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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lucy J. v. State, Dept. of Health & Social Services, Office of Children's Services (12/17/2010) sp-6530

Lucy J. v. State, Dept. of Health & Social Services, Office of Children's Services (12/17/2010) sp-6530

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

LUCY J.,                                        ) 
                                                )       Supreme Court No. S-13662 
                        Appellant,              ) 
                                                )       Superior Court Nos. 1JU-06-00006 CP 
        v.                                      )       and 1JU-04-00091 CP 
                                                ) 
STATE OF ALASKA,                                )       O P I N I O N 
DEPARTMENT OF HEALTH &                          ) 
SOCIAL SERVICES, OFFICE OF                       )     No. 6530 - December 17, 2010 
CHILDREN'S SERVICES,                            ) 
                                                ) 
                        Appellee.               ) 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, First 
                Judicial District, Juneau, Patricia A. Collins, Judge. 

                Appearances:       Christi  A.   Pavia,   Pavia   Law    Office   LLC, 
                Anchorage,      for  Appellant.     Megan      R.   Webb,    Assistant 
                Attorney     General,    Anchorage,      and   Daniel    S.   Sullivan, 
                Attorney General, Juneau, for Appellee.  Dianne Olsen, Law 
                Office of Dianne Olsen, Anchorage, for Guardian ad Litem. 

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

                FABE, Justice. 

----------------------- Page 2-----------------------

I.      INTRODUCTION 

                Lucy J. appeals the trial court's judgment terminating her parental rights to 
her children Jack H. and Carmen H.1           Lucy does not challenge the court's finding that 

Jack and Carmen were children in need of aid on the grounds of exposure to substance 

abuse,   domestic   violence,   neglect,   and   Lucy's   mental   deficiency.       But   Lucy   does 

challenge four of the trial court's other findings: that Lucy failed to remedy the conduct 

or conditions in the home that placed the children at substantial risk of harm; that OCS 

provided active efforts to keep the family together; that returning the children to Lucy's 

care is likely to result in serious emotional or physical damage to the children; and that 

termination of Lucy's parental rights is in the best interests of the children.               Because 

abundant evidence supports the trial court's findings that Lucy failed to remedy her 

substance abuse and neglect of her children, we affirm those findings by the trial court. 

Our   holdings   that   Lucy   did   not   remedy   her   substance   abuse   and   neglect   make   it 

unnecessary to decide whether Lucy remedied the problems associated with domestic 

violence and Lucy's mental deficiency.  Because the trial court's legal conclusions were 

correct, and its other factual findings were not clearly erroneous, we affirm the rest of the 

judgment in its entirety. 

II.     FACTS AND PROCEEDINGS 

                Lucy   and   Rick,   the   children's   father,   were   in   an   on-again,   off-again 

relationship   from   2001-2005.        Jack   was   born   in   September   2003   and   Carmen   in 

November 2005.        Jack and Carmen were placed in foster care in July 2006, and have 

been in their current foster home since December 2006.                These foster parents plan to 

adopt both children should Lucy's parental rights be terminated.  Lucy is affiliated with 

        1       We use pseudonyms throughout this opinion to protect the family's privacy. 

                                                  -2-                                               6530 

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the Tlingit and Haida Tribes of Alaska, and her children are Indian children within the 

meaning of the Indian Child Welfare Act (ICWA), 25 U.S.C.  1903(4). 

       A.     OCS Takes Emergency Custody Of Jack In October 2004. 

              Lucy first came into contact with the Office of Children's Services (OCS) 

in November 2003 when Rick called OCS to express his concerns about the care of Jack. 

Rick alleged that Lucy had substance abuse and mental health problems, that she was 

leaving Jack with unsafe care providers, and that she was threatening to physically harm 

Jack if someone reported her to OCS.  After investigating Rick's report, OCS found that 

Rick's concerns about Lucy threatening harm to Jack were unsubstantiated. OCS closed 

the case after providing Lucy with referrals to programs for parenting, mental health, and 

relationship support. 

              OCS became directly involved in Jack's life in October 2004, when social 

worker Caroline Bruschi was called by the police to come to Lucy's home.  The police 

had been called to the home because of a reported sexual assault and found the home in 

disarray, with four intoxicated individuals present and one-year-old Jack in his crib in a 

very warm room with two bottles of sour milk.      His diaper was full, and his shirt was 

soaked with urine.     One of the individuals present in the home was a registered sex 

offender and had two children in OCS custody at the time.      None of the adults present 

would tell Bruschi where Lucy was, so Bruschi took custody of Jack and left her card so 

Lucy could contact her. 

              Lucy did not contact Bruschi until three hours later. Bruschi met with Lucy 

and was concerned that Lucy did not seem to understand the importance of closely 

investigating potential caretakers for Jack. 

              OCS filed an Emergency Petition for Adjudication of Child in Need of Aid 

and For Temporary Custody shortly thereafter, on October 12, 2004.  After a temporary 

                                            -3-                                      6530
 

----------------------- Page 4-----------------------

custody hearing, Superior Court Judge Patricia A. Collins set a date in January 2005 for 

the adjudication trial and awarded Lucy temporary custody of Jack with supervision by 

OCS.     Two days later Lucy left Jack with another caretaker whose children had been 

removed by OCS. 

        B.	    OCS Provides Assistance To Lucy In Parenting Jack: October 2004 - 
               February 2005. 

               On   October   15,   2004,   OCS   met   with  Lucy,   representatives   from   the 

Temporary Assistance for Native Families program, and representatives from the Central 

Council Tlingit and Haida Indian Tribes of Alaska ("Central Council") to discuss Lucy's 

case plan. The case plan recommended that Lucy undergo a substance abuse assessment 

at SouthEast Alaska Regional Health Consortium ("Health Consortium") and referred 

Lucy to a Central Council therapist named Amalia Monreal for assistance in developing 

healthy family and parenting choices.  The guardian ad litem (GAL), Janine Reep, also 

added a provision to the case plan asking that OCS provide Lucy with assistance in 

scheduling appointments, obtaining new housing, and securing a bus pass. 

               Lucy   submitted   to   a   substance   abuse   assessment   provided   by   Health 

Consortium counselor Albert Nells in mid-November.  Lucy admitted that she had four 

minor consuming charges and a larceny charge on her record, that there was domestic 

violence in her relationship with Rick, that she had checked herself into the hospital 

when she was suffering from depression, that she was consuming ten beers per night and 

had engaged in binge drinking with binges lasting as long as two weeks, and that she had 

been dishonorably discharged from the National Guard.             Nells issued his assessment 

report    on  December      8,  2004,   diagnosing    Lucy    with   alcohol   dependence     and 

recommending residential services in a therapeutic community, counseling for abuse 

issues, and additional evaluations for depression and traumatic brain injuries. 

                                               -4-	                                         6530
 

----------------------- Page 5-----------------------

                The OCS caseworker who took over Lucy's case, Stephanie Day, met with 

Lucy   in   late   November   2004.     At   the   time   Lucy   was   using   a   number   of   services, 

including Temporary Assistance for Native Families, food stamps, parenting and anger 

management classes, and childcare assistance. Lucy communicated with Day frequently 

through at least 2005.       Lucy also had a family caseworker from the Central Council, 

Larry Jackson, who was in regular communication with Day and Reep. 

                In January 2005 Lucy stipulated that Jack was a child in need of aid as a 

result   of   neglect   under   AS   47.10.011(9).   The   trial   court   then   issued   an   Order   for 

Adjudication and Disposition Based on Stipulation that adjudicated Jack as a child in 

need of aid and released him into Lucy's custody, subject to supervision by OCS. 

                Lucy completed inpatient treatment for substance abuse in Sitka during 

January and February 2005. Her aftercare recommendations included receiving intensive 

outpatient substance abuse and mental health treatment, following through with OCS and 

her parenting plan, finding a sponsor and attending Alcoholics Anonymous meetings, and 

following the care plan that she developed while in treatment. 

                Lucy    also   continued    to  have   access   to  other  services   through    OCS, 

including Catholic Community Services' Healthy Change Program, group and individual 

services with Monreal (the Central Council therapist), and a home-visiting pre-preschool 

program for Jack.      Although the GAL recommended that Lucy receive assistance in 

obtaining housing, Lucy had secured housing where she wished to remain. 

        C.	     Domestic Violence In Lucy's Relationships And Continued Services: 
                Spring - Fall 2005 

                After Lucy returned to Juneau following her treatment in February 2005, 

Rick moved in with Lucy, and they were engaged to be married.  Lucy became pregnant 

with the couple's second child, Carmen.            Lucy and Rick began having problems in 

March 2005 and called Day twice in the middle of arguments for help.  Day testified that 

                                                  -5-	                                          6530
 

----------------------- Page 6-----------------------

"there was growing concern about domestic violence in the relationship," that Lucy 

expressed that she was "afraid that [Rick] may pound her face in," and that Lucy told 

Day that Rick was threatening to commit suicide.  On March 31 Day drove Lucy to the 

AWARE shelter for domestic violence victims, and Day, Central Council, and AWARE 

assisted Lucy in obtaining an ex-parte domestic violence protective order against Rick 

in early April.     Despite taking this action, Lucy declined to participate in the healthy 

relationships class offered by AWARE that Monreal and Day recommended for her. 

                Lucy participated in the Healthy Change program for a few months until it 

ended in June 2005 because of a loss of funding. She also attended several AA meetings, 

but then stopped going even though Day encouraged her to join a group offered at a more 

convenient time. Lucy also had some involvement in a Parents Anonymous program but 

stopped attending because she believed the meetings were not helpful to her.  Lucy had 

a hard time remembering her appointments with Monreal and lost touch with Nells. 

