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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dale H. v. State, Dept. of Health & Social Services, Office of Children's Services (7/9/2010) sp-6492
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
| DALE H., | ) |
| ) Supreme Court No. S- 13632 | |
| Appellant, | ) |
| ) Superior Court No. 4FA-07-61 CN | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH & | ) No. 6492 - July 9, 2010 |
| SOCIAL SERVICES, OFFICE | ) |
| OF CHILDRENS SERVICES, | ) |
| ) | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Randy M. Olsen, Judge.
Appearances: Dianne Olsen, Law Office of
Dianne Olsen, Anchorage, for Appellant.
Laura Fox, Assistant Attorney General,
Anchorage, and Daniel S. Sullivan, Attorney
General, Juneau, for Appellee.
Before: Carpeneti, Chief Justice, Fabe,
Christen, and Stowers, Justices. [Winfree,
Justice, not participating.]
STOWERS, Justice.
I. INTRODUCTION
A father challenges a superior court order finding his
son, an Indian child under the Indian Child Welfare Act (ICWA),
to be a child in need of aid and terminating his parental rights.
We conclude that the record contains sufficient evidence to
support the superior courts findings that: (1) the son was a
child in need of aid; (2) the father failed to remedy the conduct
or conditions placing the son at harm; (3) the State made active
efforts to reunite the family; (4) returning the son to the
father would likely cause the son serious physical or emotional
harm; and (5) termination of the fathers parental rights was in
the best interests of the son. We therefore affirm.
II. FACTS AND PROCEEDINGS
Dale is the father of Charlie,1 the child at issue in
this case. Charlie was born on May 1, 2007, to Dale and Betty.
Charlie is an Indian child within the meaning of ICWA.2
A. Dales Incidents Of Domestic Violence Before Charlies
Birth
In 2005 Dale was charged with assault in the fourth
degree against his then-girlfriend Lauren and pleaded no contest
to disorderly conduct.3 The judgment stated that it arose out of
a domestic violence offense under Alaska Statute 18.66.990(3) and
(5). The judgment required Dale to complete a state-approved
program for the rehabilitation of perpetrators of domestic
violence.4
In 2005 or 2006 Dale became involved with Betty. Betty
had a son, Evan, from a previous relationship. Dale and Betty
first came to the attention of the Office of Childrens Services
(OCS) when Evan suffered unexplained injuries while living with
Dale and Betty. Evan suffered bruises, a broken foot, and a
broken arm. OCS never determined how Evan was injured, although
there was some suspicion that Dale had caused Evans injuries.
In January 2007 Dale assaulted Betty, who was four
months pregnant with Charlie. Although Betty told the responding
officer that Dale had choked her, Dale told OCS that he had
merely pushed her. Dale was charged with assault in the fourth
degree and pleaded no contest. He was ordered to complete a
state-approved domestic violence intervention program.
In February 2007 OCS took custody of Evan and began
working with Dale and Betty. OCS established a case plan for
Dale that required him to attend a behavioral assessment with
LEAP, Inc. and to follow the recommendations of the LEAP
assessment. Dale participated in the LEAP assessment. It
recommended that Dale complete a state-approved domestic violence
intervention program and undergo a substance abuse evaluation.
OCSs expert witness Judy Ringstad testified that a
state-approved domestic violence intervention program usually
lasts at least thirty-six weeks. Dale attended the LEAP
alternatives to violence program orientation and one class. Dale
stopped attending the LEAP program in July 2007. He indicated
that he was concerned about the cost of the program, which OCS
does not cover.
B. July 2007: Charlie Is Placed In OCS Custody.
On July 12, 2007, two-month-old Charlie was thrown to
the floor during an argument between Dale and Betty. Dale took
Charlie and left the house, but did not seek medical attention
for Charlie. He eventually dropped Charlie off with a
babysitter; the babysitter notified OCS and took Charlie to the
emergency room. Charlie was examined at the hospital and found
to be uninjured.
As a result of this incident, OCS filed an Emergency
Petition for Adjudication of Child in Need of Aid and for
Temporary Custody. On July 17, 2007, the superior court found
that there was probable cause to believe that Charlie was a child
in need of aid and granted OCS temporary custody.
