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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wendell C. II v. State of Alaska (07/29/2005) sp-5929

Wendell C. II v. State of Alaska (07/29/2005) sp-5929

     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,


) Supreme Court No. S- 11601
) Superior Court Nos.
v. ) 2KB-01-16/17/18/19/20 CP
) 2KB-02-32 CP
VANESSA G.,                    )   Supreme Court No. 11604
               Appellant,      )   Superior Court Nos.
                               )   2KB-01-16/17/18/19/20 CP
     v.                            )    2KB-02-32 CP
STATE OF ALASKA, OCS,          )
                               )   O P I N I O N
               Appellee.       )
                               )   [No. 5929 - July 29, 2005]

          Appeal  from the Superior Court of the  State
          of    Alaska,   Second   Judicial   District,
          Kotzebue, Richard H. Erlich, Judge.

          Appearances:   Robert  D.  Lewis,   Lewis   &
          Thomas, P.C., Nome, for Appellant Wendell  C.
          II.   William B. Oberly, The Law  Offices  of
          William  B. Oberly, Anchorage, for  Appellant
          Vanessa   G.   Jeffrey  P.  Stark,  Assistant
          Attorney   General,   Anchorage,   Scott   J.
          Nordstrand, Acting Attorney General,  Juneau,
          for Appellee.
          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          MATTHEWS, Justice.