                Day referred Lucy to another Catholic Community Services program that 

focused on family preservation, but it was full, so Michael Dindinger, the family support 

specialist at Catholic Community Services, offered a less-intensive individual family 

support     program    to  Lucy    from   August    2005    until  November      2005.    Dindinger 

interviewed both Lucy and Rick, who again had moved back in with Lucy for a brief 

period before returning to Skagway, and offered an initial assessment.              After Rick left, 

Dindinger assisted Lucy in creating a family safety plan, which she later declined to sign, 

provided   transportation   to   appointments   for   her,   and   helped   her   deal   with   public 

assistance.     Dindinger   discharged   Lucy   from   the   program   after   she   completed   it   in 

November 2005 but continued to have interactions with her until February 2006 and 

occasionally talked to her and offered her transportation. 

                                                  -6-                                           6530
 

----------------------- Page 7-----------------------

        D.      Lucy Relapses During Pregnancy With Carmen: Fall 2005. 

                Meanwhile,   in   summer   2005,   Day   considered   closing   Lucy's   case   and 

releasing custody because she "seemed to be doing well," there were no new concerns, 

and "she had a lot of supportive services in place." Around this time Lucy, who was then 

six months pregnant, began expressing that she was under a lot of stress and needed a 

break from caring for Jack.       In October 2005, a month before Carmen was born, Lucy 

disclosed to Day that she had been drinking one or two times a month beginning in June. 

                Day immediately tried to get Lucy into treatment at Rainforest Recovery 

Center, which offered to take her right away if Lucy could find a caretaker for Jack. 

Because Lucy did not want to put Jack in foster care, Lucy's brother came to care for 

Jack at Lucy's house, and Lucy entered treatment.  Rainforest Recovery recommended 

that Lucy receive long-term inpatient treatment and was working to help Lucy get into 

the Fairbanks Native Association program.  Although the Rainforest Recovery program 

was intended to last 21 days, Lucy stayed only three or four days.             Even though Lucy 

checked   out   of   their   program,   Rainforest   Recovery   submitted   Lucy's   paperwork   to 

Fairbanks Native Association and found out that Lucy was eligible. Rainforest Recovery 

asked Lucy to come in and finalize the paperwork so that she could begin treatment in 

Fairbanks on November 11.           Lucy did not show up to finish the paperwork, and she 

explained to Day that she "was not sure about going to treatment; that she felt treatment 

was stressful" and that the stress "would make her want to drink again." 

        E.	     Lucy     Gives   Birth   To   Carmen      And    Moves     To   AWARE        Shelter: 
                Fall 2005 - Spring 2006. 

                Lucy   gave   birth   to   her   second   child,   a   daughter   named   Carmen,   on 

November 24, 2005 in Sitka.         OCS received a report that Lucy told hospital staff that 

"she was looking forward to coming home, and she just wanted to smoke pot when she 

                                                 -7-	                                           6530
 

----------------------- Page 8-----------------------

came home."  OCS investigated and requested a drug test, which came back positive for 

marijuana use (THC). 

              On December 23, 2005, Day went to Lucy's residence for a home visit to 

see Lucy, Jack, and Carmen.  Day noticed that Jack "was not very communicative" and 

did not respond to her attempts to play with him.  Day was concerned by her observation 

and the fact that Lucy drank during her pregnancy with Carmen, so she made a referral 

for both children to an infant learning program. A week later, Lucy reported to Day that 

she was concerned that Jack may have been sexually abused by a babysitter who had 

been on probation for rape when he cared for Jack.    Lucy told Day that Jack had been 

fussy and upset after the man had babysat him and that Jack was touching his genitals 

and had diaper rash the next morning. 

              After discussing the matter with Reep and Jackson, Day asked Lucy to go 

to the AWARE shelter on December 31, 2005. Lucy eventually agreed, so Day provided 

Lucy with a $100 food voucher, helped her shop for groceries, and transported Lucy and 

the children to AWARE. 

              On January 4, 2006, OCS filed a Petition for Adjudication of Child in Need 

of Aid and for Temporary Custody, requesting OCS supervision of Carmen for a period 

not to exceed two years, and a Petition for Extension of Supervision Not To Exceed One 

Year, requesting that supervision of Jack continue for an additional year.   Following a 

hearing on January 9, 2005, the trial court issued a temporary custody order stating that 

there was probable cause to believe that Carmen was a child in need of aid; granting 

temporary physical custody to Lucy, subject to OCS supervision; and setting the date for 

the adjudication trial.  The parties (including the Central Council, whose motion to 

intervene was granted with regard to both children) stipulated that Carmen was a child 

in need of aid based on neglect under AS 47.10.011(9) on April 19, 2006. The trial court 

                                           -8-                                      6530
 

----------------------- Page 9-----------------------

ordered Carmen adjudicated a child in need of aid and released her into the custody of 

Lucy, subject to supervision by OCS. 

                Day testified that she was willing to allow the children to stay with Lucy 

because they were staying at the AWARE shelter with safe people around them until 

Lucy could begin long-term treatment.            Lucy left the AWARE shelter several times, 

however, and only returned after Day explained that she could either remain at AWARE 

or the children could go into state foster care.  The staff at AWARE was concerned with 

Lucy's ability to respond appropriately to Jack's behavior and provided her with some 

basic   techniques   to   help,   such   as   cuddling,   looking   into   his   eyes,   providing   brain 

stimulation for him, and learning         to read Jack's cues.      There were also concerns that 

Lucy was inattentive with Jack and that she was leaving him unattended, requiring staff 

or other residents to watch him. These concerns were reported to David Plotnik, the OCS 

social worker who took over Lucy's case in March 2006. 

        F.	     Staff At Residential Care Center And AWARE Shelter Report Neglect: 
                May 2006 - July 2006. 

                In May 2006 Lucy began treatment at Stepping Stones, a residential care 

center for women and their dependent children in Anchorage, where patients typically 

spend a year.     Lucy testified that Plotnik only gave her three days to pack and that she 

had to give up her apartment in Juneau.  She also had financial problems because, while 

Medicaid   paid   for   her   to   be   enrolled   in  Stepping   Stones,   she   had   to   pay   for   other 

expenses such as child care.        Because Lucy left Juneau, her Temporary Assistance for 

Native Families case was closed there and was not yet reopened in Anchorage, so she 

could not immediately receive assistance. 

                When Lucy arrived at the Stepping Stones shelter she tested positive for 

marijuana, although she indicated that she had not smoked for a month or two.                    Lucy 

immediately   began   to   have   problems   in   the  program.      She   was   late   getting   started 

                                                  -9-	                                           6530
 

----------------------- Page 10-----------------------

because Jack and Carmen had not had the required tuberculosis tests; she dropped off 

Jack at daycare inappropriately dressed and with a full diaper; she sent Jack to daycare 

without proper food that a child of his age could eat or without any food at all; she did 

not properly bathe Jack, but instead only got his head wet to make it appear that she had 

bathed him; and she did not attend process groups and healing circles and would often 

drop Jack off at daycare and go back to sleep.             Lucy was discharged from Stepping 

Stones in mid-July for causing a security breach by providing the security code for the 

whole facility to a homeless man.  As a result of the breach, all of the combination locks 

of the facility had to be "re-keyed."       The discharge letter to OCS stated that Lucy "is a 

danger to others and has not maintained the health of her child" and that the staff of 

Stepping Stones was "concerned about his health under [Lucy's] care." 

                When Lucy and the children returned to Juneau, Plotnik brought them back 

to the AWARE shelter, after reminding Lucy of the rules.              AWARE staff reported that 

Lucy would leave the children unattended and would ask other residents to "provide for 

[Carmen's] basic care."       Lucy failed to respond when Jack cried or when he attempted 

to exit the AWARE facility. 

        G.      Jack And Carmen Are Placed In Foster Care: July 2006. 

                A week after her discharge from Stepping Stones and after the negative 

reports from AWARE staff, OCS moved the trial court for modification of the court's 
January disposition orders, seeking to place the children in the custody of OCS.2                After 

a   hearing   in   mid-July   2006,   the   trial   court   found   that   OCS   had   made   "active   and 

        2       OCS's motion only requested modification of the trial court's January 9, 

2006 disposition order.   This order only pertained to Jack.  OCS's motion made it clear 
that it was seeking to modify both children's disposition orders, as it listed both children 
in the motion's heading.       The trial court read it as modifying the disposition orders of 
both children. 

                                                 -10-                                            6530
 

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reasonable efforts" to prevent removal of the children "but that continued placement in 

the home would be contrary to the children's welfare," that "there is clear and convincing 

evidence,   including   expert   testimony,   that   the   child[ren]  are   likely   to   suffer   serious 

physical or emotional damage if left in the custody of the parents," and that modification 

of the disposition to place the children in the physical custody of OCS would serve the 

children's best interests.   Jack and Carmen were then placed in foster care. 

                After Jack was taken into the state's custody, it was discovered that he 

needed extensive dental work.          He had four baby teeth removed and 11 filled - some 

of the teeth were decayed down to the nerve.  Although Lucy claimed it was because the 

foster parents were feeding Jack too much sugar, the dentist told OCS that such extensive 

decay must have started at birth.  The preschool Jack attended reported that after being 

taken into custody and having his teeth fixed, Jack was doing much better. 