In November 2007 the parties entered into a stipulation
under which the superior court adjudicated that Charlie was a
child in need of aid. As part of the stipulation, Dale agreed to
a case plan to work towards reunification of the family. Dales
case plan required him to: (1) complete the LEAP alternatives to
violence course; (2) complete parenting classes on newborn and
toddler care; (3) complete a substance abuse evaluation; and (4)
submit to random urinalysis (UA) testing as a means to show
sobriety. The case plan also stated that the requirements were
subject to modifications and additions.
C. July 2007 May 2008: Dales Efforts Toward Reunification
While Living In Fairbanks
1. Dales visitation with Charlie after he is placed
in OCS custody
After the July 12 incident, Dale left Betty and began
to question his paternity of Charlie. OCS ordered a paternity
test and counseled Dale to visit Charlie while the results of the
test were pending. Dale told OCS that he was just going to wait
and wait for the results. The paternity test was completed on
September 26, 2007, and the superior court established Dales
paternity on October 11, 2007.
Dale did not visit Charlie in the three months between
July 17, 2007 and October 11, 2007.
OCS contacted Dale once his paternity was established
to inquire whether he wanted to visit Charlie. OCS offered three
visits a week, but Dale said he could only visit twice a week.
In fact, he visited Charlie just once a week in the approximately
three months between October 11 and Christmas. Dale testified
that he did not increase his visits because of his work schedule
and his desire not to inform his employer of his situation with
OCS.
Dales visits with Charlie dropped below the once-a-week
level in the five months between January 2008 and May 2008. Dale
testified that he visited infrequently because of scheduling
conflicts with Bettys visits with Charlie and his belief that he
could obtain custody of Charlie after OCS returned Charlie to
Betty.
2. Dales participation in his case plan
Dale completed the substance abuse evaluation and also
completed a recommended twelve-hour alcohol program. He had
already completed one parenting class as part of his case plan
with Evan but did not take additional OCS-recommended parenting
classes.
Dale participated in UA testing in December 2007 and
January 2008, but stopped participating after a clean test in
January 2008. Although OCS reminded Dale that he had to continue
participating in UA testing even after his one clean test, Dale
stated that he did not have a problem with alcohol and did not
need to do further UA testing.
Although he had started and then stopped attending the
LEAP alternatives to violence program as part of his case plan
for Evan, Dale did not complete the LEAP program while he was in
Fairbanks. He began attending another state-approved program run
by ABC, Inc. in September 2007, but stopped going after four or
five classes.
D. May 2008 November 2009: Dale Moves To Anchorage And
Does Not Contact OCS With His Whereabouts.
In April 2008 Dale notified OCS that he had remarried
and that he was going to move to Anchorage in May. OCS asked
Dale for a forwarding address, and Dale said he would give OCS an
address as soon as he arrived. OCS informed Dale that it would
be assigning him a secondary case worker in Anchorage who could
help him identify a state-approved domestic violence intervention
program and that Dale could continue visitation with Charlie
while in Anchorage.
Dale did not contact OCS after he arrived in Anchorage
and had no contact with Charlie in the seven months between May
2008 and January 2009.
In June 2008 the superior court held a permanency
hearing for Charlie. Because Betty was incarcerated and OCS
could not contact Dale, OCS indicated that it intended to
petition for termination of both parents parental rights. In
November 2008 OCS filed a petition for termination of Bettys and
Dales parental rights.
E. November 2008 July 2009: Dales Later Efforts Towards
Reunification While Living In Anchorage
1. Dales visitation with Charlie while in Anchorage
Dale contacted OCS in Fairbanks and supplied his
contact information in November 2008, after he received notice of
the termination petition. In December 2008 Dales primary OCS
social worker, Marie Tullar, arranged for Dale to begin long
distance visitation with Charlie. Dale had monthly visits with
Charlie at OCSs expense in the seven months between January and
July 2009, with Dale flying to Fairbanks or Tullar flying Charlie
to Anchorage. In March he had two visits with Charlie. OCS
informed Dale that it could fly him to Fairbanks, or Charlie to
Anchorage, only once a month but that OCS would reimburse Dale
for additional visits if he drove to Fairbanks. OCS encouraged
Dale to visit as often as he could.
Dales primary social worker, Tullar, noted that Dale
behaved appropriately with Charlie during his visits. OCSs plan
was to gradually increase the frequency and length of visitation.
