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. Erica A. v. State, Dept. of Health & Social Services (3/21/2003) sp-5674

Erica A. v. State, Dept. of Health & Social Services (3/21/2003) sp-5674

     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


ERICA A.,                     )
                              )    Supreme Court No. S-10234
                                        Appellant,          )
                              )    Superior Court No.
     v.                       )    3AN-93-392 CP / 3AN-98-149 CP
                              )
STATE OF ALASKA,              )
DEPARTMENT OF HEALTH          )    O P I N I O N
AND SOCIAL SERVICES,          )
DIVISION OF FAMILY AND        )
YOUTH SERVICES,               )    [No. 5674 - March 21, 2003]
                              )
               Appellee.      )
________________________________)


          Appeal from the Superior Court of the State
          of Alaska, Third Judicial District,
          Anchorage, Stephanie E. Joannides, Judge.

          Appearances:  Richard D. Kibby, Anchorage,
          for Appellant. Michael G. Hotchkin, Assistant
          Attorney General, Anchorage, and Bruce M.
          Botelho, Attorney General, Juneau, for
          Appellee.  Thom F. Janidlo, Anchorage,
          Guardian ad Litem.

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

          BRYNER, Justice.


I.   INTRODUCTION

          Erica A.1 appeals the superior court's order

terminating her parental rights to her children Kevin S. and Amy

K.  The superior court correctly applied the termination statute,

AS 47.10.088, to the facts of this case and did not err in any

other respect.  We therefore affirm the superior court's order.

II.  FACTS AND PROCEEDINGS

          Erica A. is a thirty-four-year-old mother of five

children.  Her involvement with the Department of Health and

Social Services, Division of Family and Youth Services began in

1989.  At the time, Erica had a daughter by her then-husband,

Edward, and a son from a previous relationship.  Between May and

October 1989, the division received four reports of harm alleging

that Erica and Edward had neglected the children, that Erica had

a substance abuse problem, and that Edward had physically abused

the children.  Erica admitted that she used cocaine, crystal

methamphetamine, acid, and speed while pregnant.  The division

referred Erica to homemaker services and substance abuse

treatment.

          By 1990 Erica had a third child, her second by Edward.

The division responded to a report of physical abuse, but closed

its case on Erica's children after establishing that they were in

the custody of Edward's parents.  Later that year, the division

learned that Erica had taken the children out of Alaska.

          Erica again came to the division's attention in 1992.

That year, the division took emergency custody of all three

children after a doctor's examination substantiated reports of

sexual abuse.  The division never identified the perpetrator with

certainty, but it instructed Erica to prevent contact between her

children and her teenage half brother.  Despite this instruction,

the division received a report that Erica and her mother had left

her children in her half brother's care while they went to

church.  The division paid for a psychological evaluation of

Erica's half brother, which recommended that he not be left

unsupervised with children.  Erica additionally failed to protect

her older children from a boyfriend, Brian S., who would become

the father of Kevin and Amy.  The division told Erica to keep

Brian away from her children after it received a report that he

had physically abused the oldest child and held an unloaded gun

to the head of Erica's young cousin.  Erica nevertheless

continued to allow Brian into her home.

          The division developed case plans for Erica in 1992-93

and provided services including psychological evaluations, home-

based services to improve parenting and everyday living skills, a

substance abuse evaluation, therapy sessions for Erica and her

children, and parenting classes.  When Erica became involved in a

legal dispute with Edward and his parents over custody of the

three oldest children, the division referred her to an attorney.

The superior court granted custody of Edward's children to him,

and granted custody of Erica's oldest child to Edward's parents,

even though they are not biologically related to the child.  All

of them later left Alaska, and Erica has had no contact with them

for several years.

          In 1993 Erica gave birth to Kevin, a child fathered by

Brian.  The division took legal custody of Kevin soon after he

was born, citing Erica's lack of progress on her earlier case

plans and her ongoing substance abuse.  Erica admitted that she

used marijuana and alcohol during the pregnancy.  Brian was

incarcerated when Kevin was born.  The division filed a petition

for Kevin's adjudication as a child in need of aid.  Erica

stipulated to his status as a child in need of aid.  In the three

months after Kevin was born, the division provided sixty-three

hours of direct services to Erica, including assistance locating

housing and family support classes.

