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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Ben M. v. State, Dept. of Health & Social Services, Office of Children's Services (04/03/2009) sp-6356

Ben M. v. State, Dept. of Health & Social Services, Office of Children's Services (04/03/2009) sp-6356, 204 P3d 1013

     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

BEN M., )
) Supreme Court No. S- 13090
Appellant, )
) Superior Court No.
v. ) 3AN-05-00209 CN
)
STATE OF ALASKA, )
DEPARTMENT OF HEALTH AND )
SOCIAL SERVICES, OFFICE OF )
CHILDRENS SERVICES, ) O P I N I O N
)
Appellee. ) No. 6356 - April 3, 2009
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Dianne  Olsen,  Anchorage,  for
          Appellant.  Megan R. Webb, Assistant Attorney
          General,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for Appellee.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti,  and Winfree, Justices. [Matthews,
          Justice, not participating.]

          CARPENETI, Justice.

I.   INTRODUCTION
          I.   Ben M.1 appeals the termination of his parental rights.
Because  the trial court did not abuse its discretion in  denying
the  motion  Ben made on the first day of trial to  continue  the
trial,  and  because it was not error to find beyond a reasonable
doubt  that  returning his daughter to his custody  would  likely
cause  her  serious  harm,  or to find by  clear  and  convincing
evidence  that the state made active efforts to provide  services
          to reunify the family, we affirm the termination of Bens parental
rights.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Bens daughter, Nicole, is an Indian child as defined in
25 U.S.C.  1903(4), part of the Indian Child Welfare Act.  Nicole
was  removed from her parents and declared a child in need of aid
shortly  after  her  birth  on July 18,  2005,  when  she  tested
positive  for  cocaine.   Nicoles mother, Robin,  had  previously
tested  positive for cocaine use during the pregnancy.   Ben  was
incarcerated  at the time.  He was released from  jail  later  in
July,  and  in  August  he  began taking  parenting  classes  and
visiting Nicole.  He also underwent urinalysis testing to  assure
Office of Childrens Services (OCS) that his problems with cocaine
and  alcohol  had  been addressed, and had consistently  negative
results  for several months in fall 2005.  Nicole began  a  trial
home  stay  in September, with Ben agreeing to supervise  contact
between Nicole and Robin.
          Ben  and  Robin stopped following their case  plan  and
began  missing  urinalysis appointments in  December  2005.   The
efforts  of their caseworker Rebecca Morino to contact  them  met
with  little  success.  Eventually, Morino found the couple  home
for  an  unannounced visit in January 2006.  The couple  complied
with  Morinos   request  to take a cab to  Worksafe,  the  entity
performing  the  urinalysis tests, for a  test  that  day.   Bens
result  was  negative, but Robins test was reported  as  suspect.
Her specimen was out of temperature range and the report detailed
other  circumstances  suggesting she  may  have  been  trying  to
falsify  her result.  Morino returned to the home accompanied  by
police officers to request that Robin leave the home.  The couple
yelled  and  gestured at her, and Ben approached her, leading  an
officer  to  step  between them.  The mothers  urinalysis  retest
eventually  came  back positive, and Worksafe  reported  a  later
incident with the mothers urinalysis that led OCS to conclude Ben
knew  she  was still using:  The Worksafe report stated that  Ben
was  in the lobby for several hours while she was supposed to  be
undergoing testing and told the receptionist that she was not yet
there, but she was actually in the lobby.  OCS then  learned that
during the time when Ben and Robin were out of contact, Robin had
been  using  cocaine  and that Ben had been  involved  in  Robins
suspicious urinalysis incident  suggesting he knew of her ongoing
cocaine  use.  Further, OCS discovered that the Anchorage  police
had  been  called to the home for domestic disturbances  in  fall
2005, and that Ben had been incarcerated for two days during that
time, apparently leaving  Nicole unsupervised with her mother.
          OCS  removed  the child from the home  on  January  11,
2006.   During the removal, Ben was very angry and yelled at  the
social  worker.  On January 17, shortly after the childs removal,
OCS  called  Ben about his inconsistent attendance at  urinalysis
screening  and Ben responded, [a]s soon as you removed  [Nicole],
all  bets were off.  Im not doing anything.  Ben did not show  up
for  urinalysis  tests  set up biweekly  from  January  13,  2006
through February 17, 2006, when Morinos request for testing  with
Worksafe expired.  He also ended contact with OCS.
          In  early  February Ben was evicted from his home.   On
February  20  he was incarcerated again.  He had visitation  with
Nicole one or two times a month during this incarceration and was
released in August 2006.  He had a few visits with Nicole and was
again incarcerated in September 2006, briefly released, and  then
re-arrested   on  escape  status  from  ankle  monitoring.    His
whereabouts from November 2006 until March 2007 are  unknown.   A
