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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thomas H. v. State, Dept of Health & Social Services, Office of Children's Services (05/16/2008) sp-6262

Thomas H. v. State, Dept of Health & Social Services, Office of Children's Services (05/16/2008) sp-6262, 184 P3d 9

     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- 12847
Appellant, )
) Superior Court Nos. 3AN-04-00378 CN
v. ) 3AN- 05-00276 CN
SOCIAL SERVICES, OFFICE OF ) No. 6262 May 16, 2008
Appellee. )

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

          Appearances:    Renee  McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for Appellant.  James E.
          Cantor,     Assistant    Attorney    General,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for Appellee.

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

          FABE, Chief Justice.

          Thomas  H.  appeals  the superior  courts  decision  to
terminate his parental rights.  He argues that the superior court
erred in finding (1) that he failed to remedy the conditions that
placed  his  children at risk of harm within  a  reasonable  time
period;  (2)  that  the Office of Childrens Services  (OCS)  made
active efforts to prevent the breakup of the family; and (3) that
placing  the  children  in his custody  would  likely  result  in
serious  harm  to  them.  Because the record supports  the  trial
courts  decision and the trial court acted within its discretion,
we affirm its judgment.
     A.   Facts
          Thomas  H.  and  Ana  J. have two  daughters  together,
Amelie and Ariel.1  The children qualify as Indian children under
25  U.S.C.  1903(4). The elder daughter, Amelie, tested  positive
for  marijuana  at  birth in 2002.  The younger daughter,  Ariel,
tested  positive for cocaine at birth in September  2005.   As  a
result  of the instability in her life, Amelie has been diagnosed
with post-traumatic stress disorder.  By the time of trial, Ariel
had  lived in three different foster homes.  Ana cut off  contact
with  her attorney a year prior to trial, and the superior  court
issued an order terminating her parental rights on May 16, 2007.
          By  his  own admission, Thomas has never served as  his
daughters  primary caregiver because he was in and  out  of  jail
during  the  time the children were in OCS custody.   Thomas  had
been arrested twelve times between November 22, 2001 and March 2,
2007,  the  date  his  trial commenced.   Six  of  those  arrests
occurred after December 2004, when the children were placed  into
OCS custody.
          Thomas  has not visited with his older daughter  Amelie
since  May  2006,  when he reentered prison.   Thomas  sought  to
reinstate  visitation  with Amelie after  his  release  but  that
request  was denied upon the recommendation of Amelies counselor.
A  superior  court later upheld the decision to  deny  visitation
privileges.  Thomas maintained weekly supervised visits with  his
younger  daughter Ariel beginning in January 2007.  He  cancelled
four of the twenty-two scheduled one-hour visits.
            From a young age, Thomas has struggled with substance
abuse problems. At the time of his termination trial, Thomas  had
pending  felony charges of drug possession and eluding  a  police
officer.  And before the trials conclusion, Thomas entered a plea
deal  requiring him to serve a prison term of at least  one  year
and  twenty  days.   Thomas claims, however,  that  his  sobriety
demonstrates success in remedying the underlying conduct that led
to  OCSs  involvement with his children.  Thomas reports that  he
has  been  sober  since May 2006, notwithstanding  his  allegedly
accidental  use  of  opiates, which an  October  2006  urinalysis
detected.2  During his future incarceration, Thomas has  proposed
that his new wife Sophia care for the children.
          Currently,  Amelie  and Ariel are cared  for  by  their
maternal  great aunt and uncle, Sean and Lisa J.   Sean and  Lisa
J.  have  served in this capacity intermittently since  September
2004,  and  they have been the primary caregivers for  the  girls
          without interruption since April 27, 2006.  The couple, with the
facilitation of OCS, plans to adopt the girls.
     B.   Proceedings
          OCS  involvement with Thomass family began when  Amelie
tested  positive  for marijuana at birth.  OCS created  a  safety
plan  on August 8, 2002, and Amelie returned home with Ana.   OCS
became  involved in the case again on September  13,  2004,  when
Sean and Lisa J., who had been taking care of Amelie, filed for a
temporary  restraining order against Ana.   OCS  filed  a  report
recommending  that Amelie remain with her great aunt  and  uncle.
OCS  also  created the first of multiple case plans for both  Ana
and Thomas, recommending treatment for substance abuse, parenting
skills classes, and mental health therapy.
          On September 6, 2005, the state removed Thomas and Anas
second  child, Ariel, from their custody two days after  she  was