          By July 1994 Erica, Brian, and Kevin were living

together in Wasilla.  In a disposition order entered in July

1994, the superior court continued the state's legal custody of

Kevin but allowed Erica and Brian to retain physical custody.

The division referred Erica and Brian to parenting classes and

counseling to address the effects of sexual abuse that each

parent had suffered in childhood.

          In April 1995 the division determined that Kevin was

not at risk in his parents' custody and closed its case on Kevin,

although Kevin's guardian ad litem expressed reservations about

the parents' failure to comply with their case plan.  A month

later, Erica and Kevin - apparently no longer living with Brian -

were evicted from their home in a trailer park.  Their trailer

caught fire as they were moving out.  Erica was charged with

arson and pleaded no contest to criminal mischief, for which she

received a suspended sentence and three years' probation.

          That summer Erica tried to break into Brian's trailer

and ended up in a fight with Brian and his new girlfriend.  The

police found Erica and Kevin in a van outside the trailer; Erica

had been cut during the fight, and both she and Kevin were

smeared with her blood.  Kevin was dressed only in an adult

t_shirt.  Erica was charged with one count of child abuse, one

count of assault, and one count of unauthorized entry.  She

eventually pleaded no contest to disorderly conduct.

          Erica and Kevin moved in with Erica's aunt, whose

parental rights to her own children had been terminated and who

had sexually abused Erica during childhood. On one occasion when

Erica left Kevin at home, her aunt physically abused him by

hitting him and throwing him across the room.  A social worker

responding to a report of harm about the incident discovered that

Kevin had bruises and blood blisters.  The division again took

custody of Kevin in September 1995 and filed a petition for his

adjudication as a child in need of aid based on this physical

abuse and on Erica's fight at Brian's trailer.  Kevin was placed

in foster care.

          The following month, October 1995, Erica was sentenced

on her disorderly conduct conviction.  The district court imposed

a ninety-day suspended sentence with three years of probation and

required her to participate in parenting classes, alcohol abuse

treatment, and a domestic violence intervention program.  The

division worked with the alcohol abuse program to refer Erica to

the Reflections residential substance abuse treatment program.

The division returned Kevin to Erica's physical custody after her

admission to the program, but retained legal custody.  It moved

Kevin back to foster care after program staff and participants

observed Erica failing to bathe Kevin, leaving him alone or with

strangers while she went to smoke a cigarette, and hitting him.

After Kevin returned to foster care, his foster mother reported

that he had tried to touch her vaginal area and had attempted to

injure himself and the family dog.

          Erica was discharged from Reflections early in February

1996 for failing to follow rules and complete assigned tasks.

The Reflections staff recommended that she continue with

residential substance abuse treatment; although Akeela House had

space available for Erica, she declined to continue treatment.

The superior court adjudicated Kevin to be a child in need of aid

in August 1996; in December 1996 it issued a disposition order

placing him in state custody for two years.

          Upon receiving formal legal custody of Kevin, the

division placed him in Erica's physical custody, and the two

lived with Erica's mother.  The division provided counseling,

home-based therapy, bus passes, and assistance in keeping track

of Erica's appointments.  In March 1997 Erica purchased a trailer

and moved into it with Kevin. The division provided a substance

abuse assessment, which concluded that Erica did not need

additional treatment.  The division therefore requested, and the

superior court approved, Kevin's release into Erica's legal

custody in June 1997.

          Three months later, in September 1997, the division

received an anonymous report about Erica's care of Kevin.  The

reporter alleged that Erica's trailer was filthy, that she

allowed runaway teenagers into her home and used crack cocaine

with them in front of Kevin, and that Kevin displayed highly

sexualized behavior.  The division did not investigate that

report.  But in December 1997 Erica was arrested for maintaining

a crack house after she allowed a drug dealer to live in the home

with her and Kevin.  Police found a crack pipe in her hand, and

she admitted to smoking crack that morning.  Erica was pregnant

with Amy at the time.  Erica was charged with misconduct

involving a controlled substance and was incarcerated pending

disposition of her charge.

          After her arrest, Erica arranged for Kevin to live with

her brother in Palmer. Upon investigation, the division

determined that Kevin was not at risk in Erica's brother's home

and did not take custody of him.