new  caseworker,  Heather Rough, located him  in  jail  in  April
2007.   That period of incarceration lasted from March 2007 until
August 2007.
          Ben  requested  visitation when he  was  released,  but
Rough found him confrontational and difficult to work with.   The
parties  reached a new visitation agreement in October 2007,  but
Ben  did not visit Nicole from October 2007 through the trial  in
March  2008.   Ben was incarcerated again in October  2007.   The
record is unclear as to the length of this incarceration.  He was
released from jail on March 3, 2008, but this was apparently from
a later, separate incarceration.  His testimony during the motion
for  continuance suggested that he went into OCS in January  2008
for an assessment and understood that OCS would help him get into
treatment.  In March 2008, several days before trial, he  briefly
entered  a  residential  treatment  program  and  then  left  the
following day to attend the first day of the trial.  He  did  not
attend the second day of the trial.
     B.   Proceedings
          Three  days after Nicoles birth, OCS filed an Emergency
Petition  for  Adjudication of Child  in  Need  of  Aid  and  for
Temporary  Custody.   The petition was granted  and  counsel  was
appointed.  Ben had been released from jail by this time  and  he
and  Robin  enrolled  in  parenting  classes.   The  familys  OCS
caseworker filled out a case plan in August 2005 indicating  that
she  had made numerous attempts to contact the mother and  father
and that they called her and said they were busy with his work as
a  window  washer.  The plan for Ben included urinalysis  testing
and contacting past treatment providers to confirm that substance
abuse was no longer an issue for him.
          OCS placed Nicole back in the home on a trial basis  in
September   2005.   In  October  2005  the  parties   entered   a
stipulation under which Nicole was declared a child  in  need  of
aid  and  OCS  was  granted  temporary custody.   OCS  ultimately
decided, in January 2006, to remove Nicole from her parents  home
after  repeated  problems, and place  her  in  foster  care.   In
February 2006 the court entered a disposition order granting  OCS
custody  of Nicole for two years.  OCS had been unable to contact
Ben  since  the conversation with Morino, just after  Nicole  was
removed in January 2006, stating that all bets are off.
          In  March 2006 Morino learned of Bens incarceration  on
February  20  and e-mailed him in jail to set up visitation  with
Nicole,  which  occurred monthly during that incarceration.   OCS
researched   the   possibility  of  telephonic  substance   abuse
assessment  so  that  Ben could be screened for  substance  abuse
treatment  in prison; the extent and result of this research  are
unclear  and  were  not the subject of testimony.   A  permanency
hearing was held in July 2006.  Morino noted in her report for  a
permanency hearing that the goal remained reunification but  that
if  Ben did not comply with his case plan when released from  his
current  incarceration, or remained incarcerated  past  September
2006,  it would be changed to adoption.  In fact Ben was released
in  August  but  then was in and out of jail for  the  months  of
September  and October 2006.  Morino was not able to  reestablish
contact  with  Ben  until November, when she  told  him  and  his
attorney  that she would not schedule visitation this time  until
she  saw some clean urinalysis tests and some compliance with the
case plan.
            After  November  Ben  fell out of  contact  with  OCS
through March 2007. Morino attempted phone calls and home  visits
until  a  new caseworker, Heather Rough, replaced her in  January
2007.   Rough  did  not initially know where Ben  was  until  she
discovered  that he was incarcerated in April 2007.  During  that
incarceration,  which  lasted until August  2007,  Rough  set  up
telephonic visitation while Ben was jailed in Kenai and in-person
visitation once he was transferred to Anchorage.  Rough testified
that  the only thing Ben could have done regarding his case  plan
during  this  incarceration would have  been  to  participate  in
substance abuse assessment when he was about to be released.  The
provider  she identified to conduct the assessment said  that  it
could  not  screen Ben until he was about to be  released,  which
Rough believed would be October. However, Ben was released early.
Rough testified that Ben was uncooperative and confrontational at
meetings,  and  that  he became argumentative  and  this  led  to
discussions being ended before any progress was made at meetings.
          The visitation plan was revised in October 2007.  Under
the  new  plan, OCS agreed to arrange for an evaluation with  Dr.
Washington   Brown  to  evaluate  [Ben]s  parenting  ability   by
providing  copies of written referral materials to  all  parties.
Ben  never showed up for visitation and fell out of contact  with
OCS  some time soon after this, and then disappeared again.   The
states  amended termination motion in November 2007  states  that
Rough  learned that month that Ben returned to prison in  October
for  domestic assault and forcing another to become a prostitute.
