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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pravat P. v. State, Dept. of Health & Social Services, Office of Children's Services (2/18/2011) sp-6540

Pravat P. v. State, Dept. of Health & Social Services, Office of Children's Services (2/18/2011) sp-6540, 249 P3d 264

        Notice:  This opinion is subject to correction before publication in the PACIFIC REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 
        K   Street,   Anchorage,   Alaska   99501,   phone   (907)   264-0608,   fax   (907)   264-0878,   e-mail 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

PRAVAT P.,                                     ) 
                                               )       Supreme Court No. S-13798 
                        Appellant,             ) 
                                               )       Superior Court Nos. 
        v.                                     )       3AN-06-00225/00226/00227 CP 
                                               ) 
STATE OF ALASKA,                               )       O P I N I O N 
DEPARTMENT OF HEALTH &                         ) 
SOCIAL SERVICES, OFFICE OF                     ) 
CHILDREN'S SERVICES,                           ) 
                                               ) 
                        Appellee.              )       No. 6540 - February 18, 2011 
                                               ) 

                Appeal from the Superior Court of the State of Alaska, Third 
                Judicial District, Anchorage, Sharon Gleason, Judge. 

                Appearances:         Christi    A.   Pavia,    Pavia   Law     Office, 
                Anchorage,      for  Appellant.     Megan      R.  Webb,    Assistant 
                Attorney     General,    Anchorage,      and   Daniel   S.   Sullivan, 
                Attorney General, Juneau, for Appellee. 

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

                CARPENETI, Chief Justice. 

I.       INTRODUCTION 

                A Laotian father challenges the termination of his parental rights to his three 

boys who qualify for protection under the Indian Child Welfare Act.  The superior court 

found the children to be in need of aid due to a history of domestic violence and neglect. 

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

It found (1) that the father had not remedied his conduct, (2) that returning the children 

to the father's custody would likely result in serious emotional or physical damage, (3) 

that termination of parental rights would be in the best interests of the children, and (4) 

that the State made active efforts to reunify the family.  Because on appeal the father has 

not shown clear error in the superior court's factual findings, and because these findings 

meet the evidentiary thresholds required by Indian Child Welfare Act and Alaska's Child 

in Need of Aid statutes and rules, we affirm the superior court's termination of the 

father's parental rights. 

II.     FACTS AND PROCEEDINGS 

        A.      Facts 
                Pravat1 was born in Laos in 1957 and immigrated to the United States in 

1981.     He is the father of three boys who are "Indian children" under the terms of the 
Indian   Child   Welfare   Act   (ICWA).2     Mark   and   Jung   were   born   in   2001   and   2002, 

respectively, to Molly, a Native Alaskan who died in 2007.  Reese was born in 2006 to 

Stella, a Native Alaskan who relinquished her parental rights in 2008. Only Pravat's 

parental rights are at issue in the present case. 

                All three of the children have experienced serious developmental delays and 

other health problems.  Molly, who died of alcohol poisoning in 2007, used alcohol and 

drugs while she was pregnant with Mark and Jung.  Mark has been diagnosed with static 

encephalopathy, a non-progressive brain dysfunction which impairs his cognitive and 

motor functions.  He also has Post-traumatic Stress Disorder and Oppositional Defiance 

Disorder.   He has a history of intestinal blockages, possibly due to poor nutrition while 

in his father's care.  He has trouble sleeping, and his doctor's testimony suggested that 

        1       Pseudonyms have been used throughout the opinion to protect the privacy 

of the family. 

        2       25 U.S.C.  1903(4). 

                                                 -2-                                             6540 

----------------------- Page 3-----------------------

Mark hallucinates.   He also has a history of sexually acting out, including inappropriate 

behavior with his foster parents' pets, his brothers, and other children. 

              Like Mark, Jung has static encephalopathy, various behavioral disorders, 

and bowel problems.     There is also evidence in the record of Jung grabbing women's 

breasts, smearing feces on the wall, exposing his genitals, and placing his finger in 

Mark's bottom. 

