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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. J.A. v. Alaska DFYS (7/5/2002) sp-5592

J.A. v. Alaska DFYS (7/5/2002) sp-5592

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


J.A.,                              )
                              )    Supreme Court No. S-10143
             Appellant,            )
                              )    Superior Court Nos.
     v.                       )    4BE-97-139 CP/4BE-99-30/31 CP
                              )
STATE OF ALASKA, DFYS,        )    O P I N I O N
                              )
             Appellee.             )    [No. 5592 - July 5, 2002]
________________________________)


          Appeal  from the Superior Court of the  State
          of  Alaska, Fourth Judicial District, Bethel,
          Dale O. Curda, Judge.

          Appearances:   Avraham  B.  Zorea,  Assistant
          Public  Advocate, and Brant G. McGee,  Public
          Advocate, Anchorage, for Appellant.   Christi
          A. Pavia, Assistant Attorney General, Bethel,
          and   Bruce  M.  Botelho,  Attorney  General,
          Juneau, for  Appellee.

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

          EASTAUGH, Justice.

I.   INTRODUCTION

          I.   J.A. appeals the termination of his parental rights to

his  three  Native  children.  We must determine  whether  expert

testimony  was sufficient under the Indian Child Welfare  Act  to

support  the  trial  court's conclusion that the  children  would

likely  suffer  serious  harm if they  were  returned  to  J.A.'s

custody.   We  hold that the experts' testimony was  sufficiently

related  to  the  facts and issues of the case  even  though  the

experts  based  their opinions on hypothetical  scenarios  and  a

limited  review  of  the family's case file.   And  because  J.A.

explicitly  concedes that the state provided  active  efforts  to

prevent  the  breakup of his family, we also reject J.A.'s  claim

that  the state's rehabilitative services should have been better

tailored to his Native values.

II.  FACTS AND PROCEEDINGS

          J.A.  appeals the February 27, 2001 termination of  his

parental  rights to his three children, C.A., T.A., and  C.   All

three  are Indian children within the meaning of the Indian Child

Welfare  Act (ICWA).1  A.A., J.A.'s estranged wife and mother  of

the  three children, stipulated to the termination of her  rights

at trial.

          The  Alaska  Department of Health and Social  Services,

Division  of Family and Youth Services (DFYS), obtained temporary

legal  custody of C.A., the eldest child, in January 1998,  based

on  reports  of sexual abuse and neglect.  The parents stipulated

in  July  1999  that C.A. was a child in need  of  aid  under  AS

47.10.011(7),  (9),  and  (10),  and  acknowledged   that   their

substance abuse placed C.A. at risk of substantial physical harm.2

Following a contested disposition hearing in September 1999,  the

superior  court  awarded legal and physical custody  of  C.A.  to

DFYS.

          DFYS  obtained  temporary  legal  custody  of  the  two

younger  children  in  May 1999 after a  social  worker  made  an

unannounced  visit  to Kongiganak in March 1999  and  found  both

parents  inebriated and unconscious; the youngest child,  C.,  in

the  care of W.J., one of C.A.'s alleged abusers; and T.A.,  then

five  years  old, playing outside unsupervised. Following  C.A.'s

removal  from  her parents' custody in September 1999,  J.A.  and

A.A.  stipulated that their two younger children,  T.A.  and  C.,

were  also children in need of aid under AS 47.10.011(7) and (9).

They acknowledged that their substance abuse placed both children

at  risk  of  substantial physical harm and neglect.   The  court

placed  the children in DFYS's custody for two years in  November

          1999.

          In  February 2000 DFYS removed T.A. and C.  from  their

parents'  home  due  to continued substance  abuse  and  domestic

violence  in  the  children's presence, as well as  the  parents'

decision to continue to leave the children with A.A.'s mother and

W.J.  despite  DFYS's  warnings not to do  so.   The  court  made

findings supporting the removal.

          DFYS filed a petition to terminate both parents' rights

to  their three children in August 2000, and a termination  trial

was conducted in Bethel in January and February 2001.  The Native

Village of Kongiganak intervened and participated at trial.   The

village  did  not take a position at trial on the  issue  whether

J.A.'s  rights  should be terminated. Rather, the village  seemed

principally   interested  in  ensuring  that  the   children   be

permanently placed in Kongiganak.