born with cocaine in her system.  The next day, OCS met with  Ana
and  Thomas  to discuss objectives for a case plan,  which  again
included substance abuse treatment, parenting classes, and mental
health  assessments.  Thomas initiated substance abuse  treatment
and  parenting classes under the new case plan.  After  just  one
day of substance abuse treatment in October 2005, however, Thomas
led  police  on  a high-speed chase while high on ecstasy.   Soon
after  his  release  from  custody, he  was  again  arrested  for
possession  of ecstasy.  Meanwhile, Ana entered the  Family  CARE
Court,3 which handled her treatment plans.
          OCS  developed a final case plan for Thomas on November
20,  2006,  requiring  treatment for substance  abuse,  parenting
classes,  and mental health treatment. This time, Thomas  largely
complied  with the substance abuse treatment and parenting  class
requirements,  and  although  he did  not  meet  his  case  plans
requirement   that  he  undergo  mental  health  treatment,   OCS
apparently failed to refer him to a facility that could conduct a
mental  health assessment.  By the time of Thomass ultimate  case
plan,  however, OCS had shifted its permanency goals  for  Amelie
and Ariel to adoption, with the concurrent goal of reunification.
          OCS sought to terminate Thomas and Anas parental rights
at  trial  on  March  2,  2007.  Ana failed  to  appear  and  the
remaining  parties agreed to engage in a family group  conference
with the adoptive parents regarding visitation benchmarks for the
children.   When these talks proved unproductive, the termination
trial recommenced on May 30, 2007.
          At trial, OCS presented testimony from Kristi Fuller, a
clinical   neuropsychologist  who  had  interviewed  Thomas   and
diagnosed  him  as having antisocial personality  disorder.   The
state  also  presented  testimony from  Thomass  OCS  caseworker,
Jennifer  Hernandez.   Thomas presented  testimony  from  Jessica
Burdick,   the  case  manager  for  Cook  Inlet  Tribal  Councils
supervised  visitation  program,  and  from  Anna  Baughman,  the
outpatient  clinician  at Genesis House  Recovery  Center,  where
Thomas had been receiving treatment.  Dr. Baughman testified that
during  six months of treatment, Thomas did not exhibit  symptoms
of  antisocial  personality disorder.  Thomas and his  new  wife,
Sophia,  also testified as to their ability to take care  of  the
          Following  oral  argument on June  26,  2007,  Superior
Court  Judge  Stephanie E. Joannides presented her findings  from
the  bench.  The superior court did not find clear and convincing
evidence   to   support  Dr.  Fullers  diagnosis  of   antisocial
personality   disorder.    Nevertheless,   the   superior   court
terminated   Thomass   parental  rights,   reasoning   that   his
unavailability  due  to incarceration and his insufficient  track
record  meant that placing the children with him would be  likely
to  .  . . result in serious emotional or physical damage to  the
          The   superior  court  reasoned  that  subsections  (2)
(incarceration)  and  (10)  (substance  abuse)  of  AS  47.10.011
supported  the  decision to terminate Thomass  parental  rights.4
With  respect to the former, the superior court found that Thomas
had been unable to provide a stable home for his daughters during
his previous incarcerations.5  The superior court also noted that
Thomass wife Sophia is a new spouse, with whom the children  have
had little or, in Amelies case, no contact, and thus in light  of
their  current  placement and the courts evaluation  for  [their]
best interest, I would not find that the suggestion for [Thomass]
present wife to be their custodian is an adequate arrangement for
their care.
          Under  subsection  (10) of AS 47.10.011,  the  superior
court found by clear and convincing evidence that substance abuse
has  substantially impaired Thomass ability to parent,  and  that
has  placed  his  children  at substantial  risk  of  harm.   The
superior  court again acknowledged that Thomas appeared  to  have
succeeded in his latest substance abuse treatment but found  that
Thomas  had delayed too long in becoming sober, and that  because
of  the  circumstances that are interwoven in one  of  the  other
factors, it is impossible for him to really successfully complete
all   his  treatment  and  prove  that  the  treatment  has  been
successfully  completed.   In other  words,  the  superior  court
concluded,  Thomas hasnt really, truly been able  to  remedy  the
conduct because he is going to be unavailable and incarcerated.
          The  superior court went on to find beyond a reasonable
doubt that placing the children with Thomas would be likely to  .
.  .  result  in  serious  emotional or physical  damage  to  the
children.   Finally, the superior court turned its  attention  to
OCS, and found that the agency had made active efforts to provide
support services and treatment services to Thomas, other than the
mental  health  component.  The superior court  found  that  OCSs