              Stella, Reese's mother, was also diagnosed with Fetal Alcohol Spectrum 

Disorder.   She was a teenage babysitter when Pravat impregnated her.  She has admitted 

to a problem with alcohol and cocaine, and Pravat stated to Cook Inlet Tribal Council 

that he cut crack cocaine for her.  But it is unclear whether she exposed Reese to alcohol 

or drugs in utero.  When Reese was first removed from Pravat's custody in 2006, he 

showed "obvious signs of neglect."  The back of his head was flat from lying on his back 

much of the time rather than being held.   The shape of Reese's head began to improve 

during his time in foster care.  Reese also has been diagnosed with Oppositional Defiant 

Disorder    and   Attention  Deficit  Hyperactivity   Disorder.    All   three  boys   have 

Individualized Education Plans in their respective schools to address their special needs. 

              Pravat's children have a long history of involvement with the Office of 

Children's Services (OCS). Shortly after Jung's birth in 2002, Pravat came home to find 

that Molly was drunk and had severely beaten Mark and Jung.  Pravat then hit her.   The 

children were hospitalized for several days due to head injuries.      Jung had suffered 

multiple facial lacerations, contusions on his face and scalp, a retinal hemorrhage, and 

a subdural hematoma.      The children were released to Pravat's sole physical custody, 

although OCS continued to supervise the family until 2004.  Once OCS closed the case, 

government services were discontinued because of Pravat's failure to follow through 

with efforts to improve his children's home environment. 

                                            -3-                                      6540
 

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

                In May 2005 OCS received a report alleging that "the living conditions of 

[Pravat's] home were unsuitable for children." The report stated that the home "did not 

have a working toilet and the children are  frequently sick."               In February 2006 OCS 

received a "Child at Risk" report from the Alaska Native Medical Center.                    The report 

stated that Mark and Jung were dirty, with a "breakdown to skin due to prolonged contact 

[with] stool." It also stated that the "father [is] unable to care for children appropriately." 

                In 2006 Mark underwent a psychological assessment following an OCS 

referral.  The examiner reported: 

                [Pravat] reports experiencing a significant amount of stress in 
                parenting [Mark].      Nothing about this child was noted to be 
                positive.    Instead, his father is feeling trapped by parenting 
                responsibilities, cut off from access to friends and adult social 
                activities, and generally "not very good at being a parent." 
                . . . This level of distress indicates a significant Parent-Child 
                Relational Problem. 

Reports from Cook Inlet Tribal Council confirmed that Pravat lacked parenting skills and 

was overwhelmed as the primary caregiver. 

                In the months after Reese's birth in January 2006, police responded to 

multiple reports of domestic violence in the home. In February 2006, Pravat alleged that 

Stella broke into his home wielding a knife and attempted to take Reese away.                    Police 

were called again to the home a few days later.  Pravat claimed Stella threatened to kill 

herself, and he had restrained her to prevent her from doing so.  Stella claimed she had 

wanted to leave, but Pravat grabbed her to stop her.              All three children were present 

during   the   incident.    Pravat   received   a   protective   order   against   Stella,   which   Stella 

violated. 

                On June 20, 2006, police were called to Pravat's home once again. Officers 

found Stella tied up on the floor, her wrists and ankles bound by belts, and her overalls 

pushed down to her thighs.   Pravat was sitting on the couch and Reese was in a car seat 

                                                   -4-                                            6540
 

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

next to him.     Jung and Mark were also at home.            Pravat claimed that Stella had been 

drinking and became violent, kicked one of the children in the head, threw things around 

the house, and at one point tried to run away. He stated that he had dragged her back into 

the home and tied her up to prevent her from harming the children. Stella claimed Pravat 

had forced her into his car with the children inside, drove her to his home, and began 

giving her alcohol and saying he wanted to have sex with her. According to Stella, when 

she tried to leave, Pravat dragged her back into the apartment and told her he was going 

to rape her.   A neighbor witnessed Pravat pulling Stella back into the apartment by her 

feet and heard her scream, "Let me go." 

                Pravat   was   arrested   and   charged   with   kidnaping,   assault   in   the   fourth 

degree, and interfering with a report of a crime involving domestic violence.                  He pled 

guilty to the charges of coercion and assault in the fourth degree and was incarcerated 

from June 2006 until March 2007.             OCS contacted Pravat while he was at a pretrial 

detention facility, but it did not initially engage him in a case plan.            As reasons for its 

delay, OCS cited both communication barriers as well as its practice of deferring work 

on case plans until incarcerated parents are out of jail or transferred to their long-term 

prison.    A number of barriers made communication with Pravat difficult, including his 

limited English, bilateral hearing loss, and a diagnosed panic disorder. 

                Once OCS began visitations between the children and Pravat, the boys were 

so aggressive that the guardian ad litem asked OCS to get an opinion on whether visits 

should be discontinued.   The clinician felt that stopping visits would harm the children 

even more, so visits continued. 