2. OCSs failure to assign a second caseworker to Dale
in Anchorage and Dales further efforts on his case
plan
In February 2009 Tullar requested that OCS assign a
secondary social worker in Anchorage to Dale. Dale was not
assigned one, and in April or May 2009 Tullar resubmitted her
request. Dale was never assigned a secondary social worker in
Anchorage; Tullar became Dales de facto secondary social worker,
seeing him at least once a month in conjunction with his visits
with Charlie.
After Dale got back in contact with OCS in November
2008, Tullar informed him that he still needed to complete a
state-approved domestic violence intervention program. Although
Tullar was in charge of coordinating Dales visits with Charlie,
she did not assist Dale in identifying a program that would
satisfy his case plan because she did not have specific knowledge
regarding what domestic violence programs were available in
Anchorage.
Because OCS did not assign him a secondary social
worker, Dale went to the Alaska Native Justice Center (ANJC) for
assistance finding an appropriate domestic violence class. The
ANJC informed Dale that it had a twelve-week state-approved anger
management course that started in March 2009. Dale signed up for
this course in February and informed Tullar that he was enrolled.
In May 2009 the ANJC course was disbanded because of
low enrollment. Dale then contacted the Cook Inlet Tribal
Council (CITC), where he enrolled in an emotion management class
and a parenting class. Dale informed Tullar that he was enrolled
in classes at the CITC, and faxed release forms so that the CITC
could provide OCS with information about his participation and
receive information about Dale from OCS. CITC never received
Dales information. At the time of trial, Dale had completed an
eight-week parenting class and was in the middle of the emotion
management class.
OCS testified that both the ANJC and the CITC programs
were not state-approved domestic violence
intervention programs and did not meet the
requirements of Dales case plan. Dale also would
have been informed of the difference between a
state-approved domestic violence intervention
program and an anger management program when he
attended the LEAP alternatives to violence
orientation and the ABC orientation. 3.
Dales domestic situation in Anchorage and OCSs
stance on Charlies reunification with Dale
In Anchorage, Dale lived with his new wife, Allison,
and her five-year-old son, Ian. After Dale reestablished contact
with OCS, Tullar saw a glimmer of hope that he could eventually
be reunified with Charlie because Dale had stated that he had
gotten his life back on track, that he was married to a very
stable woman [Allison]. Because of this hope, OCS filed a notice
that it did not intend to go forward with the termination trial
originally scheduled for May 2009.
In April 2009 OCS received two protective services
reports alleging that Dale had physically abused Ian by choking
him. Neither report was ever substantiated. In May
2009 Dale and Allison had a fight. Allison slashed Dales
belongings and threw them off the deck of their apartment. Dale
left and called the police, who arrested Allison. Because Ian
had been present at the incident, OCS filed a protective services
report. After the incident, Dale and Allison separated and Dale
filed for dissolution.
As a result of the incidents in April and May, OCS
decided to go forward with a termination hearing. In June and
July 2009 OCS filed amended petitions for termination.
F. July 2009: The Superior Court Terminates Dales
Parental Rights To Charlie.
From July 27 through July 29, 2009, the superior court
held a trial on OCSs petition to terminate Dales parental rights
to Charlie. OCS presented testimony by two experts. Judy
Ringstad testified as an expert in providing social work services
to families with Native children, and Lisa Hay testified as an
expert in assessing and treating domestic violence. At the
conclusion of the trial, the superior court made oral findings on
the record. The superior court later issued written Supplemental
Findings and written Findings and Order Terminating Parental
Rights.
The superior court found that: (1) Charlie was a child
in need of aid under AS 47.10.011(1), (8), and (9); (2) Dale had
not remedied the conduct or conditions that made Charlie a child
in need of aid because he had not successfully completed a state-
approved domestic violence intervention program, had not
completed his UA testing program, and had not spent enough time
with Charlie; (3) over the case as a whole, OCS had made active
efforts to provide programs and services to reunite Charlie with
Dale; (4) Charlie was likely to suffer physical or emotional harm
if returned to Dale; and (5) it was in Charlies best interests to
terminate Dales parental rights.
The superior court then terminated Dales parental
rights to Charlie. Dale appeals.
