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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barbara P. v. State, Dept. of Health & Social Services, Office of Children's Services (7/9/2010) sp-6493

Barbara P. v. State, Dept. of Health & Social Services, Office of Children's Services (7/9/2010) sp-6493, 234 P3d 1245

     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

BARBARA P., )
) Supreme Court No. S- 13603
Appellant, )
) Superior Court Nos. 3PA-06-00053 CN
v. ) and 3PA-08-00025 CN
)
STATE OF ALASKA, ) O P I N I O N
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 6493 July 9, 2010
CHILDRENS SERVICES, )
)
Appellee. )
)
LEO S., )
) Supreme Court No. S- 13606
Appellant, )
) Superior Court Nos. 3PA-06-00053 CN
v. ) and 3PA-08-00025 CN
)
STATE OF ALASKA, )
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF )
CHILDRENS SERVICES, )
)
Appellee. )
)
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial District, Palmer, Eric Smith, Judge.

          Appearances:  Christi  A.  Pavia,  Pavia  Law
          Office  LLC, Anchorage, for Appellant Barbara
          P.   Jill  C.  Wittenbrader, Contract  Public
          Defender,   and   Quinlan   Steiner,   Public
          Defender,  Anchorage, for  Appellant  Leo  S.
          Megan  R.  Webb, Assistant Attorney  General,
          Anchorage,  and Daniel S. Sullivan,  Attorney
          General,   Juneau,  for  Appellee  State   of
          Alaska.   Dianne Olsen, Law Office of  Dianne
          Olsen, Anchorage, for Guardian Ad Litem.

          Before:    Fabe,   Winfree,   Christen,   and
          Stowers, Justices. [Carpeneti, Chief Justice,
          not participating.]

          FABE, Justice.

I.   INTRODUCTION
          Barbara  and  Leo  each  appeal  the  superior   courts
judgment  terminating their parental rights  to  their  children,
Michael  and  Gary,  on the grounds of mental  illness,  domestic
violence,   substance  abuse,  and  abandonment.1   The   parents
challenge  the  superior  courts admission  of  expert  testimony
during trial, its finding that the children were in need of  aid,
its  finding  that the parents had not remedied  the  conduct  or
condition that placed the children at risk, its finding that  the
State   of  Alaska  Office  of  Childrens  Services  (OCS)   made
reasonable  efforts to reunify the family, and its  finding  that
termination of parental rights was in the best interests  of  the
children.   Because  the superior courts legal  conclusions  were
correct  and its factual findings were not clearly erroneous,  we
affirm the judgment in all respects.
II.  FACTS AND PROCEEDINGS
          Barbara  and Leo are the parents of Michael  and  Gary.
Michael was born on August 1, 2006 and has been living in  foster
care or with relatives of Barbara since December 2006.  Gary  was
born  on  April 14, 2008 and has been living in foster  care  his
entire life.  Michael and Gary are currently living with the same
foster  parents, who have stated an intent to adopt the  children
should Barbaras and Leos parental rights be terminated.
     A.   Facts
          1.   Barbaras history
          Barbara  was born in April 1988.  As a child,  she  was
exposed to parental substance abuse and was the victim of neglect
and  sexual  and  physical  abuse.   Barbara  has  a  history  of
depression  and suicidal behavior.  As early as age six,  Barbara
threatened  to  kill herself.  She attempted  to  commit  suicide
during her pregnancy with Michael and again when he was one  year
old.   During  a mental health assessment, she acknowledged  that
she  had slit her wrists 7-8 times.  At trial, she testified that
she had attempted suicide [a] lot.
          Barbara also has a history of substance abuse.  At  12,
Barbara began drinking alcohol; by 14, she had used marijuana; by
15, she had used Percocet and crystal methamphetamine; and by 16,
she  had  used cocaine.  Between the ages of 14 and  16,  Barbara
obtained  several  substance abuse assessments  that  recommended
that she participate in substance abuse treatment programs.   She
was discharged from her first treatment program because she had a
          sexual relationship with another client in the program.  She
finished a second treatment program but relapsed before she  even
got out of treatment, using cocaine during the final month. While
pregnant with Michael, Barbara used marijuana regularly  and  did
not  stop  until  the  eighth month of her pregnancy.   She  took
methadone before and after his birth.
          2.   Domestic violence in Barbara and Leos relationship
          Barbara and Leo began a relationship in February  2005.
Leo  testified at trial that there was domestic violence  in  the
relationship, describing at least one physical argument based  on
his jealousy and stating that he was sure he had left bruises  on
Barbara  from  their  fights.   Barbara testified  that  Leo  had
threatened to kill her and had strangled and choked her.
          Barbara  became  pregnant with Michael  in  late  2005.
When  Barbara was four months pregnant, she attempted  to  commit
suicide,  explaining  later that she was tired  of  being  beaten
every  day.   When Michael was several months old, Barbara  filed
for  a  protective order in which she expressed fear for her  and
Michaels lives; described Leos constant abuse, including  hitting
her  and pushing her mom; and explained that Leo is violent  when
he  is  on  any  kind  of  drug.  She  was  granted  a  temporary
protective  order but did not request a long-term  order  at  the
hearing that followed.
          3.   Michaels removal and placement in foster care
          Michael was born in August 2006.  On October 17 of that
year,  the  State of Alaska, Office of Childrens  Services  (OCS)
took  temporary custody of Michael after receiving a report  that
Barbara was using crack cocaine, and her mother, Jane, was  using
crack cocaine with Michael in the room.  The investigating social
worker visited the home in which Michael, Barbara, and her mother
were  living  and witnessed Leo being removed from  the  home  by
officers  who  had served him a temporary protective  order  that
Barbara  had  obtained from the court.  Barbara verified  to  the
social worker that Leo hit her and threatened her.
          Although Barbara and Jane initially denied drug use  to
the  social  worker  when  they were interviewed  together,  Jane
admitted  separately that she had recently used cocaine, although
not  around  her children or in the home.  Prior to this  cocaine
use,  Jane  had been sober for ten years, and she attributed  her
relapse  to  her  fear for her daughters safety because  of  Leo.
Both Barbara and Jane submitted to drug tests and tested positive
for  methadone.  Based on the positive drug tests,  Janes  recent
relapse  into cocaine use, ongoing domestic violence, and concern
about  Michaels  safety,  the social worker  assumed  custody  of
Michael  and  placed  him  temporarily  into  foster  care.    On
October  24, 2006, the superior court issued a temporary  custody
order  pending an adjudication hearing committing Michael to  the
custody  of OCS and requiring the development of a case plan  for
Barbara and Leo.
          4.   Michaels  return  to  Barbara  and  removal  again
               several months later
               
