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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sandy B. v. State, Dept. of Health & Social Services, Office of Children's Services (9/25/2009) sp-6416

Sandy B. v. State, Dept. of Health & Social Services, Office of Children's Services (9/25/2009) sp-6416, 216 P3d 1180

     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

SANDY B., )
) Supreme Court Nos. S- 13302/13310
Appellant, ) (Consolidated)
)
v. ) Superior Court Nos. 2KB-04-31 CN,
) 2KB-05-34 CN, 2KB-07- 21 CN
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) O P I N I O N
CHILDRENS SERVICES, )
) No. 6416 September 25, 2009
Appellee. )
)
)
LEO W., )
)
Appellant, )
)
v. )
)
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF )
CHILDRENS SERVICES, )
)
Appellee. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Second   Judicial   District,
          Kotzebue, Richard H. Erlich,  Judge.

          Appearances: Angela Greene, Assistant  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender, Anchorage, for Appellant  Sandy  B.
          Brooke Browning, Lewis & Thomas, P.C.,  Nome,
          for  Appellant Leo W.  Michael  G.  Hotchkin,
          Assistant  Attorney General,  Anchorage,  and
          Richard A. Svobodny, Acting Attorney General,
          Juneau, for Appellee.

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

          FABE, Justice.


I.   INTRODUCTION
          The  Office  of Childrens Services (OCS) removed  three
girls,  who  are Indian children under the Indian  Child  Welfare
Act,  from  the care of their parents in three separate  alcohol-
related incidents between September 2005 and December 2007.   The
parents  began  to  participate in  residential  substance  abuse
treatment  just  three weeks before the trial to terminate  their
parental  rights.   Before  entering residential  treatment,  the
parents  had  repeatedly  denied  that  they  had  problems  with
alcohol, declined to communicate with OCS, failed to provide  OCS
with  current  contact  information, and  expressed  interest  in
relinquishing  their  parental rights to the  two  oldest  girls.
Following  a three-day termination trial, the trial court  issued
two written orders terminating their parental rights to all three
children.    The   parents  appeal  the  trial  courts   findings
concerning  the adequacy of OCSs active efforts to  reunify  them
with  their children and the sufficiency of the expert testimony.
Given OCSs efforts throughout its involvement with the family and
the  parents lack of cooperation and failure to acknowledge their
problems  with  alcohol, the trial courts active efforts  finding
was  not  erroneous.  The trial court also did not err in  giving
weight to the testimony of OCSs expert because the testimony  was
sufficiently  grounded  in the cases facts  and  issues  and  was
consistent  with  the  other evidence  presented  at  trial.   We
therefore  affirm  the trial courts termination  of  the  parents
rights to the three children.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Sandy  is the mother of three girls, Vicki, Kathy,  and
Sarah.1   Leo  is the father of Vicki, born in 2001,  and  Sarah,
born in 2007.  Kathy was born in 2004 and her father, Trevor,  is
deceased.   The three girls are Indian children under the  Indian
Child Welfare Act (ICWA).2
          The children were removed from their parents custody at
different  times.  On September 8, 2005, OCS filed  an  emergency
petition  for  adjudication of Kathy as in need of  aid  and  for
temporary  custody.  The petition alleged that during  the  early
morning  of September 7 Sandy became intoxicated in the  presence
of  Kathy  and then left Kathy in her apartment in Kotzebue  with
Kathys  father, Trevor, who was also intoxicated.   According  to
the  petition, Trevor later left the sixteen-month-old girl alone
in the apartment and committed suicide.
          Sandy  was  admitted to the Maniilaq Health  Center  in
Kotzebue on September 8, 2005, due to suicidal ideation, and  she
remained in the hospital for about a week.  Between September and
December 2005, Sandy participated in residential drug and alcohol
treatment  at  the Maniilaq Recovery Center, but she  left  twice
against  treatment  advice.  During substance  abuse  and  mental
health  assessments at the center, Sandy disclosed her  extensive
history of depression and alcohol and marijuana use.
          While Sandy was in residential treatment, she routinely
attended OCS-scheduled visits with Kathy three times a week.  But
Sandy  rarely visited Kathy after she left the treatment program.
In  addition  to scheduling supervised visits between  Sandy  and
Kathy,  OCS  enrolled them in the Early Learning Family  program,
which  included monthly visits with a program worker as  well  as
monthly  play groups for parents and their children.  OCS alleged
in  a  September 2006 request and report for permanency  findings
that  it  had  attempted to get [Sandy] to commit  to  a  regular
visitation schedule and was willing to provide transportation and
that [o]n several occasions [she] agreed to times for visitation,
home  visits  or office visits and then was either  not  home  or
didnt arrive at the office at the prearranged time.
          At  the termination trial, Sandy testified that she met
regularly  with OCS during the winter of 2006 to talk  about  her
desire  to have Kathy adopted but that she was told to wait.   In
February  2006  OCS received two reports of Sandy and  Leo  being
passed  out drunk and leaving their four-year-old daughter  Vicki
without  a sober care provider.  In March OCS received  a  report
that the police had stopped Leo for intoxication and that Leo had
failed to pick up Vicki from the babysitters.  At the time, Sandy
was incarcerated after having been arrested for criminal trespass
when  she  refused  to leave a residence while  intoxicated.   In
April  OCS  helped  Sandy  apply  for  an  inpatient  program  in
Fairbanks but she declined to enter the program when a bed became
available  in  June.  That spring Sandy and Leo  were  living  in