          The  superior court orally granted DFYS's petition with

respect to A.A. following her decision not to contest termination

at  trial,  and  issued a written order granting DFYS's  petition

with  respect to J.A.  Following Alaska Child in Need of Aid Rule

18(c), the court concluded that DFYS proved that C.A., T.A.,  and

C.  were  children  in need of aid under six  subsections  of  AS

47.10.011.   The court further found that J.A. had  not  remedied

the conduct that caused his children to be in need of aid despite

the   department's  active  efforts  to  provide   rehabilitative

services.   The  court specifically noted J.A.'s recent  relapses

and  failure  to  complete aftercare following  his  most  recent

substance  abuse treatment program.  Finally, the court concluded

that  there  was  "no doubt [J.A.'s] continued custody  of  these

children  is  likely to result in serious emotional and  physical

damage to them."

          J.A.  appeals.   The village does not  join  in  J.A.'s

appeal and has not filed a separate appeal.3

III. DISCUSSION

     A.   Standard of Review

          J.A.  limits  his  appeal  to  ICWA  issues.4   Whether

substantial evidence supports the court's conclusion that  J.A.'s

children  would likely be seriously harmed if they were  returned

to  him  is  a  mixed question of fact and law.5  Whether  expert

testimony  sufficiently  supports  this  conclusion  is  a  legal

question.6   We  review the court's factual  findings  under  the

clearly erroneous standard7 and its legal conclusions de novo.8

     B.   The  Superior  Court  Did Not Err  by  Relying  on  the
          Experts' Testimony.
          
          J.A.  argues that the experts' testimony was improperly

based  on  hearsay.  J.A.  further  contends  that  the  experts'

testimony  was insufficiently related to the facts and issues  of

the  case  to support the court's conclusion under ICWA that  the

children would likely suffer serious emotional or physical damage

if  they  were  placed with him.  Finally, J.A. argues  that  the

court  over-relied  on  the experts' testimony  in  reaching  its

ultimate conclusion.

          1.   J.A.'s  objection  to  Dr.  MacIan's  reliance  on
               hearsay reports of sexual abuse is meritless.
               
           J.A. argues that DFYS's expert psychologist, Dr. Paula

MacIan, improperly relied on hearsay allegations of sexual  abuse

in forming her opinions.  This objection fails because experts in

termination cases may reasonably rely on DFYS records in  forming

their opinions, regardless of whether those records are hearsay.

          Dr.  MacIan based her opinion in part on DFYS  records,

including  documents  containing  allegations  of  sexual   abuse

against C.A. and C. committed by Kongiganak community members and

J.A.,  respectively.  Dr. MacIan explained several  criteria  she

used  to  determine whether the allegations were "substantiated,"

and   testified   that  she  only  relied  on  the  substantiated

allegations  to  form her opinion.  The trial  judge  ruled  that

although  these  "substantiated"  allegations  are  hearsay,  Dr.

MacIan  could  rely on them because the court was satisfied  with

her testimony that experts in her field would reasonably do so.

          This  ruling  was neither legal error nor an  abuse  of

          discretion.9  Alaska Evidence Rule 703 explicitly allows experts

to  rely  on  otherwise  inadmissible evidence  so  long  as  the

material is "of a type reasonably relied upon by experts  in  the

particular  field  in  forming opinions or  inferences  upon  the

subject."   We  held in Broderick v. King's Way Assembly  of  God

Church  that " `[h]earsay can be a permissible basis for  opinion

testimony' provided the reasonable reliance test is satisfied,"10

and  further held that experts can reasonably rely on information

from  other case workers to form their opinions.11  J.A.  asserts

that  the  allegations  of harm relied  on  by  Dr.  MacIan  were

unreliable,  confusing, or unsubstantiated,  but  J.A.  does  not

endeavor  to explain these conclusory assertions, or explain  why

he  thinks  Dr. MacIan's methods for determining reliability  are

faulty  or unreasonable.  Accordingly, we are satisfied that  the

trial  court  did  not abuse its discretion in  ruling  that  Dr.

MacIan could rely on the "substantiated" allegations of harm.

          2.   The experts' opinions were sufficiently related to
               the  facts  and issues of the case to support  the
               trial  court's conclusion that the children  would
               likely suffer serious harm if returned to J.A.
               