          The  issue  in  these appeals is whether  the  superior
court  improperly considered social science research outside  the
record in terminating Wendell C.s and Vanessa G.s parental rights
to  their four youngest children.1  We conclude that the superior
courts consideration of the studies did no harm because there  is
no reasonable likelihood that exclusion of the studies would have
affected  the  courts decision to terminate the  parents  rights.
Consequently, we affirm.
          Wendell  and  Vanessa are appealing the termination  of
their  parental  rights  to four of their children,  Paula  (born
2/16/95),  William  (born 9/18/96), Donald  (born  6/20/01),  and
Julius  (born  10/9/02).2   All  four  are  Indian  children  for
purposes of the Indian Child Welfare Act (ICWA), 25 U.S.C.  1901-
          Wendell and Vanessa have received social services since
1998  because  of  alcohol abuse and domestic violence.   Wendell
testified  that he started drinking alcohol when he was seventeen
or  eighteen  years old, and that the longest he has  been  sober
since  then was for eight months when he was nineteen or  twenty.
Wendell  has  gone to jail at least four times  and  admits  that
alcohol  was  involved  every  time.   Additionally,  there   was
testimony that Wendell has assaulted Vanessa and his parents many
times  while drunk, and the children have witnessed some of these
          Both   Wendell   and  Vanessa  attended   two   alcohol
rehabilitation  programs  in 2002 but relapsed  soon  after  each
program.   Vanessa  completed another rehabilitation  program  in
December  2003  but  attended  only  one  aftercare  session  and
apparently  resumed drinking.  Her landlord testified that  after
she  completed the program he received numerous complaints  about
drinking and fighting at her furnished apartment, that each  time
he went to give her warnings he found that she had been drinking,
and  that when she moved out, the furnishings were broken and the
apartment was filthy.
          Paula, William, and Donald were placed in state care in
April  2002  and have been together in a foster home  since  July
2003.   Julius has been in state care since he was one month  old
since November 2002.
          In July 2004 the superior court terminated both parents
rights  with  respect to the four children.  In its opinion,  the
court  cited  a  number  of  studies  detailing  the  effect   of
alcoholism   and  domestic  violence  upon  families,   and   the
developmental needs of children.  The studies were  not  admitted
into  evidence; neither the parties nor the expert witnesses  who
testified at the termination trial had even mentioned them.3  The
parents  appeal,  contending that the superior  court  improperly
relied on the studies.
           Whether factual findings are sufficient to satisfy the
child  in  need of aid (CINA) statutes and rules and  the  Indian
Child  Welfare Act (ICWA) is a question of law that we review  de
novo,  adopting the rule of law that is most persuasive in  light
of precedent, reason, and policy.4  We also apply our independent
judgment when deciding due process claims.5
          Wendell  and  Vanessa argue that by citing  the  social
science studies, the court improperly considered evidence outside
the record.
          A  court may use extra-record facts to prove a fact  or
element  in  the  case by taking judicial notice  of  that  fact.
Alaska Evidence Rule 201(a) defines judicial notice of a fact  as
a  courts  on-the-record declaration of the existence of  a  fact
normally decided by the trier of fact, without requiring proof of
that  fact.6  A fact can be judicially noticed only if it is  not
subject  to reasonable dispute in that it is either (1) generally
known  within  this  state or (2) capable of accurate  and  ready
determination   by  resort  to  sources  whose  accuracy   cannot
reasonably  be questioned.7   The parties can contest the  taking
of  judicial notice:  Upon timely request, a party is entitled to
be  heard as to the propriety of taking judicial notice  and  the
tenor   of  the  matter  noticed.   In  the  absence  of   proper
notification, the request may be made after judicial  notice  has
been taken.8
          Wendell  argues that the studies were not properly  the
subject   of  judicial  notice  because  they  were  subject   to
reasonable dispute.  In addition, he and Vanessa assert that even
if  the  facts  were ones that could be judicially noticed,  they
were not given an opportunity to challenge the taking of judicial
notice  because  they  first discovered the  courts  use  of  the
studies  in its memorandum opinion.  Lastly, Wendell and  Vanessa
contend  that  the lack of notice violates their  rights  to  due
          Because   we  conclude  that  there  is  no  reasonable
likelihood  that  the  superior  courts  decision  to   terminate
parental  rights  would  have been different  absent  the  social
science  studies  cited in the opinion, we  affirm  the  superior
courts  decision without deciding whether or how Rule 201  should
apply  to this case.9  We hasten to add that even if the superior
courts  reliance on these studies was not covered by Rule 201  at
all,10 still the better practice would be to inform the parties in
advance  of the studies the court intends to rely on,  so  as  to
give the parties an opportunity to challenge this research.11
          Under  the  CINA statutes and rules and ICWA,  a  trial
court must make several findings before it may terminate parental
rights.  The superior court cited to the challenged materials  in
making  two  of  these findings:  (1) that clear  and  convincing
evidence  shows that the parents have not remedied the conditions
or  conduct placing the children at risk, or have failed to  make
sufficient progress in a reasonable period of time such that  the
children remain at a substantial risk of harm;12 and (2)  that  a
preponderance of the evidence shows that the department has  made
active  but  unsuccessful efforts to provide services to  prevent
          the breakup of the family.13  We consider the evidence in the
record supporting each of these findings below.
     A.   Clear  and  Convincing  Evidence Establishes  that  the
          Parents  Have  Not Remedied the Conduct and  Conditions
          Within a Reasonable Time.
          The  parents challenge the superior courts finding that
the  parents  failed to remedy their conduct within a  reasonable
time  under AS 47.10.088(a)(1)(B).14  They point to the  superior
courts  citation of social science data suggesting that alcoholic
parents  who abuse each other also tend to abuse their  children;