        H.      Lucy Is Diagnosed With Static Encephalopathy: July 2006. 

                After a Stepping Stones staff member expressed concern that Lucy might 

have fetal alcohol syndrome, Lucy's team, including Lucy, Reep, Plotnik, and Jackson 

consulted Ric Iannolino, a Central Council staffer who coordinates the Juneau fetal 

alcohol     spectrum   disorder    (FASD)      clinic.  Iannolino     recommended        that  Lucy    be 

diagnosed.   Iannolino had already had contact with Lucy, as she had self-referred to the 

FASD clinic in 2005, but she did not tell him at that time that OCS was involved with 

Jack.   Lucy was evaluated at the FASD clinic by Dr. Mark Stauffer, a psychiatrist, and 

an    FASD     diagnosis    team    on   July   21, 2006.     Lucy     was    diagnosed     with   static 

encephalopathy, a non-progressive brain dysfunction which is essentially "brain damage 

that   is  a  major   component      of  [the  diagnosed     person's]    cognitive    and   behavioral 

problems"      that  may    or   may   not   have   been    caused    by  alcohol.    The     diagnosis 

recommended a consistent routine and structure, reinforced through a schedule, calendar, 

                                                  -11-                                            6530
 

----------------------- Page 12-----------------------

or white board, that would function as an "external brain."  Around this same time, Lucy 

met and began dating Andrew and left the AWARE shelter. 

                OCS   did   not   immediately   receive   a   copy   of   Lucy's   diagnosis   because 

Iannolino had to wait for Lucy to sign a release before he could disclose the information. 

Once OCS received the diagnosis, it rewrote Lucy's case plan into a one-page document 

that would be easier for her to understand.         OCS also held regular meetings with Lucy, 

the Central Council, the GAL, Lucy's attorney, and Lucy's family to provide ongoing 

support.      OCS   also   provided   some   one-on-one   mentoring   and  used   a   number   of 

strategies, including phone calls, face-to-face contact, and written documents, to remind 

Lucy of appointments, visitation changes, or tasks she needed to complete. Because OCS 

does   not   offer   specific   services   for   people   with   disabilities,   Karilee   Pietz,   an   OCS 

supervisor, made both telephonic and written referrals to REACH, which assists people 

with disabilities.    REACH made several attempts to set up an intake appointment with 

Lucy, but Lucy did not show up. 

        I.	     Lucy Misses Appointments And Refuses Services, OCS Has Problems 
                With Andrew, And Jack Begins Therapy: Fall 2006 - Fall 2007. 

                In October 2006 Pietz sent letters to Alaska Housing and Tlingit & Haida 

Housing, seeking housing for Lucy.  Lucy continued to miss appointments, even though 

OCS provided her with a bus pass.   She was also arrested for shoplifting on October 6. 

Pietz also sent letters to the SouthEast Alaska Regional Health Consortium requesting 

a substance abuse assessment and an MRI for Lucy, who was suffering from frequent 

headaches. The Health Consortium responded that they could not do the substance abuse 
assessment and that they could not do the MRI because Lucy was pregnant.3   Because 

Lucy did not return Rainforest Recovery's phone calls following OCS's referral for a 

        3       Lucy's pregnancy later ended in a miscarriage. 

                                                 -12-                                              6530 

----------------------- Page 13-----------------------

substance abuse assessment, Pietz scheduled one for her on November 20, 2006; Lucy 

did not show up for the assessment. 

               In December 2006, after Catherine Edwards took over Lucy's case, Lucy's 

relationship   with   Andrew   began   to   cause  problems   in   her   cooperation   with   OCS. 

Andrew began accompanying Lucy to meetings with OCS, but was hostile, disruptive, 

and discouraged her from participating in services. Several OCS staff asked that they not 

be assigned to visitation with Lucy because they felt intimidated by Andrew.             Further, 

Jack and Carmen were moved to a second foster home after the first foster home reported 

that Lucy and Andrew harassed them so much by calling, stopping by the house, and 

trying to visit with the children outside of the home that they could no longer serve as 

foster parents for the children.     In July 2007 Pietz (as the supervisor at OCS) wrote 

Andrew a letter telling him that he was no longer allowed at visitations or meetings in 

the   OCS    building   because    of  "repeated    incidents"   that  involved   Andrew     being 

"threatening and intimidating to the staff on many occasions." 

               In February 2007 Lucy went to Rainforest Recovery Center for a chemical 

dependency      analysis   and  urinalysis   tests. She    was   diagnosed    as  having   alcohol 

dependence in remission.      The outpatient substance abuse counselor who worked with 

Lucy noted that Lucy significantly minimized her chemical use in the 2007 assessment 

compared   to   the   information   she   provided  in   her   2005   assessment. The   counselor 

testified that "it's pretty difficult for someone who doesn't believe that they have a 

problem with substances to enter inpatient treatment," so the counselor recommended 

outpatient treatment to start.  Lucy was placed in outpatient services, but only attended 

three   scheduled   groups.     She   was   described   as   "marginally   engaged   and   focused 

primarily on hostility towards OCS for being 'forced to attend.' "  Lucy also refused to 

meet for individual counseling without Andrew present, and according to the counselor 

                                               -13-                                          6530
 

----------------------- Page 14-----------------------

Andrew was "really hostile" and "seemed to be supporting [Lucy's] efforts to discontinue 

treatment."    After Lucy discontinued outpatient treatment, Rainforest Recovery noted 

that it would refer her to intensive, residential, dual-diagnosis (meaning a program that 

could deal with both her static encephalopathy as well as her chemical dependency) 

inpatient treatment. 

                Also   during   February   2007   Edwards   referred   Jack   to   a   mental   health 

clinician, Sylvia Kidd.        Jack was aggressive toward his foster siblings, intentionally 

rough with animals, and defiant with adults.  He had problems at school, he had trouble 

sleeping   and   whimpered   at   night,   he   had  a   very   high   pain   tolerance,   he   was   often 

unresponsive and had a blank stare, he struggled with self regulation, and he apologized 

excessively. Kidd diagnosed Jack with post-traumatic stress disorder. She noted that his 

dissociative state, the "blank stare," was a typical coping response for young children 

who need to escape their present reality and that Jack had low communication skills with 

delayed   articulation   and   expression.      Kidd   worked   with   Jack's   second   set   of   foster 

parents on strategies to assist Jack with these behaviors. 

                At the end of February Lucy made contact with Kate Wolfe, the family 

resources director at REACH.   Lucy and Andrew met with Wolfe in March 2007.  Lucy 

explained that she "had to [go to REACH] and show that she had been there, and that she 

was   trying   to   get   her   children   back."  Wolfe   explained   that   Lucy   needed   to   have 

documentation to substantiate a disability, which Lucy did not bring to the meeting. 

Wolfe explained what services she could offer, and Lucy indicated that she did not wish 

to receive them. 

                At some point after quitting the outpatient treatment at Rainforest Recovery, 

Lucy told Edwards that she wished to return and get back into the groups there. Edwards 

contacted Rainforest Recovery, and they said that Lucy was disruptive and could only 

                                                  -14-                                             6530
 

----------------------- Page 15-----------------------

return if OCS would pay the $50 assessment fee and Lucy would commit to showing up. 

Instead of returning to Rainforest Recovery, Lucy entered the Central Council Wellbriety 

program in March 2007.  Lucy did this on her own, and OCS social worker Edwards did 

not find out about it until just before a custody extension hearing in May 2007.                 After 

learning of Lucy's participation in Wellbriety, Edwards agreed that it could fulfill Lucy's 

alcohol treatment requirement, depending on what a current assessment would say, but 

noted that a current assessment was the appropriate first step. 

                Lucy also met with Ric Iannolino on March 22, 2007 and signed a release 

form allowing her FASD diagnosis information to be shared with OCS.                    The next day, 

Iannolino sent Edwards a fax offering to share resources concerning parenting with 

FASD and then followed up with a second fax almost a month later.  Iannolino testified 

that OCS did not contact him specifically about Lucy's FASD diagnosis. 

                In May 2007 Edwards updated Lucy's case plan and developed a case plan 

for Andrew.  The case plan required Lucy to remain sober and participate in a substance 

abuse program that would address her disability, to use AWARE's services to address 

her   emotional   health   in   relationships,   to   participate   in   AA,   to   learn   and   implement 

effective   parenting   techniques   with   assistance   from   Dindinger,   and   to   secure   stable 

housing and a job to provide a basic income.  Andrew's case plan required him to seek 

a mental health assessment and a batterer's assessment and follow all recommendations 

from both assessments. 

                At the end of August 2007, OCS set up a family group decision-making 

meeting that included the Central Council, Reep, the foster parents, and some of Lucy's 

family   members.       Iannolino   was   invited   to   the   meeting,   but   did   not   attend. The 

participants considered Lucy and Andrew's housing, Lucy's FASD, the children's special 

                                                 -15-                                            6530
 

----------------------- Page 16-----------------------

needs, increased visitation, improved communication between the stakeholders, and 

improved cultural connections. 

                Lucy and Andrew were not in stable housing for most of 2007, despite OCS 

sending   letters   on   their   behalf. Edwards   testified   that   part   of   the   reason   Lucy   and 

Andrew had problems getting into housing was that "they set up an adversarial situation 

with the people right away and . . . become very hard for people to deal with . . . ." 

Edwards      offered   to  help   them,   but  they   consistently    refused   her  assistance.    In 

October 2007 Lucy finally secured stable housing on Douglas Island. 

                In fall 2007 social worker Leah Ogoy became Lucy's caseworker.                  Ogoy 

scheduled a meeting with Lucy and Andrew to update the case plan in late October, but 

Lucy and Andrew cut short the meeting and refused to discuss the case plan.  Lucy did 

not return any of Ogoy's calls to reschedule the meeting. 