          In January 1998 the Department of Corrections placed

Erica in the Dena A. Coy program, which provides residential

substance abuse treatment for expectant mothers.  Amy was born in

February 1998, two months premature.  At the time, Erica was

unable to identify Amy's father.  (A paternity test later

established that Brian was the father.)  Because of her premature

birth, Amy suffered serious health problems, which made it

difficult for Erica to participate in substance abuse treatment;

as a result, she was discharged early from Dena A. Coy.

          Between May and June, Erica was released from jail to

her parents' third-party custody.  After her release, the

division provided bus passes, taxi vouchers, counseling, a

psychological evaluation, and assistance in organizing her

appointments. By June 1998 the division had helped Erica enroll

in the New Dawn long-term after care program.  At New Dawn, Erica

was disciplined for nursing the infant Amy in the rain while

Erica smoked a cigarette.

          Erica eventually pleaded no contest to misconduct

involving a controlled substance.  In August 1998 the superior

court sentenced her to twenty-one months in jail.  She then

entered the Hiland Mountain Correctional Center to serve her

sentence.

          Meanwhile, in March 1998, the division had filed a

petition to adjudicate Amy a child in need of aid based on

Erica's history of substance abuse.  In July the superior court

had found Amy to be a child in need of aid and had committed her

to the state's temporary custody pending disposition.  But the

division allowed Amy to remain in Erica's physical custody until

Erica returned to jail in August 1998.  The division then allowed

Erica to place Amy with a family friend, Connie H.  The division

provided services to address Amy's physical and cognitive

developmental delays.

          In January 1999 the superior court held a disposition

hearing and committed Amy to state custody for two years.  At

that time the division planned to pursue guardianship of Amy by

Connie.  But Connie soon decided that she could no longer care

for Amy and returned her to Erica's mother.  The division agreed

to the placement and filed a permanency report with the superior

court in August 1999, recommending termination of Erica's

parental rights and adoption by Erica's mother.  Erica's social

worker testified at the termination trial that he instructed

Erica's mother not to allow unsupervised visits between Erica and

Amy, though Erica's mother maintained that she was never informed

of the restriction.  The social worker also testified that

Erica's mother disagreed with the division's assessment that

Erica had serious deficiencies as a parent, but agreed to comply

with any conditions that would allow Erica's mother to have

permanent custody of Amy.

          The Department of Corrections released Erica from

custody in July 1999.  She remained on probation for her criminal

mischief conviction.  The state did not then have custody of

Kevin, believing that he was living with Erica's father.  But in

October 1999 the division received a report of harm regarding

Kevin and at least one other child at Erica's trailer.  The

report alleged that Erica had smoked crack in front of six-year-

old Kevin, that Kevin played outdoors without shoes, that he

played with fire and a BB gun, and that Erica left unspecified

children unattended while she slept.  When a social worker

arrived at Erica's home to investigate, he found her trailer

dirty and messy.  Kevin was not there, but Erica was home with a

toddler.  A woman Erica could not identify was asleep on the

sofa.  Erica told the social worker she was babysitting the

toddler, but admitted that the child was Amy after the child

called Erica "mommy."  Erica also told the social workers that

Kevin had been living with her, not with Erica's father.  The

division's social workers contacted Kevin at school.  Kevin told

them that his home was very messy, that many people came and

went, and that the people there fought a lot - swearing, kicking,

and punching.

          The division took emergency custody of both children.

They initially attempted to place Kevin with Erica's father.  But

when they were unable to contact him, they placed both children

in emergency foster care.  The division petitioned for custody of

Kevin, alleging that he was a child in need of aid.  At a

temporary custody hearing the superior court found probable cause

to believe that Kevin was a child in need of aid and committed

him to the temporary custody of the division.  Kevin's

adjudication hearing was set for January 2000 but was continued

several times upon motions filed by both parties.

          Kevin was placed in foster care but his behavioral

problems proved too severe for his foster family.  His problems

include sexualized behavior, head banging, biting, fire setting,

defecating in his pants, and violence towards animals.  He also

exhibited fear for his security, including an inability to sleep

unless an adult was present, nightmares, and verbal expressions

of concern for his physical safety.  Because of his special

needs, Kevin was institutionalized at Charter North/North Star,

then transitioned to therapeutic foster care.