          After  Michael  was removed from her  care  in  October
2006,  Barbara moved out of her mothers house and into a domestic
violence  shelter.   Approximately two and a  half  weeks  later,
Michael  was  returned  to  Barbara  at  the  shelter.   In  late
December,  Barbara tested positive for cocaine use, and  a  white
powder  substance  was found in her room at the  shelter.   As  a
result,  Michael was removed permanently from her care,  and  she
was  required to leave the shelter.  Michael remained  in  foster
care briefly before being placed with a relative of Barbara.
          In   January   2007  Barbara  and  Leo  stipulated   to
adjudication of Michael as a child in need of aid pursuant to  AS
47.10.011(8)  (domestic  abuse) and AS  47.10.011(10)  (substance
abuse).   Based on the stipulation, the superior court issued  an
order  adjudicating  Michael to be a child in  need  of  aid  and
committing Michael to the continuing custody of OCS.
          In July 2007 OCS received a report that Barbara and Leo
were  involved in a domestic violence issue at the  home  of  the
relative with whom Michael had been placed.  At one point  during
the  incident, Barbara picked up Michael to leave the  home,  and
Leo slapped Barbara while she was still holding Michael.  The day
after the incident, a social worker and state trooper went to the
home  and,  after  finding Leo hiding in the back  room,  removed
Michael from the home and placed him back in foster care.
          5.   Barbaras case plan
          OCS  developed  a case plan for Barbara in  late  2006,
requiring that she obtain a substance abuse assessment and comply
with  its recommendations.  After completing the substance  abuse
assessment  in  November 2006 with Alaska Family Services  (AFS),
Barbara  was diagnosed with opioid abuse, alcohol abuse, sedative
abuse,  amphetamine  dependence, and  cannabis  dependence.   The
assessment  recommended an intensive outpatient  substance  abuse
program,  and  Barbara  was  placed  on  the  waiting  list   for
treatment; she was dropped from the waiting list when she  failed
to  attend  two Alcoholics Anonymous (AA) meetings  per  week  as
required.  After she tested positive for cocaine use in  December
2006 and Michael was taken into OCS custody, Barbara returned  to
AFS  asking  to be reinstated on the waiting list.   Barbara  was
unable to begin substance abuse treatment through AFS because her
mother  was  currently receiving treatment at the same  facility,
although she was provided with alternative options for treatment,
including Ascent Treatment and Counseling.
          Barbara  tested  positive for cocaine  again  in  April
2007.   In  a  meeting  with a social worker,  she  denied  using
cocaine  but admitted to selling cocaine during March  and  April
because she could not find a job.  Barbara participated in a  new
substance  abuse assessment with AFS in May 2007.  The assessment
reaffirmed her dependency on and abuse of various drugs and again
recommended intensive outpatient substance abuse treatment.   She
began  substance abuse treatment through Ascent in  August  2007.
Barbara   was  at  times  inconsistent  in  taking  her  required
urinalysis  tests and tested positive for cocaine  use  again  in
October  2007,  which she testified was the last  time  she  used
cocaine.  At the time, she was pregnant with Gary.
          Barbaras  substance abuse assessment  also  recommended
that   she  complete  a  full  psychiatric  evaluation.   Barbara
completed   a  psychological  evaluation  with  Dr.  Grace   Long
consisting  of  five meetings between March and May  2007.2   Dr.
Long  concluded  that Barbara should obtain intensive  outpatient
treatment for her substance abuse and recommended that  she  seek
long-term  treatment for depression, possibly  with  psychotropic
medications  and  participate[] in a  dialectic/behavior  therapy
program  including  long-term individual therapy.   Without  such
treatment,  Dr.  Long  concluded that Barbaras  parenting  skills
[were]  likely  to  remain unchanged and compromised.   Dr.  Long
reiterated this recommendation at trial.
          Barbara  requested  that she be allowed  to  see  Megha
Hammaker, a nurse practitioner whom she had seen before,  as  her
mental health professional, and OCS approved of her request.   At
trial,  Barbara  testified that she had seen  Hammaker  at  least
every  two weeks since February 2006 and spoke to her frequently.
The  superior court did not credit this testimony.  According  to
Hammakers own records and testimony, there were periods of months
between   visits  and  few  phone  calls.   Barbara   reinitiated
counseling  sessions  with Hammaker after a  ten-month  lapse  in
August  2007,  following a suicide attempt.  She participated  in
three  sessions  and then stopped seeing Hammaker until  February
2008,  when Barbara resumed sessions for less than a month before
missing another nine weeks.  After Hammaker recommended in  early
June  2008 that Barbara have weekly appointments to work  through
issues  related  to  domestic violence,  Barbara  attended  three
sessions,  went  thirteen weeks without  a  visit,  attended  one
session  in  October and one in November, then  went  until  late
April 2009 before attending another session the day after she was
questioned at trial about the frequency of her sessions.
          The   case  plan  also  required  that  Barbara  attend
parenting and domestic violence classes.  After missing a  number
of  parenting  classes,  she eventually  completed  the  required
course  in  October  2007.    She had  begun  attending  domestic
violence  classes with AFS but believed she had  to  stop  taking
those  classes  after  she  was asked to  leave  the  shelter  in
December  2006.   By  mid-2007 she had not resumed  the  classes.
Around  that  time, she spoke to a social worker and described  a
recent violent encounter with Leo, where he came to her apartment
and  accused  her  of  seeing another person.   Barbara  did  not
terminate  her  relationship with Leo;  rather,  in  August  2007
Barbara  decided  she  wanted to become  pregnant  again  by  Leo
because  she  wanted both her children to have the  same  father.
Dr.   Longs  report  described  a  well-established  pattern  for
[Barbara]  to  enter  into heterosexual  relationships  that  are
volatile, abusive, and drug-related.
          By  late  2007 Barbara had completed only her parenting
class and the required evaluations.
          6.   Garys removal immediately following his birth
          On April 14, 2008, Barbara gave birth to Gary.  Several
days later, OCS assumed temporary custody of Gary after receiving
a  report  that Barbara had tested positive for cocaine when  she
was  admitted  at  the  hospital.  She denied  using  drugs  when
questioned  by  the investigating social worker at the  hospital,
and  when her drug test was sent to the laboratory, it came  back
negative.   The baby tested negative for cocaine at the hospital,
but  a  meconium  test  performed several days  later  came  back
positive.3   Leo  was  in  the hospital when  the  social  worker
arrived, and Barbara admitted that he had been present during and
since  Garys birth.  Barbara was homeless at the time and staying
on  the  couches  of  acquaintances.   Based  on  concerns  about
substance  abuse,  domestic violence,  and  lack  of  appropriate
housing, the social worker assumed custody of Gary and placed him
in foster care with Michael.
          7.    Barbaras  progress on her case plan  since  Garys
birth
          In  May  2008 Barbara began participating in the Womens
Residential  Reunification  and  Action  Program  (WRRAP),  which
offers  domestic  violence  classes,  life  skills  classes,  and
shelter.   Her  updated case plan required that she  successfully
complete  this program.  While in the program, Barbara  continued
to  see  Leo.  Barbara requested that Leo be added to her  weekly
visitation  with the children in July 2008, but she  changed  her
mind  after  several weeks because Leo had gone back to  his  old
ways of being controlling.  In August 2008 Barbara sought medical
attention after her ex-boyfriend had pull[ed] on a pierced nipple
when  [he]  got  angry.  The superior court found  that  she  was
referring to Leo.  In September 2008 Barbara was with Leo when he
was arrested for a parole violation and was still using a picture
of  her  and  Leo  as  the profile picture on her  MySpace  page.
Although  Barbara  finished the WRRAP program in  November  2008,
staff  noted that her level of participation was minimal and  had
the sense that she was not fully committed to the program because
she  diminished  the seriousness of her domestic violence  issues
and refused to terminate her relationship with Leo.
          Barbara  visited  Leo several times  while  he  was  in
prison and continued to have conversations with him to update him
on their children until March 2009.  At that time, Barbara sent a
letter to Leo stating that their relationship was over; according
to  the  superior court, this letter was sent at  the  advice  of
counsel.
          Barbara  completed her substance abuse  treatment  with
Ascent  in September 2008 and began to participate in after-care.
Barbara  went to AA meetings several times per month,  and  after
the question whether she had a sobriety sponsor was discussed  at
trial,  she obtained a sobriety sponsor.  Despite Barbara missing
drug  tests  in  2009, the superior court credited her  testimony
that  she  was sober and found that she had been sober  since  at
least Garys birth in April 2008.
          Barbaras  case  plan also required that she  follow  up
with  Megha  Hammaker  for  all of her mental  health  needs  and
recommendations.   As noted above, despite her testimony  to  the
contrary,  Barbara  did  not follow Hammakers  recommendation  in
          early June 2008 that Barbara have weekly appointments to work
through  issues  related to domestic violence, and  Barbara  went
long  periods  without visits.  At trial, Hammaker expressed  her
opinion  that  Barbara was presently . . . not  experiencing  any
major depressive symptoms or mood disorder symptoms, and that  it
was  appropriate  for  her not to take any medication  or  see  a
professional for her mental health issues.  Barbara  was  neither
taking any medications nor regularly seeing Hammaker or any other
mental health professional.
          Barbaras   case  plan  established  regular  supervised
visits  with  her  children  through AFS.   Barbara  consistently
attended her scheduled visits, and the social worker agreed  that
her interactions with her children were loving and appropriate.
          Barbara  moved to Anchorage in January 2009 and  rented
her own apartment.
          8.   Leos case plan
          A  social worker developed a case plan for Leo as  well
and  mailed a copy to him on October 25, 2006.  The plan required
Leo  to  complete  parenting  and domestic  violence  classes,  a
substance   abuse  assessment,  substance  abuse   treatment   if
recommended, and random weekly drug tests.  Leo did not meet with
a  social worker to discuss his case plan requirements until  May
2007,  at which time he signed the plan and agreed to its  terms.
Around  that time, Leo was arrested on a drug charge to which  he
pled guilty and went to jail for a month.
          In  September  2007  Leo tested positive  for  cocaine,
leading  to  the revocation of his probation and a 60-day  prison
sentence.   Leo  was  also  charged with  criminal  trespass  and
received a suspended sentence.  By the end of 2007, Leo had  made
almost  no progress on his case plan, failing to complete  a  new
substance abuse assessment or domestic violence classes, starting
but   not   finishing  a  mental  health  evaluation,  and   only
participating in a few drug tests.  In March 2008 Leo completed a
substance  abuse assessment in which it was recommended  that  he
participate  in an intensive outpatient treatment  program.   Leo
entered treatment that month.
          Leos  case plan was updated in June 2008, although  the
issues  to  be  addressed remained largely  the  same.   Leo  was
required  to  participate  in  domestic  violence  and  parenting
classes  and  supervised  visitation  with  his  children.    Leo
completed  an  intake form for a domestic violence  program  that
month  in  which  he  admitted  to committing  acts  of  domestic
violence  against  Barbara, and then began but quickly  abandoned
the 36-week program.
          In  August  2008  Leo left the state  and  returned  to
Florida  without  notifying OCS.  He stopped attending  substance
abuse  treatment  and  was  discharged for  non-compliance  as  a
result.   By leaving the state, Leo also cut off visitation  with
his  children.  When  he returned the following  month,  Leo  was
arrested  on a probation violation and sentenced to 18 months  in
prison  at  the  Palmer Correctional Center, a  sentence  he  was
serving during the termination trial.
          By the end of 2008, Leo had completed parenting classes
and  started,  but not completed, substance abuse  treatment  and
domestic  violence classes.  He was incarcerated and acknowledged
that  it  would  be impossible for him to be reunified  with  his
children  at that time.  As a social worker put it,  he  had  not
mitigated the circumstances that brought the kids in[to] custody.
By  the conclusion of the termination trial in May 2009, Leo  was
still incarcerated and had made no further progress on completing
the case plan.
     B.   Proceedings
          In  April 2008 OCS filed a petition for adjudication of
Gary as a child in need of aid.  In May 2008 OCS filed a petition
for  termination of Barbaras and Leos parental rights to  Michael
and  Gary.   The  superior court consolidated Garys  adjudication
hearing  and  the termination hearing and conducted  a  seven-day
trial  ending  in  May  2009.  At the conclusion  of  trial,  the
superior  court adjudicated Gary as a child in need  of  aid  and
terminated Barbaras and Leos parental rights to both Michael  and
Gary.  The court found by clear and convincing evidence that: (1)
the  children were in need of aid as a result of abandonment  (by
Leo),  domestic violence (by both parents), substance  abuse  (by
both parents), and Barbaras mental health issues; (2) the parents
had  failed, within a reasonable time, to remedy the  conduct  or
conditions that placed the children at risk of harm; and (3)  OCS
had made reasonable efforts to provide family support services to
reunify  the  family.   It also found by a preponderance  of  the
evidence  that  it  was  in  the childrens  best  interests  that
Barbaras  and Leos parental rights be terminated. We commend  the
superior  court on its exemplary job of distilling  the  evidence
presented at trial into thorough findings of fact and conclusions
of law.
          Barbara  and Leo each appeal, challenging the  superior
courts  admission of expert testimony, its finding  that  Michael
and  Gary  were in need of aid, its finding that the parents  had
not  remedied their conduct, its finding that OCS made reasonable
efforts,  and  its  finding  that termination  was  in  the  best
interests of the children.
III. STANDARD OF REVIEW
          We  review  a  decision to admit expert  testimony  for
abuse of discretion.4  In a child in need of aid (CINA) case,  we
review  a  superior  courts findings of fact  for  clear  error.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  We review de novo whether a trial courts  findings
satisfy the requirements of the child in need of aid statute.7
          We  have  not  been entirely consistent in  whether  we
treat  a trial courts finding that a parent failed to remedy  the
conduct or conditions that placed his or her child at substantial
risk  as a question of fact or a mixed question of law and fact.8
We  take  this opportunity to clarify that this determination  is
generally a finding of fact that will only be reviewed for  clear
error.  Whether the parent has remedied the conduct or conditions
.  .  .  that  place the child at substantial risk9  and  whether
returning  the  child  to the parent would  place  the  child  at
substantial  risk  of  physical or mental  injury10  are  factual
          determinations best made by a trial court after hearing witnesses
and  reviewing  evidence, not legal determinations  to  which  an
appellate court should apply its independent judgment.
IV.  DISCUSSION
     A.   The  Superior  Court Did Not Abuse  Its  Discretion  In
          Admitting The Testimony Of Dr. Long.
          