          J.A.  argues that the state's experts, Dr.  MacIan  and

Professor Michael Daku, were not sufficiently familiar  with  the

facts   of   this  case  to  offer  precise,  reliable  testimony

supporting the court's conclusion, required under ICWA, that  the

children  would likely suffer serious harm if returned  to  their

father's custody.12  We disagree.

          J.A.  relies on C.J. v. State, Department of  Health  &

Social Services, in which we held that the expert's testimony was

insufficiently  based on "the facts and issues of  the  case"  to

support the trial court's conclusion that the child would  suffer

serious harm if returned to the father.13  We first noted that the

expert's conclusions were "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."14  We then observed  that

          "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 the case."15  In the

companion  case,  J.J. v. State, Department of  Health  &  Social

Services,  we again rejected the expert's testimony, noting  that

she  based  her opinion on outdated information and was therefore

unaware  of  the parent's recent successful efforts  to  maintain

sobriety for a significant length of time.16

          J.A.'s attempts to analogize this case to C.J. and J.J.

are  unavailing.   First, the fact that neither  Dr.  MacIan  nor

Professor  Daku  met with the parties is not  determinative.   We

explicitly  noted in C.J. that such pretrial interviews  are  not

required  in  every case.17  Here, both experts were sufficiently

apprised  of  the facts by their review of selected DFYS  records

and  by  DFYS counsel's summaries of relevant facts  and  of  the

testimony  of  other witnesses.  These summaries also  served  to

keep  the  experts' testimony sufficiently grounded in the  facts

and issues of the case.

          Professor  Daku was qualified as an expert in substance

abuse  evaluation  and  diagnosis and the  cultural  dynamics  of

Native  Alaskan families.  Dr. MacIan was qualified as an  expert

clinical  psychologist with specific expertise  in  child  sexual

abuse and neglect.

          DFYS's attorney posed several hypothetical questions to

Professor Daku.  These questions included information relating to

general  family history; the parents' long history  of  substance

abuse  right up to the time of trial (including failed  treatment

attempts);   J.A.'s  failure  to  complete  his  aftercare   plan

following  his  second stay at the Phillips Alcoholism  Treatment

Center  (PATC)  in  Bethel;  the  parents'  substance  abuse  and

domestic   violence  in  the  presence  of  the   children;   and

allegations  of  sexual  abuse of  C.A.  and  C.,  including  the

parents' choice to continue to leave the children in the care  of

alleged  perpetrators as well as the parents' failure  to  obtain

          counseling for themselves or their children.  The court denied

J.A.'s  attorney's motion for mistrial made in the midst of  DFYS

counsel's  presentation of these hypothetical  questions,  ruling

that  they  were sufficiently based on prior testimony  and  that

they comported with the court's notes.18 Dr. MacIan received  the

same  information in the form of DFYS counsel's summary of  prior

testimony.   In  addition,  Professor  Daku  reviewed   discharge

summaries  from  the PATC program for both parents.   Dr.  MacIan

reviewed  various  DFYS  records,  including  a  "family   chart"

containing  allegations  of sexual abuse  and  reports  from  the

social worker's visits with the family.19

          Both  experts gave specific testimony directly  related

to  the  most  relevant  issues before the  court:  the  parents'

chronic, unabated substance abuse and resulting neglect of  their

children,  including  their inability to protect  their  children

against the risk of sexual abuse.

          Professor Daku expressed concern that J.A. had relapsed

following   his  second  residential  substance  abuse  treatment

program in the summer of 2000 and had not completed his aftercare

program.  He was even more concerned that J.A. continued to smoke

marijuana  up  to the time of trial.20  Professor Daku  testified

that  J.A.'s  likelihood of future relapse into alcohol  use  was

potentially higher due to his continued marijuana use.21  In fact,

Professor Daku did not consider J.A. in recovery or sober at  the

time of trial as a result of his ongoing substance abuse.

          Like Professor Daku, Dr. MacIan was concerned that J.A.

had  not  demonstrated an ability to remain sober for an extended

period  of time.  Both experts testified that J.A. would need  to

maintain a significant period of sobriety, complete his aftercare

program,  and  associate  only  with  sober  individuals   before

reunification  could be attempted.  But both experts  thought  it

very unlikely that J.A. would achieve such a transformation given

his history of substance abuse, and both agreed that the children

should  not  have to wait for J.A. to continue to try to  achieve

          long-term sobriety.