III. DISCUSSION
Before a court may terminate the parental rights of an
Indian child under ICWA and Alaskas Child in Need of Aid (CINA)
statutes and rules, OCS must prove five elements under various
evidentiary standards. OCS must prove by clear and convincing
evidence: (1) that the child is in need of aid under AS
47.10.011;5 (2) that the parent failed, within a reasonable time,
to remedy the conduct or conditions in the home such that
returning the child would place the child at substantial risk of
physical or mental injury;6 and (3) that OCS made active efforts
to provide remedial services designed to prevent the breakup of
the Indian family.7 OCS also must prove by evidence beyond a
reasonable doubt (4) that the continued custody of the child by
the parent is likely to result in serious emotional or physical
damage to the child.8 Finally, OCS must prove by a preponderance
of the evidence (5) that termination of parental rights is in the
best interests of the child.9
Dale argues that the superior court erred in finding
that OCS met its burden of proving each of the five elements
required to terminate his parental rights.
A. Standard Of Review
We review a superior courts findings of fact for clear
error.10 Findings of fact are clearly erroneous if a review of
the entire record in the light most favorable to the prevailing
party below leaves us with a definite and firm conviction that a
mistake has been made. 11 We review de novo whether a superior
courts findings satisfy the requirements of the CINA and ICWA
statutes and rules.12 Whether OCS made active efforts as required
by ICWA is a mixed question of law and fact.13
B. The Superior Court Did Not Err In Finding Charlie To Be
A Child In Need Of Aid.
The superior court found by clear and convincing
evidence that Charlie was a child in need of aid under AS
47.10.011(1),14 (8),15 and (9).16 Dale appeals each of these
findings.
A court may find a child to be in need of aid under AS
47.10.011(1) if a parent or guardian has abandoned the child as
described in AS 47.10.013.17 Alaska Statute 47.10.013 states that
the court may find abandonment of a child if a parent . . . has
shown a conscious disregard of parental responsibilities toward
the child by failing to provide reasonable support, maintain
regular contact, or provide normal supervision, considering the
childs age and need for care by an adult. Alaska Statute
47.10.013 also provides a non-comprehensive list of behaviors
that may constitute abandonment.
The superior court found by clear and convincing
evidence that Dale had abandoned Charlie under AS 47.10.011(1) by
failing to maintain regular contact with [Charlie]18 and by making
only minimal efforts to communicate or maintain regular
visitation . . . for at least a six month period.19 Dale concedes
that there were periods of time when Dale did not have consistent
visitation with Charlie. Indeed, Dale failed to maintain any
sort of contact or visitation with Charlie for the eight months
from May 2008 to January 2009.20 The superior courts finding that
Dale abandoned Charlie by failing to support or visit him was not
clearly erroneous.
The superior court also found that Dale abandoned
Charlie by failing to participate in a suitable plan or program
designed to reunify him with [Charlie].21 It found that Dale had
failed to participate in his case plan because he had not
participated in a UA testing program,22 did not complete the state-
approved domestic violence intervention programs he was referred
to in Fairbanks,23 and failed to contact OCS for months after
moving to Anchorage.
The record shows that Dale did not meaningfully
participate in his case plan. Dale does not dispute that he did
not comply with the UA program. Instead, he stopped testing
after one negative result, arguing that he did not need to
continue testing even though OCS informed him that he did. Dale
also does not dispute that he failed to contact OCS for six
months after he moved to Anchorage in 2008.
Dale also did not complete a state-approved domestic
violence intervention program while in Fairbanks. He attended an
orientation for a state-approved domestic violence program, but
stopped attending after one regular class. In September 2007 he
began attending another state-approved program but stopped going
after four or five classes.
Dale argues that the confusion about what type of
course he had to take in Anchorage and OCSs failure to provide
Dale with a social worker in Anchorage excuses his failure to
complete a domestic violence intervention program. Dales
argument is unconvincing. Dale had been advised of the
difference between a state-approved domestic violence program and
an anger management program on at least two occasions, and he
testified that he knew he was required to take a thirty-six-week
program. In any event, by the time Dale left for Anchorage in
May 2008, he had already abandoned Charlie by enrolling in and
dropping out of two suitable programs identified by his social
worker in Fairbanks.24
In sum, by the time Dale reestablished contact with OCS
in November 2008, he had not even minimally participated in large
portions of his case plan for over a year. We have affirmed a
superior courts finding that a parents failure to participate in
a case plan for six months constituted abandonment.25 The
superior courts finding that Dale abandoned Charlie by failing to
participate in his case plan without justifiable cause was not
clearly erroneous.
The superior courts findings that Charlie was a child
in need of aid under AS 47.10.011(1) were not clearly erroneous.