                Cook Inlet Pre-trial Facility obtained a hearing aid for Pravat while he was 

incarcerated, but he did not wear it.   Sandra Dehart, Pravat's caseworker, met with him 

in September 2006 to explain his case plan.              In December Dehart returned with an 

interpreter to discuss the case plan again.         In February 2007 Dehart mailed a letter to 

                                                  -5-                                             6540
 

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

Pravat containing his case plan and a list of referral agencies.             After his release from 

prison, Pravat met with Dehart again to discuss the case plan and visitation schedule. 

                In May 2007 OCS created a new case plan for Pravat.  OCS also created a 

simplified, one-page, bulleted version that would be easier for Pravat to understand. OCS 

continued to work with Pravat to assist with his communication needs, including trying 

to obtain a second hearing aid for him.         Weekly visits between Pravat and the children 

originally   took   place   at   OCS.     During   these   visits,   the   boys   continued   to   display 

hyperactivity and aggressiveness, hitting Pravat and not listening to him.                Pravat often 

did not intervene to stop them.         In July 2007 OCS changed the location of the visits to 

the Eklutna Child Advocacy Center (Eklutna Center). 

                In September 2007 OCS filed a permanency plan with the court.                    In this 

plan, Pravat's social worker referred to the difficulties she faced discussing his case plan 

with him due to the communication barriers.            OCS's reunification efforts were delayed 

due to Pravat's incarceration and hearing issues.             In particular, OCS deferred "almost 

everything in the case plan" until Pravat could be given a psychological assessment, a 

process that "took months" partly due to linguistic and cultural difficulties. 

                In   March     2008   Dr.   Michael    Rose    performed     the   psychological     and 

parenting   assessment   on   Pravat.     Dr.   Rose   concluded   in   his   assessment   that   Pravat 

"consistently paints himself as the victim of circumstances or other persons."                   In Dr. 

Rose's opinion, 

                [Pravat]     maintains    an   extraordinarily     defensive    posture, 
                resisting efforts to encourage him to make changes in his 
                behavior or to see how his choices have negatively affected 
                his   children's    safety   and   welfare.    He    also   appears    to 
                minimize the problems his children now have, believing they 
                are primarily related to lack of contact with him. 

                                                  -6-                                             6540
 

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

Ultimately, Dr. Rose concluded that "it is unlikely [Pravat] has the parenting capacity or 

ability to currently care for his children, and his prospects for being able to parent his 

children in the future appear less than favorable." 

                Even   after   OCS   succeeded   in   finding   an   interpreter   fluent   in   Laotian, 

Pravat continued to have problems complying with the case plan.                  The Eklutna Center 

referred visits back to OCS in March 2008 due to Pravat's excessive number of missed 

visits   and   the   Eklutna   Center's   lack   of  capacity   for   dealing   with   the   severity   and 

complexity of the family's problems.  To help Pravat better understand his sons' needs, 

OCS arranged for him to receive education from the Anchorage Community Mental 

Health Center (Anchorage Center).   OCS agreed to pay for an interpreter for at least the 

first of these meetings.  But Pravat stated on at least three occasions at this meeting that 

he did not need family therapy.         "[M]y sons are fine when they are with me, they are 

smart," he stated.     Anchorage Center told OCS that it was "not interested in trying to 

convince [Pravat] that there is something wrong with the children." 

                OCS made various attempts to accommodate the cultural and linguistic 

difficulties in Pravat's case, including by reaching out to Laotian and Thai temples in 

Anchorage and by paying for a translator for case planning, legal meetings, and court 

proceedings.      In   the   summer   of   2008   Pravat   began   attending   classes   for   help   with 

managing his emotions and with parenting, and OCS provided an interpreter for these 

meetings.  OCS also reached out to a Buddhist priest for help in understanding Pravat's 

cultural differences.      But the priest told OCS that the Laotian/Thai Buddhist way of 

dealing with matters was not "to deny or to avoid telling others or asking for help."  Like 

the Eklutna Center and the Anchorage Center, the priest also emphasized that if someone 

"didn't want the help," the Buddhist community "could not force them." 