          Finally,  both experts were concerned that  J.A.  might

get  back  together with A.A., thereby jeopardizing his long-term

recovery  chances.   Professor Daku testified that  the  parents'

history of drug use and domestic violence, as well as A.A.'s lack

of  commitment  to achieving sobriety, creates  risks  of  future

relapses  into drug abuse and violence.  He further  opined  that

when  one  member of a couple commits to recovery and  the  other

does  not,  the  committed  member  has  a  more  difficult  time

maintaining  sobriety because of the other's  continued  drug  or

alcohol use.

          Dr.  MacIan testified that she was concerned  that  the

parents had not obtained counseling for C. after C. alleged  that

J.A. sexually abused her when she was three-and-a-half years old.

Dr.  MacIan explained that children who do not receive counseling

are  more  likely to be abused in the future and more  likely  to

engage in sexually acting-out behavior because they do not  learn

appropriate  boundaries for physical contact  with  others.   She

testified  that  children with histories  of  sexual  abuse  need

heightened  supervision. She was also concerned that the  parents

continued  to  place  their  children  in  W.J.'s  care   despite

allegations  that he was one of the perpetrators of sexual  abuse

against C.A.

          Professor Daku testified that the children had  already

been  harmed  by their parents' destructive behavior,  and  would

more  likely than not suffer additional serious harm if  returned

to  J.A.'s custody.  Dr. MacIan testified that the children would

likely  be  neglected if returned to J.A., and  that  they  would

suffer  harm  as  a  result.  She testified that  J.A.  would  be

unavailable  to the children during episodes of substance  abuse,

leaving the children at risk of exploitation by others.

          Both  experts  recommended that J.A.'s  rights  to  his

three   children  be  terminated.   Professor  Daku   recommended

adoption rather than reunification for the children because their

parents  continued  to abuse substances and showed  no  signs  of

being able "to assume the responsibility of being parents anytime

soon."  Dr. MacIan recommended that J.A.'s rights to C. and  T.A.

be  terminated  because J.A.'s likely continued  substance  abuse

placed  the  children  at risk of further  neglect.   Dr.  MacIan

further recommended that J.A.'s rights to C.A. be terminated  for

the same reasons, including the parents' decision to continue  to

allow W.J. to associate with her.

          In   conclusion,  Professor  Daku  and   Dr.   MacIan's

testimony  was "based on the particular facts and issues  of  the

case  to a [much] greater extent than occurred" in C.J. and  J.J.

Accordingly, their testimony was more than sufficient to  support

the  trial  court's  conclusion under ICWA that  J.A.'s  children

would likely be seriously harmed if returned to him.

          3.   The  trial  court  did  not  over-rely  on  expert
               testimony  in  concluding that the children  would
               likely  suffer serious harm if returned to  J.A.'s
               custody.
               
          J.A.  also argues that the court over-relied on  expert

testimony in reaching this conclusion.  But the record is replete

with  evidence  of J.A.'s chronic substance abuse and  consistent

neglect  of  his children's welfare independent of  the  experts'

testimony.

          The  trial  court  explicitly noted that  J.A.  had  an

"abysmal track record, time after time neither following  through

with   aftercare   nor   abstaining   from   mind/body   altering

substances."  The court further found that J.A.'s "priorities are

horribly  skewed;  substances obliterate any  modicum  of  common

sense  and  care  for his children and expose  them  to  neglect,

domestic  violence, and sexual abuse."  Based on these  findings,

as  well  as  the experts' testimony described above,  the  court

concluded  that  "[J.A.'s]  custody  of  the  children  would  be

disastrous."    The  trial  court's  findings  regarding   J.A.'s

substance abuse and its adverse consequences on his children  are

fully supported by the record.

          Both  parents  have long histories of  substance  abuse

that continued relatively unabated right up to the time of trial.

J.A.  completed his second residential treatment program  at  the

PATC  in  Bethel  in September 2000, but failed to  complete  his

prescribed aftercare program and relapsed within three  weeks  of

his discharge.  He claimed to have abstained from alcohol for six

to  eight  weeks before the February 2001 termination trial,  but

admitted to continued near-weekly marijuana use.

          Substantial evidence supports the court's concerns that

J.A.'s  substance  abuse contributes to his  violent  tendencies.