failure  to  make a referral for Thomass mental health assessment
was  the  only  component lacking in the states  active  efforts,
however, and that this shortcoming was not legally significant in
light of [his] status.
          Thomas appeals.
          We  review  a trial courts factual findings  for  clear
error.6  Findings are clearly erroneous if a review of the entire
record in the light most favorable to the prevailing party leaves
us  with  a definite and firm conviction that a mistake has  been
made.7   We  review the trial courts application of  the  law  to
factual  findings de novo.8  Whether the state has complied  with
          the active efforts requirement of the Indian Child Welfare Act9
(ICWA) presents a mixed question of fact and law.10
          Thomas argues that he has overcome his substance  abuse
problems  and made adequate arrangements for the children  during
his  upcoming incarceration. Consequently, he maintains that  the
trial court erred in finding that he failed to remedy the conduct
that  placed  the children at substantial risk of harm  within  a
reasonable period of time.  Thomas claims that OCS did  not  make
the  required active efforts to prevent the breakup of his family
because  it  failed to properly refer him for the  mental  health
assessment  included  in his case plan, hence  depriving  him  of
therapy  that might have led to his earlier compliance  with  OCS
case  plan  objectives.   Finally,  Thomas  maintains  that   the
superior court erred when it found that placing the children with
him  would likely result in substantial harm to them.  We dispose
of each of these arguments in turn.
     A.   The  Superior Court Did Not Err in Finding that  Thomas
          Failed, Within a Reasonable Time, To Remedy the Conduct
          that Put Amelie and Ariel at Substantial Risk.
          Alaska   Statute  47.10.088  provides  for  involuntary
termination of parental rights where a child qualifies as a child
in need of aid under AS 47.10.011 and the parent:
               (A)   has  not remedied the  conduct  or
          conditions in the home that place  the  child
          at substantial risk of harm; or
               (B)   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[.][11]
In answering the question whether the parent has remedied or will
remedy  within a reasonable time the conditions in the home  that
place  the child at substantial risk, the court may consider  any
fact relating to the best interests of the child,12 including:
               (1)   the  likelihood of  returning  the
          child to the parent within a reasonable  time
          based on the childs age or needs;
               (2)   the amount of effort by the parent
          to  remedy  the conduct or the conditions  in
          the home;
               (3)  the harm caused to the child;
               (4)   the  likelihood that  the  harmful
          conduct will continue; and
               (5)   the  history  of  conduct  by   or
          conditions created by the parent.[13]
The  superior  court found that Thomass history of  incarceration
and  substance  abuse, as well as his pending incarceration,  put
the children in need of aid and that Thomas had failed, within  a
reasonable time, to remedy the conduct or conditions that  placed
Amelie  and  Ariel  at  substantial risk of  physical  or  mental
injury.   Accordingly,  the  superior  court  terminated  Thomass
parental rights.
          As  a  preliminary matter, Thomas points out  that  the
superior  courts written order cites AS 47.10.011(10)  (substance
abuse  of the parent) and AS 47.10.011(1) (abandonment)  for  its
child in need of aid determination while the superior courts oral
findings    cite    AS   47.10.011(10)   and   AS    47.10.011(2)
(incarceration).   Thomas  theorizes that,  because  he  was  not
incarcerated  at  the  time  of  termination  and  had  not  been
incarcerated for over a year, the trial court erred  or  possibly
misspoke during its oral findings.  He goes on to argue that  the
superior  court  erred  in  relying  on  subsection  (1)  of   AS
47.10.011,   because  his  conduct   including   his   successful
completion  of  substance abuse treatment and parenting  classes,
his  visitations with his younger daughter, and  his  efforts  to
visit  with  his  older daughter  demonstrates that  he  did  not
disregard his responsibilities towards his children.  We need not
consider,  however, whether the abandonment prong of AS 47.10.011
applies  to Thomas because the superior court clearly  based  its
decision  on Thomass history of substance abuse and incarceration
under AS 47.10.011(10) & (2).14
          Thomas argues that, regardless of the legal grounds  on
which  the  superior court purported to base its  ruling,  it  is
clear  from  the courts statements and the courts  written  order
that  it was Thomass impending incarceration that ultimately  led
the  court  to its decision.  That interpretation, however,  does
not  withstand  scrutiny.   The superior  court  recognized  that