        J.	     Emma Is Born And Lucy Has Encounters With Law Enforcement: 
                November 2007 - April 2008. 

                Shortly thereafter, in early November 2007, Lucy gave birth to Andrew's 

daughter Emma, her third child.        Because Lucy had a newborn, OCS approved Lucy's 

request to have her visits with Jack and Carmen take place at her home.                When Emma 

was   about   six   weeks   old,   OCS   received   a   protective   services   report   that   Lucy   and 

Andrew had been fighting and that Lucy left Andrew with the baby but without formula 

or diapers.   The report, which came from someone in the community, said that Andrew 

was feeding the baby Gatorade and that the baby looked malnourished.                   When police 

conducted a welfare check, they reported that the baby looked fine and had both diapers 

and formula.  Six days later, a police officer found Lucy intoxicated outside of a bar in 

Juneau in the cold.       A drunk man was holding Emma, and the officer observed Lucy 

leading the man with the baby back into the bar.  Emma appeared to have a full diaper, 

and her clothing and blanket were wet. The police called OCS and Andrew, and Andrew 

                                                 -16-	                                          6530
 

----------------------- Page 17-----------------------

took over care of Emma.    Lucy took a portable breath test and registered .233% breath 

alcohol, suggesting a high degree of intoxication. 

              In early 2008 Andrew called Ogoy and expressed his concerns about Lucy's 

drinking.   Lucy began staying with her mother, instead of with Andrew.  Lucy began to 

miss a number of scheduled visits with her children, even though they took place at her 

own house with transportation for the children provided by OCS or the Central Council. 

Ogoy updated Lucy's case plan and went over each item with her.       Ogoy testified that 

she believed that the most important part of Lucy's case plan was for Lucy to obtain 

substance abuse treatment, but that Lucy was not willing to recognize that she needed 

help and was not willing to obtain the recommended services.     Ogoy also testified that 

she attempted to contact Iannolino to discuss Lucy's FASD diagnosis, but Iannolino told 

her that the release that Lucy signed had expired in March 2008.    Lucy refused to sign 

a new release of information regarding her FASD assessments or contact with Iannolino. 

              Lucy's pattern of erratic behavior continued when she was found drunk 

during an April 2008 assault investigation involving her brother. A week later Lucy was 

scheduled to meet with her children but failed to show up.  Andrew said that Lucy was 

not there because she had been kicked out of her aunt's apartment for stealing beer and 

that Lucy had shown him bruises all over her arms and legs "from getting beaten up." 

Later that same day, Lucy was found intoxicated in a stranger's yard, resisted attempts 

by the police to put her in protective custody, and even attempted to unclasp the holster 

for the officer's pepper spray. The officer was forced to call for backup and Lucy was 

charged with disorderly conduct, but the charges were later dropped. 

       K.	    Unsupervised Visits Lead To Confusion And Stress For The Children: 
              May 2008 - August 2008. 

              Following these events, Ogoy was unable to reach Lucy until Ogoy went 

to Lucy's home on May 27.     Ogoy told Lucy that because OCS was no longer seeking 

                                           -17-	                                    6530
 

----------------------- Page 18-----------------------

reunification with Rick, the case plan was being formally changed to adoption.                      At the 

case review the next day, the foster mother described that Jack was masturbating until 

his penis bled.   The team also decided to continue allowing Lucy to have unsupervised 

visits with the children in her home. 

                 Despite   being   apprised   of   the   situation   with   Jack   and   the   fact   that   his 

counselor   was   working   with   him  on   it,   Lucy   and   Andrew   called   the   police   to   their 

residence during a later visit to report Jack's behavior.  Jack's later counseling sessions 

revealed that the police arriving to talk about his masturbation caused him a great deal 

of stress. During another visit in June, Lucy and Andrew took a jean jacket that Jack was 

wearing,   cut   off  the   sleeves,   and   drew   a   picture   of   a   shark   on   the   back   with   Lucy, 

Andrew, Jack, and Carmen's first names with Andrew's surname on it.  After the jacket 

was   finished,   it   was   given   to   Carmen.   In   his   counseling   sessions   with   Kidd,   Jack 

exhibited signs of confusion and stress both because of the use of Andrew's surname and 

because his jacket was taken and given to Carmen.  He was also confused about where 

his home was and where he belonged.               Lucy and Andrew also gave Jack a very short 

haircut that was uneven and choppy, which also caused him distress.                        Jack's foster 

parents reported that Jack was waking in the night screaming and crying and that his 

bladder and bowel control had regressed such that he was urinating and defecating in his 

pants. 

                 In   June   2008   Carmen   was   given   an   FASD   evaluation   because   Lucy 

admitted to drinking while she was pregnant with Carmen.                    Andrew, Lucy, Jack, and 

Emma attended the assessment along with Carmen, and Andrew eventually tried to stop 

it by being "very loud and aggressive" and claiming that OCS did not have custody of 

the children.   Iannolino asked Andrew to leave, but eventually had to call the police and 

have Andrew removed. 

                                                   -18-                                              6530
 

----------------------- Page 19-----------------------

                Also in June, Lucy enrolled in two classes through the Central Council, 

Positive Indian Parenting and Financial Literacy. She completed both of these programs 

in August. Ogoy tried several times to meet with Lucy and Andrew during August 2008, 

but they were not able to meet.         When her attempts to meet with them did not work, 

Ogoy wrote them a letter, which she hand delivered, and included an updated case plan 

and a list of service providers.      The case plan required that Lucy get current substance 

abuse and mental health assessments. 

        L.	     Lucy And Andrew Miss Visits And Foster Parents Wish To Adopt: 
                Fall   2008. 

                Lucy and Andrew were married in September 2008.                   Shortly thereafter, 

Andrew's mother died, so Lucy and Andrew could not visit with the children for a week. 

More cancellations followed, for a total of  five missed visits in September and two 

missed visits in early October. Because of the sporadic visits in September and October, 

the children's disappointment when visits were canceled, and concerns expressed by 

Jack's   counselor,   visitation   was   reduced   to   one   time   per   week   supervised   by   OCS. 

Because of the number of times that Lucy and Andrew were unavailable on the day of 

a visit, OCS worked out an arrangement where the children would not be picked up until 

Lucy and Andrew had arrived at OCS. 

                Jack    and    Carmen     have    been    in  their   current    foster  home     since 

December 2006.       The foster mother has worked as a therapist and has extra skills and 

training to assist with Jack's learning disabilities. At the time of trial, both children were 

receiving services for their special learning and developmental needs. The foster parents 

wish to adopt both children, and the children seem bonded to the entire foster family. 

The foster parents have also expressed willingness to allow the children to continue 

relationships with their biological parents and their half-sister, Emma, as well as be 

involved in tribal cultural activities. 

                                                 -19-	                                           6530
 

----------------------- Page 20-----------------------

         M.	     Lucy's      Parental      Rights    Are    Terminated        By    The    Trial    Court: 
                 August 2009. 

                 OCS filed a Petition for Termination of Parental Rights on July 11, 2008. 

The trial on the termination petition was held in December 2008 and January 2009.  The 

trial   court   ruled   that   "the   state   has   met  its   heavy   burden   of   proof   with   respect   to 

justification for termination of the mother's parental rights."  The court found that there 

was   clear   and   convincing   evidence   that   Jack   and   Carmen   were   and   continue   to   be 

children in need of aid under: AS 47.10.011(8), because "conduct by the parents [has] 

resulted in mental injury to the children and at least one of the parents have engaged in 

a   pattern   of   behavior,   including   exposure   to  significant   domestic   violence,   that   has 

caused serious mental injury to the children and continued exposure would expose the 

children to substantial risk of serious mental injury"; AS 47.10.011(9), because "conduct 

by   the   parents   subjected   the   children   to  neglect";   AS   47.10.011(10),   because   "the 

parent's     ability  to  parent    has   been   substantially    impaired     by   the  habitual    use   of 

intoxicants and the children were and are at substantial risk of harm should such behavior 

continue";      and   AS    47.10.011(11),      because    "mother     has   a  mental    disorder,    static 

encephalopathy, which is of a nature and duration that places her children at substantial 

risk of serious physical harm or mental injury."  The court also found that "[i]ncredible 

and active efforts were made by both the state and the tribe over the four years OCS had 

custody of these children to reunify the children with their mother."  Because the court 

found that the state had not presented sufficient evidence that ICWA standards had been 

met with respect to Rick, the court did not rule that the termination of parental rights was 

in the children's best interests and denied the petition without prejudice.  At the end of 

July 2009, after five months of working on a reunification plan, Rick consented to the 

adoption of Jack and Carmen by their foster family.                  The trial court explained in its 

August 2009 termination order "[b]ecause there is no longer any impediment to a best 

                                                    -20-	                                             6530
 

----------------------- Page 21-----------------------

interests finding" and because the children were thriving in their foster home, "it is in the 

children's best interests that [Lucy's] parental rights be terminated." 

                Lucy does not challenge the finding that the children have been subjected 

to conduct in the past that led to their designation as children in need of aid.  She instead 

appeals the trial court's findings that she has not remedied the conduct that placed the 

children   at   substantial   risk   of   harm   under   AS   47.10.011,   that   there   was   clear   and 

convincing evidence that OCS had provided active efforts toward reunification under 
ICWA,4 that there was evidence showing beyond a reasonable doubt that returning the 

children to Lucy would cause them serious emotional or physical harm, and that it was 

in the best interests of the children for Lucy's parental rights to be terminated. 

III.    STANDARD OF REVIEW 

                Before terminating parental rights under ICWA and the Child in Need of 

Aid (CINA) statutes and rules, a trial court must find by clear and convincing evidence 
that "the child has been subjected to conduct or conditions described in AS 47.10.011";5 

that the parent "has not remedied the conduct or conditions in the home that place the 

child at substantial risk of harm" or that the parent "has failed, within a reasonable time, 

to remedy the conduct or conditions in the home that place the child at substantial risk 
of physical or mental injury";6 and in the case of an Indian child, that "active efforts have 

been made to provide remedial services and rehabilitative programs designed to prevent 

        4       25 U.S.C.  1912(d) (2006). 