                In September 2008 OCS arranged for Pravat to meet with two monks from 

the Buddhist temple. The monks found Pravat to be extremely difficult to work with due 

                                                  -7-                                             6540
 

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

to his defensiveness and refusal to listen.  When one monk tried to tell Pravat about his 

children's special needs, Pravat stated, in the words of the OCS report, that his children 

              had no problem with him; when they lived with him they 
              were smart and they would do what he said and [Mark] was 
              good when he started school, it[']s just now that there are 
              problems because they are away from their dad and because 
              the state is making them take medication. 

OCS asked the monks for a recommendation of a local therapist who had been successful 

with others of Laotian descent.    But Pravat refused, without explanation, to meet with 

the person the monks recommended. 

              Meanwhile, Pravat's case worker - Miriam Sumner as of November 2007 

- reported that Pravat continued to poke and prod the boys "like a doctor exam" during 

his visits, despite being told not to do so.    Pravat also continued to refuse to wear his 

hearing aid. 

              By October 2008 Pravat had completed 24 hours of a life skills course at 

the Buddhist temple, as well as courses on emotion management, parenting, and how to 

understand brain-based disorders.   OCS also tried to get Pravat into training about Fetal 

Alcohol Spectrum Disorder.      When OCS asked the instructor whether Pravat had been 

attending the classes, the instructor responded that Pravat "showed up for both classes" 

and "did understand the impact of alcohol on a dev[eloping] fetus, but was not sure he 

believed that this is the cause of his sons' delays.  He commented several times that the 

boys were slapped hard by Mom and that's why they have problems."  A clinician who 

interviewed Pravat in December 2008 noted that "[o]ver the past six months the patient 

has attended parenting classes and FASD awareness but it appears it has made very little 

difference in his parenting and visitation."  The clinician continued: 

               [Pravat] refuses to acknowledge any problem with himself. 
              He blames all of the trouble and problems on his previous 
              female    relationships   and  on  the  social  workers   and  on 

                                             -8-                                        6540
 

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

                miscommunication. He would like to attend meetings with us 
                and attend counseling in order to help him get his children 
                back.    He says he wants to change and work hard to do so; 
                however, [he] does not acknowledge in what ways he needs 
                to change. 

        B.	     Proceedings 

                On January 5, 2009, OCS filed its termination petition. 

                In preparation for the termination proceedings, Pravat's lawyer referred him 

to Dr. Nan Truitt for another psychological evaluation; she completed her report in April 

2009.    Dr. Truitt partially explained Pravat's minimization and denial of his children's 

disabilities as resulting from his minimal contact with his children and his difficulties 

communicating with them "[a]fter three years in a foster home that did not promote 

exposure   to   Lao   culture,   language,   and   Budd[h]ism   spiritual   training."     Dr.   Truitt 

recommended that "reunification continue to be the goal as it seems that the reunification 

plan was inadequate, delayed for various reasons, and the Federal Guidelines should be 

reconsidered in light of these delays." 

                In May 2009, Pravat filed a motion for continuance of the termination trial 

and renewed a request to transfer visits with his children to Cook Inlet Tribal Council. 

OCS   offered   various   reasons   for   opposing  transferring   visits   to   Cook   Inlet   Tribal 

Council, including that the visitation supervisor there, Judd Bunag, was not trained in the 
"1-2-3   Magic"   program,3      a   program   recommended   by   the   boys'   therapists   that   was 

designed to manage the boys' behavior, and that it was not Bunag's job to oversee visits. 

The visits ultimately moved to Cook Inlet Tribal Council in July 2009.  Bunag testified 

to improvements in Pravat's understanding of his children's needs after the transfer. 

        3       The   Laotian-speaking   visitation   supervisor   at   OCS   also   displayed   no 

knowledge of the 1-2-3 Magic program while testifying at trial. 

                                                  -9-	                                             6540 

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

                OCS and Pravat's attorney referred Pravat to Dr. Alfred Collins for a final 

parenting evaluation, which he completed in the fall of 2009.  Dr. Collins met with the 

family from August until November in various combinations. The boys by this time were 

eight, seven, and three, and had been out of Pravat's custody for over three years.                  Dr. 

Collins observed that Pravat 

                denies      the   psychiatric     and   behavioral      problems      that 
                professionals have identified in all three children, and blames 
                their difficulties on the fact that they are in state's custody 
                and    have    been   put  on   medication.     While     he  loves   the 
                children, he does not make significant efforts to improve his 
                parenting of them. 

