E. Greene  on  August

29, 2000.  Vivian has appealed this decision; Keith has not.

          1.   Vivian

          Vivian  has  suffered  from a long  history  of  mental

illness.   The  condition  from  which  she  suffers  is  Bipolar

Disorder, for which she is currently taking medication to control

her  symptoms.  Her first acute attack was precipitated by taking

LSD  in  1988  when  she was fifteen and resulted  in  her  being

hospitalized, first in the Fairbanks Memorial Hospital  and  then

in the Alaska Psychiatric Institute.  Subsequent hospitalizations

          for mental illness have coincided with the births of each of her

four  children.  The first such hospitalization occurred  at  the

Alaska  Psychiatric Institute in October 1991, shortly after  the

birth  of her son Scott.  Vivian had ceased taking her medication

for  her  mental illness in November 1990.  Fearing  that  Vivian

might  not  be  able  to  care  for  her  baby  because  of   her

psychological  condition,  the  obstetrician  both  requested   a

psychiatric consultation and contacted DFYS.  Vivian was sent  to

the Alaska Psychiatric Institute and later given lessons in child

care.

          In 1992 Vivian was hospitalized in the psychiatric ward

of  Fairbanks  Memorial  Hospital while making  accusations  that

Scott was being sexually molested. Approximately six months after

the  birth  of  Amy in June 1993, Vivian was again  sent  to  the

Alaska   Psychiatric  Institute  and  the  psychiatric  ward   of

Fairbanks  Memorial  Hospital.  Upon  the  insistence  of  Keith,

Vivian   discontinued   use   of  her   prescribed   psychotropic

medications   during  her  pregnancy,  thus   precipitating   the

recurrence  of  acute episodes related to her  Bipolar  Disorder.

Vivian had another acute episode in 1994.  As of September  1995,

Vivian  was  again pregnant (with Michael) and off her medication

at the insistence of Keith.

          Vivian  left  Keith  in  April  1996,  took  her  three

children  to  a  local  women's shelter,  and  filed  a  domestic

violence   restraining  order  against  Keith.   After   becoming

pregnant  with  Veronica by a now-deceased  third  party,  Vivian

reconciled  with Keith.  Vivian soon thereafter  filed  a  second

protective  order against him when he ordered her and her  sister

out of his house.  This second petition was filed in response  to

a  domestic  violence incident in which Keith  allegedly  grabbed

Vivian  and  threatened to kill her after she kicked him  in  the

nose  during an argument.  Despite leaving Keith, Vivian did  not

take  her mental illness medications during her pregnancy.   Soon

after the birth of Veronica on October 6, 1997, Vivian asked  her

mother  to  take  care  of her children while  she  had  a  tubal

ligation.

          In  January 1998 Vivian was arrested for assaulting her

niece,  who  at the time was babysitting the children.2   At  the

time,  all  four children were living with Vivian, but  only  the

three  older  children were present during the assault,  Veronica

having  spent the night with her maternal grandmother.  Upon  her

release  from  jail, Vivian went again to the Alaska  Psychiatric

Institute and then in April 1998 entered the Paul Williams House,

an assisted living facility in Fairbanks for patients with mental

illness.  The Paul Williams House does not allow its patients  to

have  children  live with them.  Vivian left  the  Paul  Williams

House  in  September 1999 and a month later moved in with  Craig,

whom she married the following month.

          2.   The children

          Scott, the oldest child, was almost nine at the time of

the   superior  court  trial.  He  suffers  from  both  Attention

Deficit/Hyperactivity   Disorder   and   Post-Traumatic    Stress

Disorder.   Scott displays aggressiveness toward  other  children

and  poor  communications skills.  In addition,  he  has  serious

psychological issues surrounding sex:  He has been both a  victim

and  a  perpetrator of sexual abuse.  Vivian reports  that  Scott

told  her  that  he had been sexually assaulted  by  his  father.

Scott  has  been sexually active on frequent occasions, including

sexual  intercourse with a ten-year-old girl  when  he  was  four

years  old and sexual intercourse with a fifteen-year-old  female

cousin  when he was six.  Scott is considered a threat  to  other

children and has already sexually assaulted both another boy  and

his  younger sister Amy.  Scott was frequently beaten as a child.

In  therapy  sessions,  Scott  described  incidents  of  fighting

between  Vivian  and  Keith, including Keith  raping  Vivian  and

sending her to a friend to be raped.