various  places in Kotzebue and Fairbanks because  they  did  not
have a permanent residence due to their frequent drinking.
          On  the  morning  of  June 15, 2006, Vickis  babysitter
tried  to  return Vicki to her parents but they were  intoxicated
and  fighting.  Vickis babysitter called the Kotzebue police  and
said  that  she could not continue to care for Vicki or  identify
other  suitable care providers.  Vicki received a  mental  status
evaluation  after  OCS  took custody of her.   According  to  the
evaluation, Vicki told an OCS supervisor that Leo had offered her
alcohol but she declined to drink it because she did not like the
taste.  The evaluation also reported that Vicki recalled watching
her father push her mother to the floor and threaten to kill her.
On  June  16 OCS filed an emergency petition for adjudication  of
Vicki  as in need of aid and for temporary custody.  The petition
noted  that Vicki was clearly affected by the incident[,]  making
remarks such as[,] did you see what my daddy did [to] my mommy?
          On August 9, 2006, Sandy entered a treatment program in
Fairbanks,  but  she left on September 1.  OCS subsequently  lost
track  of  Sandy and Leo, apparently because OCS  was  unable  to
reach  them  using  the  phone numbers that  Sandy  and  Leo  had
provided.  According to a December 18, 2006 OCS report, Sandy and
Leo  spent  most  of the fall of 2006 in Fairbanks,  living  with
relatives  or  in a homeless shelter, and each had problems  with
the law that involved alcohol.
          After  OCS  discovered that Sandy was in  the  Kotzebue
jail in late February 2007, it resumed communication with her and
Leo,  though  OCS continued to have difficulty reaching  them  by
phone.  OCS also used radio announcements to try to contact Sandy
and Leo during 2006 and 2007, but OCS stopped trying to reach Leo
through  the radio after he asked that an announcement  be  taken
off  the  radio  in  late May 2007.  OCS also  sent  the  parents
letters, some of which were returned.
          In  February 2007 OCS arranged seven supervised  visits
between the children and their parents, but Sandy and Leo  failed
to  make most of the visits even though OCS had on some occasions
been  able  to reach them by phone to remind them of the  visits.
The  parents absence may have been due to their expressed  desire
to  relinquish  their parental rights.  After the parents  missed
several  visits, OCS cancelled the rest because,  as  their  case
worker   explained,  its  pretty  traumatic  for  the   kids   to
continually  show  up for a visit and wait for their  parents  to
come  and have nobody come.  In the spring of 2007, OCS scheduled
two  substance  abuse assessment appointments for  Leo  after  he
mentioned difficulty in arranging them himself, but he failed  to
attend both.  A June 2007 permanency report for Vicki, which  was
incorporated into a superior court order, summarized Sandys three
unsuccessful  attempts  at completing substance  abuse  treatment
while  Vicki was in OCSs custody and observed that Leo  had  been
offered services to address substance abuse, [but] throughout the
case  he has adamantly stated he does not have a substance  abuse
problem.  According to the report, the parents had not maintained
contact with Vicki or participated in their case plans.
          In the summer of 2007, Sandy and Leo expressed to their
case worker that they were not interested in treatment, that they
had given up on the older two children, and that they had focused
their  efforts on retaining their youngest daughter,  Sarah,  who
was  born  in August 2007.  Within ten days of Sarahs birth,  OCS
received  a  number  of reports concerning  Sandy  and  Leo.   On
August  6  Leo was arrested for disorderly conduct after  he  was
screaming  at  Sandy in the middle of the road at 2:30  a.m.   On
August  14  a  Kotzebue police officer reported  that  four  days
before  Sandy gave birth he had an interaction with her  and  she
was  intoxicated.  The same police officer found Sandy passed out
in the road on August 14.  Sandy was admitted to the hospital for
detox but she refused services.   During a home visit after these
reports  were made, Sandy declined to talk with the familys  case
worker.    Leo  told  the  case  worker  that  while  Sandy   was
hospitalized, he was caring for Sarah.  The case worker testified
that  Leo  did  not  appear interested in .  .  .  talking  about
anything  to  alleviate the concerns of OCS and that the  parents
werent interested in engaging in services.  They felt they  didnt
have a problem.
          On   October   9,  2007,  OCS  filed  a  petition   for
adjudication  of  Sarah  as  in need of  aid  and  for  temporary
custody,  but OCS did not remove Sarah from her parents  custody.
The  familys case worker again visited the parents at their home,
but  this time Leo declined to talk to the case worker, and Sandy
said that she was not drinking and did not have a substance abuse
problem.    In  November  the  parents  case  worker   had   some
conversations  with them over the phone and visited  their  home,
but  they  did not make any treatment progress and  Leo  did  not
appear to be more receptive to OCSs efforts.
          On  December 4, 2007, Sandy and Leo had arranged for  a
babysitter to care for four-month-old Sarah while they were at  a
party, but unbeknownst to them, the babysitter dropped Sarah  off
at  the  party  while  they were both intoxicated.   The  parents
discovered  that their daughter was at the party when the  police
arrived, and they arranged for a family member to take her  to  a
home  shared  by  some of Sandys relatives.   OCS  was  concerned
because there was a history of sexual abuse in that home.   Sarah
was  removed from her parents custody on December 5.  On December
12 OCS filed a petition to terminate the parental rights of Sandy
and Leo to all of their children.
          In  late December 2007 Leo received his first substance
abuse assessment.  During the assessment, Leo denied experiencing
alcohol  problems in the thirty days prior to the assessment  and
reported  that he used alcohol fewer than eight times per  month.