Because only one statutory basis is sufficient for finding a
child to be in need of aid in a termination proceeding, it is not
necessary to address the superior courts other findings with
respect to AS 47.10.011.26
C. The Superior Court Did Not Err In Finding That Dale Had
Not Remedied His Conduct Within A Reasonable Amount Of
Time.
Before a court may terminate parental rights, it must
find by clear and convincing evidence that the parent has failed
to remedy the harmful conduct or conditions that placed the child
at risk of harm.27 In making its determination, the court may
consider any fact relating to the best interests of the child,
including . . . the likelihood of returning the child to the
parent within a reasonable time based on the childs age or needs.28
The superior court found by clear and convincing
evidence that Dales visits after January 2009 were inadequate to
remedy the broken parent-child bond caused by Dales lack of
contact with Charlie. The superior court also found that Dales
failure to complete a state-approved domestic violence
intervention program and participate in UA testing showed that he
had not remedied his conduct. The court found that Charlie could
not wait for the amount of time it would take Dale to complete a
state-approved domestic violence program and demonstrate his
ability to live a violence-free life.
Dale argues that he remedied his abandonment of Charlie
because he had consistent contact with Charlie after January
2009, attended classes when he arrived in Anchorage, and acted
appropriately when confronted by domestic violence. OCS argues
that Dales once-a-month visits in 2009 were insufficient to
establish the parent-child bond and were too little, . . . too
late for Charlie. OCS also argues that Dale had not remedied his
abandonment because he did not complete a state-approved domestic
violence intervention program as required by his case plan and
because he did not complete UA testing.
The superior court did not err in finding that Dales
monthly visits beginning in January 2009 after his long absence
were insufficient to remedy his abandonment of Charlie. Contrary
to his arguments on appeal, Dale did not fully take advantage of
the opportunities OCS gave him to visit. OCS paid for Dale to
fly to Fairbanks or Charlie to fly to Anchorage once a month.
But it also encouraged Dale to visit as often as he could and
offered to subsidize additional visits if Dale drove to
Fairbanks. Dale only drove to Fairbanks once or twice between
January and July 2009. Once-per-month visitation for seven
months was insufficient to remedy the abandonment caused by his
lack of visitation for eighteen months.
Furthermore, even if Dales visits with Charlie after
January 2009 were sufficient to remedy his abandonment, he did
not remedy the conduct in a reasonable period of time. A parents
attempt to resolve abandonment by reappearing in his childs life
only remedies the conduct if it occurs in a reasonable amount of
time, and we have held that abandoning a child for one year
before reappearing is unreasonable.29 Social Worker Tullar stated
that [o]ne of the most important things for a child in their
first year of life is attachment and bond with a parent. By the
time Dale resumed visits with Charlie in January 2009, he had
only visited Charlie regularly for two out of the eighteen months
Charlie was in OCS custody. Dale did not reappear and begin
visitation within a reasonable amount of time. The superior
courts finding that Dale had not remedied his abandonment within
a reasonable amount of time was not clearly erroneous.
The superior court also did not err in finding that
Dale had not remedied his abandonment because he did not complete
a state-approved domestic violence intervention program or UA
testing. We have previously held that a court may base a failure
to remedy finding on the prospect of a lengthy period of time
before the child could be reunified with the parent.30 Dale does
not dispute that he did not complete a state-approved domestic
violence program. Judy Ringstad, an expert at providing social
work services to families with Native children, stated that Dale
would have to complete a state-approved domestic violence program
and show a period of violence-free living before OCS could return
Charlie to him. She estimated that it would be a minimum of one
year before Charlie could be placed with Dale.
Although Dale argues that his failure to complete a
state-approved domestic violence program should be excused
because of OCSs failure to assign him a secondary case worker in
Anchorage, the record clearly shows that he knew that he had to
take a thirty-six week state-approved course. According to
Ringstad, Dale was also aware that he had a limited amount of
time to complete the tasks of his case plan. It would be over a
year before Charlie could be reunified with Dale, and that was
too long to ask of a toddler who had already been in custody for
two years.31 The superior courts finding that Dale had not
remedied his failure to participate in his case plan was not
clearly erroneous.
D. The Superior Court Did Not Err In Finding That OCS Made
Active Efforts To Prevent The Breakup Of The Family.