Thomass  pending  incarceration would likely  lead  to  continued
instability for the children should they be placed in the custody
of  Thomass new wife.  But the court primarily relied on  Thomass
pending  incarceration  to support its  conclusion  that  Thomass
history  of substance abuse and resulting incarceration  remained
all too recent.
          Turning  to AS 47.10.011(10), the superior court  based
its finding on Thomass long struggle with substance abuse and his
record  in treatment, rather than any future incarceration.   The
superior  court  noted  that in Thomass  most  recent  treatment,
[t]here  were  periods of time and concern over  his  compliance.
Indeed,  as  recently as October 4, 2006, Thomas tested  positive
for  opiates.   And  even  accepting Thomass  assertion  that  he
inadvertently consumed the opiates that caused him  to  fail  the
October  2006 test and has in fact been sober since May 2006,  as
the  superior  court pointed out, all of this has happened  in  a
somewhat artificial setting, meaning that hes on third-party .  .
.  his  wife  is  with him every minute making  sure  he  follows
through,  and theres the threat of jail and of an increased  jail
sentence.  The superior court thus concluded that Thomas  had  an
insufficient track record, with only sporadic and spotty  success
in  light  of  his  substantial impairment by  the  addictive  or
habitual use of an intoxicant.15
          Time  was a determinative factor in the superior courts
          finding.  Although the trial court clearly believed that Thomas
had  made  progress  in  his  most recent  treatment  effort,  it
concluded  that Thomas could not adequately demonstrate  that  he
would remain sober:
          [Thomas]  has struggled with substance  abuse
          for some period of time.  He has attempted to
          complete  treatment and, to his  credit,  has
          completed  treatment, but  .  .  .  aftercare
          really is the true indicator of success,  and
          after hes off third-party, and because of the
          circumstances that are interwoven in  one  of
          the  other factors, it is impossible for  him
          to   really  successfully  complete  all  his
          treatment  and  prove that the treatment  has
          been successfully completed.
Indeed,  the period of time during which Thomas appears  to  have
succeeded  at treatment corresponds exactly with his  third-party
supervision.   In  short, the record supports  the  trial  courts
conclusion  that Thomas waited too long to begin  to  remedy  his
          This case presents a fact pattern similar to the one we
considered in Sherry R. v. State, Department of Health  &  Social
Services, Division of Family & Youth Services.16  In Sherry R., we
upheld  the termination of a mothers parental rights despite  her
success  in completing substance abuse treatment prior to  trial.
Like  Thomas, Sherry R. had a lengthy history of substance  abuse
and failed treatment experiences.17  She also succeeded in staying
sober  for  over  a  year prior to her termination  proceeding.18
Nevertheless,  we  held that even though  Sherry  may  have  made
strides  towards  remedying her conduct, the  trial  court  could
properly  find that Sherry failed to address her substance  abuse
problem within a reasonable time.19
          Thomas  seeks to distinguish this case from Sherry  R.,
emphasizing  our  observation  in  Sherry  R.  that  even   since
sobriety,  Sherry has continued to make choices that  affect  her
childrens  lives adversely, including her continued  relationship
with  a  man  convicted of child sexual assault.20   Thomas  also
argues  that Sherry R. had a more prolonged history of completing
long-term  treatment programs and relapsing, and  therefore  this
court  should  not consider Sherry R. as support for  the  states
argument  that Thomass successful treatment should be  discounted
due to his prior failures.
          But  Thomas  has  attempted to overcome  his  substance
abuse  problems  with little success since the age  of  fourteen.
Those  problems have severely limited his capacity to  act  as  a
loving  father to the children, if for no other reason  than  the
consequence  that he has been incarcerated during much  of  their
          Thomas  has  attempted and failed to complete  numerous
substance  abuse treatment programs.  In late 2004,  after  being
charged  with  selling cocaine, Thomas was  assessed  by  Genesis
Recovery Services, where he refused to enter into the recommended
long-term  residential treatment.  In January 2005 the  Salvation
          Army Clitheroe Center provided a second assessment to Thomas, but
he  failed to return for treatment.  Clitheroe staff succeeded in
contacting Thomas and he briefly resumed treatment, but  in  June
2005 OCS reported in a predisposition report that Thomas was  not
participating  in  his urine analysis program  and  that  he  was
unable  to  participate  in a treatment program  due  to  pending
criminal  charges.  In October 2005 Thomas discontinued treatment