OCS  was  given  a  copy of the assessment but did  not  have  an
opportunity  to provide the assessor with additional information.
The  assessment rate[d] [Leos] potential for continued  substance
use  as  Low  and recommended that Leo participate in  outpatient
treatment.   In  January  2008 Leo went to  jail  after  pleading
guilty   to  driving  under  the  influence,  and  he  was   then
reassessed.    Leo  requested  inpatient  treatment,   but   both
assessments recommended outpatient treatment.
          In  February 2008 Leo began participating in outpatient
treatment.   On March 14, about three weeks before the  trial  to
terminate  Sandys  and Leos parental rights  began,  the  parents
entered inpatient treatment at the Spud Farm, which is a recovery
program  outside of Kotzebue that emphasizes subsistence living.3
At  the termination trial, Sandy testified that she was trying to
control  her  alcohol  problem.   But  Leo  denied  that  he  was
dependent  on  alcohol and that he had ever placed his  need  for
alcohol before the needs of his children.
     B.   Proceedings
          On  September 8, 2005, OCS filed an emergency  petition
for  adjudication  of Kathy as in need of aid and  for  temporary
placement.   Following an adjudication hearing in  early  January
2006, Superior Court Judge Richard H. Erlich found that Kathy was
in  need  of  aid.   On  June 16, 2006, OCS  filed  an  emergency
petition  for  adjudication of Vicki as in need of  aid  and  for
temporary placement.  The superior court found that Vicki was  in
need  of aid after an adjudication hearing in late October  2006.
The  superior court also held a permanency hearing for  Kathy  in
late  October 2006.  The superior court subsequently  found  that
Kathy continued to be in need of aid and that the permanent  plan
for  her was adoption.  Following a permanency hearing for  Vicki
in  mid-June 2007, the superior court found that Vicki  continued
          to be in need of aid and that the permanent plan for her was
adoption.
          On   October   9,  2007,  OCS  filed  a  petition   for
adjudication  of  Sarah  as  in need of  aid  and  for  temporary
custody.  OCS did not remove Sarah from her parents custody.   On
November  9  the  superior court issued a  temporary  supervision
order  that determined that Sarah was a child in need of aid  but
ordered  that she remain in her parents custody.  On  December  5
Sarah was removed from her parents custody and the superior court
issued a temporary custody order later that month.
          On  December 12, 2007, OCS filed petitions to terminate
the parents rights to all three children.  The parties agreed  to
address  the adjudication of Sarah as a child in need of aid  and
the termination of the parental rights to Vicki, Kathy, and Sarah
in  a single trial that was held during the spring of 2008.   Dr.
Raymond  Droby  testified as OCSs ICWA-required expert.   At  the
conclusion  of  the  trial,  the superior  court  instructed  the
parties  to address the factual issues in their closing arguments
and  to  write a legal brief on the issues in contention.   Post-
trial briefs were filed by Sandy, Leo, the childrens guardian  ad
litem, and OCS.
          The   superior   court   issued  two   written   orders
terminating Sandys and Leos parental rights.  The superior courts
initial order on September 29, 2008, found that Sarah was a child
in  need  of  aid,  adopt[ed]  the States  arguments  as  to  all
uncontested  issues, and addressed the issues that were  disputed
by Sandy, Leo, or both of them.
          The  superior  court  issued  a  second  written  order
terminating Sandys and Leos parental rights on October 21,  2008.
In  doing  so,  the superior court found by clear and  convincing
evidence  that: the children were in need of aid; Sandy  and  Leo
had  not  remedied  the  conduct or  conditions  that  put  their
children  at  substantial risk of harm within a reasonable  time;
and  OCS made active but unsuccessful efforts to provide services
and  programs  designed  to  prevent the  familys  breakup.   The
superior court also found by a preponderance of the evidence that
termination  of  Sandys  and  Leos parental  rights  was  in  the
childrens best interests.  Finally, the superior court found that
there  was  evidence  beyond a reasonable  doubt,  including  the
testimony  of  a  qualified expert pursuant  to  ICWA,  that  the
children  would  likely  suffer serious  emotional  and  physical
damage if returned to their parents.
          Both  parents  appeal.  Sandy challenges  the  superior
courts finding concerning OCSs active efforts and the sufficiency
of  the expert testimony to support its finding that her children
would  likely  suffer serious harm if they were returned  to  her
care.   Sandy also argues that she was denied due process by  the
cumulative effect of the alleged errors in the case.  We  granted
Leos unopposed motion to join Sandys opening brief.4
III. STANDARD OF REVIEW
          We  will affirm the trial courts factual findings in  a
child  in  need  of  aid  (CINA) case  unless  they  are  clearly
erroneous.5  Findings of fact are clearly erroneous if  a  review
of  the  entire record in the light most favorable to  the  party
          prevailing below leaves us with a definite and firm conviction
that  a  mistake has been made.6  Whether OCS made active efforts
as  required by ICWA is a mixed question of law and fact.7  Here,
the  parents  argue that the trial courts active efforts  finding
failed to comport with ICWAs requirements.  This is a question of
law  that  we review de novo.8  We will also review de  novo  the
legal  question  whether  an  experts  testimony  satisfies   the
standards  of  ICWA.9  We will not review issues  that  were  not
raised  below  unless there is plain error,  which  exists  where
there  is a high likelihood that injustice has resulted  from  an
obvious mistake made below.10
IV.  DISCUSSION
          The  trial  court must make five findings to  terminate
parental  rights to an Indian child in a CINA case.11  The  trial
court  must find by clear and convincing evidence that:  (1)  the
