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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.