J.A.  has been convicted of assaulting his wife four times,  most

recently  in February 2000.  A.A. testified that J.A.  was  drunk

each  time  he  assaulted  her, and  one  of  J.A.'s  convictions

includes an affidavit that J.A. exhibited many common symptoms of

inebriation immediately after the incident.  One or more  of  the

children were present on at least two of these occasions.

          The  record also contains substantial evidence that the

children are at risk of sexual abuse as long as they are in their

parents'  care.   J.A. argues on appeal that past allegations  of

sexual  abuse  were  not proved at trial.   But  AS  47.10.011(7)

requires only that conduct by the child's parent place the  child

at substantial risk of  sexual abuse.22  J.A. does not argue that

his  children are not at risk.  J.A. also does not challenge  the

court's  1999 findings that C.A. "ha[d] been sexually  abused  by

several members of her home community," and that she was at  risk

of  further abuse as a result of her parents' substance abuse and

resulting  neglect.23  These uncontested findings are  sufficient

proof  of  risk, and there is no doubt that the parents  were  on

notice  of  that  risk.  At the termination trial,  both  parents

testified  that they knew W.J. and other members of  his  village

may  have abused C.A., yet they both admitted that they continued

to  leave  their  children  with  W.J.  despite  DFYS's  repeated

warnings not to do so.

          Accordingly, the trial court did not err when it  found

          in its February 2001 termination order that although J.A. was

aware that C.A. had "probably been sexually abused . . . and  was

at continued substantial risk of abuse," he "could not articulate

anything  he had done to protect any of the children  amidst  his

drinking, smoking, and Bethel travel."

          Thus,  substantial evidence in addition to the experts'

testimony supported the trial court's conclusion that,  beyond  a

reasonable  doubt,  J.A.'s substance abuse and resulting  neglect

would continue to place his children at risk of serious emotional

and physical harm were they returned to his custody.

     C.   DFYS Did Not Fail To Offer Rehabilitative Services that
          Were Sufficiently Respectful of J.A.'s Native Values.
          
          J.A.    argues   that   DFYS   should   have    offered

rehabilitative services that were better tailored to his cultural

background, and that this court should generally require a closer

fit  between  DFYS  case  plans and  traditional  Native  values.

J.A.'s only specific complaints in this regard are that he should

have  been allowed to use his parents as his sober support  group

and  to  complete the aftercare component of his substance  abuse

treatment program in Kongiganak rather than Bethel.

          J.A.   concedes  that  the  superior  court   correctly

determined  that DFYS made sufficient active efforts  to  provide

rehabilitative  services  to prevent  the  permanent  breakup  of

J.A.'s  family as required by ICWA.24  Because there is no  other

legal  basis under ICWA or elsewhere that would justify  imposing

heightened  requirements on DFYS in this  case,  J.A.'s  argument

fails.

          But  even  if we could reach the merits of this  claim,

J.A.  would  not prevail.  J.A. presented no evidence  that  DFYS

forbade  him  from using his parents as sober support contacts.25

J.A.  also presented no evidence that DFYS required J.A. to  stay

in  Bethel  for  aftercare  following completion  of  his  second

residential substance abuse program at the PATC.  This is not  to

say  the  state would not have had good reason to impose  such  a

requirement:  all  of  J.A.'s assault convictions  arose  out  of

          incidents in Kongiganak, and most of the documented instances of

substance  abuse  and  child neglect took place  there  as  well.

Therefore,  the  state  could  have  required  J.A.  to  relocate

temporarily  to  Bethel as part of its case plan  notwithstanding

J.A.'s preference to live in his Native community.

IV.  CONCLUSION

          For  these  reasons,  we AFFIRM  the  superior  court's

termination of J.A.'s parental rights to his three children.

_______________________________
     1    25 U.S.C.  1901-23, 1951 (1988).

     2    Under AS 47.10.011,

          the  court may find a child to be a child  in
          need of aid if it finds by a preponderance of
          the   evidence  that  the  child   has   been
          subjected to . . .
          (7)  . . . sexual abuse, . . .
          (9)  . . . neglect[, or] . . .
          (10)  the  parent['s] ability to  parent  had
          been  substantially impaired by the addictive
          or  habitual  use of an intoxicant,  and  the
          addictive  or habitual use of the  intoxicant
          has resulted in a substantial risk of harm to
          the child . . . .
          