          Scott  is  currently in foster care.  He was  initially

placed  with  his maternal grandparents, but later removed  after

          the grandparents violated rules about contact between Scott and

Vivian.  All four children, including Scott, were placed for  one

night  in  an  Indian  preference foster home  but  were  removed

because  the prospective foster parents did not feel  they  could

handle  children with such severe disciplinary problems.   Social

workers  feared  Scott  would  be a  difficult  foster  placement

because  of his behavioral problems.  However, Scott was  quickly

placed with his current foster family, to whom he appears to have

developed  some  attachment and who have expressed  a  desire  to

adopt him.  The family is non-Native.   Social workers who worked

with  Scott testified that he needs to be placed in a caring  and

supportive  environment, with only limited  visitation  with  his

parents, if he is to develop into an emotionally well-functioning

adult.   Scott has expressed some desire to visit with his mother

and siblings.

          Amy,  seven  years  old  at the  time  of  trial,  also

exhibits  behavioral problems as a result of being  a  victim  of

sexual  abuse.  She has a history of masturbating excessively  in

front  of  family  members.  She has been  sexually  molested  by

Scott.   A  child  psychiatrist has also testified  that  Amy  is

physically  aggressive  with other children  and  has  difficulty

establishing appropriate physical boundaries.  Amy is emotionally

immature  and has developmental difficulties with regard  to  her

social  interactions.  Furthermore, she has Fetal Alcohol  Effect

and probably suffers from Attention Deficit Disorder.

          Social  workers  have  testified  that  Amy  will  need

significant parental attention, in addition to continued therapy,

if  she  is to overcome her developmental difficulties.   Amy  is

currently  in  foster  care  with a non-Native  family  that  has

expressed  a  desire  to adopt her.3  This is  her  third  foster

family, the first foster family having had Amy for only one night

and the second declining to adopt Amy after having her for eleven

months.   Amy  appears to have formed an emotional attachment  to

her  current foster family.  In therapy sessions following visits

          by Vivian, Amy has also expressed a desire to stay with Vivian.

          Michael,  who  was four years old at the  time  of  the

trial, exhibits hyperactivity and self-destructive behavior.   He

has  shown  developmental  delays in  his  speech  and  behavior.

Michael  also  throws violent temper tantrums and  is  aggressive

toward  other  children.  His therapist believes Michael  suffers

from  Post-Traumatic  Stress  Disorder  and  Reactive  Attachment

Disorder,  but  has  ruled  out  Attention  Deficit/Hyperactivity

Disorder.   Michael  has  trouble sleeping  at  night,  including

uncontrolled  bouts  of screaming, and is on medication  for  his

sleeping difficulties.  Michael needs near-constant attention  to

ensure  he  is  not  a  danger either to others  or  to  himself.

Michael is currently placed with a Native American foster  family

to  whom he has gained some limited form of attachment; he  shows

overall  improvements in his behavior.  He has lived in  multiple

foster placements.  Michael's current foster family has expressed

a desire to adopt him.

          Veronica was only two and a half years old at the  time

of  trial.   She suffers from a pronounced case of Fetal  Alcohol

Syndrome, including both physical and mental manifestations.  She

exhibits  various  developmental delays and will  need  continued

therapy  for  the  foreseeable future.   Veronica  was  initially

placed  with  relatives, but permanent adoption was not  possible

because  the specialized resources she needed were not  available

in  the area.  Veronica is currently with an Alaska Native foster

family  who has expressed an interest in adopting her.   Veronica

was  initially  a  rather aggressive child  and  displayed  self-

destructive behavior but following her foster placement  is  able

to  get  along  better with other children.  Her development  has

almost caught up to that of a normal two year old.

     B.   Procedural History

          DFYS took emergency custody of  Scott, Amy, and Michael

on December 19, 1997, with a petition for temporary custody filed

two  days  later and granted on January 13, 1998 (retroactive  to

December  21, 1997).  A petition for adjudication of a  child  in

need  of  aid was filed for these three children on February  24,

1998.   DFYS took emergency custody of Veronica on May  11,  1998

from  her  maternal grandmother, with whom all four children  had

been  placed  by DFYS, and filed a petition for adjudication  the

following day.