child is in need of aid under AS 47.10.011;12 (2) the parent  has
not remedied the conduct or conditions in the home that place the
child  at  substantial risk of physical or mental injury  or  has
failed to do so within a reasonable time;13 and (3) OCS has  made
active  but unsuccessful efforts to provide services and programs
designed to prevent the Indian familys breakup.14  The trial court
must find by a preponderance of the evidence that (4) termination
of  parental rights is in the childs best interests.15   Finally,
the  trial court must find by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that  (5)  the
Indian  child is likely to suffer serious emotional  or  physical
harm if the child remains in the parents custody.16  Sandy and Leo
challenge  the  trial  courts  active  efforts  finding  and  the
sufficiency of the expert testimony.
     A.   The   Trial  Courts  Active  Efforts  Finding  Was  Not
          Erroneous.
          ICWA   requires  that  before  a  court  may  terminate
parental  rights  to an Indian child, OCS must have  made  active
efforts  .  .  .  to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and
that these efforts have proved unsuccessful.17  Under Alaska Child
in  Need of Aid Rule 18(c)(2)(B), the trial courts active efforts
finding must be supported by clear and convincing evidence.
          Sandy  and Leo argue that the trial court did not  make
the  required active efforts finding.  They correctly  point  out
that  the  trial  courts initial written order terminating  their
parental rights lacks any reference to OCSs active efforts.   But
as  OCS explains, the trial court made clear in its September 29,
2008 order that it was only addressing the issues that [were]  in
dispute and that it was adopt[ing] the States arguments as to all
uncontested  issues.  Neither parent contested whether  OCS  made
active  efforts during their closing arguments or in their  post-
trial  briefing.  In fact, Leos attorney told the trial court  to
skip  the question whether OCS had proved by clear and convincing
evidence  active  efforts were made to provide remedial  services
because  [w]ere okay with that.  In failing to object  when  Leos
attorney conceded that OCS had met its active efforts burden  and
in  contesting  only the finding concerning whether  the  parents
remedied  within a reasonable time their conduct that  put  their
          children at substantial risk of harm, Sandy did not indicate that
she  disagreed with Leo and OCS that OCS had made active  efforts
to  prevent the familys breakup.  Sandys silence certainly  could
have  been taken as acquiescence in Leos position that this issue
was not in dispute.
          In  any event, the trial court entered a second written
order  that  found  that  OCS had made active  efforts  and  that
provided  support for its finding.18  The trial court found  [b]y
clear  and  convincing evidence, [that] active efforts have  been
made  to  provide  remedial services and rehabilitative  programs
designed  to  prevent the breakup of the Indian family  and  that
[t]hese  efforts  have proven unsuccessful.  In  support  of  its
finding,  the  trial court highlighted OCSs efforts to  contact[]
and  communicat[e]  with  the parents, schedule  visitation  with
their  children,  and  OCSs attempts  to  get  the  parents  into
treatment programs.  Thus, it is clear that the trial court  made
the required active efforts finding.
          We  turn  next to the parents argument that  the  trial
courts  active efforts finding was insufficient with  respect  to
their  daughter Sarah.  We evaluate OCSs efforts  to  reunite  an
Indian family on a case-by-case basis.19  Although there is no pat
formula  .  .  .  for distinguishing between active  and  passive
efforts,  we  have  recognized that  what  is  critical  is  OCSs
involvement with a parent after it has drawn up the parents  case
plan.20   OCS  makes active efforts to reunite a family  when  it
helps  the  parents  develop the resources necessary  to  satisfy
their  case  plans, but its efforts are passive when it  requires
the  parents  to perform these tasks on their own.21   A  parents
willingness  to  cooperate is relevant to  the  scope  of  active
efforts  required.22   Where services have been  provided  and  a
parent  has demonstrated a lack of willingness to participate  or
take  any  steps to improve, [we have] excused minor failures  by
the  state  and rejected arguments that the state could  possibly
have  done  more.23  In evaluating whether OCS has  taken  active
efforts, we consider OCSs involvement in its entirety.24
          Sandy  and Leo argue that the facts fail to support  an
active efforts finding for their youngest daughter, Sarah.25  The
question  before us is a narrow one: When a child is  born  while
OCS  is  involved with the family in an ongoing case, should  the
trial  court  view  OCSs efforts toward each child  in  isolation
rather  than  in  the context of its efforts toward  all  of  the
children?   The answer to that question is no.  The  trial  court
properly  considered all of OCSs efforts from the  time  that  it
first  became involved with the family in September 2005 when  it
filed an emergency petition for adjudication of Kathy as in  need
of  aid  and for temporary custody until the trial on termination
of Sandys and Leos parental rights began in April 2008.
          We addressed a similar issue in E.A. v. State, Division
of Family & Youth Services.26  In E.A., a mother relinquished her
parental rights to each of her five children except for her  six-
year-old son.27  In the case to terminate her parental rights  to
that  son,  the mother pointed to the failure of the Division  of
Family  and  Youth  Services (DFYS), which is now  known  as  the
Office  of  Childrens  Services (OCS),28 to make  active  efforts
          during a seven-month period to support her argument that DFYS had
failed  to  provide active efforts toward unifying her  with  her
son.29   We determined that it was proper for the trial court  to
consider the degree of the states efforts to prevent the  breakup