No evidence is in the record regarding what actions were taken by
either party as to the assessment with Dr. Brown other than  that
Ben, if he was given written referral materials, did not use them
to call and set up the appointment on his own.
           At  a pre-trial conference on January 14, 2008,   Bens
attorney notified the state that Ben would be requesting  another
visitation  hearing;  the state replied that  he  would  have  to
complete  two  weeks of urinalysis testing before  such  a  visit
would  be  set up.  At this hearing the state requested that  the
court  direct  Ben, who was in the courtroom, to provide  updated
contact  information to enable them to set up an evaluation  with
their  expert,  Dr. Michael C. Rose.  The state did  not  present
evidence on whether this occurred or what efforts it made to  set
up  a  meeting  with Dr. Rose.  Anne Ashton,  who  took  over  as
caseworker on this case in January 2008, testified that  Ben  was
out  of  touch from the time she took over the case and  that  he
called OCS in March 2007 and spoke to another caseworker but  did
not leave his contact information for Ashton to return his call.
          Also  at  the  January  14 pre-trial  conference,  Bens
counsel  withdrew because of a potential conflict if one  of  the
states  proposed witnesses testified.  At first, during the  pre-
trial  conference at which the potential conflict  was  initially
raised,  OCS  offered not to call the witness  to  avoid  a  long
continuance while Bens new counsel prepared for trial.   However,
during the same hearing, the trial was continued for Robins sake.
The  trial  would  concern both parents  rights,  and  Robin  had
requested a representation hearing that could have resulted in  a
new  attorney  for  her.  The court asked both  Bens  and  Robins
attorneys how long a new attorney would need to get up  to  speed
on  the case; both agreed six weeks was reasonable, so the  court
scheduled  trial  for  March  26, more  than  eight  weeks  away.
Ultimately,  because  of  the length  of  the  continuation,  OCS
decided  to  insist  on  calling  the  witness  that  raised  the
potential  conflict  for  Bens  original  attorney,  and  counsel
withdrew.   The court appointed the Office of Public Advocacy  to
provide  conflict counsel for Ben on January 18, 2008.  Bens  new
attorney entered an appearance on February 1, 2008.
          One week before the scheduled trial date in March 2008,
Ben asked for a representation hearing because he did not believe
that [his attorney] could be prepared to try the case and .  .  .
wanted  to  get [it] on the record.  A confidential  hearing  was
held  before  Superior  Court Judge Sen K.  Tan.   However,  Bens
attorney  remained  on the case, Judge Tans decision  is  not  an
issue  on  appeal, and Ben does not raise a claim  of  inadequate
assistance of counsel.
          After  trial  concerning termination  of  both  parents
parental  rights on March 26 and 27, 2008, Superior  Court  Judge
Peter  A. Michalski found that Ben had a substance abuse  problem
that affected his ability to maintain visitation with Nicole  and
therefore his ability to parent; that Ben abandoned Nicole by not
visiting  her  from November 2006 to April 2007  and  again  from
October  2007 to the time of trial; that he failed to participate
in  his  case plan; that there was clear and convincing  evidence
that  he  had  not  remedied the conduct that put  the  child  at
substantial  risk;  that there was clear and convincing  evidence
that  active  efforts had been made to provide remedial  services
and rehabilitative programs to prevent the breakup of the family;
and  that  there  was  evidence beyond a  reasonable  doubt  that
returning  the  child  to either parents   custody  would  likely
result in serious physical or emotional damage to her.
          Ben appeals.  He argues that the trial court abused its
discretion in denying his motion for a continuance on the day  of
trial.  He also argues that the  required expert support for  the
finding of likely emotional damage beyond a reasonable doubt  was
lacking  because the expert, Dr. Rose, did not meet with  Ben  or
the  child,  and reported his findings at a very  high  level  of
generality.  His final argument is that the trial court erred  in
finding  by clear and convincing evidence that the state provided
active remedial efforts to prevent the breakup of his family.
III. STANDARD OF REVIEW
          We review a denial of a motion to continue for abuse of
discretion,  determining whether a party has been deprived  of  a
substantial  right or seriously prejudiced by  the  lower  courts
ruling.2  Whether substantial evidence supports the trial  courts
conclusion  that  a  child is likely to be  seriously  harmed  if
returned to her parent is a mixed question of fact and law, while
whether  the expert testimony requirement of Indian Child Welfare
Act  is  satisfied is a pure question of law which we  review  de
novo.3  Finally, the question of whether OCS used active remedial
efforts  to  reunify the family is a mixed question  of  law  and
fact.4  When reviewing mixed questions of law and fact, we review
factual questions under the clearly erroneous standard and  legal
questions using our independent judgment.5