          Vivian  signed  a  stipulation  for  adjudication   and

disposition  covering all four children on June  1,  1998.   This

stipulation  laid out a three-phase plan whereby she  could  work

toward regaining custody of her children.  The first phase of the

stipulation  required  that Vivian remain in  the  Paul  Williams

House,  meet  regularly with her case manager and therapist,  and

remain  on her recommended medications.  The second phase  stated

that after Vivian "has been sufficiently stabilized in her mental

health   treatment  program"  and  received  a  substance   abuse

evaluation and appropriate treatment, DFYS would begin to arrange

visitation  with the children in consultation with  each  child's

counselor.   If  Vivian  maintained  stable  mental  health   and

completed the recommended substance abuse treatment, DFYS  would,

in  phase  three, refer her to parenting education programs  with

the goal of teaching Vivian the necessary parenting skills to  be

a  capable mother.  As the children began spending more time with

Vivian,  the  parenting education would be arranged  in-home  and

tailored to the specific needs of each child.  Keith signed  this

stipulation  on  June 2, 1998, with similar requirements  on  his

part if he were to be reunited with his children.

          Based upon the facts agreed to in the stipulation,  the

court  entered  its  findings  and  order  of  adjudication   and

disposition based on stipulation on June 15, 1998, committing all

four  children to the custody of DFYS for a period "not to exceed

one  year"  from  June  2,  1998.   DFYS  filed  a  petition  for

termination  of parental rights on May 17, 1999.   State  custody

over  the children was extended through the end of the trial,  as

the trial could not be completed before the June 1 date.

          A  series of delays pushed back the date of the  trial.

Trial  had  initially  been scheduled for November  1999.   In  a

contested permanency hearing on December 3, 1999 the trial  court

found  the continued foster placements of the children to  be  in

their  best  interests.  A conflict of interest  with  her  first

attorney  forced the court to appoint a new attorney for  Vivian,

postponing the trial until February 2000.  Just before trial  was

to  begin,  the Native Village of Buckland granted membership  in

their  tribe to Vivian and all of her children and intervened  in

the  case, forcing the trial to be postponed for another  month.4

The  trial finally took place over sixteen days between March  22

and  June 22, 2000.  On July 28, 2000, Judge Greene presented her

decision orally, followed by written findings and order on August

29, 2000.  Vivian appealed on September 19, 2000.

III. STANDARD OF REVIEW

          The  Alaska  Supreme  Court will not  reverse  a  trial

court's  factual  findings in a parental rights termination  case

unless those findings are "clearly erroneous."5  This standard is

met  if this court is "left with the definite and firm conviction

that a mistake has been made."6  The issue of whether or not  the

trial  court's findings satisfy the requirements of the child  in

need of aid (CINA) statutes is a question of law that is reviewed

de novo.7

IV.  DISCUSSION

     A.   The Arguments in Vivian's Brief Were Not So Cursory  as
          to be Waived.
          
          The State asserts that Vivian's brief treats the points

of  appeal  in  a  cursory fashion and that those  points  should

therefore be waived.  More specifically, the State points to  the

fact  that  Vivian does not cite a single case in the  brief  and

cites to only two federal statutes, failing there to mention  the

relevant related Alaska statutes.  The State further alleges that

Vivian's brief, the discussion section of which covers only  four

pages,   contains  only  minimal  exposition  of  its  arguments.

Finally,  the  State claims that Vivian's brief "lack[s]  serious

          discussion of the evidentiary basis for her contentions."

          While  the  State may be correct in its assertion  that

Vivian's brief is rather poorly constructed, the quality  of  the

brief  does not merit a determination that its points  on  appeal

should  be  waived.  Although Vivian's brief does  not  cite  any

cases in support of its arguments, it does provide an evidentiary

basis  for its argument.  We thus conclude that the treatment  of

the  issues is not so cursory that we should decline to  consider

the points on appeal.

     B.   The  Superior  Court  Correctly  Found  that  the  Four
          Children Are Children in Need of Aid.
          
          Before  termination proceedings can be  conducted,  the

superior  court must determine that the children are children  in

need   of   aid   under  Alaska  law.8   Vivian  challenges   the

determination that the four children are children in need of aid.

However,  in  the  stipulation agreement signed  by  Vivian,  she

admitted that the children are children in need of aid.9   Vivian

claims  that  the  conduct placing the  children  in  danger  was

committed by Keith and not by Vivian.10  However, the findings by

the trial court do not support this conclusion.