that  attempts to recover from alcoholism are often unsuccessful;
and  that  young  children tend to have pressing emotional  needs
that  cannot  be  put off.  Although the superior court  provided
numerous  citations  to  this research, we  think  there  was  no
reasonable likelihood that these references changed any  part  of
the  result.   This is because the superior court  made  so  many
other specific findings, based on admissible evidence, that  were
sufficient  to  establish the parents failure to  take  steps  to
recover  from  alcoholism  in time to meet  the  needs  of  their
troubled children.
          First, the superior court found that the parents  drink
and  engage in domestic violence with each other, and  that  this
behavior alone has had an impact on the children, irrespective of
any potential for physical abuse of the children.  The effects on
the children include attachment disorders that clearly preclude a
lengthy, contingent return to parental custody.  For example, the
superior  court  found that Julius is at risk for  fetal  alcohol
spectrum  disorder,  that  he  has  attachment  problems  and  is
attached  only to his foster mother; that Daniel is at  risk  for
attachment  problems;  that William was affected  by  the  family
violence, noting testimony that his relationship with his parents
was  confusing and that he saw Paula as his protector;  and  that
Paula  was similar to William, noting testimony that her problems
had   become  more  severe  (e.g.,  she  was  striking  out   and
emotionally  shutting down).  The superior  court  further  found
that  these emotional problems became less severe as some of  the
children  entered  foster  care and  began  bonding  with  foster
parents.   We believe these findings are primarily what  led  the
superior  court  to conclude that the children  cannot  wait  for
their  parents  to recover from their alcoholism,  and  we  think
there is no reasonable likelihood that this conclusion would have
been different absent the social science citations.
          Second,  the superior court found, citing testimony  by
specialists  familiar  with the parents treatment  history,  that
both  parents  would  need  to undertake  lengthy  treatment  for
alcoholism (e.g., of one to two years in Vanessas case), and that
success  did not seem likely in either case.  It is clear  to  us
that  this  conclusion was also based on the trial evidence,  and
that it would not have been different had the superior court  not
consulted the academic articles.
          Third,  these  findings are sufficient to  sustain  the
legal  conclusion that the parents failed to remedy their conduct
in a reasonable time.  The superior court found (in a part of its
          opinion that the parents do not challenge) that the children were
children  in  need  of  aid  under (among  other  provisions)  AS
47.10.011(10),  which  permits  a  CINA  adjudication  where  the
parents  use of alcohol has substantially impaired their  ability
to  parent  and  resulted in a substantial risk of  harm  to  the
children.   The  findings recited above establish  a  failure  to
remedy this conduct in a reasonable time:  the parents would have
to  engage  in  a  treatment procedure of one to two  years,  the
prospects  for  success were poor, and the  childrens  attachment
problems  made it imperative to eliminate contingencies in  their
relationships   with  their  care  givers.   These  circumstances
suffice to establish a failure to remedy conduct, in light of the
low  likelihood  of returning the child to the  parent  within  a
reasonable time based on the childs age or needs.15
     B.   A  Preponderance  of  the Evidence  Supports  that  the
          Department  Made  Active  but Unsuccessful  Efforts  To
          Reunify Wendell and Vanessa with Their Children.
          Wendell  argues that no evidence in the record supports
the  superior  courts finding that there were active  efforts  to
provide remedial programs designed to prevent the break-up of the
family and he contests the use of another social science study in
this portion of the courts opinion.
          Wendell  argued  before  the superior  court  that  the
department should have considered alternatives other than that he
needed  to quit drinking alcohol to reunify his family,  such  as
developing a safety net for the children when he and Vanessa were
drinking.   The  superior court discounted  Wendells  safety  net
argument  by  pointing out that his testimony  was  replete  with
statements that he agreed he needed to stop drinking in order  to
retain  custody  of  his  children, and by  noting  that  Wendell
presented no evidence that a safety net approach would work.  The
superior court then quoted a social science study indicating that
maternal alcoholism may result in negative impacts on the mother-
child  relationship, apparently to support a conclusion that  the
feasibility of a safety net approach may be difficult  to  prove.
We  conclude  that this study is a harmless side  note  that  has
nothing  to  do  with the courts determination that  Wendell  was
provided  with  active efforts in the form of  alcohol  treatment
programs.  In light of the harm to the children that had  already
resulted  from alcoholism (as recounted above), we  also  believe
that  the  departments  decision to make  Wendells  abstinence  a
precondition  to  reunification  was  reasonable,  and  that  the
superior court did not err in finding that efforts based on  this
precondition  were  sufficiently active efforts  to  reunify  the
family within the meaning of the statute.
          Vanessa  also argues that the record does  not  support
the  active  efforts  finding because when  she  was  progressing
through  her  third  treatment program, the  department  did  not
support  her  but  instead  changed  her  case  plan  goal   from
reunification  to adoption.  The active efforts  finding  in  her
case  is supported by the two alcohol treatment programs provided
to  Vanessa  in 2002.  Although she completed both programs,  she
relapsed  soon  after  each one.  At that point,  the  department
          sought permanency for the children.  We agree with the superior
court  that the department engaged in sufficiently active efforts
by  helping  place  Vanessa  in two  alcohol  treatment  programs
essential  to  reunifying  her  with  her  children.   After  two
relapses,  it was not required to do more, even if its change  of
course was abrupt.
          We  AFFIRM  the superior courts decision  to  terminate
Wendells  and  Vanessas  parental  rights  over  Paula,  William,
Donald, and Julius.
     1     We  use  pseudonyms  to protect  the  privacy  of  the