IV.  DISCUSSION
     A.   The Trial Court Did Not Abuse Its Discretion in Denying Bens
          Request for a Continuance of the Termination Trial.
          Ben  argues  that  the court abused its  discretion  by
denying  his request for continuance.  He first claims  that  his
attorney was too newly appointed.  He then argues  that the court
abused  its discretion by declining to continue the case so  that
he  could enter substance abuse residential treatment.   He  also
claims that  OCS was responsible for most of the delays prior  to
his  request for a continuance, and that the state did not  argue
that the continuance was contrary to its or the childs interest.
          The  original  trial date in this case  was  August  6,
2007.  Ben obtained a continuance to attempt to mediate the case.
The new trial date  October 15 and 16, 2007  was continued at the
states request because a witness was unavailable.  Trial was then
set  for  January  2008.   Finally, the January  2008  trial  was
continued because the state failed to provide the required expert
witness disclosures.
          To show that the court abused its discretion in denying
his request for a continuance, Ben must show that he was deprived
of a substantial right or that he was seriously prejudiced by the
denial of a continuance.6  Ben does not present an argument  that
he  was  seriously  prejudiced by his counsels performance.   His
substitute  counsel  began  work on  the  case  sometime  between
January 18, 2008 and February 1, 2008.  At a minimum, he had more
than  seven  weeks to prepare for trial.  Just before trial,  Ben
had  the  opportunity  to  present his  concerns  about  his  new
attorneys preparedness at a confidential representation  hearing.
Judge  Tan  found  no  reason for concern  about  Bens  attorneys
ability to represent him, and Judge Tans decision is not an issue
on  appeal.   On the day of trial, Bens attorney did not  himself
claim  to  be  unprepared;  Ben  testified  only  that  he   felt
uncomfortable proceeding and wanted to appeal Judge  Tans  ruling
on the representation hearing.
          There  was  no  evidence that Bens  attorney  had  been
unable  to  prepare in the six to eight weeks provided,  and  Ben
presents  no examples of witnesses or evidence that his  attorney
could have produced if given more preparation time.  And we place
substantial  weight  on Judge Michalskis  efforts  to  obtain  an
estimate  of  necessary preparation time for  new  counsel  at  a
hearing  in  January 2008, when it first became clear  that  Bens
          original counsel would have to withdraw.  At that hearing, the
court  asked Robins counsel for an estimate of adequate  time  to
prepare  so  that  he  could schedule a new trial  date.   Robins
counsel  replied  that  six weeks would  be  adequate,  and  Bens
original  counsel  agreed  with that  estimate.   And  the  court
provided  that much time.  Ben was not deprived of a  substantial
right  with  regard to the proceedings.  He makes no  claim  that
representation  was  inadequate or ineffective,  instead  arguing
only  that  he feels that his attorney possibly could  have  been
better prepared.  The substantial right Ben claims deprivation of
is his right to parent  the central issue of the trial.  However,
because  he  fails to show that his right to fairly  present  his
case  was  impaired,7  we  do  not find  that  the  denial  of  a
continuance unfairly led to the ultimate result at the trial.
          Finally,  Ben  argues that the trial court  abused  its
discretion  by denying his request for a continuance to  complete
substance abuse treatment.  As we discuss in detail in Part IV.C,
Ben  did not cooperate with his reunification plan from June 2005
through  the  trial  date.  Ben had ample opportunity  from  2005
through  2007  to  obtain  an  assessment  and  enter  treatment.
Further,  trial in this case was originally scheduled for  August
2007,  and  we  have emphasized that CINA cases  are  very  time-