          The  trial court found five bases for determining  that

the four children fell under the Alaska CINA statutes.11  Indeed,

Judge  Greene  stated that "[t]hese children are among  the  most

damaged  children" she had seen in twenty-five years  "practicing

in the area of children's law."  If the findings and evidence are

legally  sufficient to satisfy any one of these five  alternative

requirements, the termination will be affirmed.12  The appropriate

standard   of  proof  is  the  "clear  and  convincing  evidence"

standard.13  Although the trial court did not explicitly say  so,

it implicitly found that this standard was satisfied by expressly

stating,  after setting out its CINA findings, that "[t]he  court

further  finds  that there is evidence beyond a reasonable  doubt

that  each  of  these children would be likely to suffer  serious

physical and especially emotional damage if placed in the custody

of  either parent."  (Emphasis added.)  In context, this finding,

          though made under ICWA, effectively subsumes the required state

law  CINA  findings.  Whether the trial court's findings  comport

with  CINA  requirements  is a question of  law  and  accordingly

reviewed de novo.14  We find that the record clearly supports the

conclusion that Vivian, through her actions and inaction,  caused

the  children to suffer harm in three ways (mental injury, sexual

abuse,  and substantial risk of physical harm).  Accordingly,  we

do  not  reach  the  issue  of whether the  other  two  statutory

findings were clearly erroneous.

          First  and foremost, the children are children in  need

of  aid  under  AS  47.10.011(8)(A) because  they  have  suffered

"mental injury" as a result of  "conduct by or conditions created

by  the parent."  The severe mental injuries are detailed in  the

earlier discussion of the various psychological problems each  of

the four children faces.15  These injuries have been confirmed by

multiple therapists and social workers.  Each child has different

psychological  problems,  though  tendencies  toward   aggressive

behavior  are  common  in all four.  It appears  clear  that  the

mental injuries suffered by each of the children have been caused

or  at  least exacerbated by living with Vivian.  In short, there

is ample evidence of mental injury to justify bringing each child

into state custody.

          Secondly, the sexual abuse experienced by Scott and Amy

makes  them  children in need of aid under AS 47.10.011(7).   The

trial  court made special note of the fact that Vivian  expressed

concern that her children were being sexually abused and yet  did

not take any steps to protect them, nor did the children view her

as  someone  who  would protect them.  No efforts  were  made  to

protect  Amy  from  Scott.  The trial court notes  that  parental

neglect  of  the  children contributed to the  creation  of  this

situation.   Vivian  alleges that Scott  told  her  that  he  was

sexually  abused  by  Keith.  Yet, she did little  to  prevent  a

recurrence  in the future.16  Due to the sexual abuse  they  have

suffered  and  the  absence of steps by Vivian  to  prevent  this

          abuse, Scott and Amy are children in need of aid.

          Finally,  Scott, Amy, and Michael suffered "substantial

physical  harm"  or were placed at risk of "substantial  physical

harm" while in the home and as such can be considered children in

need  of  aid under AS 47.10.011(6).  Vivian admits to "spanking"

the  children  and Scott related to a therapist  an  incident  in

which  Vivian "punched" him for no reason.17  Scott also  related

having  to protect his mother from his father.  Scott,  Amy,  and

Michael  were all exposed to fighting between Keith  and  Vivian.

Keith  testified that he feared Vivian would hurt  the  children,

though  he never did see her actually hit the children.   All  of

these  establish  by  clear  and  convincing  evidence  that  the

children had experienced or were at risk of experiencing "serious

physical  harm" from Vivian prior to being taken into custody  by

the State.