        5       AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).               Lucy does not appeal this 

finding. 

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

                                                 -21-                                            6530
 

----------------------- Page 22-----------------------

the   breakup   of  the   Indian   family   and   that these   efforts   have   proved   unsuccessful."7 

ICWA   also   requires   that   the   court   find   "by   evidence   beyond   a   reasonable   doubt, 

including testimony of qualified expert witnesses, 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, it must be determined by a preponderance of the evidence that "termination of 
parental rights is in the best interests of the child."9 

                In a CINA case, we review a superior court's findings of fact for clear 
error.10   The trial court's finding that a parent has failed to remedy the conduct that 

placed the child at substantial risk is generally a finding of fact that is reviewed only for 
clear error.11  Findings of fact are clearly erroneous if we are left "with a definite and firm 

conviction that a mistake has been made" after a review of the entire record in the light 
most   favorable   to   the  party   prevailing   below.12     We   review   whether   a   trial   court's 

findings satisfy the statutory requirements of the CINA and ICWA statutes de novo.13 

        7       25 U.S.C.  1912(d); CINA Rule 18(c)(2)(B). 

        8       25 U.S.C.  1912(f) (2006); CINA Rule 18(c)(4). 

        9       CINA Rule 18(c)(3); see also AS 47.10.088(c). 

        10      Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 502 (Alaska 

2009) (citing Brynna B. v. State, Dep't of Health & Soc. Servs., 88 P.3d 527, 529 (Alaska 
2004)). 

        11      Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 234 P.3d 1245, 1253 (Alaska 2010). 

        12      Brynna B., 88 P.3d at 529 (quoting A.B. v. State, Dep't of Health & Soc. 

Servs., 7 P.3d 946, 950 (Alaska 2000)). 

        13      Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 102 P.3d 932, 935 (Alaska 2004). 

                                                  -22-                                             6530
 

----------------------- Page 23-----------------------

                Whether OCS made active efforts as required by ICWA is a mixed question 
of law and fact.14   We review de novo whether the trial court's finding that active efforts 

were    made    failed   to  comport    with   ICWA     requirements.15      Similarly,    "[w]hether 

substantial evidence supports the trial court's conclusion that a child is likely to be 

seriously harmed if returned to her parent is a mixed question of fact and law, while 

whether the expert testimony requirement of [ICWA] is satisfied is a pure question of 
law" that we review de novo.16         We review issues that were not raised at trial only for 

plain error on appeal.17 

IV.     	DISCUSSION 

        A.	     The Trial Court Did Not Err In Finding That Lucy Did Not Remedy 
                The Drug And Alcohol Abuse And Neglect That Placed The Children 
                At Substantial Risk Of Harm. 

                The   trial   court   found   that   "there   is   clear   and   convincing   evidence   that 

[Lucy] has not remedied the conduct that placedthe children at substantial risk of harm." 

Alaska Statute 47.10.088(a) provides that in order to terminate parental rights, a court 

must find that the parent has "not remedied the conduct or conditions in the home that 

place the child at substantial risk of harm."  Alaska Statute 47.10.088(b) directs courts 

to   consider    any   fact  relating   to  the   best  interests   of  the   child  in  making     this 

determination, including: 

        14      Sandy B. v. State, Dep't of Health & Soc. Servs., 216 P.3d 1180, 1186 

(Alaska 2009). 

        15      Id.
 

        16
     Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

204 P.3d 1013, 1018 (Alaska 2009). 

        17      In re Adoption of L.E.K.M., 70 P.3d 1097, 1100 (Alaska 2003). 

                                                 -23-	                                           6530
 

----------------------- Page 24-----------------------

                 (1)     the   likelihood   of   returning   the   child   to   the   parent 
                within a reasonable time based on the child's 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. 

The trial court discussed each of the factors that led it to determine that Jack and Carmen 

were children in need of aid: Lucy's drug and alcohol abuse, her static encephalophathy, 

her neglect of the children, and her history of involvement with domestic violence. 

Because we affirm the trial court's findings with respect to Lucy's drug and alcohol 

abuse and neglect of the children, we do not reach whether Lucy failed to remedy the 

other two grounds for finding that Jack and Carmen were in need of aid. 

                 The trial court ruled in relevant part that Jack and Carmen were children in 

need   of   aid   because   Lucy's   "addiction   to   alcohol   and   marijuana   has   resulted   in   a 

substantial risk of serious mental and physical harm to her children."  The court pointed 

to several specific events, including Lucy's drinking while pregnant with Carmen and 

taking Emma to a bar while intoxicated, to demonstrate the type of harm that could result 

from Lucy's substance abuse problem. The court explained its conclusion that Lucy had 

failed to remedy this issue: 

                 Despite     multiple     treatment     programs,      [Lucy]    has    not 
                 maintained long-term sobriety and has hidden her continued 
                 drinking.     While it appears that she has maintained sobriety 
                 for   at   least   the   last   few   months,   she   appears   to   lack   the 
                 capacity   for   long-lasting   change.     While   [Andrew],   to   his 
                 credit, appears to have been instrumental in maintaining and 
                 encouraging        [Lucy's]     sobriety,     [Lucy's]     inability    or 
                unwillingness to take any responsibility for the harm caused 
                 to   her  children    by   her  history   of   alcohol   and   drug    use 

                                                   -24-                                              6530
 

----------------------- Page 25-----------------------

                 indicates   an   inability/unwillingness   to   embrace   long-term 
                 change.     [Lucy's]     refusal   to  enter   appropriate     long-term 
                 treatment similarly reflects a lack of commitment to change. 

                 Lucy argues that the trial court erred in finding a failure to remedy the 

conduct   that   led   to   Jack   and   Carmen   being   found   children   in   need   of   aid   under 
AS  47.10.011(10).18        Lucy seems to admit to alcohol use in April 2008, during the 

incident when she was found drunk during an assault investigation of her brother and 

when she was arrested for disorderly conduct after being intoxicated in a stranger's yard 

on April 21. She argues, however, that there were no children around during these binges 

and   that   her   alcohol   use   occurred   outside   of  the   home.    Lucy   argues   that   she   had 

demonstrated nine months of sobriety at the time of trial and that there was no evidence 

to support a finding that her use of alcohol had impaired her parenting. 

                 A review of the record shows that Lucy has struggled for years with alcohol 

abuse and dependency and has failed to undergo recommended assessments and fully 

engage in treatment programs provided to her. Lucy admitted to drinking while she was 

pregnant with Carmen and tested positive for marijuana use following Carmen's birth, 

        18       AS 47.10.011(10) states that a court may find a child to be in need of aid 

if: 

                 the parent, guardian, or custodian's 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; if a 
                 court has previously found that a child is a child in need of 
                 aid   under    this   paragraph,     the  resumption      of  use   of   an 
                 intoxicant by a parent, guardian, or custodian within one year 
                 after rehabilitation is prima facie evidence that the ability to 
                 parent is substantially impaired and the addictive or habitual 
                 use of the intoxicant has resulted in a substantial risk of harm 
                 to the child as described in this paragraph. 

                                                    -25-                                              6530
 

----------------------- Page 26-----------------------

after   leaving   her   treatment   program   at   Rainforest   Recovery   early.   She   also   tested 

positive for marijuana use in May 2006 at the Stepping Stones residential care facility 

- another program she did not complete.  Her February 2007 assessment indicated that 

Lucy was significantly understating her chemical usage, rather than admitting that she 

had a problem. Lucy only attended three sessions recommended as part of her outpatient 

services, and she was described as being "marginally engaged" and refused to meet for 

individual sessions without Andrew's presence.  Only six weeks after Emma was born, 

Lucy was found intoxicated with the baby outside of a bar in the cold.               A few months 

later, Lucy had the two alcohol-related encounters with law enforcement.  Although her 

children were not present at these incidents, one of them occurred on the same day that 

she missed a scheduled visitation with Jack and Carmen. Despite the requirements of her 

case plan, Lucy never underwent another  substance abuse assessment following the 

April 2008 incidents and did not complete the treatment programs recommended by her 

earlier assessment. 

                Lucy testified at trial in January 2009 that she was no longer using alcohol 

and that just a few days earlier, she had enrolled in a Wellbriety class similar to the one 

she had completed in September 2007 before her relapse.              Lucy repeatedly denied that 

she   had   an   alcohol   problem   and   denied   that  she   ever   smoked   marijuana.  She   also 

testified at trial that she "had taken AA meetings" recently, but provided no further 

information about her participation.         Lucy did not prove her sobriety prior to trial by 

submitting to random urinalysis testing. 

                Lucy's argument that the children were not present during her alcohol use 

has limited relevance.      We have clearly stated that the CINA "statute does not require 

                                                 -26-                                           6530
 

----------------------- Page 27-----------------------

that a child be present" when the substance use occurred.19  Lucy's behavior clearly had 

a negative impact on the children - she missed a visit with Jack and Carmen on the 

same day that she was arrested for being intoxicated. 

                Because the trial court is instructed by AS 47.10.088(b)(5) to consider the 

history of the parent's conduct and by AS 47.10.088(b)(4) to consider the likelihood the 

conduct will continue, the trial court's view that Lucy's history of treatment (and her lack 

of commitment to it) indicates that she has not embraced long-term change is not clearly 

erroneous.   Lucy does not dispute that her past substance use has placed her children at 

substantial risk of harm, and it is therefore likely that continued substance use would 

continue to place the children at risk. We conclude that the trial court's finding that Lucy 

failed to remedy her substance abuse is amply supported by the record and did not 

amount to clear error. 