     3     The  permanent placement issue is not presently before
us.  For this reason, and because the village did not participate
in this case on appeal, we do not consider the village's position
regarding permanent placement in this opinion.

     4     Accordingly,  J.A.  does not  challenge  the  superior
court's  conclusions  that the state  has  proven  by  clear  and
convincing evidence that his children continue to be in  need  of
aid and that he has not remedied the conduct that would place the
children at substantial risk of harm if returned to him.

     5     See  L.G. v. State, Dep't of Health & Soc. Servs.,  14
P.3d  946,  949-50  (Alaska 2000) (holding  factual  findings  in
termination  proceedings  are reviewed  under  clearly  erroneous
standard,   but   whether  those  findings  comport   with   ICWA
requirements is question of law).

     6     See  C.J. v. State, Dep't of Health & Soc. Servs.,  18
P.3d 1214, 1217-18 (Alaska 2001) (reviewing sufficiency of expert
testimony de novo).

     7    L.G., 14 P.3d at 949-50 (citation omitted).

     8    Id. (citation omitted).

     9     See  Liimatta v. Vest, 45 P.3d 310, 313 (Alaska  2002)
(citation omitted) (reviewing trial court's decision to admit  or
exclude evidence for abuse of discretion).

     10     808 P.2d 1211, 1217 (Alaska 1991) (quoting Norris  v.
Gatts, 738 P.2d 344, 349 (Alaska 1987)).

     11     Id. (noting that had witness's testimony been offered
as expert testimony, court could have admitted hearsay statements
of  other  social  workers and counselors that formed  basis  for
expert opinion under Alaska Evidence Rule 705(c)) (citing  In  re
J.R.B., 715 P.2d 1170, 1174 (Alaska 1986)).

     12    25 U.S.C.  1912(f) requires a court to determine "that
the  continued custody of the child by the parent . . . is likely
to  result in serious emotional or physical damage to the  child"
before   terminating  parental  rights  to   the   child.    This
determination must be "supported by evidence beyond a  reasonable
doubt,  including testimony of qualified expert witnesses."   Id.
(emphases added).

     13     18  P.3d 1214, 1218 (Alaska 2001); see also  J.J.  v.
State, Dep't of Health & Soc. Servs., 38 P.3d 7, 10 (Alaska 2001)
(reaching  same  conclusion  regarding  same  expert's  testimony
concerning mother).

     14    18 P.3d at 1218.

     15    Id.

     16    38 P.3d 7, 10 (Alaska 2001).

     17    18 P.3d at 1218.

     18      J.A.  does not explicitly challenge this  ruling  on
appeal.   Nonetheless,  we hold that DFYS counsel's  hypothetical
questions  were sufficiently based on the facts of  the  case  to
enable a qualified expert to give the testimony required by ICWA.
See  25 U.S.C.  1912(f); see also Parts II and III.B.3 for record
corroboration   of  the  facts  assumed  by  these   hypothetical
questions.

     19     The  family  chart contained the five "substantiated"
reports of sexual abuse involving C.A. described in Part III.B.1.

     20     At  the termination trial, J.A. admitted to  "getting
stoned" with friends on a near-weekly basis.

     21     He  explained that marijuana and alcohol are  "cross-
addictive"  and "cross-tolerant," meaning that someone recovering
from  an alcohol addiction would be more likely to resume abusing
alcohol if he continued to smoke marijuana - the marijuana  would
lead the user back to his drug of choice, alcohol.

     22    Indeed, DFYS makes no claim on appeal that the children
were actually abused.  Rather, it argues that the parents ignored
the  risk  of possible abuse in the past and are very  likely  to
continue to do so.

     23     The  court's order terminating J.A.'s parental rights
explicitly incorporated the court's findings from prior  hearings
regarding J.A. and his family.

     24    25 U.S.C.  1912(d).

     25     J.A. suggests that the state's expert condemned  this
arrangement.   But Professor Daku simply opined that  he  thought
family  members should not be Alcoholics Anonymous (AA)  sponsors
because   they  could  not  be  counted  on  to  be  sufficiently
objective.   Professor Daku made no negative remarks  about  J.A.
using  his  parents as part of his sober support  community,  and
clearly distinguished sober contacts from AA sponsors.