of  the  entire  family  in  assessing whether  that  effort  was
sufficient  under ICWA and that DFYSs efforts regarding  her  son
were active in light of the totality of DFYSs efforts during  its
involvement with her family.30
          The  trial  courts  finding that OCS  made  active  but
unsuccessful  efforts to prevent the breakup of  Sandy  and  Leos
family is amply supported by the record.  Before Sarah was  born,
OCS   tried  to  provide  remedial  services  and  rehabilitative
programs   designed   to  prevent  the  termination   of   Sandys
relationship  with Vicki and Kathy that included enrolling  Sandy
and  Kathy  in  the  Early Learning Family  program,  identifying
treatment programs that allow participants to have their children
with  them,  helping  Sandy apply for  an  inpatient  program  in
Fairbanks, scheduling supervised visits with Vicki and Kathy, and
making  repeated  and varied efforts to contact  and  communicate
with  Sandy.  OCS also made efforts to provide remedial  services
and  rehabilitative programs designed to prevent the  termination
of  Leos  relationship  with Vicki that included  scheduling  two
appointments   for   substance  abuse   assessments,   scheduling
supervised  visits  with Vicki, and making  repeated  and  varied
efforts to contact and communicate with him.
          But  OCSs efforts were hindered by the parents lack  of
cooperation,   which  was  largely  due  to  their   failure   to
acknowledge  their problems with alcohol as well as their  desire
to  relinquish their parental rights to Vicki and  Kathy.   Sandy
acknowledges  in  her opening brief that [i]n this  case,  it  is
undisputed  that,  for  the first two  children,  [she]  did  not
entirely cooperate with the treatment she clearly needed.   Sandy
twice declined substance abuse treatment when it was available to
her,  and  on  the two occasions when she entered treatment,  she
left  without completing the programs.  Leo failed to attend  the
two  appointments for substance abuse assessments  that  OCS  had
made  for  him  before  Sarah was born and  did  not  receive  an
assessment  or  participate in treatment until  after  Sarah  was
removed  from  his care.  And despite having spent  nearly  three
weeks in residential treatment for substance abuse, Leo testified
at the trial that he was not dependent on alcohol and that he had
never  placed  his  need  for alcohol before  the  needs  of  his
children.
          Following  Sarahs  birth, her parents unwillingness  to
cooperate continued to impede OCSs efforts to guide them  through
their  case  plans.   Though Sandy and Leo had  told  their  case
worker that they had given up on the older two children and  that
they  would  focus their efforts on retaining  the  new  baby,  a
police  officer reported that Sandy was intoxicated when  he  saw
her  four days before Sarahs birth.  On August 6 Leo was arrested
for  disorderly conduct, and on August 14 a police officer  found
Sandy passed out in the road.
          The  case  worker  responded to the  reports  of  these
alcohol-related  incidents involving Sandy and  Leo  by  visiting
          their home.  But Sandy declined to talk with the case worker, and
Leo   did  not  address  her  concerns  regarding  their  alcohol
consumption.    According  to  the  case  worker,   they   werent
interested in engaging in services.  They felt they didnt have  a
problem.   The  case  worker visited the parents  home  again  in
October.  Yet this time Leo declined to talk to the case  worker,
and  Sandy claimed that she was not drinking and did not  have  a
substance abuse problem.  In November the case worker called  the
parents and visited them, but they had not made progress in their
treatment,  and  Leo did not appear to be any more  receptive  to
OCSs  efforts.   As  Sandys attorney conceded  at  oral  argument
before  us  on appeal, the State clearly wanted to at least  try.
They  kept  the child in the home for a few months until  [Sandy]
got drunk.
          OCS  removed Sarah from Sandy and Leos care  after  her
babysitter  dropped  her  off at a party  where  they  were  both
intoxicated.   Between  Sarahs  removal  in  December  2007   and
commencement  of  the trial on termination  of  Sandys  and  Leos
parental  rights in April 2008, it does not appear that  OCS  was
involved  with  the parents.  But OCSs failure  to  continue  its
efforts   toward   the  family  during  those  four   months   is
insignificant in light of the substantial efforts that  OCS  made
to  assist  the parents in receiving substance abuse  assessments
and  treatment,  schedule  visitation with  their  children,  and
communicate  with  them  in a variety of  ways  that  were  often
rebuffed or ignored.
          We  conclude that in this case the trial court properly
took  into  account all of OCSs efforts on behalf of  the  entire
family  in  determining that active efforts were made  on  Sarahs
behalf.   We  agree with OCSs view, expressed at  oral  argument,
that  the determination of whether OCS may rely on active efforts
made  on  behalf of older children in support of  a  petition  to
terminate parental rights as to a younger child, born after those
efforts were made, is heavily fact dependent.  In this case,  OCS
was justified in relying in part on the efforts it made in Kathys
and Vickis cases in its petition to terminate parental rights  as
to  Sarah.  There was no interval between the older siblings CINA
proceedings and the CINA proceedings for Sarah, and the  evidence
established that the extensive efforts OCS had made with  respect
to  the  older girls in the nearly two years before Sarahs  birth
did  not  effect a change in the parents conduct  toward  any  of
their  children. We therefore conclude that the trial  court  did
not  err in finding that OCS made active but unsuccessful efforts
to prevent the breakup of Sandy and Leos family.
     B.   The  Trial  Court  Did Not Err in Finding  by  Evidence
          Beyond   a  Reasonable  Doubt,  Including  Dr.   Drobys
          Testimony, that Continued Custody by the Parents  Would
          Likely Harm the Children.
          