          Both  Barbara  and  Leo argue that the  superior  court
erred in allowing the testimony of Dr. Grace Long because it  was
inadmissible  expert testimony and because it was  not  relevant.
Dr.  Long performed a psychological evaluation of Barbara between
March  and  May  2007  and produced a report discussing  Barbaras
history of substance abuse, domestic violence, and mental  health
issues  and  making diagnoses and recommendations.   She  had  no
further  contact with Barbara.  Dr. Long testified for the  State
during  the termination trial on April 27, 2009.  Barbara made  a
timely  but unsuccessful objection to Dr. Longs testimony on  the
ground  that  the evaluation conducted more than two years  prior
was not a valid basis for an expert opinion.
          Dr.  Long proceeded to testify about her evaluation and
conclusions and how Barbaras issues could affect her  ability  to
parent.   Dr. Long stated clearly that she was unable to offer  a
current  diagnosis  of  Barbara because  she  had  not  seen  her
recently.  Through  their questioning, the parties  provided  Dr.
Long  with  updated information concerning Barbara and asked  Dr.
Long  to  opine  on the extent to which such circumstances  might
affect  Barbara  and  change her original  diagnosis.11   In  its
decision,  the superior court acknowledged that Dr. Longs  report
was dated,12 but relied on her testimony because it found that the
concerns expressed in Dr. Longs report were still applicable  and
that  Dr. Longs recommendations had not been adequately followed.
The  court  also noted that Dr. Long strongly stood behind  [her]
analysis.
          Dr.  Longs testimony about the psychological evaluation
and her conclusions at the time of the evaluation fall within the
scope  of  permissible expert testimony, regardless of  when  the
evaluation was performed.13  She based her opinion on five days of
clinical interviews and her review of numerous records  data of a
type  reasonably relied upon by experts in her field.14  Even  if
Dr. Longs expert testimony about the evaluation was proper expert
testimony,  Barbara  argues that it  was  not  relevant  and  was
therefore  inadmissible  because the evaluation  took  place  two
years  earlier.   To  the  contrary, the testimony  was  directly
relevant to whether Michael was a child in need of aid.   It  was
also  relevant  to whether Gary was a child in need  of  aid  and
whether  Barbara  had  remedied the conduct  or  conditions  that
placed  the  children at substantial risk of harm.  For  example,
Dr.  Longs  recommendation in 2007 that Barbara needed  intensive
substance  abuse treatment followed by long-term  counseling  for
depression could be considered along with evidence of whether she
in fact received such treatment.
          Dr.  Long  also expressed opinions on whether  and  how
certain  events  that  occurred  subsequent  to  the  evaluation,
communicated through hypothetical questions that described  facts
          elicited at trial, were likely to affect Barbara.  Hypothetical
questions that accurately describe the facts of the case  are  an
acceptable basis for an expert opinion.15  If Dr. Long had offered
a  current  diagnosis of Barbara based solely on a  psychological
evaluation performed two years earlier, then arguably the  expert
opinion  could have presented a problem.  But Dr. Long explicitly
declined  to  do  so.   The  superior court  did  not  abuse  its
discretion in allowing Dr. Longs testimony.
     B.   The  Superior Court Did Not Err In Finding That Michael
          And Gary Were Children In Need Of Aid.
          