In order to terminate the parental rights to an Indian
child, ICWA requires OCS to prove by clear and convincing
evidence that it made active efforts to provide remedial services
and rehabilitative programs designed to prevent the breakup of
the Indian family, and that those efforts were unsuccessful.32 We
have held that no pat formula exists for distinguishing between
active and passive efforts and have adopted a case-by-case
approach for the active efforts analysis.33 We have recognized
the following distinction between active and passive efforts:
Passive efforts are where a plan is drawn up
and the client must develop his or her own
resources towards bringing it to fruition.
In contrast, [a]ctive efforts [are] where the
state caseworker takes the client through the
steps of the plan rather than requiring that
the plan be performed on its own. For
instance, rather than requiring that a client
find a job, acquire new housing, and
terminate a relationship with what is
perceived to be a boyfriend who is a bad
influence, the Indian Child Welfare Act would
require that the caseworker help the client
develop job and parenting skills necessary to
retain custody of her child.[34]
In evaluating whether OCS met its active efforts
burden, the superior court may consider a parents demonstrated
lack of willingness to participate in treatment.35 The court
should also look to OCSs involvement in its entirety.36
The superior court found that, over the case as a
whole, OCS had made active efforts to provide remedial programs
to reunite Charlie with Dale. It found that OCS had provided
ample remedial services to Dale in the form of a substance abuse
assessment, a UA testing program, a behavioral assessment
resulting in the recommendation that he complete a state-approved
domestic violence program, and opportunities for visitation.
Dale argues that the superior court erred in finding
that OCS had made active efforts to prevent the breakup of his
family. He argues that OCS failed to make active efforts between
November 2008 and July 2009 by failing to assign him a secondary
case worker in Anchorage. He argues that a secondary caseworker
could have assisted him in engaging appropriate services in
Anchorage, namely finding a state-approved domestic violence
program.
Although the court acknowledged that OCSs efforts fell
below the required level for the spring of 2009 because it did
not direct Dale to the correct domestic violence program in
Anchorage, it found that OCS provided exemplary visitation by
offering to pay for mileage if Dale drove to Fairbanks to visit
Charlie. It also found that social worker Tullar made phenomenal
efforts by flying and escorting Charlie to visit Dale in
Anchorage, including on her personal time.
The superior court found that:
[Dale] himself frustrated OCSs efforts to
provide the necessary remedial services and
programs . . . , first by not completing
either of the [domestic violence] courses,
nor participating in his UA program, then
moving 350 miles away from [Charlie], and
then by failing to contact OCS or let them
know where he had gone until the following
November. . . . [I]n light of the case as a
whole and of [Dales] dropping out of his
childs life only to reappear late in the
process, and the childs age and needs, OCSs
lapse in effort so late in the case does not
vitiate this courts findings of active
efforts over the whole of the case.
We find the courts conclusion to be amply supported by
the record and hold that, over the case as a whole, OCS made
active efforts to provide remedial services to reunite Charlie
with Dale.
E. The Superior Court Did Not Err In Finding That
Returning Charlie To Dale Was Likely To Result In
Serious Emotional Or Physical Injury To Charlie.
In order to terminate parental rights to an Indian
child, ICWA requires the State to prove beyond a reasonable doubt
that returning the child to the parent will likely result in
serious emotional or physical damage to the child.37 To prove
that Dales custody of Charlie would likely result in emotional or
physical damage to the child, OCS must prove that Dales conduct
is likely to harm Charlie and that Dale is unlikely to change his
conduct.38 These two elements can be proved through the testimony
of a single expert witness, by aggregating the testimony of
expert witnesses, or by aggregating the testimony of expert and
lay witnesses.39
The superior court found that there was evidence beyond
a reasonable doubt that Dales propensity to resort to violence
and his failure to complete a remedial domestic violence program
placed Charlie at great risk of physical injury and almost
certain to suffer emotional injury if returned to Dale.
The superior courts finding that Dale has a propensity
to resort to violence in his intimate relationships is supported
by the evidence and expert testimony. Dale has a documented
history of domestic violence and there was additional evidence
presented at trial that implicated Dale in other incidences of
domestic violence.40 Charlie would obviously be at risk of
physical and emotional injury if Dale continued to use violence
in his personal relationships even if Charlie is not the target
of the violence. Lisa Hay testified that just being exposed to
domestic violence can be injurious to a child.