Dr. Collins concluded that it may be "unrealistic to expect [Pravat] to achieve the skills 

needed to assume full parenting of his children."  At trial, Dr. Collins testified that even 

with   the   most   intensive   services,   it   would   take   a   minimum   of   two   years   before   a 

successful, non-harmful reunification could conceivably occur. 

                The termination proceeding took place in January 2010 before Superior 

Court   Judge   Sharon   Gleason.       The   court   heard   testimony   from  a   variety   of  parties, 

including both foster parents, two of Pravat's three case managers, a number of visitation 

supervisors, the assistant guardian ad litem, the ICWA specialist for the Anchorage 

region of OCS, Dr. Rose, Dr. Truitt, Dr. Collins, Pravat's friends, the police officers who 

responded to the June 2006 call, a Buddhist monk, Pravat's coordinator in his fathering 

courses, and mental health clinicians.         At the conclusion of the trial, the superior court 

found that the State had satisfied the requirements for the termination of parental rights 

under ICWA and the Child in Need of Aid (CINA) statutes and rules. 

                Pravat appeals. 

                                                  -10-                                             6540
 

----------------------- Page 11-----------------------

III.    STANDARD OF REVIEW 
               "We review a superior court's findings of fact for clear error."4  "Findings 

of fact are clearly erroneous if a review of the entire record in the light most favorable 

to the prevailing party below leaves us with a definite and firm conviction that a mistake 
has been made."5      "We review de novo whether a superior court's findings satisfy the 

requirements of the CINA and ICWA statutes and rules."6             "Whether OCS made active 

efforts as required by ICWA is a mixed question of law and fact."7 

               We also review for clear error the superior court's factual determinations 

as to whether the State met its evidentiary burden in showing that the children are in need 
of aid,8 that the parent has not remedied his conduct or the conditions that placed the 

        4      Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

235 P.3d 203, 209 (Alaska 2010) (citing Brynna B. v. State, Dep't of Health & Soc. 
Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)). 

        5      Id. at 209-10 (quoting Brynna B., 88 P.3d at 529) (internal quotation marks 

omitted). 

        6      Id. at 210 (citing Carl N. v. State, Dep't of Health & Soc. Servs., Div. of 

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

        7      Id. (quoting Sandy B. v. State, Dep't of Health & Soc. Servs., Office of 

Children's   Servs.,   216   P.3d   1180,   1186   (Alaska   2009))   (internal   quotation   marks 
omitted). 

        8       T.B. v. State, 922 P.2d 271, 273 (Alaska 1996). 

                                               -11-                                           6540
 

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

                                 9 
children at substantial risk,  that returning the children to the parent would likely harm 
them,10 and that termination of parental rights is in the children's best interest.11 

IV.     DISCUSSION 

                Under ICWA and Alaska's CINA statutes and rules, OCS must prove five 

elements under various evidentiary standardsbefore a court may terminate parental rights 
in a case involving an Indian child.12      OCS must prove by clear and convincing evidence 

(1) that the child has been subject to conduct or conditions described in AS 47.10.11, 
such that the child is "in need of aid";13 (2) that the parent has failed, within a reasonable 

time, to remedy the conduct or conditions in the home that placed the child at substantial 
risk of harm;14 and (3) that active efforts have been made to provide remedial services 

and rehabilitative programs designed to prevent the breakup of the Indian family and that 
these   efforts   proved  unsuccessful.15      OCS   must   also   prove,   by   evidence   beyond   a 

reasonable     doubt,    including    the  testimony    of qualified     expert   witnesses,    (4)  that 

continued custody of the child by the parent is likely to result in serious emotional or 

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

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

        10      Id. 

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

Servs., 222 P.3d 841, 850 (Alaska 2009) (citingFrank E. v. State, Dep't of Health & Soc. 
Servs., Div. of Family & Youth Servs., 77 P.3d 715, 717 (Alaska 2003)). 

        12      Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

235 P.3d 203, 209 (Alaska 2010). 

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

        14      AS 47.10.088(a)(2)(B); CINA Rule 18(c)(1)(A)(ii). 

        15      25 U.S.C.  1912(d) (2002); CINA Rule 18(c)(2)(B). 

                                                  -12-                                            6540
 

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

physical damage to the child.16    Finally, OCS must prove by a preponderance of the 

evidence (5) that termination of parental rights is in the best interests of the child.17 

              Pravat argues that the superior court erred in determining that OCS met its 

burden of proof under elements (2) through (5).  He does not contest the superior court's 

determination that OCS satisfied element (1) by proving through clear and convincing 
evidence that the children were in need of aid.18    Because Pravat's central argument is 

against element (3), the active efforts requirement, we begin there. 