          In   order   to   terminate  a   parents   rights   and
responsibilities,  a  superior  court  must  find  by  clear  and
convincing  evidence  that  the  child  has  been  subjected   to
conditions or conduct that would qualify the child as a child  in
need of aid pursuant to AS 47.10.011.16  The superior court found
that  Michael  and Gary were children in need  of  aid  under  AS
47.10.011(8) (domestic violence) and AS 47.10.011(10)  (substance
abuse) based on Barbaras and Leos conduct, under AS 47.10.011(11)
(mental  health)  based  on  Barbaras  condition,  and  under  AS
47.10.011(1) (abandonment) based on Leos conduct.  We affirm  the
courts finding that the children were in need of aid based on the
first three grounds.17
          1.   Alaska Statute 47.10.011(11)  mental health
          The  superior  court found that OCS met its  burden  of
proving by clear and convincing evidence that both children  were
in  need of aid based on Barbaras mental health issues.  It found
that  Barbara  has  a  long  history of  depression  and  suicide
attempts, including attempting suicide prior to getting  pregnant
with Michael, when she was four months pregnant with Michael, and
one  year  after  his  birth.  The superior court  observed  that
Barbara had not followed through on the strong recommendation  of
Dr.  Long  that  she engage in extensive mental  health  therapy.
Instead,  Barbara maintained only a minimal relationship  with  a
nurse practitioner and was not taking psychotropic medication  as
recommended.  The superior court also found that Barbaras  mental
health issues had a very clear ramification[] for her ability  to
parent her children, impacting her day-to-day functioning and her
judgment.
          Barbara challenges the superior courts findings on  the
grounds  that the court relied on Dr. Longs testimony, which  was
based on a two-year old psychological evaluation, and ignored the
testimony of Hammaker that, at the time of trial, Barbara was not
experiencing  any  major  depressive symptoms  or  mood  disorder
symptoms,  she  did not need to take medication, and  her  mental
health did not impair her ability to parent.  But it is the  role
of  the trial court to make credibility determinations and  weigh
conflicting  evidence  as  it  did  here.18   It  may  have  been
preferable  for  Dr. Long to update her evaluation  with  an  in-
person visit or to have another expert evaluate Barbara closer to
trial, but it was not necessary.19
          Barbara  further  argues,  correctly,  that  a   mental
illness  alone  may  not form the basis of a finding  under  this
subsection20  and  contends that OCS failed  to  demonstrate  the
          required nexus between her alleged mental illness and any risk of
harm to her children.21  She contends that OCS offered no specific
instances  of how Barbaras mental health placed the  children  at
substantial risk of harm.
          In  Alyssa B. v. State, Department of Health  &  Social
Services, Division of Family & Youth Services, a mother made  the
same challenge to a superior courts finding that her daughter was
in  need  of  aid based on her mental illness.22  Rejecting  this
challenge,  we  identified specific conduct found  by  the  trial
court  that placed her daughter at risk: a refusal to  work  with
the  department leading to a failure to develop any bond with her
daughter; and a refusal to cooperate with authority figures  that
may  lead to an unwillingness to get help if her daughter  needed
it for medical or other problems.23
          In this case, the superior courts finding that Barbaras
mental  health problems adversely affected her ability to  parent
is supported by the record.  During trial, Barbara testified that
she  had  attempted suicide when Michael was one year  old.   Dr.
Long  testified that if her depression remains untreated,  it  is
possible  that  she would attempt suicide again.  Dr.  Long  also
testified  that  Barbara  exhibited a pattern  of  entering  into
relationships with abusive men with substance abuse problems.   A
social  worker  testified  that the  lack  of  treatment  of  her
depression  would continue to impact her ability to  safely  care
for her children.  The superior courts determination that Michael
and Gary were children in need of aid based on Barbaras untreated
mental health issues is supported by the record.
          2.   Alaska Statute 47.10.011(8)  domestic violence
          The  superior  court found that OCS met its  burden  of
proving by clear and convincing evidence that both children  were
in  need  of  aid based on domestic violence between Barbara  and
Leo.   The  court first noted that Barbara and Leo had stipulated
that  Michael  was a child in need of aid under  this  provision,
after  which  the  court had adjudicated him as  such.   It  then
reviewed the evidence presented at trial demonstrating that there
has   been   domestic  violence  throughout  Barbara   and   Leos
relationship beginning in 2005 and continuing until  just  before
trial: Barbaras request for a protective order; testimony by  the
parents  at trial concerning violent incidents, at least  one  of
which  happened  while  Barbara  was  holding  Michael;  Barbaras
cancellation  of joint visits with Leo; and her visit  to  Mat-Su
Regional  Urgent  Care in August 2008.  The court  did  not  find
Barbaras  denial  that  there  was  domestic  violence   in   her
relationship with Leo to be credible.
          Because  Gary was taken into custody by OCS  at  birth,
the court recognized that he could not be adjudicated a child  in
need  of  aid  under  a provision requiring  direct  exposure  to
domestic  violence.   But  relying on AS 47.10.011(8)(B)(i),  the
court  found  that  Gary was in need of aid because  the  parents
placed him at substantial risk of mental injury as a result of  a
pattern  of  .  .  . terrorizing . . . behavior  that  would,  if
continued, result in mental injury.  The court based this finding
on  evidence of ongoing domestic violence between Barbara and Leo
and  expert testimony regarding domestic violence. The court  did
          not credit Barbaras and Leos testimony that they had ended their
relationship, finding it quite possible that [Barbara] and  [Leo]
will re-initiate their relationship.
          Barbara first argues that the superior court improperly
relied  on the stipulation of the parties and precluded her  from
disputing  their  alleged domestic violence.   But  the  superior
court  neither precluded Barbara from offering evidence  on  this
issue  nor relied solely on the stipulation in finding  that  OCS
had  satisfied its burden; it simply noted that it was  difficult
to  understand how Barbara and Leo were contesting  a  fact  they
admitted  at adjudication.  Because the burden of proof is  lower
in  an  adjudication than at a termination proceeding,24 a  prior
adjudication  of  a  child as a child  in  need  of  aid  is  not
conclusive in the termination proceeding.25  Nonetheless, a court
can consider a parents stipulation and any other evidence offered
at  a  prior adjudication hearing along with additional  evidence
presented  at the trial in finding a child to be in need  of  aid
for purposes of termination of parental rights.26  Therefore,  it
was   not   improper  for  the  court  to  consider  the  parties
stipulation among other evidence that Michael was a child in need
of aid based on domestic violence.
          Barbara  next argues that the superior court  erred  in
finding  Michael  to  be  a  child  in  need  of  aid  under   AS
47.10.011(8)(A), which requires OCS to prove that conduct by  the
parents resulted in actual mental injury to the child, defined as
serious  injury  .  .  .  as  evidenced  by  an  observable   and
substantial  impairment in the childs ability to  function  in  a
developmentally  appropriate manner  that  is  supported  by  the
opinion  of a qualified expert witness.27  OCS offered no  expert
witnesses  at  trial to testify that Michael had suffered  mental
injury  as a result of Barbaras and Leos conduct, and in fact  no
expert  witness  has evaluated the children.   But  there  is  no
indication  that  the superior court made a  CINA  finding  under
AS  47.10.011(8)(A).   The superior court  did  not  specify  the
paragraph of subsection (8) under which it found that Michael was
a child in need of aid as a result of domestic violence.28  Given
that  the  court  made no reference to Michael  suffering  actual
mental  injury, it appears that the court made its  CINA  finding
under paragraph (8)(B), which requires only a substantial risk of
mental injury.
          Barbara  argues  that any CINA finding under  paragraph
(8)(B) would have been error because OCSs petition only requested
a CINA finding under paragraph (8)(A).  But Barbara was on notice
that  the  State intended to present evidence regarding  domestic
violence  during  the  termination  trial  and  had  an  adequate
opportunity to rebut this evidence and offer legal argument:  the
petition for termination references Michaels exposure to domestic
violence,  Barbaras request for a protective order, her continued
association  with  Leo, and the case plan  requirement  that  she
complete  a Family Violence Intervention class; the petition  for
adjudication  of  Gary as a child in need of  aid  filed  several
weeks  before  and  consolidated  with  the  termination  hearing
explicitly requested a finding under subsection (8) and described
a  lengthy history of domestic violence between Barbara and  Leo;
          and Michael had already been adjudicated a child in need of aid
under  subsection (8).  Even after trial began, Barbara had  time
to  gather  and  present  her  own  evidence  regarding  domestic
violence.    OCS  elicited  testimony  from  Barbara   concerning
domestic  violence and its effect on the children  early  on  the
first  day  of  trial  (and  over her  counsels  objection).   In
scheduling  the  next day of trial more than 30 days  later,  the
superior court gave counsel for the parents time to work  through
all  this  discovery  and  to allow  them  to  assess  fully  the
ramifications   of   all  this  [domestic   violence]   evidence.
Moreover,  Barbara had the opportunity to present legal  argument
on  why OCS had failed to prove that the children were in need of
aid  under  subsection  (8), and made arguments  concerning  both
paragraphs  (A)  and  (B)  in  her  closing  brief.   Given   the
foregoing,  Barbara suffered no prejudice from  OCSs  failure  to
explicitly   reference  paragraph  (8)(B)  in   its   termination
petition.   Therefore, the superior court could properly  make  a
finding  under any paragraph of subsection (8) supported  by  the
evidence.29
          Finally,  Barbara  argues  that  the  superior   courts
finding under subsection (8) was not supported by the evidence at
trial  because  the  children had minimal  exposure  to  domestic
violence,  and OCS failed to prove any pattern of . . .  behavior
in  the  childrens presence.  But AS 47.10.011(8)(B)(i) does  not
require  that  the children be physically present when  there  is
domestic  violence (although Michael was in fact present  in  one
instance).30  Rather, it requires proof that conduct by the parent
places the child at substantial risk of mental injury as a result
of  a pattern of . . . terrorizing . . . behavior that would,  if
continued,  result  in  mental  injury.   There  was  substantial
evidence presented at trial of ongoing domestic violence  between
Barbara  and Leo and testimony by an expert witness that exposure
to domestic violence creates a substantial risk of mental harm to
a  child,  even where the child is not physically present.   This
evidence supports a finding that Leos acts toward Barbara created
a  significant risk of mental injury to the children if they  had
been  placed  with their parents.  Therefore, the superior  court
did  not  err in finding that OCS proved by clear and  convincing
evidence that Michael and Gary were children in need of aid under
AS 47.10.011(8) of the CINA statute.
          3.   Alaska Statute 47.10.011(10)  substance abuse
          The  superior  court found that OCS met its  burden  of
proving by clear and convincing evidence that both children  were
in  need  of  aid  based on substance abuse by Barbara  and  Leo.
Under  AS 47.10.011(10), a court may find a child in need of  aid
where  the  parents  ability  to parent  has  been  substantially
impaired  by the addictive or habitual use of an intoxicant,  and
the addictive or habitual use of the intoxicant has resulted in a
substantial risk of harm to the child.  In finding Michael to  be
a  child  in  need  of  aid, the superior  court  referenced  the
stipulation  of  the parties in Michaels adjudication  and  noted
that  Leo  had  conceded  in his pleadings  for  the  termination
proceeding  that Michael was a child in need of  aid  under  this
subsection.   The court found Gary to be a child in need  of  aid
based   on  Leos  continuing  drug  addiction,  dismissing   Leos
testimony that the only drug he currently uses is marijuana.  Leo
does not challenge this ruling on appeal.31  Leos concession with
respect  to  Michael  and his failure to challenge  the  superior
courts   holding  with  respect  to  Gary  are,  by   themselves,
sufficient for us to affirm the ruling that Michael and Gary  are
children in need of aid for purposes of the termination  of  both
Leos and Barbaras parental rights.32
          The  superior court also reviewed Barbaras  substantial
history  of drug use, including marijuana, opiates, cocaine,  and
methamphetamine,  through at least October  2007.   Barbara  used
marijuana,  methadone, and Percocet, either while  pregnant  with
Michael or around the time he was born.  She used cocaine  during
periods  when she was caring for Michael.  She repeatedly entered
and  failed to complete substance abuse treatment.  These  facts,
together  with  the parties stipulation, gave the superior  court
ample  grounds to find that Michael was a child in  need  of  aid
based on Barbaras substance abuse.
          With  respect  to  Gary,  the superior  court  credited
Barbaras testimony that she had not used drugs since Garys  birth
and  commended her for completing her substance abuse  treatment.
But  the  court did not believe that Barbara had truly  addressed
her drug addiction because she had failed to undertake any follow-
up  activities  after the completion of her  program,  she  still
regarded  the harm to her children from drug use solely in  terms
of  immediate danger that such usage might cause rather than  its
long-term effect on her parenting, and she continued to  deny  or
minimize  her past drug use.  As a result, the court  found  that
OCS  had proven that Gary was a child in need of aid as a  result
of Barbaras still untreated drug addiction.
          Barbara does not deny that she used drugs up until  the
time  Gary  was born and while Michael was in her care,  but  she
argues that drug use alone is not sufficient for a finding  under
this  subsection  of  the CINA statute.  She  contends  that  OCS
failed to satisfy the additional requirements of proving that her
drug  use  impaired  her ability to parent or  that  it  posed  a
substantial risk of harm to her children.  Barbara testified that
she  took precautions to avoid exposing Michael to her drug  use,
such  as  leaving the home when she used drugs and not  returning
until she was sober, and avoiding skin-to-skin contact after drug
use.
          Although OCS did not present evidence that Barbara used
drugs  in Michaels presence, the statute does not require that  a
child be present when the drug use occurred.33  The superior court
heard  evidence  that  Barbara  used  marijuana,  methadone,  and
Percocet  while pregnant with Michael or shortly after his  birth
and  that she used cocaine during periods when she was caring for
Michael.  Evidence was presented that Michael was taken into  OCS
custody,  and Barbara was required to leave a shelter  after  she
tested  positive  for  use of cocaine  and  a  white  powder  was
discovered  in  her room at the shelter.  Evidence was  presented
that  Barbara  was in and out of substance abuse programs.   Such
conduct adequately demonstrates an impairment of parenting and  a
risk  of  harm to or neglect of Michael.  Together with  Barbaras
stipulation  that Michael was a child in need of aid  under  this
subsection, the conduct supports the superior courts finding that
Michael  was  in  need of aid.  OCS was not  obligated  to  leave
Michael  with  or  return him to Barbara and wait  to  accumulate
evidence  of parenting problems based on her admitted  drug  use,
thereby  risking  actual harm to the child, before  requesting  a
finding that Michael is a child in need of aid.34
          Barbara further argues that the superior courts finding
regarding drug abuse was erroneous because she had been sober for
over a year before the termination trial began.  The CINA statute
requires  that a parents ability to parent has been  impaired  by
drug  use and drug use has resulted in risk to the child at  some
time  prior  to the adjudication.35  Because Barbara  used  drugs
while  she  was  caring  for Michael, her  new  sobriety  is  not
determinative of whether he was a child in need of aid, but  only
relevant  to whether she remedied her conduct, which  we  discuss
below.
          On  the other hand, Barbaras sobriety since Garys birth
is  relevant  to whether the superior court properly  found  that
Gary  was  a  child in need of aid based on her  drug  use.   The
superior  court found that Gary was a child in need  of  aid  not
because of Barbaras current drug use, but because Barbara  failed
to  fully  understand[]  the depth of her  problems  with  drugs,
leaving  her addiction still untreated.  The CINA statute  speaks
only  in terms of use of an intoxicant, not potential for  future
use.36   But Barbaras drug use during her pregnancy is sufficient
to  find  Gary to be a child in need of aid  Barbara admitted  to
using  drugs  during her pregnancy with Gary, and Garys  meconium
tested  positive for cocaine.  We have referenced  neonatal  drug
use  in  affirming CINA findings in unreported cases, but  always
where it was accompanied by drug use following birth.37  Exposing
a  child  to  cocaine in utero, even without drug  use  following
birth, can also be sufficient to find the child to be in need  of
aid  under AS 47.10.011(10).   Therefore, the superior court  did
not err in finding that Gary was a child in need of aid based  on
Barbaras substance abuse.
     C.   The  Superior Court Did Not Err In Finding That Barbara
          Failed To Remedy The Conduct Or Conditions That Led  To
          Removal Of Michael And Gary.38
          