     C.   The  Superior  Court Correctly Found that the  Parental
          Rights of Vivian Should Be Terminated.
          
          Because Vivian and each of her children were members of
the   Native  Village  of  Buckland,  the  standards   of   proof
established  by ICWA at 25 U.S.C.  1912 apply to proceedings  for
the  termination of parental rights.  The key subsections for the
present  case  are:  1912(d),18 establishing a  preponderance  of
evidence  standard for demonstration that remedial  services  and
rehabilitative   programs   have   been   provided   and   proven
unsuccessful;19 and  1912(f),20 establishing a beyond a reasonable
doubt standard for termination of parental rights.
          1.    1912(f)
          Vivian does not appear to challenge the validity of the
trial  court's findings under  1912(f) and AS 47.10.088,  despite
the relatively high "beyond a reasonable doubt" standard of proof
imposed  on  the  State.21  The trial court  did  not  explicitly
address the requirements of either  1912(f) or AS 47.10.088,  but
did  find that "there is evidence beyond a reasonable doubt  that
each of these children would be likely to suffer serious physical
and  especially  emotional damage if placed  in  the  custody  of
          either parent."  The trial court then proceeded to rely upon
expert  testimony  to  support its decision terminating  parental
rights.  Thus, the trial court satisfied ICWA with regard to  the
termination of parental rights.  A review of the record leads  us
to conclude that this finding is not clearly erroneous.
          In  finding  beyond a reasonable doubt that each  child
"would  be  likely  to  suffer serious  physical  and  especially
emotional  damage  if placed in the custody  of  either  parent,"
Judge  Greene  cited  both  the lack of an  emotional  connection
between the children and their mother and the harm that would  be
done  to the children by moving them out of their current  foster
families.   This finding is based not solely on Vivian's  history
of  mental  illness but also on the "flat affect" with which  she
treats her children.22 Consequently, the superior court found that
it  was  in  the  best  interests of the  children  to  terminate
Vivian's parental rights.
          The  abuse, both sexual and physical, suffered by Scott
is  so  traumatic that he would suffer emotional damage by  being
returned to Vivian.  Scott refuses to talk about Vivian or  Keith
in  therapy.  Past emotional damage makes it highly unlikely that
Scott  will  form a healthy emotional attachment  to  Vivian.   A
child  psychiatrist  concluded that Scott would  regress  to  his
previous  behavior  if returned to either  one  of  his  parents.
Furthermore,  Scott  needs to be in a family  where  the  parents
understand how to respond to his oversexualized behavior;  it  is
doubtful  that  Vivian could do this, whereas his current  foster
family has shown some progress in this regard.
          A   social   worker  testified  that   Amy   would   be
"devastated"  by  being  moved out of her stable  and  supportive
foster  home to live with either of her parents, neither of  whom
understand  Amy's  emotional  needs  or  can  provide  a   loving
environment.   Amy no longer trusts Vivian to take care  of  her.
Amy could lose the behavioral strides she has made if placed back
in an environment where she does not trust her parents.  Amy also
has  complicated  emotional problems  and  needs  that  would  be
difficult for Vivian to address.
          Michael  also  needs special parenting skills  to  help
control  his aggressive tendencies.  This is best achieved  by  a
stable  home environment.  His self-destructive behavior requires
that  he  be  monitored almost continuously.   Michael  has  been
unable  to  form an emotional attachment to his mother.   Michael
would be destabilized by any move, but especially by being placed
with one of his parents.
          Veronica,   because  of  her  Fetal  Alcohol  Syndrome,
requires  special  treatment that Vivian would  not  be  able  to
provide.   Veronica has no emotional attachment  to  her  mother.
She  needs to be placed in a supportive environment if she is  to
have continued healthy emotional development.
          Vivian  alleges that the trial judge erred  in  finding
that  expert  parenting  skills  were  required  to  handle   the
children.23  This is not an entirely fair characterization of the
trial  court  opinion, which states that while Vivian  is  indeed
correct  that  testimony exists suggesting the need  for  a  "far
better  than average parent," this does not necessarily  imply  a
particular  expertise.  As the State admits, none of  the  foster
parents  possess particular training or skills in addressing  the
special  needs of these children.  The trial court found, rather,
that   the   combination   of   the  developmental   difficulties
experienced by the children with the negative feelings they  have
for their parents would overwhelm the ability of either parent to
meet  the  needs of the children and cause the children  to  feel
insecure  and  unsafe.  We find this conclusion  is  not  clearly
erroneous and that return of any of the children to Vivian  would
result in a serious risk of emotional damage to that child.
          2.    1912(d)
          Vivian explicitly challenges the trial court's findings