       A.	    The Superior Court Did Not Err In Finding That OCS Made Active 
              Efforts To Prevent The Breakup Of The Family. 

              Before the parental rights to an Indian child may be terminated, ICWA 

requires the State to prove by clear and convincing evidence that it made "active efforts 

. . . to provide remedial services and rehabilitative programs designed to prevent the 
breakup of the Indian family and that these efforts have proved unsuccessful."19       "We 

have held that no pat formula exists for distinguishing between active and passive efforts 
and have adopted a case-by-case approach for the active efforts analysis."20  But we have 

drawn upon the following models of active and passive efforts: 

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

       17     CINA Rule 18(c)(3); AS 47.10.088(c). 

       18     Although Pravat lists this argument in his formal points of appeal, he does 

not mention it in his summary of issues presented and he fails to brief it.    Therefore, it 
is waived.  Hymes v. DeRamus, 222 P.3d 874, 887 (Alaska 2010) ("[I]ssues not argued 
in opening appellate briefs are waived."). 

       19     25 U.S.C.  1912(d). 

       20     Dale H. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

235 P.3d 203, 213 (Alaska 2010) (citingA.A. v. State, Dep't of Health & Soc. Servs., Div. 
of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 1999)) (internal quotation marks 
omitted). 

                                            -13-	                                      6540
 

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

                 Passive efforts are where a plan is drawn up and the client 
                 must develop his or her own resources towards bringing it to 
                 fruition.   In   contrast,   [a]ctive   efforts   [are]   where   the   state 
                 caseworker   takes   the   client   through   the   steps   of   the   plan 
                 rather than requiring that the plan be performed on its own. 
                 For instance, rather than requiring that a client find a job, 
                 acquire new housing, and terminate a relationship with what 
                 is perceived to be a boyfriend who is a bad influence, the 
                 Indian Child Welfare Act would require that the caseworker 
                 help the client develop job and parenting skills necessary to 
                 retain custody of her child.[21] 

The   court   should   look   to   OCS's   "involvement   in   its   entirety,"   and   may   consider   a 

parent's demonstrated unwillingness to participate in treatment as a factor in determining 
whether OCS met its active efforts burden.22 

                 The superior court held that OCS made "active and reasonable efforts to 

provide remedial services and rehabilitative programs designed to prevent the breakup 

of [Pravat]'s family, but those efforts proved unsuccessful." The court found that OCS's 

efforts included: (1) attempting to obtain a hearing aid for Pravat from the Division of 

Vocational Rehabilitation following his release from jail; (2) arranging for visitation at 

the Eklutna Center, which could provide parenting assistance and coaching to Pravat, all 

of which failed; (3) attempting to locate therapeutic services for Pravat, which were 

rejected by him; (4) contacting the Buddhist temple and arranging for a visit with an 

interpreter   and   Pravat;   (5)   having   a   Laotian-speaking   supervisor   oversee   visits;   (6) 

        21      Id. (quoting A.A., 982 P.2d at 261(quoting CRAIG J. DORSAY, THE INDIAN 

CHILD    WELFARE       ACT     AND  LAWS     AFFECTING       INDIAN    JUVENILES      MANUAL       157-58 
(1984))). 

        22      Id.  (citing Maisy   W.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 

Children's   Servs.,   175   P.3d   1263,   1268   (Alaska   2008))   (internal   quotation   marks 
omitted). 

                                                   -14-                                              6540
 

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

requiring Pravat to use his hearing aid while visiting with his children; (7) encouraging 

Pravat's enrollment in and completion of an emotion management class at Cook Inlet 

Tribal Council, which was completed by Pravat but not applied by him to his children; 

(8) encouraging Pravat's enrollment in and completion of a class for parents of children 

with Fetal Alcohol Spectrum Disorder, which was completed but not applied by Pravat 

to his children; (9) arranging counseling for Pravat to apply the concepts from those 

classes to his children, which proved unsuccessful; (10) providing interpreters; (11) 

providing evaluations by Dr. Rose and Dr.  Collins; and (12) attempting to enhance 

reunification by keeping the boys together in foster care, as Pravat requested. 