                There is also ample evidence to support the trial court's finding that Lucy 

failed to remedy her neglect of the children.            Lucy's history of neglecting Jack and 

Carmen is well-documented by the record.              As the trial court found, Lucy "has been 

repeatedly reported for failing to properly feed, dress, clean, and supervise the children," 

and   has   repeatedly   left   the   children   with   inappropriate   caregivers. These   incidents 

include leaving Jack in the care of intoxicated individuals whose own children were in 

OCS   custody,   drinking   alcohol   while   pregnant   with   Carmen,   leaving   Jack   with   a 

caretaker who was on probation for rape, and failing to properly supervise and care for 

both children while living at the AWARE shelter and the Stepping Stones treatment 

center.     The   trial   court   correctly   considered   this   history   of   Lucy's   conduct   under 

AS 47.10.088(b)(5). 

        19      Barbara P. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 234 P.3d 1245, 1259 (Alaska 2010). 

                                                 -27-                                              6530 

----------------------- Page 28-----------------------

              Lucy argues that there have been no allegations of neglect since she left the 

AWARE shelter in summer 2006, that she and Andrew are parenting Emma successfully, 

and that she has completed a parenting class through the Central Council.          Lucy did 

complete a Positive Indian Parenting class in August 2008.  But Jack and Carmen were 

placed in foster care in the summer of 2006, so the absence of neglect allegations after 

summer 2006 has little relevance.      Furthermore, the incident where Lucy was found 

intoxicated with Emma outside a bar in the cold occurred in December 2007, well after 

the complaints from the AWARE shelter.        OCS allowed Emma to remain in Lucy and 

Andrew's custody after that incident only after it created a safety plan requiring Andrew 

(as opposed to Lucy) to maintain constant  supervision of Emma and to be Emma's 

primary caregiver.   Although there is some evidence that Lucy's parenting skills have 

improved since Emma's birth, Lucy's extensive history of neglecting Jack and Carmen 

and recent conduct with Emma demonstrates that she has not remedied the neglect that 

placed Jack and Carmen at substantial risk of harm.       The trial court's finding was not 

clearly erroneous.   Because a failure to remedy any of the conduct or conditions that led 
to a CINA finding is sufficient to support a termination order,20 we do not need to decide 

whether Lucy failed to remedy the conduct giving rise to the other CINA findings. 

       B.	    The Trial Court Did Not Err In Finding That Active Efforts Had Been 
              Made To Prevent The Breakup Of The Family. 

              Before parental rights can be terminated, ICWA requires that a court find 

by clear and convincing evidence that "active efforts have been made to provide remedial 

services and rehabilitative programs designedto prevent the breakup of the Indian family 

       20     See Alyssa B. v. State, Div. of Family & Youth Servs., 165 P.3d 605, 618 

(Alaska 2007) (holding that one CINA finding alone would support a termination order). 

                                            -28-	                                        6530 

----------------------- Page 29-----------------------

and that these efforts have proved unsuccessful."21  Whether OCS made active efforts is 

determined on a case-by-case basis.22    Generally, we will find that active efforts have 

been made where OCS "takes the client through the steps of the plan for reunification of 
the family"23 but decline to find active efforts where "OCS develops [a] case plan, but 

the client must develop his or her own resources towards bringing it to fruition."24    In 

evaluating whether OCS met its active efforts burden, a court may consider "a parent's 
demonstrated lack of willingness to participate in treatment"25 and look "to the state's 

involvement in its entirety."26 

              The trial court held that "[i]ncredible and active efforts were made by both 

the state and the tribe" toward reunification over the four years that OCS had custody of 

Jack and Carmen.  The court listed examples of some of these efforts: "multiple efforts 

to help [Lucy] secure safe housing, multiple referrals to alcohol treatment programs, bus 

passes for visitation, mentoring-style visitation facilitation, psychological examinations 

for [Lucy] and the children, Head Start, parenting education, tribal counseling in group 

and individual settings, and counseling for the children."  The court strongly disagreed 

       21     25 U.S.C.  1912(d) (2006); CINA Rule 18(c)(2)(B). 

       22     Wilson W. v. State, 185 P.3d 94, 101 (Alaska 2008). 

       23     Id. (quoting C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1219 

(Alaska 2001)). 

       24     Id. (quoting A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 

261 (Alaska 1999)) (internal quotation marks omitted). 

       25     Maisy W. v. State, Dep't of Health  & Soc. Servs., Office of Children's 

Servs., 175 P.3d 1263, 1268 (Alaska 2008) (quoting N.A. v. State, DFYS, 19 P.3d 597, 
603 (Alaska 2001)). 

       26     Maisy W., 175 P.3d at 1268. 

                                           -29-                                      6530
 

----------------------- Page 30-----------------------

with   any   suggestion   that   OCS   did   not   do   enough   to   assist   Lucy   given   her   mental 

deficiency. The trial court explained that Lucy's testimony made it clear she understands 

the consequences of drinking while pregnant or caring for her children and she is capable 

of initiating programs and accessing services when she wants to. 

                Lucy argues that because multiple social workers were assigned to her case, 

active efforts broke down after March 2006.  She describes OCS's efforts to provide her 

with inpatient substance abuse treatment at the Stepping Stones residential center as "a 

complete failure of active efforts" and claims that it was ill-planned and doomed her to 

failure.    She    also   argues    that  OCS    failed   to  incorporate     her  diagnosis    of  static 

encephalopathy into her case plan and provide her with the reasonable accommodations 
required under the Americans with Disabilities Act (ADA).27 

                We   have   already   described   many   of  the   efforts   made   by   OCS   and   the 

Central Council.   From its first involvement in this case in 2004, OCS remained actively 

engaged   in   assisting   Lucy.      OCS   developed   several   case   plans;   made   referrals   for 

services including substance abuse assessments, mental health services, parenting classes 

and support services, and substance abuse treatment; assisted Lucy in getting a bus pass 

and secure housing; helped Lucy get a protective order; and provided supervision for 

visits as well as transportation for the children for both supervised and unsupervised 

visits.   OCS also offered services to Andrew, such as offering to pay for day care for 

Emma, referring him to Central Council programs for at-risk families, and including him 

in its case plans.   Services were also offered to the children, including getting both Jack 

and Carmen involved with an infant learning program, providing Jack with extensive 

dental work, and giving Jack a referral to a mental health clinician (Kidd). OCS began 

        27      42 U.S.C.  12101-12213. 

                                                  -30-                                                6530 

----------------------- Page 31-----------------------

providing services to Lucy in 2004 and continued through trial five years later with no 

significant breaks. 

                Lucy argues that her static encephalopathy diagnosis should have changed 

OCS's active efforts.      She does not explain what OCS should have done differently, 

except that "OCS should have referred Lucy to Hope Industries Inc. and to Dena A. Coy 

for inpatient treatment" and that "with proper supports, explanation, and lead time Lucy 

would have been better able to process the plan."  But she admits that her diagnosis was 

incorporated into her October 2006 case plan after she signed the appropriate release so 

that OCS could receive the diagnosis.   Further, Rainforest Recovery tried to refer Lucy 

to a dual-diagnosis inpatient program but noted that she was non-compliant with even her 
outpatient treatment.28    OCS repeatedly referred her to various substance abuse treatment 

programs over a period of years.          Any argument that OCS failed to refer Lucy to a 

particular plan or to offer her more explanation or lead time is simply not persuasive. 

                Lucy's second argument is that OCS failed to reasonably accommodate her 

disability    (static  encephalopathy)     under    the  requirements     of  the  Americans     with 
Disabilities Act (ADA).29      Lucy alleges two specific instances of OCS's failure in this 

regard: (1) the lack of reference to the static encephalopathy/FASD diagnosis in the 

May   2007   case   plan   and   (2)   the   problems   with   communication   between   OCS   and 

Iannolino at the FASD clinic.          Lucy argues that, in order to fulfill the active efforts 

        28      See Maisy W., 175 P.3d at 1268 (holding that the court can consider a 

parent's lack of willingness to participate in treatment).  Lucy indicated a willingness to 
participate only in AA meetings or a "Talking Circle" group, but refused to continue 
outpatient treatment that required UA tests and breathalyzers.  The Rainforest Recovery 
substance   abuse   counselor   also   noted   that   Lucy   was   minimizing   her   substance   use 
instead of admitting that she had a problem and seeking recovery. 

        29      42 U.S.C.  12101-12213. 

                                                -31-                                            6530
 

----------------------- Page 32-----------------------

requirement, OCS needed to connect her with service providers who could have assisted 

with her diagnosis. 

                Our    case   law   and   the  internal   policies   of  OCS     suggest   that   family 

reunification services should be provided in a manner that takes a parent's disability into 

account.     Title II of the ADA provides, in pertinent part, that "no qualified individual 

with a disability shall, by reason of such disability, be excluded from participation in or 

be denied the benefits of the services, programs, or activities of a public entity, or be 
subjected   to   discrimination   by   any   such   entity."30  In  C.W.   v.   State,   Department   of 

Health & Social Services  we noted that "[t]he Code  of Federal Regulations and the 

federal case law uniformly suggest that the reunification services provided by [the state] 
are 'services' within the contemplation of Title II."31         The OCS policy manual similarly 

states that "[n]o qualified individual with a disability shall be excluded, by reason of such 

disability, from participation in or be denied the benefits of the services, programs, or 
activities of [OCS]"32 and that "[OCS] shall operate each of its services, programs, and 

activities so that a service, program, or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with disabilities."33 

        30      42 U.S.C.  12132 (2006). 