under   1912(d).  Vivian asserts that use of her medications  had
reduced  the  risk  of  future episodes of her  Bipolar  Disorder
sufficiently to allow her to be an effective mother.  Vivian sent
a  handwritten letter to Judge Greene saying that  she  has  been
attempting  to  get her life in order, both through participation
in state-ordered treatment programs and by her marriage to Craig,
and pleading with Judge Greene to allow her to retain custody  of
her  children.   However,  while Vivian  has  complied  with  the
rehabilitative efforts required of her, these efforts have failed
to be successful in turning Vivian into a suitable parent.  Thus,
it  is  in  the  best  interests of the  children  that  Vivian's
parental rights be terminated.
          The  trial  court found by a preponderance of  evidence
that  "[r]easonable and active efforts have been made to  provide
appropriate  remedial services" to Vivian and that these  efforts
had been unsuccessful.  Vivian actively participated in the three-
phase  treatment  program laid out for  her  by  DFYS.   She  has
attended regular psychiatric appointments since her release  from
the  Alaska  Psychiatric Institute in the  spring  of  1998.   By
continuing to take her medication, which she has done, one doctor
testified  that  Vivian  can reduce the risk  of  an  episode  of
Bipolar  Disorder  down to one mild episode in a  ten-year  span.
She   successfully  completed  substance  abuse  assessments   in
December  1998  and  December 1999.   She  completed  an  alcohol
education  class in February 2000 and has only occasionally  used
alcohol,  though  even limited use may have negative  interaction
effects with her psychotropic medication.  Vivian participated in
one-on-one  parenting  training for  seven  months  and  has  had
regular  visitation with her children.  It is  clear,  therefore,
that  active  efforts at remedial services have been provided  to
Vivian, a point which she concedes.  Vivian has done all that has
been  asked of her and there is nothing in the record to  suggest
that Vivian is being insincere in her attempts at rehabilitation.
Furthermore,  she has married someone who appears  to  provide  a
more stable home setting than existed with Keith, though this  is
a point of some dispute.
          Despite  these efforts, Vivian's parenting skills  have
only  marginally improved and are not sufficient to make  her  an
adequate  parent.  The therapist who provided her  with  parental
skills  training  testified that Vivian acted in  a  "child-like"
manner  around  the  children  and rarely  showed  any  emotional
connection  to  them.  She especially had problems  dealing  with
Michael.  A child services worker, acting at the behest of  DFYS,
assessed Vivian as not being capable of parenting any or  all  of
her  children and recommended permanent placement of the children
in  homes  other  than  with their mother.  This  assessment  was
confirmed  by a DFYS case worker, who testified that despite  her
increased focus and recent marriage Vivian was still incapable of
parenting  even  one  of  her  children.   A  child  psychiatrist
testified  that  Vivian may face difficulties responding  to  the
negative  feelings her children may have toward her if  returned.
The   psychiatrist  treating  Vivian  for  her  Bipolar  Disorder
testified that she should avoid "unduly stressful" situations  to
avoid  future incidents of decompensation and admitted  that  the
return  of  her children could be a source of stress.  The  trial
court further found that the marriage to Craig was not sufficient
to overcome the parenting difficulties demonstrated by Vivian.
          DFYS informed Vivian that completion of the recommended
treatment  programs did not guarantee the return of her children.
This  position  is supported by Alaska law.  In situations  where
the  parent  has not participated in the rehabilitation  programs
offered,  termination of parental rights is clearly  justified.24
In  the  present  case, though, Vivian has  participated  in  the
required  programs and continues to take her medication.   Still,
the  State  can  show that a parent has failed to remedy  harmful
conditions even when the parent has not been given an opportunity
to  actually  parent  his  or  her children.25   Compliance  with
treatment plans does not guarantee that parental rights will  not
be terminated because it cannot guarantee that adequate parenting
skills  will  be  acquired from the treatment regimen.26   It  is
entirely  possible  that  there  will  be  some  improvement   in
          overcoming mental illness without there being sufficient
improvement to demonstrate adequate parenting skills.27  This  is
the  case  with  Vivian, who may have reasonably  controlled  her
Bipolar  Disorder  but has failed to acquire  adequate  parenting
skills despite state efforts to provide her with such.
V.   CONCLUSION
          Vivian provided a poorly crafted brief, but not one  so
poor  as  to justify dismissing her appeal for cursory treatment.
Each  of  the four children was clearly a child in need  of  aid.
Judge  Greene's  finding that Vivian was  incapable  of  being  a
suitable parent for any of her children is not clearly erroneous.
Consequently, the decision of the superior court is AFFIRMED.
          In the Supreme Court of the State of Alaska