          Amy had already been declared a child in need of aid

and placed in state custody until January 29, 2001.  The division

decided not to return Amy to her grandmother's care, since

Erica's mother had allowed Erica to have unsupervised visits with

Amy, and the division no longer trusted her to protect the child.

Amy thus has remained in a pre-adoptive foster home since October

1999.

          From October 1999 to September 2000 Erica was

consistently employed, but her place of employment and work

schedule changed frequently.  The division scheduled weekly

visitation between Erica and her children beginning in October

1999.  Erica had difficulty coordinating her work schedule, the

bus schedule, and the visitation schedule, and she was late or

did not attend several visits.  In response, the division helped

her figure out which bus would arrive on time.  In February 2000

the division assisted Erica in scheduling a substance abuse

assessment.  Erica's social worker called her home and learned

that she was letting two men she knew only by first name live

with her.  Between January and April 2000, the police went to

Erica's trailer three times to investigate disturbances.  In one

instance, a man who slept in Erica's laundry room became violent

after drinking, and in another case Erica's boyfriend punched her

in the eye.  In the third case, Erica was so drunk she could

hardly stay awake to answer the officer's questions.

          In June 2000 the state petitioned to revoke Erica's

probation, alleging that she had violated her conditions by

changing her residence without permission, consuming alcohol,

ingesting cocaine, failing to undergo a substance abuse

assessment, failing to maintain full-time employment, failing to

complete a mental health evaluation, and failing to make

restitution payments for the trailer that she burned down in

1995.  The superior court released her on bail, and the division

and her probation officer referred her to the residential

substance abuse treatment program at Akeela House.

          In May 2000, a month before Erica was charged with

violating the conditions of her probation, the division filed a

petition to terminate Erica's parental rights to both Kevin and

Amy.  The division jointly petitioned to terminate  Brian S.'s

parental rights, as well, but it later moved for and received a

continuance as to Brian so that it could conduct paternity

testing to determine if he was Amy's father.  Erica's termination

trial was thus severed from Brian's.  The court consolidated

Kevin's child- in-need-of-aid adjudication hearing with the

termination trial.  The trial took place over thirteen days

between January and April 2001.  At the end of the trial, the

superior court terminated Erica's parental rights to Kevin and

Amy.

          Erica appeals.

III. DISCUSSION

     A.   Standard of Review

          We apply the clearly erroneous standard when reviewing

the superior court's factual findings.2  Factual findings are

clearly erroneous when we are convinced, upon review of the

entire record, that a mistake has been made.3  Whether the

superior court's factual findings satisfy applicable CINA rules

is a question of law subject to de novo review.4

          B.   The Superior Court Correctly Applied AS 47.10.088.
          
          A court entering an order that terminates parental

rights must find by clear and convincing evidence that the child

was subjected to conduct or conditions placing the child in need

of aid under AS 47.10.011 and that the parent has failed within a

reasonable period of time to remedy the conditions that place the

child at risk.5  The court must further find, by a preponderance

of the evidence, that the division made reasonable efforts under

AS 47.10.086 to provide family services to enable the child to

return home.6  Finally, the court must find that termination is

in the child's best interests.7  Erica challenges the trial

court's reasonable efforts and best interests findings.

          1.   Reasonable efforts
               
          The trial court found by "more than a preponderance of

the evidence" that the division made reasonable efforts to

prevent the breakup of Erica's family.  But Erica, focusing on

the narrow time frame between January 1999 and November 2000,

contends that the division failed to make reasonable efforts.

Specifically, Erica argues that during this period the state did

not provide the particular services that would have addressed her

problems, including assistance with "thinking, organizing, and co-

dependence," "treatment for depression," and a bonding assessment

of Amy.  She also alleges that the division did not provide

reasonable visitation after Kevin and Amy were removed from her

home.  The state responds that Erica did, in fact, receive

services of the type she denies receiving.  The state also argues

that the reasonableness of its efforts during the disputed period

must be evaluated in light of the extensive services it provided

over the entire course of the division's involvement with Erica.

          The record establishes that the state provided a number

of services in the disputed period.  Between September 1998 and

May 1999, while serving her sentence for misconduct involving a

controlled substance, Erica participated in a halfway house

program at Akeela House.  Although the Department of Corrections

placed her in the program, we have held that "[i]t is of no

particular consequence that the Department of Corrections . . .

rather than DFYS" provided a particular service.8  In March 1999

the division referred Erica for one of several psychological

evaluations that it provided over the years.  Although the record

does not indicate that Erica received any services between her

release from Akeela House sometime after April 1999 and the

removal of Kevin and Amy from her care in October 1999, after

their removal in October the division consistently offered

services to assist Kevin and Amy and facilitate their return

home, including services to help address Kevin's special needs.