          To  terminate parental rights, the superior court  must
find  by  clear and convincing evidence that the parent  has  not
within a reasonable time remedied the conduct or conditions  that
placed the child at substantial risk so that returning the  child
to  the  parent  would  place the child at  substantial  risk  of
physical or mental injury.39  Acknowledging that it was a close[]
call, the superior court found that Barbara had not remedied  her
conduct.  Although she had formally complied with her case  plan,
completing  substance abuse treatment, staying sober since  Garys
birth,  and completing domestic violence and parenting education,
the  court believed that she had not internalized what she  ha[d]
learned  and there [was] no real assurance that [she  would]  not
fall back into her old dysfunctional ways.  We agree that this is
a  close  question and believe that the deference accorded  to  a
superior  courts factual findings is particularly appropriate  in
close  cases.  Our review of the record does not leave us with  a
firm conviction that the superior court made a mistake in finding
that Barbara failed to remedy her conduct.
          Initially,  Barbara  argues that because  she  complied
with the recommendations of her OCS case plan, the superior court
erred  in  finding  that  she  had not  adequately  remedied  her
conduct.  Even if Barbara had completed every element of her case
plan, completion of a case plan does not guarantee a finding that
she  has remedied her conduct.40  The question instead is whether
she  had  remedied the problems that placed her children at  risk
and  gained  the necessary skills so that the children  could  be
safely  returned to her care.  The superior court found that  she
had not.
          First  and  most significant to the superior court  was
its  finding that Barbara had not adequately addressed her mental
health  problems and had failed to engage in consistent treatment
as  recommended by Dr. Long.  The trial court found that Barbaras
sporadic visits to Hammaker did not provide the kind of treatment
recommended  by Dr. Long.  The trial court was further  concerned
about  Barbaras false claim that she had seen Hammaker  regularly
since February 2006.  The trial court concluded:
          Given  [Barbaras] significant  mental  health
          and  substance abuse history, the court found
          extremely  troubling Ms.  Hammakers  apparent
          position in testimony that there were no real
          concerns  with  respect to [Barbaras]  mental
          health or that any treatment need only  occur
          upon  request by [Barbara].  The  court  also
          found  troubling the fact that  Ms.  Hammaker
          would not communicate with the OCS workers in
          any   meaningful  manner,  even  though   Ms.
          Hammakers most recent evaluation of [Barbara]
          (May  12,  2009) indicated a continuing  need
          for  therapy,  treatment, and  support.   The
          court  accordingly concludes that  Dr.  Longs
          evaluation  still is relevant  and  important
          and  that [Barbara] has not received adequate
          services through Ms. Hammaker to address  the
          concerns  laid  out in that evaluation.   And
          until  [Barbara] does so, she will  not  have
          remedied the substantial mental health issues
          that  must  be remedied before she  can  have
          full custody of her children.
          