at Clitheroe after just one day of treatment.  He did so again in
March  2006  after  another single session at Clitheroe.   Thomas
finally  began his most recent, successful treatment  program  at
Genesis  Recovery Services in November 2006, but only  after  the
superior  court  denied him visitation with  his  elder  daughter
Amelie.  As in Sherry R., for Thomas sobriety is a relatively new
phenomenon in . . . life.21
          Thomass    history   of   incarceration   and   pending
incarceration  further complicated his attempts to  persuade  the
superior  court that he has remedied his harmful conduct  towards
the  children.   Reviewing Thomass history,  the  superior  court
noted  that  he  had been arrested approximately 12  times  since
2001,  and  that  he had spent a significant amount  of  time  in
prison,  including most of 2003, a majority  of   '04,  over  six
months,  less time in '05, but . . . for a significant period  in
2006.  The superior court observed that because the children  are
very  young, Thomass frequent incarcerations put Amelie and Ariel
in a state of limbo for all of their lives.
          The  extent of Thomass drug use and criminal  behavior,
from  the  very  beginning of both of his  daughters  lives,  has
created  conditions  that  he  cannot  easily  remedy.   We  have
previously  observed that children under six years of age  suffer
tremendously  when  their bonding processes are  interrupted,  as
evidenced  by  the  legislative  imperative  to  provide  for  an
expedited  placement  procedure  to  ensure  that  all  children,
especially  those  under  the age of six  years,  who  have  been
removed   from   their  homes  are  placed  in  permanent   homes
expeditiously.22  Thomass pending incarceration at  the  time  of
trial  frustrated the prospect for such an expeditious, permanent
placement.   More  importantly for  our  analysis  here,  Thomass
pending  incarceration belies his claim that he has remedied  his
conduct  within  a  reasonable time.   We  therefore  affirm  the
superior  courts determination that he has failed to  remedy  his
conduct within a reasonable time.
     B.   The Superior Court Did Not Err in Finding that OCS Made
          Active Efforts To Prevent the Breakup of the Family.
          Thomas  argues  that OCS cannot meet ICWAs  requirement
that  active efforts have been made to provide remedial  services
and  rehabilitative programs designed to prevent the  breakup  of
the   Indian   family   and  that  these  efforts   have   proved
unsuccessful.23  Thomas contends that OCS failed to meet even its
obligation under AS 47.10.086 to make timely, reasonable  efforts
to  provide  family  support services to the  child  and  to  the
parents,  which  are designed to enable the safe  return  of  the
child to the family home, when appropriate.24  Alaska law imposes
a  duty  upon OCS to 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, and to actively offer the parent or guardian, and refer  the
parent or guardian to, the services identified.25  Thomas contends
that  while OCS identified the necessary services, it never  made
the  requisite  referrals for Thomas to obtain  a  mental  health
assessment.   Thomas  additionally alleges  that  OCS  failed  to
provide  services  to  him when Amelie and  Ariels  mother,  Ana,
entered Family CARE Court.
          Thomas  cites N.A. v. State, DFYS26 in support  of  his
argument  that OCS failed to make active efforts.   In  N.A.,  we
clarified  that [a]ctive efforts occur where the state caseworker
takes  the  client  through the steps of  the  plan  rather  than
requiring  that  the  plan be performed on  its  own.27   But  we
rejected  a  parents claim that the state failed to  make  active
efforts  because  it did not provide her with an adequate  mental
health  and substance abuse dual-treatment program.28  And  while
unlike Thomas, the parent in N.A. received psychiatric treatment,
we  made a point of noting that the states efforts were more than
active;  they were exemplary.29  OCSs failure here to  provide  a
mental  health referral to Thomas throughout the history  of  his
case  falls  short  of  exemplary,  but  the  agency  nonetheless
satisfied  the active efforts requirement based upon its  overall
handling of the case.30
          We  find  a  more apt analogy to this case in  E.A.  v.
State,  Division of Family & Youth Services,31 where we upheld  a
finding  that  OCS made active efforts even though it  failed  to
obtain   an  updated  psychological  evaluation  of  the   mother
following  her childs allegation that she had abused  him.32   We
reasoned  that  an  update would not likely  have  increased  the
mothers  chances for reunification,33 and that the  inaction  was
insignificant  in  light of the extensive  remedial  efforts  the
state has provided throughout its involvement with E.A.s children
apart from this seven-month period.34  Here, while the trial court
acknowledged  that OCS should have referred Thomas  to  a  mental