It also offered Erica a urinalysis program, a substance abuse

assessment, visitation with Kevin and Amy,9 further residential

treatment for substance abuse at Akeela House, and referrals for

counseling to address the issues underlying Erica's substance

abuse, such as depression and co-dependence.

          In any event, as the state correctly recognizes, the

reasonableness of the division's efforts in 1999 and 2000 must be

viewed in light of the entire history of services that the state

had already provided.10  As detailed above in the statement of

facts, Erica's substance abuse and parenting problems arose well

before Kevin and Amy were born, and the division had already made

substantial efforts to assist Erica before it intervened on

behalf of Kevin and Amy.  Between Kevin's birth in September 1993

and the beginning of the disputed period here, January 1999, the

division continued to make extensive efforts.  In fact, Erica

stipulated to the reasonableness of the state's efforts from July

1992 through August 1996 and does not challenge the court's

finding of reasonable efforts for the period between September

1996 and January 1999.

          We have held that "the state's efforts to prevent

breakup of the entire family" may be considered "in assessing

whether that effort was sufficient" with respect to a particular

child.11  Thus, in determining what efforts would be reasonable

for Erica from January 1999 onward, the court was entitled to

consider the division's extensive history of efforts and Erica's

consistent lack of success at addressing problems.  When viewed

in light of this history, the superior court's finding of

reasonable efforts is not clearly erroneous.

                    2.   Best interests
               
          Alaska Statute 47.10.088 requires the court to consider

whether termination of parental rights is in the best interests

of the child.12  Erica challenges the superior court's best

interests finding.  She points to her care of Amy during the

child's first six months and her family physician's assessment

that Amy is developmentally age-appropriate.  Erica also contends

that she has support from family members, pointing to their care

of Kevin while she was incarcerated in 1998.

          Erica further argues that the superior court should

have adopted the recommendations of Dr. Bruce Smith rather than

those of Dr. Richard Lazur.  Both psychologists evaluated Erica's

parenting capacity in 1999.  Dr. Lazur believed that Erica was

unlikely ever to be capable of parenting.  In contrast, although

Dr. Smith agreed that Erica should not have primary

responsibility for parenting her children, he suggested a

permanent plan that would allow her frequent contact with the

children by placing them in the primary custody of Erica's

parents, who could provide for their day-to-day parenting needs.

Dr. Smith believed that this arrangement "would appear to meet

the best interest[s] of the children."  Erica insists that Dr.

Smith was more objective and credible than Dr. Lazur.

          But the trial court, not this court, decides issues of

credibility.13  "Because of the unique ability of the trial court

to assess credibility, this court consistently grants deference

to trial courts where credibility is at issue."14  Here, the

superior court could reasonably find Dr. Lazur's testimony more

persuasive than Dr. Smith's.  Moreover, the record does not

suggest that the superior court believed that either

psychologist's testimony was crucial.  The court's best interests

findings appear to rely on evidence establishing that a permanent

plan calling for Erica's parents to have primary custody was not

a viable option.  Undisputed evidence showed that neither parent

was willing to care for Kevin.  And although Erica's mother did

say that she would be willing to assist Erica by taking primary

custody of Amy, ample evidence supports the superior court's

decision that Erica's mother would be unlikely to protect Amy

from Erica: Erica's mother had repeatedly allowed Erica to have

unsupervised visits with Amy, had a history of failing to follow

the division's directions concerning her sister's children, and

persistently refused to acknowledge that Erica had serious

parenting and substance abuse problems.

          As is clear from the statement of facts, the state

presented overwhelming evidence of Erica's repeated failure to

care appropriately for her children and her longstanding lack of

success in substance abuse treatment.  Erica's background is

checkered with periods of progress and backslide.  Although at

the end of the trial, in April 2001, Erica showed signs of

improvement, her counselor estimated that it would take at least

another year for her to be able to demonstrate her ability to

care for her children - assuming that she continued to progress.