          Barbara  argues that the court incorrectly favored  Dr.
Longs  testimony over Hammakers and suggests that she is  willing
to  continue  to  work  with Hammaker or  another  mental  health
professional.   But  the superior court made  its  finding  after
weighing the testimony of both Dr. Long and Hammaker, as well  as
listening to Barbara.  We cannot say that its finding was clearly
erroneous.
          With  respect to domestic violence, the superior  court
found  that Barbara had not fully integrated what she has learned
with  respect to domestic violence.  The court credited Dr. Longs
conclusion that Barbara was predisposed to entering into volatile
and   abusive  relationships,  noting  that  notwithstanding  her
graduation  from  the  WRRAP  program,  there  had  not  been   a
concomitant  change in [Barbaras] overall thinking, and  she  has
yet  fully  to acknowledge the abuse she suffered.   Indeed,  the
superior  court questioned whether Barbara had permanently  ended
her  relationship with Leo, finding it quite possible that [they]
will  re-initiate  their  relationship.   Again,  reviewing   the
record,  we  cannot  say that the superior  courts  finding  that
Barbara  failed  to  remedy  her condition  related  to  domestic
violence was clearly erroneous.41
          With  respect  to substance abuse, the  superior  court
found:
          [N]otwithstanding   her    graduation    from
          substance abuse treatment, [Barbara] has  not
          regularly    attended    12-step    meetings,
          maintained regular contact with a sponsor, or
          surrounded herself with individuals leading a
          lifestyle  conducive  to  sobriety.   And  as
          noted  above,  she continued to minimize  and
          even  deny  her  drug use and  abuse  in  her
          testimony.     Under   these   circumstances,
          [Barbara] will require an extended period  to
          prove  her  sobriety before it can reasonably
          be  concluded  that she really can  and  will
          live a clean and sober life.
          
The  superior courts finding that Barbara had been sober at least
since  Garys  birth, slightly less than six months preceding  her
termination  trial,42 does not preclude a finding  that  she  had
failed  to  remedy her substance abuse problem.  For example,  in
Sherry  R.  v.  State, Department of Health  &  Social  Services,
Division  of Family & Youth Services, we affirmed a trial  courts
finding that a mother did not remedy her conduct related to  drug
use despite the fact that she had been sober for approximately  a
year  before the termination trial, had been regularly  attending
AA  meetings, and had maintained clean urinalysis results  during
that  time  period.43  There, as here, the trial  court  properly
relied  on  the mothers history of relapses and the  questionable
degree  to  which  she accepted that she had  a  substance  abuse
problem.44   The  superior courts finding that  Barbara  had  not
remedied  her  conduct with respect to substance  abuse  was  not
clearly erroneous.
     D.   The Superior Court Did Not Err In Finding That OCS Made
          Reasonable Efforts To Provide Family Support Services.
          When  terminating parental rights, OCS  must  prove  by
clear and convincing evidence that it made reasonable efforts  to
provide  family support services designed to prevent  out-of-home
placement  or enable the safe return of the child to  the  family
home.45   The  superior  court  determined  that  OCS  had   made
reasonable   efforts,  including:  in-person   reviews   of   the
requirements  of  the  case plan, referrals for  substance  abuse
assessments   and  substance  abuse  treatment,   drug   testing,
parenting   classes,   and  domestic  violence   education,   and
consistent  visitation, beginning immediately after  Michael  was
taken into emergency custody.  The superior court found that OCSs
efforts  fell short in two respects: it had at times been  unable
to  provide Barbara with drug tests to prove her sobriety and  it
made absolutely no effort to provide visitation to [Leo] while he
was  incarcerated, a failure the court described as  inexcusable.
Despite these shortcomings, the court found that OCS had met  its
burden  of  reasonable efforts when looking at its  reunification
efforts in their entirety.
          While  Barbara challenged this finding as  a  point  on
appeal and complains generally about OCSs failure to increase her
visitation,  she does not pursue this challenge in her  briefing.
Leo  argues  that  given the superior courts  finding  that  OCSs
failure  to provide him with visitation while he was incarcerated
was  inexcusable, it was error for the court to find that OCS had
satisfied its burden of making reasonable efforts to reunify  him
and  his  children.  He testified that he made numerous  requests
for  visits while he was incarcerated, but OCS failed to  provide
these visits because of its lack of resources.
          In  reviewing  whether OCS made reasonable  efforts,  a
court   considers  the  states  reunification  efforts  in  their
entirety.46  The court must first identify the problem that caused
the children to be in need of aid and then determine whether OCSs
efforts   were   reasonable   in   light   of   the   surrounding
circumstances.47  Michael was first taken into  OCS  custody  and
adjudicated a child in need of aid based on substance  abuse  and
domestic  violence  between Barbara and Leo.  After  Michael  was
removed, OCS developed a case plan for Leo that identified  these
problems  and  steps  Leo should take to  remedy  them  and  made
referrals  for  a  mental health evaluation,  a  substance  abuse
assessment,   drug  testing,  domestic  violence   classes,   and
parenting  classes.  Leo did not take advantage of these  efforts
and   made   little  progress  in  completing   his   case   plan
requirements.  OCS regularly updated the case plan, discussed its
requirements with Leo, and continued to make referrals as well as
arranging  for  supervised visits.  Leo completed  the  parenting
classes  and  substance abuse assessment, but  not  the  domestic
violence  classes or substance abuse treatment.   After  Leo  was
incarcerated  in September 2008, parenting and possibly  domestic
          violence classes were available to him through the prison system.48
          Leos   only  argument  is  that  OCS  failed  to   make
reasonable efforts because, as the superior court found, OCS made
no  effort to provide Leo with visitation with his children  when
he  was incarcerated between September 2008 and May 2009.   While
we  agree  with  the  superior court that OCS should  make  every
reasonable effort to coordinate visitation where possible between
incarcerated parents and their children, its failure to do so  in
this  case  does  not preclude a finding that it made  reasonable
efforts for several reasons.
          First,  the  scope  of  OCSs duty  to  make  reasonable
efforts  is affected by a parents incarceration.  In the  context
of  an ICWA case where OCS bears a higher burden of making active
reunification efforts, we have held:
          A parents incarceration significantly affects
          the  scope  of  the active efforts  that  the
          State  must  make  to satisfy  the  statutory
          requirement. While neither incarceration  nor
          doubtful  prospects  for rehabilitation  will
          relieve  the State of its duty under ICWA  to
          make  active remedial efforts, the  practical
          circumstances    surrounding    a     parents
          incarceration   the difficulty  of  providing
          resources    to   inmates   generally,    the
          unavailability of specific resources, and the
          length  of incarceration  may have  a  direct
          bearing  on what active remedial efforts  are
          possible. Thus, while the State cannot ignore
          its   ICWA  duties  merely  because  of  [the
          parents] incarceration, his incarceration  is
          a significant factor in our evaluation of the
          adequacy  of  the  States  efforts  in   this
          case.[49]
          
          Moreover,  we  have affirmed a finding  that  OCS  made
reasonable  efforts  overall  even  when  its  efforts  were  not
reasonable  during a particular period of time.50  And  OCS  made
substantial  efforts  to help Leo address the  specific  problems
that  led  to  the  removal of his children and now  support  the
termination  of  his  parental  rights   domestic  violence   and
substance abuse.  Given Leos current incarceration, OCSs  efforts
to  provide Leo with family support services when he was  not  in
prison, and Leos failure to make any changes necessary to achieve
reunification, the superior court did not clearly err in  finding
that OCSs reunification efforts in their entirety were reasonable
despite its failure to provide visitation in prison.
     E.   The   Superior  Court  Did  Not  Err  In  Finding  That
          Termination Of Barbaras And Leos Parental Rights Was In
          Their Childrens Best Interests.
          