The superior courts finding that Dale was unlikely to
change his conduct because he did not complete his case plan is
also supported by the evidence and expert testimony. Both Judy
Ringstad and Hay testified that Dale would have to complete a
state-approved domestic violence program in order to change his
conduct. Ringstad also testified that a ten-week course like the
one that Dale had participated in which was not a state-approved
program would be insufficient to address the pervasive domestic
violence issues in his life.
Dale argues that the superior courts conclusion is not
properly supported by expert testimony because OCSs experts
relied on unreliable information and assumptions. But our review
of the trial transcript shows that OCSs experts based their
opinions on admissible evidence. Ringstad based her opinion on
several incidences of domestic violence, including Dales 2005
assault charge and his 2007 arrest for assaulting Betty. Hay
likewise based her opinion partially on Dales 2005 and 2007
arrests, stating that she would be concerned about his propensity
for violence based solely on the two incidents. Moreover, the
information that experts rely on in offering their opinions need
not be admissible, but must be of a type reasonably relied on by
experts in the particular field.41 The superior court did not err
in relying on Hays and Ringstads expert opinions.
We hold that the superior court did not err in finding
that there was evidence beyond a reasonable doubt that returning
Charlie to Dale would likely result in emotional or physical harm
to Charlie.
F. The Superior Court Did Not Err In Finding That
Terminating Dales Parental Rights Was In Charlies Best
Interests.
The superior court found by a preponderance of the
evidence that terminating Dales parental rights was in Charlies
best interests. It found that Charlies bond with his foster
parents, with whom he had been placed almost his entire life, and
his bond with his half brother Evan weighed against reunification
with Dale.
We have previously affirmed a superior courts best
interests finding based primarily on the strong bonds that a
child has developed with his foster family.42 Ringstad testified
that a parent-child bond is important for a young toddler like
Charlie because he needs to be bonded and achieve permanency . .
. in his life so that he can feel safe. And in that way, he will
develop and grow and thrive. The superior courts finding that
Charlie had formed strong bonds with his foster family is amply
supported by the evidence. Ringstad testified that Charlie was
happy and thriving in his placement with his foster parents and
half brother. Tullar testified that Charlie was very attached to
his foster family.
Dale argues that he had bonded with Charlie but his
assertion is not supported by the evidence. Dale only had
monthly short visits with Charlie in 2009 and had visited
sporadically the year before. Furthermore, Tullar testified
that, while Charlie seemed to enjoy his visits with Dale, the
attachment [was] not there. Dales failure to contact OCS for six
months after moving to Anchorage and his failure to drive to
Fairbanks to take advantage of additional visitation is further
evidence that Dale did not have a strong parent-child bond with
Charlie. The superior courts finding that it was in Charlies
best interests to terminate Dales parental rights was not clearly
erroneous.
IV. CONCLUSION
For the reasons explained above, we AFFIRM the superior
courts order terminating Dales parental rights to Charlie.
_______________________________
1 We use pseudonyms throughout this opinion to protect
the parties privacy.
2 25 U.S.C. 1903(4) (2006).
3 The 2005 judgment against Dale is not part of the
appellate record. But the judgment is not subject to reasonable
dispute and is capable of ready determination. Furthermore,
various witnesses testified to the fact of the judgment without
objection by Dale. We therefore take judicial notice of the
judgment under Alaska Rules of Evidence 201 and 203.
4 The judgment ordered Dale to complete an alternatives
to violence program pursuant to AS 12.55.101(a). AS
12.55.101(a)(1) authorizes a court to require a person convicted
of a crime of domestic violence to participate in a program for
the rehabilitation of perpetrators of domestic violence that
meet[s] the standards set by . . . the Department of Corrections.
Although all state-approved domestic violence intervention
programs follow standards set by the Department of Corrections,
different terms are used throughout Alaska to describe the
various state-approved programs. The courts and social workers
in Fairbanks refer to the local program as an alternatives to
violence program. In Anchorage, the programs are called
batterers intervention programs or domestic violence intervention
programs. Except where we refer specifically to the Fairbanks
alternatives to violence program, we generally use the terms
domestic violence intervention program or domestic violence
program in this opinion.
5 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
6 AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(ii).
7 25 U.S.C. 1912(d); CINA Rule 18(c)(2)(B).
8 25 U.S.C. 1912(f); CINA Rule 18(c)(4).
9 CINA Rule 18(c)(3).
10 Brynna B. v. State, Dept of Health & Soc. Servs., 88
P.3d 527, 529 (Alaska 2004) (citing A.B. v. State, Dept of Health
& Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
11 Id. (quoting A.B., 7 P.3d at 950).
12 Carl N. v. State, Dept of Health & Soc. Servs., 102
P.3d 932, 935 (Alaska 2004) (internal citations omitted).