health  provider following its November 20, 2006 case  plan,  the
court  also  found  that Thomass own actions  in  particular  his
frequent incarceration  would have frustrated the success of  any
OCS  services.  Furthermore, like E.A., Thomas received a  number
of  referrals  from  the state for services,  including  multiple
substance  abuse  treatment programs and parenting  classes.   In
light  of these services, we cannot accept the argument that  the
agencys  failure  to  make  a mental health  referral  imposed  a
roadblock on subsequent termination proceedings.
          And  we  see no fault in the states efforts aside  from
its  failure to make the mental health referral.  Thomas  alleges
that  OCSs  lack  of active efforts is further evidenced  by  the
complete failure to provide services to Thomas when Ana  J.,  the
childrens mother, entered Family [CARE] court.  But as the  state
points  out,  Thomas received services during the time  that  the
case was in CARE court.  In sum, nothing in the record before  us
suggests  that the superior court erred in finding that OCS  made
active efforts to provide remedial services to Thomas.
          Finally, Thomas argues that even if active efforts were
          made, the superior court erred in finding that the efforts made
were unsuccessful as required by ICWA.  The analysis following in
Part  IV.C,  coupled with our holding from Part IV.A that  Thomas
failed  to remedy his conduct within a reasonable time,  disposes
of this argument.
     C.   The  Superior  Court Did Not Err in  Finding  that  the
          Return  of the Children to Thomass Custody Would Likely
          Result in Serious Emotional Damage to Amelie and Ariel.
          Thomas  argues that the qualified expert testimony,  in
combination  with substantial evidence in the record,  failed  to
support  the superior courts determination that Amelie and  Ariel
would likely be harmed if placed in Thomass care.  We disagree.
          In  order  to terminate a parents rights to  an  Indian
child,  the  trial  court must find, based on evidence  beyond  a
reasonable   doubt,  including  testimony  of  qualified   expert
witnesses, that the continued custody of the child by the  parent
. . . is likely to result in serious emotional or physical damage
to  the child.35  In reviewing ICWAs legislative history, we have
          [T]he  primary reason for requiring qualified
          expert    testimony   in   ICWA   termination
          proceedings was to prevent courts from basing
          their decisions solely upon the testimony  of
          social  workers  who  possessed  neither  the
          specialized  professional education  nor  the
          familiarity with Native culture necessary  to
          distinguish  between cultural  variations  in
          child-rearing practices and actual  abuse  or
ICWA  requires  that  expert  testimony  support  a  decision  to
terminate  parental rights, based upon the particular  facts  and
issues  of  the case, but ICWA does not require that the  experts
testimony  provide  the sole basis for the  courts  conclusion.37
Here,  Dr.  Fullers  expert  testimony,  coupled  with  the   lay
testimony  and  evidence  on  the  record,  satisfies  ICWA   and
adequately supports the trial courts decision.
          Thomas  argues that the trial court clearly erred  when
it  determined,  beyond a reasonable doubt,  that  returning  the
children  to  him was likely to result in serious  emotional  and
physical  damage  to them.  Thomas maintains  that  the  superior
court  unreasonably relied on the testimony of  Dr.  Fuller.   He
further  claims that the court exaggerated the harm that  Thomass
future incarceration would cause the children, and minimized  the
qualifications  of Sophia, Thomass new wife, as a  caretaker  for
the  children.  He asserts that Sophia would be particularly well
suited  to  care  for Ariel, whom Sophia had met  during  Thomass
          Thomass arguments are unavailing.  The superior  courts
oral findings demonstrate that it gave weight to the testimony of
Dr.  Baughman, who testified on behalf of Thomas and disputed Dr.
Fullers  diagnosis of antisocial personality disorder. The  court
noted the discrepancy between the two experts and concluded  that
          it could not find by clear and convincing evidence that you do
have  an  antisocial personality disorder.  Theres  enough  other
information  to suggest that you are able to make positive  steps
in  your life.  Nevertheless, the superior court made clear  that
it  had  relied on Dr. Fullers testimony to reach its conclusion,
noting  that  Dr.  Fullers  report  does  provide  me  clear  and
convincing evidence . . . at a minimum that the risk of returning
the children home is great.  The trial court further explained:
          I  did consider the evidence under the proof-
          beyond-a-reasonable-doubt  standard  and  did
          consider the testimony of the experts that if
          the children were returned, that it would  be
          likely  to  . . . result in serious emotional