          When   terminating  parental  rights,  a  court   shall
consider the best interests of the child.51  The court may  order
termination only if OCS proves by a preponderance of the evidence
that  termination of parental rights is in the best interests  of
the  child.52   The  superior court found  that  terminating  the
parental  rights  of  Barbara  and Leo  would  promote  the  best
interests  of  the children.  In making this finding,  the  court
relied  on  the fact that the children have spent most  of  their
lives in foster care and [n]either of them have any real sense of
their  parents as parents, they are well bonded with their foster
parents and think of their current placement as their home,   and
it   would  be  traumatic  to  remove  them  from  their  present
placement.   The court found that neither parent  was  ready  and
able  safely  to parent these children at the conclusion  of  the
termination  trial,  that  they  would  not  be  ready  within  a
reasonable time thereafter, and that returning either [child]  to
either  parent  would place them at risk of  physical  or  mental
injury.   Given  the  childrens need for  permanency,  the  court
concluded  that  it  was  in  the  childrens  best  interests  to
terminate the parental rights of Barbara and Leo.
          Barbara argues that the superior court erred by failing
to consider the best interest factors enumerated in AS 47.10.088,53
which she contends weigh against termination.  She also points to
testimony  by  social workers that a bond exists between  Barbara
and  her children as a result of regular and positive visits  and
that  the termination of that bond would be traumatic.  She takes
issue with OCSs reliance on the fact that the children have spent
most  of their lives in foster care, given her view that OCS  has
not  truly attempted to reunify her and her children.  Leo argues
that  OCS  failed to present evidence of the childrens mental  or
emotional  status or needs and that there was evidence  presented
of  both  the childrens bond with Leo and Barbara and the parents
determination to change.
          The best interest factors listed in the statute are not
exclusive  and  the superior court need not accord  a  particular
weight  to  any  given  factor.  Rather, the  superior  court  is
directed  to  consider  the  best interests  of  the  child  when
deciding  whether to terminate parental rights54 and is permitted
to  consider any fact relating to the best interest of the child,
including the statutory factors, when evaluating whether a parent
has  remedied his or her conduct.55  The superior court  properly
considered the childrens need for permanency, a crucial need  for
young  children.56  [T]he fact that a child has bonded with [the]
foster parent can [also] be a factor in considering whether it is
in the childs best interests to terminate a parents rights.57  The
superior court did not err in determining that the termination of
Barbaras  and  Leos parental rights was in the best interests  of
Michael  and  Gary  based  on  their  need  for  permanency,  the
stability they enjoy in their foster home, and the fact  that  it
found  neither  Barbara nor Leo would be ready to  care  for  the
children on a full-time basis within a reasonable period of time.58
V.   CONCLUSION
          For  the  foregoing  reasons, we  AFFIRM  the  superior
courts termination of Barbaras and Leos parental rights.
_______________________________
     1    We use pseudonyms to protect the familys privacy.

     2     Barbara also discussed her mental health in her second
substance abuse evaluation in May 2007, in which she acknowledged
having suicidal ideations.

     3     Meconium, the tarry stool material passed by a newborn
child  in  the first days after birth, provides evidence  of  the
mothers drug use over the last four to five months of pregnancy.

     4    Lynden Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001).

     5     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)).

     6    Id. (quoting A.B., 7 P.3d at 950).

     7     Carl  N.  v. State, Dept of Health & Soc. Servs.,  102
P.3d  932, 935 (Alaska 2004) (citing Sherry R. v. State, Dept  of
Health & Soc. Servs., 74 P.3d 896, 901 (Alaska 2003)).

     8     Compare  Wendell C. II v. State, OCS, 118  P.3d  1,  4
(Alaska  2005) (referring to the parents failure to remedy  their
conduct in a reasonable time as a legal conclusion) and Dennis B.
v.  State, Dept of Health and Soc. Servs., DFYS, Mem. Op & J. No.
1202, 2005 WL 435173, at *7 (Alaska, Feb. 23, 2005) (stating that
we review de novo the legal conclusion that the parents failed to
remedy their conduct) with Jon S. v. State, Dept of Health & Soc.
Servs.,  Office  of Childrens Servs., 212 P.3d 756,  763  (Alaska
2009) (holding that superior court did not clearly err in finding
that  the  parent had not remedied the problematic  conduct)  and
Sherry R., 74 P.3d at 903 (same).

     9    AS 47.10.088(a)(2)(A).

     10    AS 47.10.088(a)(2)(B).

     11     For example, the State asked Dr. Long whether it  was
enough  to  address Barbaras mental health issues  that  she  has
somebody that she talks to that she evidently trusts a lot . .  .
but  its not an ongoing relationship.  Barbaras counsel asked Dr.
Long  whether  Barbara entering and successfully  completing  and
graduating  from [a residential treatment program  for  substance
abuse  and domestic violence would] be an indication of how  shes
doing with her development.

     12     The  superior court mistakenly referred to Dr.  Longs
report as a year old, but later identified the date of the report
correctly.

     13     Such  testimony is regularly offered in  CINA  cases.
See,  e.g.,  Sandy  B. v. State, Dept of Health  &  Soc.  Servs.,
Office of Childrens Servs., 216 P.3d 1180, 1190-93 (Alaska 2009);
Neal  M.  v.  State,  Dept  of Health & Soc.  Servs.,  Office  of
Childrens  Servs., 214 P.3d 284, 289 (Alaska  2009);  Ben  M.  v.
State,  Dept of Health & Soc. Servs., Office of Childrens Servs.,
204  P.3d  1013, 1019-21 (Alaska 2009).  Indeed, expert testimony
is  required  in termination proceedings under the  Indian  Child
Welfare Act.  See 25 U.S.C.  1912(f) (2006).

     14    See Alaska R. Evid. 703 (requiring that expert opinion
be  based  on  [f]acts or data . . . of a type reasonably  relied
upon  by  experts in the particular field in forming opinions  or
inferences upon the subject).

     15    See J.A. v. State, DFYS, 50 P.3d 395, 401 n.18 (Alaska
2002)  (hypothetical questions . . . sufficiently  based  on  the
facts of the case . . . enable a qualified expert to give .  .  .
testimony in a parental termination case).

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

     17     It is therefore unnecessary to reach the question  of
whether  Michael and Gary were children in need of aid  based  on
Leos  abandonment.  See Martin N. v. State, Dept of Health & Soc.
Servs.,  Div.  of  Family & Youth Servs., 79  P.3d  50,  54  n.14
(Alaska 2003).

     18    Tessa M. v. State, Dept of Health & Soc. Servs., Office
of Childrens Servs., 182 P.3d 1110, 1114 (Alaska 2008) (citing In
re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001)).

     19     See  Ben  M. v. State, Dept of Health & Soc.  Servs.,
Office  of  Childrens Servs., 204 P.3d 1013, 1020  (Alaska  2009)
(observing that an expert need not conduct an in-person interview
before  offering  an expert opinion so long as the  testimony  is
based on the facts of the case).