sensitive.8  The courts decision to avoid further delay  was  not
an abuse of discretion.
     B.   It Was Not Clearly Erroneous for the Trial Court To Find
          Evidence Beyond a Reasonable Doubt that Nicole Was Likely To
          Suffer Serious Emotional or Physical Damage if Returned to Ben.
          The  federal  Indian Child Welfare Act (ICWA)  requires
that  before  terminating parental rights, a court must  find  by
evidence  beyond a reasonable doubt that returning the  child  to
the  parent is likely to result in serious physical or  emotional
damage to the child, and that this finding be supported by expert
testimony.9  Proof that a parents custody is likely  to  cause  a
child serious harm requires proof that (1) the parents conduct is
likely  to  harm  the  children and (2) the  parents  conduct  is
unlikely to change.10  This can be proven through expert testimony
alone or through aggregating expert testimony with other evidence
such  as testimony of lay witnesses.11  Ben argues that the trial
court  should  not  have relied on the expert  testimony  of  Dr.
Michael  Rose.  He claims that because Dr. Rose did not  meet  or
evaluate  him  or his daughter, the testimony was  insufficiently
rooted in details of his specific situation.
          In  C.J.  v.  State,  Department  of  Health  &  Social
Services12  and  a companion case, J.J. v. State,  Department  of
Health & Social Services,13 we held that the evidence before  the
trial  court  did not support finding that placing  the  children
with  either of their parents would result in serious  damage  to
them.14  We carefully analyzed the information on which the expert
based  his conclusions and the contradictory information  in  the
record,  and specifically and explicitly stated that we  did  not
hold that in-person interviews were required in every case.15  In
both cases, the expert was unaware of significant recent progress
the  parents  had made.16  On the other hand, in J.A.  v.  State,
          Division of Family & Youth Services,17 we reached the opposite
conclusion  although  the expert had not evaluated  the  parents,
where the experts answers to hypothetical questions were specific
and based on the full and accurate facts of the case.18  Finally,
in  E.A.  v.  State,  Division of Family & Youth  Services,19  we
expressly  recognized that the states expert testimony  need  not
meet  the  burden of proof standing alone so long as it  supports
the courts conclusion.20
            It  is possible that Dr. Roses testimony  would  have
been  stronger or  more detailed had he evaluated Ben in  person.
We note that Dr. Rose attempted to arrange a meeting through OCS.
We  also  note  that the record indicates that  Ben  was  not  in
contact  with  OCS during the period in early 2008 in  which  Dr.
Rose wished to meet with him.  Ultimately, however, the issue  is
not  the efforts made to arrange for a meeting, nor is it whether
the  court  should  have disregarded the entirety  of  Dr.  Roses
opinion.  Our case law is clear that in-person meetings  are  not
required  and  the requirement for expert testimony  is  that  it
support  the  ultimate conclusion.  The issues  are  whether  the
expert  disregarded  or  was unaware of  contrary  evidence,  and
whether the testimony was so vague and generalized that the trial
court clearly erred in according weight to it.
          In his testimony,  Dr. Rose identified substance abuse,
domestic violence, and psychological problems as the reasons that
he believed that Ben could cause harm to Nicole.  With respect to
substance abuse, Dr. Rose testified to the likely problems  faced
by  parents  caring  for children while under  the  influence  of
substances,  such  as overreaction and defective  judgment.   Dr.
Rose  was aware of numerous missed urinalysis tests from 2005  to
2007,  Bens testimony that he had relapsed in December 2007,  and
the   detailed  records  of  treatment  from  Bens  court-ordered
substance abuse treatment in 2004.  Dr. Rose concluded  that  Ben