          ICWA   requires  that  before  a  court  may  terminate
parental  rights  to  an Indian child, the  court  must  find  by
evidence  beyond  a  reasonable  doubt,  including  testimony  of
qualified  expert witnesses, that the continued  custody  of  the
child  by  the parent or Indian custodian is likely to result  in
serious emotional or physical damage to the child.31  The  courts
finding  may  be  supported  through expert  testimony  alone  or
through aggregating expert testimony with other evidence such  as
testimony of lay witnesses.32
          The parents contest the qualifications of Dr. Droby  as
the  States  ICWA-qualified expert and express concern  that  his
testimony was by phone.  The parents argue that Dr. Droby was not
qualified as an expert in child development, alcohol treatment or
abuse,  or on any subject specifically facing the court.  But  as
OCS  points  out,  Dr.  Droby  was  qualified  as  an  expert  in
psychology  and his testimony was well within his expertise.   At
trial  Dr.  Droby  addressed  the  psychological  harm  that  the
children  have suffered and would likely continue  to  suffer  if
they  were  returned  to Sandy and Leos care  and  their  parents
continued to drink.
          Sandy  further argues in her reply brief that  even  if
Dr.  Droby  was  qualified under the Alaska  Rules  of  Evidence,
testimony  from an expert who is generally qualified  to  testify
under  the  Rules  of  Evidence is not  sufficient  to  meet  the
requirements of the Indian Child Welfare Act.  Sandy cites Marcia
V.  v. State, Office of Childrens Services, in which we explained
that  although  ICWA  1912(f) heightens the requirements  for  an
experts  qualifications beyond those normally required to qualify
an  expert,  one way to meet ICWAs requirements is by  virtue  of
substantial  education  in the area of [the  experts]  specialty.
The  legislative  history  of  ICWA  provides  further  guidance,
stating  that  the  education and training of the  expert  should
constitute   expertise   beyond   the   normal   social    worker
qualifications. 33  Having earned masters and doctorate degrees in
clinical psychology, Dr. Droby received substantial education  in
his speciality of psychology that meets this standard.
          The  parents  also claim that Dr. Drobys testimony  was
compromised by the fact that he appeared telephonically, but they
fail  to  cite  any  authority  in support  of  this  contention.
Although Sandy asserts in her reply brief that she is not arguing
that  the  trial court erred in allowing Dr. Droby to testify  by
telephone  under CINA Rule 3(g), she subsequently complains  that
[t]he  psychologist literally phoned it in from Nome.  Dr. Drobys
testimony  by  phone  was  proper under  CINA  Rule  3(g),  which
provides that [t]he court may conduct any hearing with telephonic
participation by one or more parties, counsel, witnesses,  foster
parents or out-of-home care providers, or the judge.
          Sandy  and  Leo  raise their objections to  Dr.  Drobys
qualifications as well as his telephonic testimony for the  first
time  on appeal.  We will not review issues that were not  raised
below  absent plain error, which is an obvious mistake creat[ing]
a high likelihood that injustice has resulted.34  The trial court
made  no  mistake  in  qualifying  Dr.  Droby  as  an  expert  in
psychology and in permitting his testimony by phone.  Thus, there
was no plain error.
          Sandy  and Leos final challenge goes to the sufficiency
of Dr. Drobys testimony.  They argue that his testimony failed to
satisfy   the   standards  of  ICWA  because  it   consisted   of
generalizations  due  to his lack of personal  knowledge  of  the
          family.  But Dr. Drobys testimony is like that of Dr. Michael
Rose  in Ben M. v. State, Department of Health & Social Services,
Office  of  Childrens Services, in which we  rejected  a  fathers
argument that the trial court erroneously relied on the testimony
of  an  expert  who had not evaluated him or his daughter.35   We
observed  that  [i]t is possible that Dr. Roses  testimony  would
have been stronger or more detailed had he evaluated [the father]
in  person  but  emphasized that [o]ur case  law  is  clear  that
in-person  meetings  are  not required and  the  requirement  for
expert testimony is that it support the ultimate conclusion.36  We
concluded  that  Dr.  Roses  testimony  was  not  so  vague   and
generalized or contrary to other evidence presented at trial that
the  trial court clearly erred in according weight to it.37   Dr.
Rose testified that the father was likely to relapse based on the
fathers  treatment  and  relapse history  and  identified  likely
problems  faced  by  parents who care for  their  children  while
intoxicated.38  Dr. Rose further testified that the father needed
to   resolve   his   psychological  problems  and   dysfunctional
personality features reflected in his criminal history  and  that
children exposed to domestic violence can suffer negative effects
to their self-esteem and emotional stability.39  Yet Dr. Rose was
explicit  that without examining the father he could not diagnose
him with any particular disorder.40
          Here,  Dr.  Drobys testimony was grounded in the  facts
and issues of this case.  Dr. Droby testified that his review  of
the materials provided by OCS suggested that Sandy and Leo had  a
strong  orientation  towards using  alcohol  at  the  expense  of
parenting,  though  he  acknowledged  that  because  he  had  not
directly evaluated the family members, he could not diagnose  the
parents  consumption  of alcohol as either alcohol  dependent  or
alcohol  abuse.   Dr. Droby cited the parents  criminal  records,
their  missed  visits with their children, and the incident  that
lead  to  Sarahs  removal  as examples  of  their  behavior  that
suggested  that they had an alcohol problem.  Dr.  Droby  further
testified that [i]t seems . . . from the treatment notes  on  the
children  that they have been affected emotionally and that  they
have   suffered,   to   some  extent,  emotionally   from   their
relationship  with  their  parents.   In  particular,  Dr.  Droby
mentioned  Vickis  response to seeing her father  push  down  her
mother  and threaten to kill her, and Vickis diagnosis  of  post-
traumatic  stress  disorder.   Dr. Droby  explained  how  parents
alcohol problems can hinder bonds between them and their children
and   can  cause  the  children  to  be  anxious,  insecure,  and
depressed.   Finally,  after Dr. Droby was told  of  the  parents
participation in treatment for the past sixty to ninety days,  he
testified that if they were released and continued to drink,  the
children  might be at harm.  Dr. Droby also discussed the  likely
adjustment  problems that the children would experience  if  they
were  returned  to  their parents after their  parents  completed
eighteen months of treatment and six months of being sober in the
community  or  if  their parents relapsed and the  children  were
again removed from their parents care.
          Dr.  Drobys  testimony  is  also  consistent  with  the
evidence  that the trial court cited in finding that the children
          would likely suffer serious harm if returned to Sandy and Leos
care.   In  support of Dr. Drobys conclusions,  the  trial  court
cited:  the  foster  mothers testimony about Vickis  displays  of
sadness  and  insecurity related to her jealousy  of  her  foster
mothers natural children, which had improved significantly during
her  time  with her foster family; the treatment plan and  mental
status  evaluation for Vicki, which contained  her  diagnosis  of
post-traumatic  stress  disorder  and  adjustment  disorder;  the
guardian  ad  litems  December 2006 pre-disposition  report  that
mentioned  Vickis  bed-wetting problem at the age  of  five;  the
guardian  ad  litems  February 2006 pre-disposition  report  that
discussed  Kathys  assessments, which  determined  that  she  had
delays  in various areas, including language; the foster  mothers
testimony about Kathys inability to count past two when  she  was
about four years old and about her progress since living with her
foster  family; and Sarahs young age and need to attach  with  an
adult   caregiver  to  prevent  her  from  suffering  significant
emotional  damage, based on legislative findings  concerning  the
attachment process of children under the age of six.41
          Because Dr. Drobys testimony is particular to facts and
issues  in  this  case  and consistent with  the  other  evidence
presented  at  trial, the superior court did  not  err   when  it
relied  on  his testimony in combination with other  evidence  to
find  beyond  a reasonable doubt that [b]ased upon the  ages  and
developmental  needs of the children and the parents  history  of
unsuccessful engagement in treatment, . . . continued custody  by
the parents would result in emotional harm to the children.42
V.   CONCLUSION
          For   these   reasons,  we  AFFIRM  the  trial   courts
termination of Sandys and Leos parental rights to their children.
_______________________________
     1     We adopt the pseudonyms used by the parties to protect
the family members privacy.