          or physical damage to the children because of
          [Thomass]   unavailability,   the   continued
          issues that at least [Amelie] has faced  with
          respect to an ability to visit with him. .  .
          .  And also the concern is over his substance
          abuse and unavailability and the impact those
          factors would have on the children.
The  evidence  at  trial  supports the  reasoning  that  led  the
superior  court  to its judgment.         As the  superior  court
noted  in  its written findings, Dr. Fullers evaluation indicated
that   [Thomas]  exhibited  a  persistent  pattern  of   negative
behavior,   and   that  Thomass  high  likelihood   of   repeated
incarceration  within  the next couple  of  years  threatened  to
damage  any  bond formed with the children while he  was  out  of
custody. The court emphasized Dr. Fullers opinion that Thomas  is
not a candidate to be a custodial parent, and that he is unlikely
to  be  able to meet the childrens needs for security and  safety
over the long term.
          Dr.  Fullers  own testimony, based on her knowledge  of
the  family  and tests performed by Thomas, sheds  light  on  her
          The harm that I do see is . . . I imagine his
          children, given contact with him, would adore
          that  time  . . . and . . . it could  disrupt
          their ability to form attachments later  when
          youre  having  a  visitation  thats  fun  and
          games.  But particularly with an adult who is
          good  with children and then youre having  to
          go  back into a living environment where  you
          might  be  at a phase where limits are  being
          set  .  .  .  that  can cause  problems  with
          children.  And I guess it could cause  short-
          term  problems from the standpoint  of  their
          ability  to  function . . .  in  an  adoptive
Dr.  Fuller  also  traced the connection  between  Thomass  prior
conduct and his likely inability to conform his conduct over  the
long  term  to appropriately parent his daughters. She noted  the
chronicity  of [Thomass] past behavior, and the fact that  Thomas
had only begun his reforms at the last-possible-minute, after the
children had already spent years in OCS custody.
           As  the  superior court noted, other evidence supports
Dr. Fullers prediction that failure to terminate Thomass parental
rights  would  pose  an unacceptable risk to  his  daughters.   A
mental  health  assessment of Amelie in  October  2006  similarly
concluded that Thomas represented an undesirable presence in  his
daughters life:
          In  terms of visitation with the father,  the
          multi-volume case file shows that he has been
          given many opportunities to fulfill the  role
          of  father and surfacing again now  to  enter
          the  life  of  his children, as  if  it  were
          another fresh start for him, just creates the
          specter  that  the child will  again  respond
          with  hope.   She will likely think  her  dad
          will  be able to sustain an interest  in  her
          and  become a real father.  If her hopes  are
          proven  again to be misplaced  as  they  have
          many  times in the past  the eventual  result
          is   damage   to  the  childs  capacity   for
The  social  worker went on to express concern that Thomas  seems
intent  on  pressing  his  place  as  father   inserting  himself
emotionally  between [Amelie] and her uncle, potentially  leading
Amelie  to  feel  wrong and not to accept her potential  adoptive
parents  as  her real family.  Superior Court Judge Mark  Rindner
later  upheld the decision to deny Thomass visitation  privileges
with Amelie.
          Like  Amelie, Ariel has spent her life in the  care  of
people other than her father.  Thomas has maintained contact with
Ariel,   attending   eighteen  of  twenty-two  scheduled   weekly
visitations, but he admitted that because the visits were only an
hour long, he never tried to exercise the skills that were taught
in  his parenting classes.  We have held that a trial court  must
find  both proof that the parents conduct is likely to  harm  the
children,  and  proof that it is unlikely that  the  parent  will
change  [his]  conduct,38 in order to terminate  parental  rights
under 25 U.S.C.  1912(f).  The trial court made findings on  both
counts,  and  the testimony of expert and lay witnesses  provides
sufficient evidence to support those findings.
          Thomass  long  history of substance abuse and  frequent
incarceration  has  placed  Amelie and  Ariel  in  need  of  aid.
Although  OCS  made  active efforts to  prevent  the  breakup  of
Thomass family, he did not take advantage of those efforts  until
it  was  too  late, when granting him custody over  the  children
posed  an unacceptable risk of harm.  Accordingly, we AFFIRM  the
decision of the superior court.
     1     We  use  pseudonyms for all family members to  protect
their privacy.