had  a  high  probability  of  relapse  and  would  need  further
treatment.
          Based on Bens long criminal history, including episodes
of  family  violence   and  Bens arrest for  forcing  Robin  into
prostitution, Dr. Rose concluded that Ben needed to  address  the
other  psychological problems that are reflected and that he  had
personality   features  that  are  dysfunctional  and   certainly
detrimental  to a child.  Dr. Rose was clear that he  was  in  no
position  to  diagnose Ben with any particular  disorder  without
examining  him.   However,    Dr. Rose  testified  that  children
exposed to domestic violence can suffer negative effects to their
self-esteem and emotional stability.
          This  testimony was consistent with other  evidence  at
trial.  The trial court found, based on other testimony, that Ben
missed  urinalysis  appointments because he knew  they  would  be
positive,  and  he knew that he would be unable to  visit  Nicole
with  positive  urinalysis tests.  Other  testimony  demonstrated
that  Ben  was  aggressive and disruptive to the point  that  Ben
would  have been expelled from residential treatment had  he  not
voluntarily   left.   This  aggressive  behavior  prevented   his
caseworker  at OCS from making any progress with him on  the  few
          occasions she was able to locate him and get him to meet with
her.  All of this testimony and the treatment records in evidence
supported the same conclusion as Dr. Roses testimony.  Dr.  Roses
conclusions  were  not, unlike the expert opinions  in  J.J.  and
C.J., contradicted by any other evidence at trial.21
          The trial court found that Ben did not visit Nicole for
two  periods  of  time that exceeded six months,  and  that  this
failure  constituted abandonment of Nicole.  Ben did  not  notify
anyone  of his whereabouts to arrange visitation in jail nor  did
he  attempt  to  set  up visitation outside of  jail.   Dr.  Rose
testified that the long periods of loss of contact, such as those
periods  longer  than six months leading up to the  trial,  could
affect  the attachment and bonding process.  The record  contains
substantial  evidence  demonstrating  that  Ben  failed  to  show
progress in recovering from his substance abuse, that he recently
and apparently severely abused Nicoles mother, that he failed  to
seek visitation, and that he was repeatedly incarcerated, leaving
him  unable to create a stable home environment.  Based  on  this
evidence,  as well as Dr. Roses testimony, we conclude  there  is
substantial  evidence  to  support the courts  finding  beyond  a
reasonable doubt that returning Nicole to Bens custody  would  be
likely  to result in serious emotional and/or physical damage  to
the child.
     C.   The Trial Court Did Not Err in Finding that OCS Made Active
          and Reasonable Efforts To Provide Remedial Services to Ben.
          A.   Ben argues that from the 2006 removal of Nicole onward, OCSs
efforts to provide him with remedial services were inadequate  to
meet  ICWAs  requirement that the state make  active  efforts  to
provide  services that might reunify the family.22  Reunification
efforts  are evaluated on a case by case basis.23  The burden  is
clear and convincing evidence.24
          The  trial  court  relied on this courts  rule  that  a
parents  demonstrated  lack  of  willingness  to  participate  in
treatment may be considered in determining whether the state  has
taken active efforts.25  Incarceration can significantly affect[]
the  scope  of  active  efforts  required,  though  it  does  not
eliminate  the requirement.26  Where services have been  provided
and   a  parent  has  demonstrated  a  lack  of  willingness   to
participate or take any steps to improve, this court has  excused
minor failures by the state and rejected arguments that the state
could possibly have done more.27
          Here  the  trial  court found that  the  states  active
efforts  included  setting up visitation, discussing  case  plans