     20     See  K.N.  v. State, 856 P.2d 468, 475 (Alaska  1993)
(stating  that  mental  illness alone  may  not  support  a  CINA
finding, but still finding the CINA statute satisfied because the
record linked the fathers continuing mental illness with his past
instances of extreme neglect); see also V.S.B. v. State, Dept  of
Health  &  Soc.  Servs., Div. of Family & Youth Servs.,  45  P.3d
1198,  1206  n.22 (Alaska 2002) (Mental illness,  absent  related
conduct, cannot be a basis for termination of parental rights.).

     21     A  finding  that a child is in need of aid  under  AS
47.10.011(11)  requires a showing that the parent,  guardian,  or
custodian has a mental illness, serious emotional disturbance, or
mental deficiency of a nature and duration that places the  child
at substantial risk of physical harm or mental injury.

     22    165 P.3d 605, 618-19 (Alaska 2007).

     23    Id. at 619.

     24     Compare  CINA  Rule  15(c)  (requiring  proof  by   a
preponderance of the evidence in an adjudication) with CINA  Rule
18(c)  (requiring  proof by clear and convincing  evidence  in  a
termination proceeding).

     25    See Rick P. v. State, OCS, 109 P.3d 950 (2005) (holding
that  where parents have previously stipulated that the  children
should be adjudicated as being in need of aid, OCS still has  the
burden  of  proving  in  the subsequent termination  of  parental
rights  proceeding  by  clear and convincing  evidence  that  the
children  were in need of aid); D.M. v. State, Div. of  Family  &
Youth Servs., 995 P.2d 205, 209 (Alaska 2000) ([N]othing resolved
at   the  adjudication  stage  foreclosed  a  parent  from  fully
litigating all relevant issues at the termination stage.).

     26     See  D.M.,  995  P.2d  at 209 ([A]t  the  termination
proceeding,  a  court could review the evidence  offered  at  the
adjudication hearing, and, applying the stricter proof  standard,
make  supplemental  findings  satisfying  the  requirements   for
termination.).

     27    AS 47.17.290(9).

     28     The  failure  of the superior court to  specify  what
subsection of the CINA statute it is proceeding under, let  alone
what  paragraph of the subsection, does not constitute  error  so
long  as the courts factual findings support a determination that
the child is in need of aid.  See A.J. v. State, Dept of Health &
Soc.  Servs., Div. of Family & Youth Servs., 62 P.3d 609,  613-14
(Alaska 2003).

     29     Cf. McCormick v. City of Dillingham, 16 P.3d 735, 743
(Alaska  2001)  (holding  that so long as  a  complaint  provides
notice, plaintiff can recover under any theory supported  by  the
evidence).

     30     See Martin N. v. State, Dept of Health & Soc. Servs.,
Div  of  Family  & Youth Servs., 79 P.3d 50, 54-55 (Alaska  2002)
(rejecting  argument  that because terrorizing  conduct  was  not
directed at the child or took place before the childs birth,  the
CINA  statute was not satisfied, and holding that fathers violent
tendencies . . . pose[d] a risk of future harm to his child).

     31     Instead, Leo joins Barbaras briefing related to  this
subsection  of  the  CINA statute, which addresses  only  whether
Barbaras   substance abuse supports a finding that  the  children
are in need of aid.

     32    See Jeff A.C., Jr. v. State, 117 P.3d 697, 703 (Alaska
2005) (holding that a superior court can adjudicate a child as  a
child in need of aid based on the acts of just one parent).

     33    AS 47.10.011(10).

     34     See Martin N., 79 P.3d at 54 (holding that OCS is not
required  to wait to intervene until a child has suffered  actual
harm before requesting a finding that a child is in need of aid).

     35    AS 47.10.011(10) (emphasis added); see also Danielle A.
v.  State,  Dept  of  Health & Soc. Servs., Office  of  Childrens
Servs.,  215  P.3d 349, 354 (Alaska 2009) (CINA  statute  permits
courts to look at past conduct or conditions).

     36    AS 47.10.011(10).

     37     See, e.g., Daphne W. v. State, Dept of Health &  Soc.
Servs., Office of Childrens Servs., Mem. Op. & J. No. 1344,  2009
WL  1636261, at *3-*4 (Alaska, June 10, 2009) (affirming  finding
that  children  were  in need of aid based on  mothers  drug  use
during pregnancy as well as ongoing substance abuse); Sofia M. v.
State,  Dept of Health & Soc. Servs., Office of Childrens Servs.,
Mem. Op. & J., No. 1220, 2005 WL 1540495, at *4 (Alaska, June 29,
2005) (same).

     38     Leo admitted at the termination trial that he had not
remedied  his conduct, and does not challenge the courts  failure
to  remedy  finding on appeal.  Leo failed to complete  treatment
for substance abuse, domestic violence, and anger management.

     39    AS 47.10.088(a)(2).

     40    See V.S.B. v. State, Dept of Health & Soc. Servs., Div.
of  Family  &  Youth  Servs., 45 P.3d 1198,  1208  (Alaska  2002)
(Compliance with treatment plans does not guarantee that parental
rights  will  not be terminated because it cannot guarantee  that
adequate  parenting  skills will be acquired from  the  treatment
regimen.).

     41     See Sherry R. v. State, Dept of Health & Soc. Servs.,
Div.  of  Family & Youth Servs., 74 P.3d 896, 903  (Alaska  2003)
(citing  to mothers failure to end her romantic involvement  with
man  who  had been convicted of child sexual assault as  evidence
that  she had not remedied the conduct or conditions that  placed
her children at substantial risk of harm).

     42    Barbara admitted at trial that she last used cocaine in
October 2007, approximately one year before the beginning of  her
termination trial.

     43    74 P.3d 896, 902-03 (Alaska 2003).

     44    Sherry R., 74 P.3d at 902-03.

     45     See  AS  47.10.086(a); AS 47.10.088(a)(3); CINA  Rule
18(c)(2)(A).

     46     Frank E. v. State, Dept of Health & Soc. Servs., Div.
of  Family  & Youth Servs., 77 P.3d 715, 720 (Alaska  2003);  see
also  Burke v. State, Dept of Health & Social Servs.,  Office  of
Childrens Servs., 162 P.3d 1239, 1245 (Alaska 2007) (stating that
courts  consider the entire history of the services that OCS  has
provided a parent).

     47    Burke, 162 P.3d at 1245.

     48     Services offered by the Department of Corrections are
considered efforts of OCS for purposes of the reasonable  efforts
analysis.   See T.F. v. State, Dept of Health & Soc.  Servs.,  26
P.3d 1089, 1096 (Alaska 2001).

     49    A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256,   261  (Alaska  1999)  (internal  quotations  and  footnotes
omitted).

     50     Audrey  H. v. State, Office of Childrens Servs.,  188
P.3d  668,  679-81  (Alaska  2008) (holding  that  although  OCSs
efforts  were  limited  during the eight-  to  nine-month  period
preceding  the termination proceedings, this did not  render  its
efforts unreasonable [w]hen considered in the context of the full
history of its involvement with [the parent]).

     51     likelihood of re

     52    CINA Rule 18(c)(3).

     53    Factors include:

          (1) the likelihood of returning the child  to
          the parent within a reasonable time based  on
          the childs age or needs;
          
          (2)  the  amount of effort by the  parent  to
          remedy  the conduct or the conditions in  the
          home;
          
          (3) the harm caused to the child;
          
          (4)  the  likelihood that the harmful conduct
          will continue; and
          
          (5)  the  history of conduct by or conditions
          created by the parent.
          
     54    AS 47.10.088(c).

     55    AS 47.10.088(b).

     56    See Dashiell R. v. State, Dept of Health & Soc. Servs.,
Office  of  Childrens Servs., 222 P.3d 841, 850-51 (Alaska  2009)
(approving  of  a superior courts consideration of the  childrens
need   for  stability  and  permanency  in  evaluating  the  best
interests of the children in a termination proceeding); Debbie G.
v.  State,  Dept  of  Health & Soc. Servs., Office  of  Childrens
Servs.,  132  P.3d 1168, 1171 n.5 (Alaska 2006)  (We  have  often
noted  that  young children require permanency and  stability  or
risk long-term harm.).

     57     Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177,
185  (Alaska  2008); see also AS 47.10.088(a) ([T]he  rights  and
responsibilities  of  the  parent  regarding  the  child  may  be
terminated for purposes of freeing a child for adoption or  other
permanent placement . . . .).

     58     See  Dashiell  R.,  222 P.3d at 850  (reviewing  best
interest  finding  in termination of parental rights  case  under
clearly erroneous standard).

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