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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

Dale H. v. State, Dept. of Health & Social Services, Office of Children's Services (7/9/2010) sp-6492, 235 P3d 203

     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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