with the parents, providing referrals to substance abuse
                                    assessments (particularly the
walk-in appointments available at the department), referring  Ben
to  anger management and parenting classes, referring him to  the
housing  program  Safe  Harbor,  and  attempting  to  locate  the
parents.  The court also found a demonstrated lack of willingness
to  participate,  as was the case in E.A., where  we  found  that
evasive  and combative behavior and refusal to engage in services
excused later minor failures on OCSs part.28  The court also found
that Ben intentionally evaded the department.
          OCS  repeatedly attempted to maintain contact with Ben,
arrange visitation, and convince him to maintain clean urinalysis
and obtain substance abuse screening.  Ben disappeared for months
at  a  time, from January through early March 2006, from  October
2006 until April 2007, and from October 2007 through the time  of
trial  in  March 2008.  Contact was reestablished each time  only
because OCS located Ben in prison and contacted him.  Ben  argues
that after he told his first caseworker Morino that all bets were
off  after  the removal of Nicole, she decided not to  renew  the
scheduled  urinalysis for February 2006 or  make  other  remedial
efforts.  However, she did not have working phone numbers for Ben
at  that  time and he made no attempt to provide her with contact
information.  When she located him in jail in March 2006, she  e-
mailed  him  to  set up visitation.  She also told  him  that  no
visitation  or other action would be taken until Ben had  several
clean  urinalysis  tests,  and she provided  intake  packets  for
substance abuse screening and treatment, but he did not use them.
            Rough, his new caseworker beginning in 2007, searched
for  Ben  and finally located him in jail in March 2007.   Again,
visitation  was set up for him.  Rough sent him some  information
about  whom  he should contact when he was close to release  from
jail  for  a substance abuse assessment.  Ben was released  early
from prison, but did not make much progress in his case plan.  He
was  confrontational  and  uncooperative  in  meetings  with  his
caseworker and missed many of the urinalysis tests she  arranged.
She connected him with Safe Harbor, a housing program, but he did
not  attempt to follow up with them to obtain permanent  housing.
Then she attempted to approach his outbursts in her meetings with
him  by  arranging an assessment with a psychiatrist, but he  did
not  call the number she gave him to arrange an appointment.  Ben
disappeared after their last meeting in October 2007.
          After the October 2007 agreement in which Ben agreed to
an  assessment with Dr. Brown and OCS agreed to more  visitation,
Ben  dropped out of sight.  Rough testified that she submitted  a
diligent-inquiry  search to the Alaska Public Safety  Information
Network  in  early November and contacted relatives to  look  for
him,  but  could not locate him.  Ben did not renew contact  with
OCS  and his new caseworker could not locate him.  He called  the
office once in March and spoke to another caseworker but did  not
leave  contact information for his assigned caseworker to  return
the call.
          The  record  demonstrated that Bens actions  frustrated
the  states  efforts.   His no-shows at  urinalysis,  failure  to
follow up with Safe Harbor and Dr. Brown, and failure to obtain a
substance abuse screening demonstrated his lack of willingness to
participate in the states efforts.  Most importantly, the  states
efforts were unsuccessful because of Bens long periods of lack of
contact.   For too many long stretches of time, Ben was unwilling
to  cooperate  minimally  or to comply with  the  urinalysis  and
visitation  that the state did set up for him.  Here,  therefore,
the  courts  finding  that Ben demonstrated  a  general  lack  of
willingness to participate is not clear error, and there  was  no
reason  to  believe  that additional efforts would  have  made  a
difference.