V.S.B.,                         )
                                ) Supreme Court No. S-09817
                                   Appellant(s),       )
                   v.           )            Order
                                )   Petition for Rehearing
State of Alaska,                )
                                )
                                    Appellee(s).)        Date  of
Order: 2/15/02
                                )
Trial Court Case # 4FA-97-00284CP

     Before: Fabe, Chief Justice, Matthews, Eastaugh, Bryner, and
     Carpeneti, Justices.
     On  consideration  of the Petition for Rehearing,  filed  on
12/27/01,

     It is Ordered:

     1.   The Petition for Rehearing is Granted.

     2.   Opinion No. 5517, issued on 12/21/01, is Withdrawn.

     3.    Opinion No. 5537, is issued on this date in its place.
The revised opinion incorporates the following changes:

     (a)The  sentence on lines 2-4 of page 11 is deleted and  the
following text is   inserted:

     .  .  . The appropriate standard of proof is the "clear
     and convincing evidence" standard.13 Although the trial
     court  did  not explicitly say so, it implicitly  found
     that  this standard was satisfied by expressly stating,
     after  setting out its CINA findings, that "[t]he court
     further   finds  that  there  is  evidence   beyond   a
     reasonable doubt that each of these children  would  be
     likely   to  suffer  serious  physical  and  especially
     emotional  damage  if placed in the custody  of  either
     parent."  (Emphasis added.) In context,  this  finding,
     though  made  under  ICWA,  effectively  subsumes   the
     required state law CINA findings.


Supreme Court Order
S-09817, V.S.B. v. State
Page 2


     (b)The  text at line 2 of page 13 (formerly line 18 of  page
12) is modified as  follows:

     .  .  .  All of these establish by clear and convincing
     evidence that the children had experienced or  were  at
     risk  of  experiencing  "serious  physical  harm"  from
     Vivian prior to being taken into custody by the State.

     
     Entered by direction of the court.

                                   Clerk of the Appellate Courts


                                   
                                   Marilyn May
cc:  Supreme Court Justices
     Judge Greene
     Trial Court Appeals Clerk
     West Publishing
     Other Publishers

Distribution:

     Alex Koponen
     Attorney at Law
     710 Chena Ridge
     Fairbanks AK 99709

     D Rebecca Snow
     Asst Attorney General
     100 Cushman Street   #400
     Fairbanks AK 99701

     Robert S Noreen
     Attorney at Law
     402 Seventh Avenue
     Fairbanks AK 99701
_______________________________
     1     Pseudonyms have been used throughout this opinion  for
all family members.

     2    Vivian alleges in her brief that the niece had sexually
abused  the  children  and that Vivian was just  defending  them.
Vivian  previously testified, however, that she does not remember
why she got into a fight with her niece.

     3    Vivian did not challenge the placement of Scott and Amy
with  non-Native families.  The trial court found that good cause
existed  in  both  instances for deviating  from  ICWA  placement
preferences.  See 25 U.S.C.  1915(a).

     4     The  Native  Village of Buckland  did  not  request  a
transfer of jurisdiction over the foster placement or termination
proceedings.   See  25  U.S.C.   1911(c)  ("In  any  State  court
proceeding  for  the foster care placement of, or termination  of
parental rights to, an Indian child, the Indian custodian of  the
child  and  the  Indian  child's tribe  shall  have  a  right  to
intervene at any point in the proceeding.").

     5     H.C. v. State, Dep't of Health & Soc. Servs., 956 P.2d
477, 481 (Alaska 1998).

     6     E.A. v. State, Dep't of Health & Soc. Servs., 623 P.2d
1210, 1212 (Alaska 1981).

     7     A.B.  v. State, Dep't of Health & Soc. Servs., 7  P.3d
946, 950 (Alaska 2000).

     8    AS 47.10.088(a)(1)(A); CINA Rule 18(c)(1)(A).

     9     The  conditions admitted to were those  under  then-AS
47.10.010(a)(6)  (since amended in 1998), which covered  physical
abuse and neglect.  It is unclear if Vivian is asserting that the
children  were  never abused or neglected.  Rather,  she  may  be
asserting only that the children presently would not be  at  risk
of harm if placed with her.

     10    Vivian further asserts that DFYS should have placed the
children in her care once it learned that she had remarried  into
a  stable  home environment.  This is relevant to  the  issue  of
Vivian's  rehabilitative efforts but not to the determination  of
the child in need of aid status of the children.

     11     These bases were AS 47.10.011(6) (substantial risk of
physical    harm);   AS   47.10.011(7)   (sexual    abuse);    AS
47.10.011(8)(A)  (mental  injury to the child);  AS  47.10.011(9)
(neglect);  and AS 47.10.011(11) (mental illness  of  the  parent
contributing to a risk of harm to the child).

     12     See A.H. v. State, Dep't of Health & Soc. Servs.,  10
P.3d  1156, 1161 (Alaska 2000); A.B. v. State, Dep't of Health  &
Soc. Servs., 7 P.3d 946, 951 (Alaska 2000).

     13    AS  47.10.011.

     14    E.M. v. State, Dep't of Health & Soc. Servs., 959 P.2d
766, 768 (Alaska 1998) (citing R.J.M. v. State, 946 P.2d 855, 861
(Alaska 1997)).