        31      23 P.3d 52, 55 (Alaska 2001); accord In re Adoption of Gregory, 747 

N.E.2d 120, 126   (Mass. 2001) (concluding that the ADA, as well as state law, requires 
the   state  to  accommodate        a  parent's   disability   in  services   provided    prior   to  the 
termination of parental rights); In re Terry, 610 N.W.2d 563, 570 (Mich. App. 2000) 
(holding that reunification services provided by the state must comply with the ADA). 

        32      ALASKA OFFICE OF CHILDREN'S SERVICES, CHILD PROTECTIVE SERVICES 

MANUAL  6.1.14(a) (2010), available at http://www.hss.state.ak.us/ocs/Publications/ 
CPSManual/cps-manual.pdf. 

        33      Id.  6.1.14(c). 

                                                  -32-                                            6530
 

----------------------- Page 33-----------------------

                In J.H. v. State, Department of Health & Social Services, however, we 

intimated that an independent analysis under the ADA may be unnecessary to review 

whether OCS's efforts properly considered a parent's disability.  In that case we stated 

that, assuming for the sake of argument that the ADA applied to CINA proceedings, the 

"requirement   that   [OCS]   make   reasonable  efforts   to   provide   [a   parent]   with   family 

support     services    appears     to  be   essentially    identical   to   the   ADA's     reasonable 
accommodation requirement."34           Therefore the question whether reunification services 

reasonably accommodated a parent's disability is already included within the question 
whether active or reasonable35 efforts were made to reunite the family.  In other words, 

if OCS "fails to take into account the parents' limitations or disabilities and make any 

reasonable accommodations, then it cannot be found that reasonable efforts were made 
to reunite the family."36      In order to "take[] the client through the steps of the plan for 

        34      30 P.3d 79, 86 n.11 (Alaska 2001); accord In re Terry, 610 N.W.2d at 570 

(noting that the analysis of whether the state has made reasonable efforts is "consistent 
with the ADA's directive that disabilities be reasonably accommodated"). 

        35      In cases involving a non-Indian child, the court must find that OCS made 

"reasonable" efforts to reunify the child with the parent.              AS 47.10.088(a)(3); CINA 
Rule 18(c)(2)(A); Tara U. v. State, Dep't of Health & Soc. Servs., Office of Children's 
Servs., 239 P.3d 701, 704 (Alaska 2010). 

        36      In re Terry, 610 N.W.2d at 570;see also In re Antony B., 735 A.2d 893, 899 

n.9   (Conn.   App.   1999)   (noting   that   the   requirement   to   make   reasonable   efforts   at 
reunification "includes taking the parent's mental condition into consideration"); In re 
Torrance P., 522 N.W.2d 243,            245 (Wis. App. 1994) (holding that the requirement to 
make   a   diligent   effort   to   provide   services  must   be   examined   in   light   of   a   parent's 
cognitive limitations). 

                                                  -33-                                             6530
 

----------------------- Page 34-----------------------

reunification"37     in   a   way   that   will   satisfy   the   active   efforts   requirement,   OCS   must 

reasonably tailor those steps to the client's individual capabilities. 

                   In   this   case,   there   is   abundant   evidence   that   OCS   fulfilled   whatever 

responsibility it may have had to accommodate Lucy's disability.                 Lucy was provided 

with extensive services over a lengthy period of time that took her disability into account. 

OCS   rewrote   Lucy's   case   plan   after   her   diagnosis   to   present   the   information   in   a 

straightforward way that highlighted the most important elements, and assisted Lucy in 

meeting her basic needs such as stable housing.  OCS also referred Lucy to REACH to 

get assistance with her disability, but Lucy failed to substantiate her disability when she 

finally visited REACH and then refused the services they offered. Finally, OCS provided 

Lucy with one-on-one mentoring, using phone calls, face-to-face contact, and written 

documents to remind Lucy of appointments, visitation changes, and tasks that she needed 

to complete - techniques recommended by her FASD diagnosis. 

                Although the record does demonstrate that there were some difficulties in 

communication between Iannolino at the FASD clinic and OCS, the record is also clear 

that OCS included Iannolino in one of Lucy's team meetings and invited him to attend 

the family group decision-making meeting that took place in August 2007.  On at least 

two of the occasions that OCS contacted Iannolino about Lucy, right after the diagnosis 

and again in December 2008, Lucy had not executed a current release of information that 

would allow Iannolino to discuss Lucy's diagnosis with OCS.                  After Lucy's diagnosis 

was made known to OCS, all of her case plans made recommendations related to her 

        37       Wilson W. v. State, 185 P.3d 94, 101 (Alaska 2008) (quoting C.J. v. State, 

Dep't of Health & Soc. Servs., 18 P.3d 1214, 1219 (Alaska 2001)). 

                                                  -34-                                               6530 

----------------------- Page 35-----------------------

mental deficiency.38  Further, as the trial court held, Lucy's "testimony at trial made clear 

that she is capable of and has initiated programs when she wants to."        Lucy's repeated 

failures to complete the elements of her case plan, engage in meaningful substance abuse 

treatment, and show up for meetings that OCS had arranged for her provided the trial 

court with evidence that she was more hindered by her unwillingness to participate in the 

plan than she was by a lack of capacity to do so. 

               Whether the issue is framed as a reasonable accommodation or simply as 

active efforts tailored to the individual case, OCS made remarkable and exemplary efforts 

to prevent the breakup of Lucy's family.  The trial court did not err in finding that OCS 

made the active efforts required by ICWA. 

       C.	     The Trial Court Did Not Err In Finding That Returning The Children 
               To   Lucy   Was   Likely   To   Result   In  Serious   Emotional   Or   Physical 
               Harm. 

               The trial court held that "return of the children to [Lucy's] care poses virtual 

certain harm, both emotional and physical, to the children." The court pointed to Lucy's 

unresolved substance abuse, for which she had refused to enter long-term treatment, and 

her other conduct that could be dangerous  to the children's physical and emotional 

health, including leaving the children with unsafe caregivers, missed visits, and actions 

such as the jacket and hair-cutting incident that confused and upset the children.        The 

       38      Lucy contends that the May 2007 case plan "completely ignored the FAS 

finding and disability altogether."  This is false, as the May 2007 plan mentioned Lucy's 
"underlying     mental  health,  cognitive,   and emotional    issues"  and   required  her  to 
"complete a drug and alcohol residential program that will address her disability needs." 
Such a dual-diagnosis program would have specifically provided assistance tailored to 
a person with her cognitive limitations. Lucy elected not to enter such a program or even 
continue outpatient substance abuse treatment, despite Rainforest Recovery's offer of a 
referral in February 2007. 

                                             -35-	                                       6530
 

----------------------- Page 36-----------------------

court concluded that there was a great risk of emotional harm for Jack and Carmen if they 

were returned to the home. 

                Lucy makes two arguments: first, that the expert testimony requirement of 

ICWA was not satisfied by the testimony presented during trial, and second, that the trial 

court's finding that there was evidence beyond a reasonable doubt that Jack and Carmen 

were likely to suffer serious harm if returned to Lucy's care was clearly erroneous. 

                ICWA requires that a court find "beyond a reasonable doubt, based on 

evidence that includes testimony of qualified expert witnesses, that the continued custody 

of the child by the parent or Indian custodian is likely to result in serious emotional or 
physical damage to the child."39         This finding requires both proof that "the parent's 

conduct is likely to harm the child, and proof that it is unlikely the parent will change her 
conduct."40    The trial court is able to aggregate testimony from expert witnesses, lay 

witnesses, and other evidence to meet this ICWA proof requirement.41 

                This    strong   standard    of  proof  reflects   Congress's     intended    goal   of 

preventing the breakup of Native families "solely on the basis of testimony from social 

workers who lacked the familiarity with Native culture necessary to distinguish between 

the cultural and social standards prevailing in Indian communities and families and actual 
abuse or neglect."42    A witness can be qualified as an expert under ICWA because of her 

        39      Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 503 (Alaska 

2009). 

        40      Id. 

        41      Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

204 P.3d 1013, 1020 (Alaska 2009). 

        42      L.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 951 (Alaska 2000) 

(internal quotation marks omitted). 

                                                 -36-                                           6530
 

----------------------- Page 37-----------------------

personal contact with Native cultures or experience working with such cultures.43                      We 

have held, however, that "[w]hen the basis for termination is unrelated to Native culture 

and society and when any lack of familiarity with cultural mores will not influence the 

termination   decision   or   implicate   cultural   bias   in   the   termination   proceeding,   the 

qualifications of an expert testifying under  1912(f) need not include familiarity with 
Native culture."44 

                 In this case, the trial court accepted the testimony of Sylvia Kidd, Sharon 

Fleming, Karilee Pietz, and Leah Ogoy as fulfilling the ICWA requirement.                        At trial, 

there was only an objection to Ogoy being qualified as an expert, and the court limited 

her    qualification    to  being    an   expert   on   child   development       only.    Because      the 

qualifications of the experts other than Ogoy were not challenged at trial, we review such 
qualifications only for plain error.45         We consider whether the qualification of Kidd, 

Fleming, and Pietz amounted to plain error, and whether their testimony was sufficient 

to support the trial court's finding.        Such plain error exists in a CINA case where "an 

obvious   mistake   has   been   made   which   creates   a   high   likelihood   that   injustice   has 
resulted."46 

                 Sylvia Kidd was qualified as an expert without objection from Lucy.  Kidd 

was   recognized   as   an   expert   in   mental   health,   has   a   master's   degree   in   community 

psychology, has significant work experience, is a licensed professional counselor, and 

has received other relevant training.            It is noteworthy that Kidd also has experience 

        43      Id. 

        44      Marcia V., 201 P.3d at 503. 

        45      See id. Because Ogoy was objected to at trial, we will consider whether the 

other expert testimony was sufficient to sustain the trial court's finding. 