V.   CONCLUSION
          The  trial court was within its discretion to deny Bens
motion to continue trial brought on the day of trial.  It was not
clear error to conclude, with the support of Dr. Roses testimony,
that  returning  Nicole to Ben was likely to  cause  her  serious
physical  or  emotional harm, or to find   that  the  state  made
active  efforts to provide Ben services to assist  in  reunifying
him  with  Nicole.  We therefore AFFIRM the trial  court  in  all
respects.
_______________________________
     1     We  use  pseudonyms to protect the identity of  family
members.

     2    State, Dept of Transp. & Pub. Facilities v. Miller, 145
P.3d 521, 528 (Alaska 2006).

     3     E.A. v. State, Dept of Family & Youth Servs., 46  P.3d
986, 989 (Alaska 2002).

     4    Id.

     5    A.M. v. State, 945 P.2d 296, 304 n.10 (Alaska 1997).

     6    Miller, 145 P.3d at 528.

     7     See  Siggelkow v. Siggelkow, 643 P.2d 985, 988 (Alaska
1982)  (primary concern in abuse of discretion inquiry for denial
of   motion  for continuance is to avoid prejudicing  substantial
rights  by forcing party to try case without being able to fairly
present his case).

     8    S.B. v. State, Dept of Health & Soc. Servs., 61 P.3d 6,
16 (Alaska 2002).

     9    25 U.S.C.  1912(f) (2006).

     10     L.G. v. State, Dept of Health & Soc. Servs., 14  P.3d
946, 950 (Alaska 2000).

     11    Id.

     12    18 P.3d 1214 (Alaska 2001).

     13    38 P.3d 7 (Alaska 2001).

     14    C.J., 18 P.3d at 1218; J.J., 38 P.3d at 10.

     15    C.J., 18 P.3d at 1218.

     16    J.J., 38 P.3d at 10; C.J., 18 P.3d at 1219.

     17    50 P.3d 395 (Alaska 2002).

     18    Id. at 401.

     19    46 P.3d 386 (Alaska 2002).

     20    Id. at 992.

     21    See J.J., 38 P.3d at 10; C.J., 18 P. 3d at 1219.

     22    ICWA requires that any party seeking to effect a . . .
termination of parental rights to [ ] an Indian child under State
law shall satisfy the court 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.  25 U.S.C.  1912 (d) (2006).

     23     N.A. v. State, Div. of Family & Youth Servs., 19 P.3d
597, 603 (Alaska 2001).

     24     AS 47.10.088(a)(3); CINA Rule 18(c)(2); Marcia V.  v.
State of Alaska, Office of Childrens Servs., 201 P.3d 496, 502-03
(Alaska 2009).

     25    Id. at 991 (quoting N.A., 19 P.3d at 603).

     26    A.A. v. State, Dept of Youth & Family Servs.,  982 P.2d
256, 261 (Alaska 1999).

     27     See  E.A.,  46  P.3d  at 990 (evasive  and  combative
behavior and refusal to engage in services can excuse later minor
failures); Thomas H. v. Dept of Health & Soc. Servs., 184 P.3d 9,
17  (Alaska  2008)  (failure to make one mental  health  referral
insignificant due to continued frustration of efforts by  fathers
repeated incarcerations).

     28    46 P.3d at 990.

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