     15    See supra Part II.A.2.

     16    Vivian did at one point take the children to a women's
shelter and has filed for protective orders against Keith but she
subsequently allowed the children to live with him.

     17     Scott  did  not clearly distinguish here between  his
mother  and stepmother, stating only that his "mom" punched  him.
The  superior  court  appears  to  have  interpreted  this  as  a
reference to Vivian, which was also the impression of the  social
worker.

     18    25 U.S.C.  1912(d) states:

          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.
          
     19    K.N. v. State, 856 P.2d 468, 476 (Alaska 1993).

     20    25 U.S.C.  1912(f) states:

          No  termination  of parental  rights  may  be
          ordered in such proceeding in the absence  of
          a determination, supported by evidence beyond
          a  reasonable  doubt, including testimony  of
          qualified   expert   witnesses,   that    the
          continued custody of the child by the  parent
          or  Indian  custodian is likely to result  in
          serious emotional or physical damage  to  the
          child.
          
     21     Because the children are Indian children,  the  State
must satisfy the "reasonable doubt" standard established by ICWA,
25  U.S.C.  1912(f).  The procedures for termination of  parental
rights  are  set forth in AS 47.10.088(a)(1)(B) and  require,  in
pertinent part, that

          the  parent  (i) has not remedied the conduct
          or  conditions  in the home  that  place  the
          child  at substantial risk of harm;  or  (ii)
          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.
          
     22     Mental illness, absent related conduct, cannot  be  a
basis  for termination of parental rights.  In re J.W., 921  P.2d
604,  607 (Alaska 1996) (citing K.N. v. State, 856 P.2d 468,  475
(Alaska  1993)  and Nada A. v. State, 660 P.2d 436,  440  (Alaska
1983)).   However, when continued mental illness is  linked  with
past   detrimental  behavior,  it  can  serve  as  a  basis   for
termination  of parental rights.  J.W., 921 P.2d at  608  (citing
K.N.,  856  P.2d  at  475).   Vivian's illness  has  resulted  in
repeated  hospitalizations that have restricted  her  ability  to
care  for  her  children.   Vivian left  Veronica  with  Vivian's
parents,  even though she later acknowledged that they  were  too
old  to  care for a small baby.  This placed Veronica at risk  of
physical  harm or mental injury.  Furthermore, the acute episodes
of  Vivian's  Bipolar  Disorder,  due  to  ceasing  to  take  her
medications while pregnant, resulted in periods of decompensation
that  led to some of the domestic violence incidents with  Keith,
thus  placing the children in further danger.  Because Vivian  is
now  taking  medication  for  her  mental  illness,  there  is  a
possibility  that  she  will not in  the  future  have  any  more
psychotic  episodes.  However, it was not improper for the  trial
court to recognize this as a risk.  Vivian's mental illness, when
coupled  with  her past actions, is such that she  cannot  regain
custody  of  her  children without likely causing them  continued
mental injury.  Furthermore, removal from the stability of  their
foster  families  would cause additional  mental  injury  to  the
children.

     23     Vivian also contends that because "any" placement  of
the  children would result in emotional trauma there is no reason
why  they should not be reunited with their mother.  In light  of
the  ample  evidence already discussed of the progress that  each
child  has made with his or her foster parent, this assertion  is
clearly incorrect.

     24     T.F. v. State, Dep't of Health & Soc. Servs., 26 P.3d
1089,  1093  (Alaska 2001) (affirming a termination  of  parental
rights  "in  light  of  [the mother's] forgone  opportunities  to
remedy  her  conduct  in the preceding seven  months");  A.B.  v.
State,  Dep't of Health & Soc. Servs., 7 P.3d 946, 951-52 (Alaska
2000)  (affirming a termination of parental rights because mother
"failed   to   participate"   in  several   components   of   her
reunification plan).  A similar termination of parental rights is
justified  for  a  failure to take medication  to  control  one's
aberrant  behaviors.  See A.H. v. State, Dep't of Health  &  Soc.
Servs., 10 P.3d 1156, 1163 (Alaska 2000) (holding that failure to
take  medication to control mental illness placed children  at  a
substantial risk of continued harm).

     25    A.H. v. State, 10 P.3d at 1166.

     26     In  re  T.W.R.,  887  P.2d 941,  945  (Alaska  1994),
overruled  on other grounds by In re S.A., 912 P.2d 1235  (Alaska
1996).

     27    In re T.W.R., 887 P.2d at 946-47.