When viewed in light of the record as a whole, the superior

court's best interests findings are supported by substantial

evidence and are not clearly erroneous.

          C.   Misapplication of Facts
          
          Erica further alleges that the superior court failed to

separately consider the evidence as it related to each child and

that it applied evidence concerning individual children to both.

Specifically, Erica challenges a finding as to Kevin in the

superior court's December 1999 temporary commitment order that,

according to Erica, was based on evidence relating only to Amy.

Erica also argues that because Dr. Lazur's evaluation of her

parenting skills focused only on her relationship with Amy, the

evaluation had no bearing on her ability to parent Kevin.  But

Erica's own counsel drafted the final findings in the temporary

commitment order; and, in any event, the termination order now

renders those findings moot.  Furthermore, as already discussed

above, psychological testimony did not play a crucial role in the

trial court's ruling - particulary as to Kevin, since neither of

Erica's parents was willing to assume primary custody of Kevin.

In short, Erica's claims are meritless.

          D.   Jurisdiction

          Erica argues that the superior court lacked

jurisdiction over Amy.  Erica's argument is based on the

following circumstances.

          On January 29, 1999, the superior court ordered Amy

committed to the division's custody for two years.  Because of

multiple continuances requested by both parties, the termination

trial did not begin until the day custody expired - January 29,

2001.  At the time, none of the parties realized that the

division's custody over Amy had expired.  But the division soon

recognized the problem.  On February 21, 2001, it filed an

emergency petition to adjudicate Amy a child in need of aid, and

on February 26, the superior court entered an order renewing the

state's custody of Amy based on a renewed finding that Amy was a

child in need of aid.  Meanwhile, on February 22, Erica had

signed a power of attorney purporting to give her mother

authority over Amy's "care custody and upbringing."

          Erica essentially reasons that because she gave legal

custody of Amy to her mother during a lapse in the state's

custody, the court lacked jurisdiction to reassume custody.  But

Erica's power of attorney was not an assignment of legal custody;

it simply gave Erica's mother authority to act in her stead in

matters concerning Amy's care, custody, and upbringing.  Erica

cites no authority for the proposition that the document had any

effect on the court's jurisdiction.  Under AS 47.10.080(c), the

superior court has authority to extend a two-year child-in-need-

of-aid commitment for an additional year upon a showing that the

extension would be in the child's best interests.15  Nothing in

the statutory grant of authority precludes the extension from

being implemented after the initial two-year commitment has

technically expired.  Erica's jurisdictional argument thus lacks

merit.

          E.   Due Process
          
          The children's father, Brian S., was in jail throughout

the termination trial. The state's petition initially sought to

terminate both Erica's and Brian's parental rights, but the state

moved for and the court granted a continuance of Brian's

termination trial.  Although the continuance severed Brian's case

from Erica's, the court allowed Brian's counsel to attend and

participate in Erica's trial.  Brian was present telephonically.

          Erica contends that terminating her parental rights

before Brian was released from jail violated her due process

rights because it prevented her from benefitting from having

additional time to progress in her treatment program.  She

further contends that allowing Brian's counsel to participate at

her trial violated her due process rights because it allowed

three attorneys (the state, the guardian ad litem, and the

father's counsel) to argue for termination.  The state responds

that this argument is waived because Erica has failed to show how

Brian's participation prejudiced her.  The guardian ad litem adds

that Erica cites no legal support for these claims.

          The superior court considered Erica's objection to

Brian's presence and participation but decided to allow it.  As

the children's biological parent, Brian had a legitimate interest

in Erica's termination proceedings.  Erica has cited no legal

authority suggesting that the superior court erred in allowing

him to attend and to be represented by counsel, and we are aware

of no such authority.  Moreover, Erica provides no basis for her

claim of a constitutional right to additional time in treatment.

We find no error in the trial court's decision.

          F.   Foster Care Placement
          
          Barring certain exceptions, AS 47.14.100 prohibits the

state from placing a child in foster care if a relative requests

placement of the child in the relative's home.16  Erica contends

that when the state took emergency custody of Kevin and Amy in

October 1999, it should have placed them with relatives rather

than in foster care.  This error, she argues, entitles her to a

reversal of the superior court's termination order.