     2    Vanessa also has two older children for whom Wendell is
the  Indian custodian.  Although these children also are in state
care,  the  superior  court declined to  terminate  Vanessas  and
Wendells parental rights as to them, and they are not involved in
this appeal.

     3     The superior court distributed one of the articles  to
the parties.

     4     E.g.,  Stanley  B. v. State, DFYS, 93  P.3d  403,  405
(Alaska 2004) (internal quotation marks omitted).

     5     Carvalho  v. Carvalho, 838 P.2d 259, 261  n.4  (Alaska

     6     Alaska  R. Evid. 201(a).  See Commentary to Alaska  R.
Evid.  201(a) (Rule 201 restricts only the power of the court  to
declare  on  the record, without resort to formal proof,  that  a
particular  fact exists, i.e., that something is  actually  true,
where the fact involved is one that would otherwise be decided by
the  trier  of fact upon submission of proof by the parties.   No
other practice falls within the scope of this Rule.).

     7    Alaska R. Evid.  201(b).

     8    Alaska R. Evid. 203(a).

     9     See  Alderman v. Iditarod Properties, Inc.,  104  P.3d
136,  142  (Alaska  2004) (The admission  of  evidence,  even  if
erroneous,  is  harmless when there is no  reasonable  likelihood
that  the  admitted  evidence had an appreciable  effect  on  the
courts  decision.);  see  also Concerned  Citizens  of  S.  Kenai
Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 451 (error in
taking of judicial notice was harmless).  Specifically, we do not
decide  whether  the facts noticed based on these social  science
materials were facts of a type normally decided by the  trier  of
fact  under  Rule  201(a);  if so, whether  the  facts  could  be
properly  noticed under Rule 201(b); and if so, whether  a  prior
warning to the parties was required under Rule 201(d).

     10     See  Commentary to Alaska R. Evid. 201(a) (One aspect
not covered by Rule 201 involves assumptions made by the court in
its  determinations of policy; e.g., that a particular change  in
the law would probably do more harm than good.).

     11     Cf. 1 Joseph M. McLaughlin et al., Weinsteins Federal
Evidence   201.51[2],  at  201-87 (2d ed.  1987)  (Judges  should
proceed  cautiously  in  taking judicial  notice  of  legislative
facts,  by giving the parties an opportunity to present rebutting
information in advance of the courts reliance on the fact.).

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

     13    25 U.S.C.  1912(d); CINA Rule 18(c)(2)(B).

     14    AS 47.10.088(a)(1)(B) says that parental rights cannot
be terminated unless the superior court finds that the parent:

          (i)   has   not  remedied  the   conduct   or
          conditions in the home that place  the  child
          at substantial risk of harm; or
          (ii) has failed, within a reasonable time, to
          remedy the conduct or conditions in the  home
          that  place the child in substantial risk  so
          that  returning the child to the parent would
          place  the  child  at  substantial  risk   of
          physical or mental injury.
In   making  this  determination,  the  court  may  consider  the
likelihood  of  returning  the  child  to  the  parent  within  a
reasonable   time  based  on  the  childs  age   or   needs.   AS

     15     AS 47.10.088(b)(1); see also Sherry R. v. State, Dept
of  Health & Soc. Servs., Div. of Family & Youth Servs., 74  P.3d
896, 902-03 (Alaska 2003).