        46      Id. at 502 (quoting Miller v. Sears, 636 P.2d 1183, 1189 (Alaska 1981)). 

                                                   -37-                                                6530 

----------------------- Page 38-----------------------

working for the Tanana Chief's Conference Counseling Center in Fairbanks and has 

some experience working with Native populations.                There was no objection to Kidd's 

expertise at trial and no indication that her testimony created the high likelihood of 

injustice required to reverse under the plain error standard.            Kidd diagnosed Jack with 

post-traumatic stress disorder and explained a number of problems Jack had experienced. 

She also testified that incidents that happened in Lucy's home not long before trial, 

including the jacket and hair-cutting incidents, distressed and confused Jack. Finally, she 

testified that Jack's hyperactive stress response made him susceptible to emotional harm 

from problems in the home.  This offers at least one concrete reason why it was possible 

for Emma to remain in the household, but why there was still serious risk involved in 
returning Jack and Carmen.47        Kidd also praised the progress Jack was making in foster 

care.    Kidd admitted that she had not met with Lucy, but expressed her concern about 

Lucy's   recent   behavior,   including   missed   visits   and   her   failure   to   undergo   alcohol 

treatment. 

                Fleming holds a masters in social work, has worked at OCS for six years, 

has served as a supervisor for four years, is licensed by the State of Alaska as a masters 

        47      Lucy argues that because Emma remains in the household, there cannot be 

conduct or conditions which make it likely that Jack and Carmen will suffer serious 
physical or emotional harm.        Because this case is not about Emma and the record does 
not offer a full picture of Emma's contact with OCS and her case, it is impossible to 
compare these situations.  We need only ensure that the CINA and ICWA requirements 
are met for parental termination with regard to Jack and Carmen, rather than reviewing 
Emma's situation. Whether it is possible for Emma to remain in the household is legally 
and factually irrelevant.  Despite Lucy's attempts to analogize this case to the situation 
in C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214 (Alaska 2001), in that case 
there was not sufficient evidence or expert testimony to support a finding that placement 
with   the   parent   was   likely   to   result   in   serious   physical   or   emotional   damage   to   the 
children.    The adequacy of the evidence is the salient question that we considered, not 
the fact that the parent in C.J. was successfully parenting another child. 

                                                  -38-                                            6530
 

----------------------- Page 39-----------------------

level   social   worker,   and   has   had   many   trainings,   including   some   that   were   ICWA 

specific.  She came into contact with this case as Ogoy's supervisor in 2007 and most of 

her involvement was supervisory in nature, except to assist when Ogoy was out of the 

office, but she did have some direct contact with the case participants.  Fleming also had 

reviewed the entire case file and heard almost all of the evidence presented at trial. 

While   it   is   not   clear   that   Fleming   has   "expertise   beyond  the   normal   social   worker 
qualifications,"48 Lucy abandoned this issue at trial by failing to object to Fleming's 

qualification as an ICWA expert. As we held in a similar situation in Marcia V. v. State, 

because it was possible to infer from Fleming's known qualifications that she possessed 

the qualifications necessary under ICWA, it was not plain error for the trial court to 
accept Lucy's acquiescence.49 

                Fleming offered clear testimony on the ultimate issue: "My opinion [is] that 

the children would be at significant risk of physical and emotional harm if returned to 

[Lucy's] care."  Fleming listed her reasons why:  Lucy's untreated substance abuse; her 

use   of   alcohol   during   the   pregnancy   with  Carmen;   her   relapse   in   spring   2008;   her 

impaired judgment and lack of intellectual capacity; her repeated decisions to leave her 

children with unsafe or unknown caregivers; her poor judgment with respect to her 

children; her unrealistic expectations of her children, which lead her to place them in 

unsafe situations; her prioritization of her own needs before her children's needs; and her 

inability to provide the kind of consistent home that her children with special needs 

require, given her mental deficiency. 

        48      Marcia V., 201 P.3d at 504. 

        49      Id. at 505. 

                                                   -39-                                                6530 

----------------------- Page 40-----------------------

                 Finally, Pietz was qualified as an expert in social work: She served as 

licensed social worker in Minnesota for eleven and a half years before beginning at OCS 

as a supervisor in 2006.   She also had several years of experience working with children 

and   adults   with   developmental   disabilities.      As   with   Fleming   and   Kidd,   there   is   no 

indication that it was plain error to allow Pietz's qualification as an expert. Further, Pietz 

served mainly as a fact witness, although she did offer several opinions, including that 

Lucy had the ability to participate in services but was simply unwilling to engage in most 

of them. She also testified about her concern that Lucy struggled and was sometimes not 

able to meet her own basic needs, and that this would result in Lucy not being able to 

meet the basic needs of the children.  Even if both Pietz and Ogoy were considered only 

fact witnesses, the expert testimony of Kidd and Fleming, given that their qualification 

did   not   amount   to   plain   error,   would   be   sufficient   to   meet   the   expert   testimony 

requirement under ICWA. 

                 The testimony of these three witnesses, aggregated with the other evidence 

and   testimony   of   lay   witnesses,   was   sufficient   evidence   to   support   the   trial   court's 

holding that returning the children to Lucy's care was likely to result in serious emotional 

or physical harm. Therefore, we do not need to address Lucy's challenge to Leah Ogoy's 

qualification as an expert. 

        D.	      The Trial Court Did Not Err In Finding That Termination Of Lucy's 
                 Parental Rights Was In The Children's Best Interests. 

                 Before   parental   rights   are   terminated,   a   court   "shall   consider   the   best 
interests    of   the  child."50   Termination       is  only   possible    when    OCS     proves   "by    a 

preponderance of the evidence that termination of parental rights is in the best interests 

        50       AS 47.10.088(c). 

                                                   -40-	                                                6530 

----------------------- Page 41-----------------------

of the child."51   The trial court found that because of the struggles that the children had 

in Lucy's care and because the children are thriving in their foster home, it was in Jack 

and Carmen's best interests for Lucy's parental rights to be terminated. 

                Lucy argues that because Jack and Carmen are Indian children, a more 

complex evaluation of their best interests is required that includes consideration of the 

importance of having the child raised within the Indian child's community. She contends 

that Bureau of Indian Affairs guidelines require that an Indian child should be outside of 

an Indian home only in extraordinary cases.          OCS responds that ICWA itself does not 

require a determination that termination is in the child's best interests, and that this 
requirement instead arises only under State law.52 

                An argument similar to Lucy's was raised in Jacob W. v. State, Department 
of   Health   &   Social   Services,   Office   of   Children's   Services.53   In   an   unpublished 

memorandum opinion, we held that while "ICWA requires that preference be given - 

in absence of good cause to the contrary - to members of the child's extended family 

or to someone otherwise affiliated with the child's Indian tribe . . . . [T]his specifically 

applies to placement of an Indian child; nothing in ICWA requires consideration of 
placement options in determining whether to terminate parental rights."54  We have also 

previously indicated that we will consider separately a challenge to a termination order 

        51      CINA Rule 18(c)(3). 

        52      AS 47.10.088(c); CINA Rule 18(c)(3). 

        53      Mem. Op. & J. No. 1319, 2008 WL 5101809 (Alaska, Dec. 3, 2008). 

        54     Id. at *9. 

                                                -41-                                            6530
 

----------------------- Page 42-----------------------

and a challenge to a placement decision.55  Accordingly, we proceed with our review of 

the   trial   court's   finding   that   termination   of  Lucy's   parental   rights   was   in   Jack   and 

Carmen's best interests. 

                Jack and Carmen have been out of the home since July 2006, when Carmen 

was eight months old and Jack was almost three years old.                Both children have special 

needs and returning them to the home would place them at substantial risk of harm. 

Jack's behavior following recent visits, including waking in the night screaming and 

losing control of his bodily functions, suggests that he remains under stress when with 

Lucy for even short visits.       Jack's therapist suggested that being in a situation where 

Andrew   and   Lucy   fight   would   cause   him   increased   emotional   harm   because   of   his 

hyperactive stress response. 

                In their current placement, both children are receiving services to assist with 

their special developmental and learning needs.  Jack and Carmen's foster parents wish 

to adopt them, and there was testimony to support the trial court's conclusion that the 

children are bonded to their entire foster family. The foster mother has special skills and 

training as a therapist to provide the children with additional assistance.  The testimony 

of Fleming and Kidd provided adequate evidence to support the trial court's finding that 

the children are thriving in their foster home and removing them would be contrary to 

their best interests.     This is an appropriate consideration, as "the fact that a child has 

        55      Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 165 P.3d 605, 617 (Alaska 2007) (refusing to review a placement review decision 
as part of a termination proceeding because the placement decision was a final and 
appealable order). 

                                                  -42-                                               6530 

----------------------- Page 43-----------------------

bonded with her foster parent can be a factor in considering whether it is in the child's 
best interests to terminate a parent's rights."56 

                Given the importance of consistency and stability in the lives of children 

with special needs and the combination of both historical harm and the likelihood of 

future harm to the children if they were returned to their mother's care, there is sufficient 

evidence to support the trial court's finding that terminating Lucy's parental rights was 

in the best interests of the children.  The trial court's finding was not in error. 

V.      CONCLUSION 

                For   the   foregoing   reasons,   we   AFFIRM   the   trial   court's   decision   to 

terminate Lucy's parental rights with respect to Jack and Carmen. 

        56     Karrie B. ex rel. Reep v. Catherine J., 181 P.3d 177, 185 (Alaska 2008). 

                                                -43-                                             6530 
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