          The state and the guardian ad litem correctly respond

that the October 1999 temporary custody order is not properly

before this court.  This appeal is from the superior court's

ultimate decision to terminate Erica's parental rights.  In

reaching its termination decision, the superior court was not

required to revisit its earlier placement decision and its

termination order superseded all earlier placement orders.17  As

the state correctly points out, Erica could have challenged those

placement decisions by requesting superior court review.18  Erica

could then have petitioned this court for review of the superior

court's ruling.19  Because Erica failed to seek timely review, the

superior court's termination order now renders earlier issues of

placement moot.20

          G.   Remaining Claims

          Erica raises several additional claims that she has not

properly preserved for review.  Specifically, Erica claims that

the superior court erred in October 1999 when it found probable

cause to believe that Kevin was a child in need of aid; that the

state abridged her due process rights by failing to investigate

the circumstances surrounding Amy's presence in Erica's home in

October 1999 and by failing to provide notice to Erica's mother

that Amy was not allowed unsupervised visits with Erica; and that

the superior court violated her due process rights by relying on

an unsigned case plan and by failing to hold adjudication and

permanency hearings for Kevin within the statutorily mandated

time frame.

          Erica has failed to cite any point in the record where

she raised these issues; our review of the record has not

uncovered any indication that she did so.  We will not review

issues that were not properly raised in the trial court.21

IV.  CONCLUSION

          We AFFIRM the superior court's order terminating

Erica's parental rights to Kevin and Amy.

_______________________________
1Pseudonyms  are  used  throughout the  opinion  to  protect  the
privacy of those involved.
2See M.W. v. State, Dep't of Health & Human Servs., 20 P.3d 1141,
1143 (Alaska 2001).
3See id. at 1143.
4See id.
5AS 47.10.088(a)(1).

          AS 47.10.088 provides, in relevant part:

          (a)  [T]he rights and responsibilities of the
               parent   regarding  the  child  may   be
               terminated  for purposes  of  freeing  a
               child  for  adoption or other  permanent
               placement if the court finds
               
          (1)  by clear and convincing evidence that
               
          (A)  the  child has been subjected to conduct
               or conditions described in AS 47.10.011;
               and
               
          (B)  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; and
               
          (2)  by  preponderance of the  evidence  that
               the  department  has complied  with  the
               provisions  of  AS 47.10.086  concerning
               reasonable efforts.
               
          . . . .
          
          (c)  In   a  proceeding  under  this  chapter
               involving  termination of  the  parental
               right  of  a  parent,  the  court  shall
               consider  the  best  interests  of   the
               child.
               
          AS 47.10.011 provides, in relevant part:

          Subject to AS 47.10.019, 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 any  of  the
          following:
          
          . . . .
          
          (6)  the   child   has  suffered  substantial
               physical harm, or there is a substantial
               risk   that   the  child   will   suffer
               substantial physical harm, as  a  result
               of  conduct by or conditions created  by
               the   child's   parent,   guardian,   or
               custodian  or  by  the  failure  of  the
               parent,   guardian,  or   custodian   to
               supervise the child adequately;
               
          . . . .
          
          (9)  conduct by or conditions created by  the
               parent,  guardian,  or  custodian   have
               subjected the child or another child  in
               the same household to neglect;
               
          (10) the  parent,  guardian,  or  custodian's
               ability to parent has 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 . . . .
               
6AS 47.10.088(a)(2).

          The  reasonable  efforts  provisions  of  AS  47.10.086
          provide, in relevant part:
          
          (a)  Except  as  provided in (b) and  (c)  of
               this  section, the department shall make
               timely,  reasonable efforts  to  provide
               family support services to the child and
               to  the parents or guardian of the child
               that are designed to prevent out-of-home
               placement of the child or to enable  the
               safe  return of the child to the  family
               home, when appropriate, if the child  is
               in   an   out-of-home  placement.    The
               department's  duty  to  make  reasonable
               efforts  under this subsection  includes
               the duty to
               
          (1)  identify  family support  services  that
               will  assist  the parent or guardian  in
               remedying  the conduct or conditions  in
               the home that made the child a child  in
               need of aid;
               
          (2)  actively  offer the parent or  guardian,
               and refer the parent or guardian to, the
               services  identified under (1)  of  this
               subsection;  the department shall  refer
               the  parent  or  guardian to  community-
               based  family support services  whenever
               community-based services  are  available
               and  desired by the parent or  guardian;
               and
               
          (3)  document  the department's actions  that
               are  taken  under (1) and  (2)  of  this
               subsection.
               