                In   addition   to   the   actions   taken   by   OCS,   the   court   looked   at   Pravat's 

cooperation as a factor in its active efforts analysis.         The court found that while Pravat 

did attend the classes asked of him, he "appeared to be going through the motions rather 

than    truly  engaging."       The   court   found   that   throughout     these   programs,     Pravat 

"repeatedly indicated that he did not need help and did not always wear his hearing aid." 

Accordingly, because he was not fully cooperative, the court noted that "[h]is motivation 
affected the level of efforts that would otherwise be required."23 

                Pravat argues that OCS undermined his chances at reunification by, among 

other things, failing to provide cultural continuity to his sons and failing to provide 
parent modeling.24      It is true that OCS's efforts were not perfect, as the superior court 

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

Servs., 204 P.3d 1013, 1021 (Alaska 2009) ("Where services have been provided and a 
parent has demonstrated a lack of willingness to participate or take any steps to improve, 
this court has excused minor failures by the state and rejected arguments that the state 
could possibly have done more."). 

        24      Pravat also objects in his reply brief that OCS's active efforts evidence is 

primarily     based   on   the  notes   of  a  deceased     social  worker    whom      Pravat   had   no 
                                                                                         (continued...) 

                                                  -15-                                               6540 

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

also   recognized.      There   were   delays.    OCS   reasonably   decided   to   put   off   Pravat's 

participation in parenting, anger management, and Fetal Alcohol Spectrum Disorder 

classes until after he completed a psychological assessment.  But the assessment, which 

had been proposed in June 2007, did not take place until March 2008.                     In November 

2008 Pravat submitted to OCS a joint proposal with the guardian ad litem's office in 

favor of transferring visits from OCS to Cook Inlet Tribal Council, to be supervised by 

Pravat's     counselor    at  Cook     Inlet  Tribal   Council.     Without     a  wholly     persuasive 

justification, OCS refused to transfer the visits to Cook Inlet Tribal Council until July 

2009. 

                But the active efforts requirement does not require perfection. Our concern 

is not with whether the State's efforts were ideal, but with whether they crossed the 
threshold between passive and active efforts.25           In the present case, the multiple actions 

taken by OCS and summarized by the superior court, viewed as  a whole, decisively 

crossed the threshold into active efforts.  This is certainly not a case in which a plan was 
drawn up and the parent was left to his own devices in carrying it out.26 

        24       (...continued) 

opportunity to cross-examine.  But Pravat did not appeal the superior court's reliance on 
the social worker's notes in his initial brief.  A reply brief "may raise no contentions not 
previously raised in either the appellant's or the appellee's briefs." Crittell v. Bingo, 83 
P.3d 532, 536 n.19 (Alaska 2004) (quoting Alaska R. App. P. 212(c)(3)). 

        25      See   Dale   H.,   235   P.3d   at   213   (describing   our   task   as   "distinguishing 

between active and passive efforts") (internal quotation marks omitted). 

        26      See supra note 21 and accompanying text. 

                                                  -16-                                             6540
 

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

               It is also worth emphasizing that a parent's lack of cooperation may excuse 
minor faults in OCS's efforts.27    Pravat has repeatedly displayed a lack of cooperation. 

He failed to appear at so many visits at the Eklutna Center that the organization referred 

those visits back to OCS.       He rejected the local therapist proposed by the Buddhist 

monks.  Above all, from his first evaluation in the spring of 2008 to his final evaluation 

in the fall of 2009, he has repeatedly refused to acknowledge that his actions contributed 

to the problems faced by his sons, and he has even refused on multiple occasions to 

acknowledge the boys' disabilities. Given the evident futility of the many steps OCS did 

take, it is not persuasive to suggest that the additional steps proposed by Pravat in his 

brief on appeal would have led to a successful reunification. 

               The superior court's summary of the State's efforts is adequately supported 

by the record.   In light of these efforts, as well as Pravat's lack of cooperation, we affirm 

the superior court's conclusion that the State met its active efforts requirement. 