     2     Thomas  maintains that he slipped in  the  shower  and
afterwards his mother gave him two pills for pain that he thought
were aspirin.

     3     The  Family CARE Court is a therapeutic court  program
for child in need of aid cases, designed to address the needs  of
parents  with identified substance abuse problems.   It  combines
intensive judicial supervision and monitoring with treatment  and
the coordinated delivery of assessments and services.

     4    AS 47.10.011 provides in 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:
               . . . .

               (2)  a parent, guardian, or custodian is
          incarcerated, the other parent is  absent  or
          has  committed conduct or created  conditions
          that cause the child to be a child in need of
          aid  under this chapter, and the incarcerated
          parent has not made adequate arrangements for
          the child;
               . . . .

               (10) the parent, guardian, or custodians
          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[.]
     5    See id. at (2).

     6     Brynna B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004).

     7    Id.

     8    Id.

     9    25 U.S.C.  19011963 (2008).

     10    Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006).

     11    AS 47.10.088(a)(2)(A)(B).

     12    Sherry R. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 74 P.3d 896 (Alaska 2003).

     13    AS 47.10.088(b).

     14     OCS had sought to apply the abandonment provision, AS
47.10.011(1), to Ana, which may have led to a typographical error
in  the  trial  courts  written order.   The  trial  courts  oral
findings  provide  a  much  more  thorough  explanation  of   its
analysis,  however, and leave us with no doubt that  it  did  not
intend to rely on AS 47.10.011(1).

     15    AS 47.10.011(10).

     16    74 P.3d at 902-03.

     17    Id. at 898-900.

     18    Id. at 899.

     19    Id. at 902-03.

     20    Id. at 903.

     21    Id. at 902.

     22    Martin N. v. State, Dept of Health & Soc. Servs., Div.
of  Family & Youth Servs., 79 P.3d 50, 56 (Alaska 2003)  (quoting
AS 47.05.065(5)).

     23    25 U.S.C.  1912(d).

     24    AS 47.10.086(a).

     25    Id. at (a)(1)(2).

     26    19 P.3d 597 (Alaska 2001).

     27    Id. at 602-03 (internal citations omitted).

     28    Id. at 604.

     29    Id. at 603.

     30     See E.A. v. State, Div. of Family & Youth Servs.,  46
P.3d 986 (Alaska 2002).

     31    46 P.3d 986.

     32    Id. at 988.

     33    Id.

     34    Id. at 990.

     35    25 U.S.C.  1912(f).
     36    L.G. v. State, Dept of Health & Social Servs., 14 P.3d
946, 952-53 (Alaska 2000) (emphasis omitted).

     37    E.A., 46 P.3d at 991-92.

     38    L.G., 14 P.3d at 950.

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