7See  AS  47.10.088(c); see also CINA Rule 18(c)(2)(C) (requiring
the  superior  court to find by a preponderance of  the  evidence
that  termination of parental rights is in the best interests  of
the child).
8A.M. v. State, 945 P.2d 296, 305 (Alaska 1997).
9Although  more  visitation might have been possible  during  the
disputed period, the record suggests that Erica bears much of the
responsibility for the limited visitation.  Erica's social worker
submitted  an  affidavit  documenting  twelve  scheduled   visits
between  December 17, 1999 and February 24, 2000, of  which  four
occurred.  Six did not occur because Erica was late or failed  to
appear.   Kevin missed one visit because of a doctor appointment,
and  Amy  missed one visit because her foster parents  could  not
transport her to the visit.  One visit did not occur because  the
social  worker  was out of town.  The social worker  also  stated
that  he  helped Erica figure out which bus would arrive in  time
for  the  visits, and that he contacted her three times regarding
visitation and took her calls six times.
10E.A. v. State, 46 P.3d 986, 990 (Alaska 2002).
11Id. at 991.
12AS 47.10.088(c) provides:

          In  a proceeding under this chapter involving
          termination  of  the  parental  right  of   a
          parent,  the  court shall consider  the  best
          interests of the child.
          
13See In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001).
14Wasserman v. Bartholomew, 38 P.3d 1162, 1167 (Alaska 2002).
15AS 47.10.080 provides, in relevant part:

          (c)  If  the court finds that the child is  a
               child in need of aid, the court shall
               
          (1)  order   the  child  committed   to   the
               department   for   placement    in    an
               appropriate setting for a period of time
               not  to  exceed two years . .  .  except
               that   the  department  or  the  child's
               guardian ad litem may petition  for  and
               the court may grant in a hearing
               
          (A)  one-year extensions of commitment . .  .
               if   the   extension  is  in  the   best
               interests of the child[.]
               
16AS 47.14.100 provides, in relevant part:

          (e)  A  child  may not be placed in a  foster
               home  or  in  the care of an  agency  or
               institution providing care for  children
               if  a  relative  by  blood  or  marriage
               requests placement of the child  in  the
               relative's    home.     However,     the
               department  may  retain custody  of  the
               child  and provide for its placement  in
               the same manner as for other children if
               the department
               
               (1)  makes a determination, supported by
                    clear and convincing evidence, that
                    placement  of  the child  with  the
                    relative will result in physical or
                    mental injury . . . ;
                    
               (2)  determines  that a  member  of  the
                    relative's  household  who  is   12
                    years  of  age  or  older  was  the
                    perpetrator   in  a   substantiated
                    report of abuse under AS 47.17; or
                    
               (3)  determines  that a  member  of  the
                    relative's  household  who  is   12
                    years  of  age  or older  is  under
                    arrest for, charged with, has  been
                    convicted of, or has been found not
                    guilty by reason of insanity of,  a
                    serious offense . . . .
                    
          . . . .

          (f)  .  .  .  Nothing in . . .  (e)  of  this
               section  applies to child placement  for
               adoptive purposes.
               
17See AS 47.10.088; CINA Rule 18.
18CINA  Rule  19.1(b)  provides  for  superior  court  review  of
placement decisions:
          At  any time in a proceeding, a party who  is
          opposed  to  the  Department  transferring  a
          child from one placement to another may  move
          the  court for a review hearing at which  the
          requesting  party  must prove  by  clear  and
          convincing  evidence that the transfer  would
          be  contrary  to  the best interests  of  the
          child[.]
19See Alaska Appellate Rule 402, which provides in pertinent part
that:

          An  aggrieved  party . . . may  petition  the
          appellate  court as provided in Rule  403  to
          review  any  order or decision of  the  trial
          court, not appealable under Rule 202, and not
          subject to a petition for hearing under  Rule
          302, in any action or proceeding . . . .
          
20Erica similarly challenges the trial court's denial of her March
2000  motion for a hearing to review Kevin's placement in Charter
North  and  Amy's placement with her foster family.   This  claim
likewise is moot.
21See, e.g., D.E.D. v. State, 704 P.2d 774, 780 (Alaska 1985).