     2    25 U.S.C.  19011963 (2006).  Although the parties agree
that the girls are Indian children under ICWA, it does not appear
that the childrens tribal affiliation has been fully resolved.

     3     The  Spud Farm, which is the colloquial name  for  the
Maniilaq  Associations Mavsigviq Program, is not a State-approved
treatment facility.

     4    Accordingly, the arguments made in Sandys opening brief
are referred to as Sandy and Leos arguments.  But because Leo did
not  file a motion to join Sandys reply brief and Sandy clarified
in  this brief that her arguments are distinct from any that  may
be  advanced  by the father should he choose to file  a  separate
reply  to  the states arguments, we refer to Sandys arguments  in
her reply brief as her own.

     5     Audrey  H.  v. State, Office of Childrens Servs.,  188
P.3d 668, 672 (Alaska 2008).

     6    Id. (internal quotation marks omitted).

     7     N.A. v. State, Div. of Family & Youth Servs., 19  P.3d
597, 600-01 (Alaska 2001).

     8     See  Carl  N. v. State, Dept of Health & Soc.  Servs.,
Div.  of  Family & Youth Servs., 102 P.3d 932, 935 (Alaska  2004)
(Whether   the   superior  courts  findings  comport   with   the
requirements of ICWA or the CINA statutes and rules is a question
of law that we review de novo.).

     9     Marcia  V.  v. State, Office of Childrens Servs.,  201
P.3d 496, 507 (Alaska 2009).

     10     Ted W. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 204 P.3d 333, 337 (Alaska 2009).

     11     See  25 U.S.C.  1912(d), (f) (2006) (listing required
findings  to  terminate parental rights to an Indian  child);  AS
47.10.088 (listing required findings to terminate parental rights
to  a  child);  CINA  Rule 18(c) (listing  required  findings  to
terminate  parental  rights  to  a  child,  including  additional
requirements if the child is an Indian child).

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

     13    AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i)(ii).

     14    25 U.S.C.  1912(d); CINA Rule 18(c)(2)(B).

     15    CINA Rule 18(c)(3).

     16    25 U.S.C.  1912(f); CINA Rule 18(c)(4).

     17    25 U.S.C.  1912(d).