13 Sandy B. v. State, Dept of Health & Soc. Servs., 216
P.3d 1180, 1186 (Alaska 2009) (internal citations omitted).
14 AS 47.10.011(1) states that a court may find a child to
be in need of aid if a parent or guardian has abandoned the child
as described in AS 47.10.013, and 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.
15 AS 47.10.011(8) states, in part, that a child is a
child in need of aid if conduct by or conditions created by the
parent, guardian, or custodian have . . . placed the child at
substantial risk of mental injury.
16 AS 47.10.011(9) states that a child is a child in need
of aid if conduct by or conditions created by the parent . . .
have subjected the child or another child in the same household
to neglect. AS 47.10.014 defines neglect for the purposes of the
statute.
17 AS 47.10.011(1) also requires that 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. The
parties do not dispute that Betty was incarcerated for all
relevant time periods to satisfy AS 47.10.011(1).
18 AS 47.10.013(2).
19 AS 47.10.013(3).
20 Dale also failed to maintain contact with Charlie for
the three months from July to October 2007. He visited Charlie
less than once a week between December 2007 and May 2008.
21 AS 47.10.013(4).
22 Dale argues that his failure to complete UA testing was
not abandonment because UA testing should not have been part of
his case plan. But Dale signed a stipulation agreeing that UA
testing was part of an appropriate plan towards reunification.
The superior court did not err in considering UA testing to be
part of Dales case plan.
23 Dale also disputes that a state-approved course was
required or suitable for his reunification plan. But Dales case
plan explicitly called for a LEAP Alternatives to Violence course
and OCS informed Dale on numerous occasions that he needed to
complete a state-approved domestic violence intervention program.
Furthermore, Dale knew that his plan included a state-approved
domestic violence intervention program, and he knew the
difference between a state-approved program and other courses.
The superior court did not err in considering a state-approved
domestic violence intervention program to be part of Dales case
plan.
24 AS 47.10.013(4).
25 A.B. v. State, Dept of Health & Soc. Servs., 7 P.3d
946, 951 (Alaska 2000).
26 See Jon S. v. State, Dept of Health & Soc. Servs.,
Office of Childrens Servs., 212 P.3d 756, 762 (Alaska 2009)
(citing G.C. v. State, Dept of Health & Soc. Servs., Div. of
Family & Youth Servs., 67 P.3d 648, 651 (Alaska 2003)).
27 AS 47.10.088(a)(2).
28 AS 47.10.088(b)(1).
29 M.W. v. State, Dept of Health & Soc. Servs., 20 P.3d
1141, 1145 (Alaska 2001).
30 Jon S., 212 P.3d at 763 (affirming failure to remedy
finding in part because year and a half to complete tasks for
reunification was just too long to ask of a toddler who had been
in custody for twenty-eight months).
31 See id.
32 25 U.S.C. 1912(d) (2006); CINA Rule 18(c)(2)(B).
33 A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 261 (Alaska 1999) (internal quotation marks omitted) (citing
A.M. v. State, 945 P.2d 296, 306 & n.12 (Alaska 1997)).
34 Id. (quoting Craig J. Dorsay, The Indian Child Welfare
Act and Laws Affecting Indian Juveniles Manual 157-58 (1984)).
35 Maisy W. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 175 P.3d 1263, 1268 (Alaska 2008) (quoting
N.A. v. State, Dept of Family & Youth Servs., 19 P.3d 597, 603
(Alaska 2001)).
36 Id.
37 25 U.S.C. 1912(f); CINA Rule 18(c)(4).
38 See E.A. v. State, Div. of Family & Youth Servs., 46
P.3d 986, 992 (Alaska 2002).
39 L.G. v. State, Dept of Health & Soc. Servs., 14 P.3d
946, 950 (Alaska 2000) (internal citations omitted).
40 Although Dale has only two domestic violence judgments,
two incidents are sufficient to comprise a history of
perpetrating domestic violence. See AS 25.24.150(h).
41 Alaska R. Evid. 703.
42 Jeff A.C., Jr. v. State, 117 P.3d 697, 707 (Alaska
2005); In re Adoption of Bernard A., 77 P.3d 4, 8 (Alaska 2003).
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