     18     Cf.  Stone v. Stone, Mem. Op. & J. No. 1341, 2009  WL
1564154,  at  *3-4  (Alaska,  June 3,  2009)  (holding  that  the
superior  court  did  not  abuse  its  discretion  when  it  made
supplemental  oral  findings five days  after  it  had  made  its
initial  oral  findings); D.H. v. State, Dept of  Health  &  Soc.
Servs.,  929 P.2d 650, 654-55 (Alaska 1996) (affirming the  trial
courts finding concerning the States reunification efforts, which
was  the  sole  additional finding included in the  trial  courts
amended order).  In their briefing and during oral argument,  the
parents  repeatedly  described the trial  courts  second  written
order as a form order, which is in reference to the fact that the
order  was  submitted  by  OCS  and similar  to  proposed  orders
submitted by OCS in other cases.  Because Alaska Civil Rule 78(a)
requires  counsel for the successful party to prepare in  writing
and  file  . . . proposed findings of fact, conclusions  of  law,
judgments  and  orders, OCS properly submitted a  proposed  order
with  factual  findings  and  legal conclusions  that  terminated
Sandys and Leos parental rights after the trial court entered its
initial written order that decided each of the disputed issues in
OCSs favor.  As Sandys counsel acknowledged during oral argument,
once  the  trial  court signed OCSs proposed order,  it  was  the
courts  order.   See Indus. Indem. Co. v. Wick Constr.  Co.,  680
P.2d 1100, 1108 (Alaska 1980) (A trial court is . . . entitled to
adopt  findings and conclusions prepared by counsel, so  long  as
they  reflect  the courts independent view of the weight  of  the
evidence.).

     19     Ben M. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 204 P.3d 1013, 1021 (Alaska 2009).

     20    A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 261 (Alaska 1999) (internal quotation marks omitted).

     21     Id. (citing Craig J. Dorsay, The Indian Child Welfare
Act and Laws Affecting Indian Juveniles Manual 157-58 (1984)).

     22     Id. at 262; see also N.A. v. State, Div. of Family  &
Youth Servs., 19 P.3d 597, 603 (Alaska 2001) (This court has held
that a parents demonstrated lack of willingness to participate in
treatment may be considered in determining whether the state  has
taken  active  efforts.); In re J.W., 921 P.2d 604,  609  (Alaska
1996) (determining that OCSs less active efforts after the father
moved were justifiable in light of [his] continuing unwillingness
to participate in treatment in any meaningful or ongoing way).

     23    Ben M., 204 P.3d at 1021.

     24    Maisy W. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 175 P.3d 1263, 1268 (Alaska 2008).

     25    The parents also argue that OCS conceded this at trial
when  it  discussed  OCSs involvement with  the  parents  in  its
opening argument:

               Ive  been doing this case for about  two
          and  a half years now on the eldest daughter.
          Weve had two and a half years to correct  the
          behaviors.  That[] hasnt happened,  which  is
          why  were seeking termination today.  And  on
          the  youngest  girl, . . . its a continuation
          of these problems that have been going on for
          the   last   two  and  a  half  years.    The
          department had to take custody [of Sarah], in
          December, for drinking by both parents.   The
          department doesnt see a need to work with the
          family  on  this particular child  given  its
          history of two and a half years.
          
               The  most recent removal shows that  the
          history of CINA conditions persist.
          
But  as  OCS responds and as we discuss in greater detail  below,
OCS was arguing, as it continues to argue on appeal, that it made
active  efforts  with  regard to Sarah in light  of  the  parents
history  of failing to cooperate and to complete substance  abuse
treatment  as  well as its efforts between Sarahs birth  and  her
removal from their care.

     26    46 P.3d 986 (Alaska 2002).

     27    Id. at 988 & n.1.

     28    Smith v. Stafford, 189 P.3d 1065, 1068 (Alaska 2008).

     29    E.A., 46 P.3d at 990.

     30     Id.  at 990-91; see also Kyra K. v. State, Office  of
Childrens Servs., Mem. Op. & J. No. 11426, 2005 WL 1189553, at *1-
2 (Alaska, May 18, 2005) (holding that the superior court did not
err  in  finding  that  OCS had made active  efforts  toward  the
mothers  youngest  child in light of the total  history  of  OCSs
efforts  during its fourteen-year involvement with  her  family);
N.A. v. State, Dept of Health & Soc. Servs., 19 P.3d 597, 598-99,
603-04   (Alaska  2001)  (highlighting  many  of  DFYSs   efforts
throughout its involvement with the mother and her five children,
including  efforts  made before her two youngest  daughters  were
born,  to  hold that DFYSs efforts toward a mothers two  youngest
daughters were more than active and in fact exemplary).

     31    25 U.S.C.  1912(f) (2006).

     32     Ben M. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 204 P.3d 1013, 1020 (Alaska 2009).

     33    201 P.3d 496, 504 (Alaska 2009) (quoting H.R. Rep. No.
95-1386,  at  22 (1978), as reprinted in 1978 U.S.C.C.A.N.  7530,
7545).

     34     See  Ted  W. v. State, Dept of Health & Soc.  Servs.,
Office  of  Childrens  Servs., 204 P.3d 333,  337  (Alaska  2009)
(internal quotation marks omitted).

     35    204 P.3d at 1019-21.

     36     Id.  at  1020;  accord Marcia V.,  201  P.3d  at  507
(explaining  that pre-trial interviews of the family members  are
not  required when the experts testimony is sufficiently grounded
in  the  cases  particular facts and issues but that  an  experts
testimony  may  be  weakened by exclusive reliance  on  the  case
file).

     37    Ben M., 204 P.3d at 1020-21.

     38    Id. at 1020.

     39    Id. at 1020-21.

     40    Id. at 1021.

     41     See  AS  47.05.065(5)(A)(C) (discussing the  problems
associated  with  children who have not attached  with  an  adult
caregiver  before  they are six years old and the  importance  of
expedited placement in permanent homes for these children).

     42     Because  we conclude that the parents allegations  of
error  are  unfounded, their argument that they were  denied  due
process  by  the  cumulative effect of these  alleged  errors  is
without merit.

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