       B.	     The Superior Court Did Not Err In Finding That Pravat Had Not 
               Remedied His Conduct. 

               Before a court may terminate parental rights, it must  find by clear and 

convincing evidence that the parent "has failed, within a reasonable time, to remedy the 

conduct or conditions in the home that place the child in substantial risk so that returning 

the child to the parent would place the child at substantial risk of physical or mental 
injury."28 In making this determination, "the court may consider any fact relating to the 

best interests of the child."29  Relevant factors include, but are not limited to: (1) the 

likelihood of returning the child to the parent within a reasonable time based on the 

       27      See supra note 23. 

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

       29      AS 47.10.088(b). 

                                             -17-                                          6540 

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

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 harm 
will continue; and (5) the history of conduct or conditions created by the parent.30   We 

recently clarified that "whether the parent has remedied the conduct or conditions . . . that 

place   the   child   at   substantial   risk   .   .   .   [is   a]  factual   determination[]  best   made   by   a 

superior      court   after   hearing     witnesses    and     reviewing     evidence,     not    [a]  legal 
determination[] to which an appellate court should apply its independent judgment."31 

Therefore, we review for clear error the superior court's determination that Pravat failed 

to remedy his harmful conduct such that giving him physical custody would place the 
children in substantial risk of physical or mental injury.32 

                 The court found that even though Pravat completed the necessary steps on 

his case plan, "he does not realize today that the children's exposure to him tying up 

[Stella] in their presence for 15 minutes was harmful to the children."                  Because Pravat 

failed to recognize the impact of domestic violence on the children, the court found there 

to   be   a   substantial   risk   that   the   children   would   be   exposed   once   again   to   domestic 

violence if returned to Pravat's home. 

                 The court further found that Pravat continued to maintain that all was well 

in his home before the children were taken into foster care.  As the court stated, Pravat's 

"unwillingness or inability to realize that he was a less than model parent, [and] that the 

children were subjected to neglect in his care, indicates that the condition of neglect 

would not be remedied if the children were returned home."  The court found that all of 

        30       AS 47.10.088(b)(1)-(5). 

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

Servs.,   234   P.3d   1245,   1253   (Alaska   2010)   (citation   and   internal   quotation   marks 
omitted). 

        32       Id. 

                                                    -18-                                              6540
 

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

the experts agreed that the children could not be placed back in Pravat's home at the time 

of trial. 

                The record adequately supports the superior court's findings. For example, 

in his own testimony at trial, Pravat still could not explain why it was wrong to bind 

Stella with belts in front of the boys: 

                Q:   .   .   .   [D]id   you   do   anything   wrong   on   June   the   20th, 
                2006[?] 
                A: Yes.   Because I tied [Stella] up.  And yes, I'm wrong. 
                Q: And why was that wrong? 
                A: I don't know.   The police are saying I'm wrong because I 
                tied her up. 
                Q: Do you think you're wrong? 
                A: Yeah, I accept that I'm wrong, because I tied her up. 
                Q: What was wrong about it? 
                A: It's wrong because I tied her. 
                Q: Why is that wrong? 
                A: I don't know, because I don't really know the laws. 

                Later, when asked again why it was wrong to tie somebody up, Pravat 

responded:      "I don't know.    The police said it's wrong, so I went to court.          They said I 

was wrong and I had to pay money."            Pravat repeated in his testimony that he was the 

victim of Stella's lies and that he lost his children and belongings because of her lies. 

                In addition, Dr. Rose testified that Pravat failed "to look at his own behavior 

and the role that it played in problems in relationships and the difficulties that he had 

with    OCS,"     and   that   without    Pravat  "showing       progress    in  his   ability  to  take 

responsibility, as well as improv[ing] his parenting practices and hav[ing] a much clearer 

understanding of what . . . the children's problems are," Dr. Rose would be concerned 

about the children's emotional and physical safety. 

                We have previously held that similar failures to accept or understand a 

child's disabilities constitutes a failure to remedy, even if the parent undertakes steps 

                                                  -19-                                            6540
 

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

recommended by OCS to try to learn about the problems.33               Even completing a case plan 

does not guarantee a finding that the parent has remedied his or her conduct.34                     The 

superior court did not clearly err in concluding that Pravat continues to minimize his 

children's disabilities, does not recognize the neglect that existed before the children 

were put into foster care, and does not accept responsibility for his past actions, and thus 

that Pravat failed to remedy his harmful conduct. 

        C.	     The   Superior   Court   Did   Not   Err   In   Finding   That   Returning   The 
                Children To Pravat Would Likely Result In Serious Emotional Or 
                Physical Injury. 

                To terminate parental rights, the court must find based on "evidence beyond 

a reasonable doubt that returning the child to the parent is likely to result in serious 
physical or emotional damage to the child."35          This finding must be supported by expert 

testimony.36     "Proof   that   a   parent's   custody   is   likely   to   cause   a   child   serious   harm 

requires proof that (1) the parent's conduct is likely to harm the child and (2) the parent's 
conduct is unlikely to change."37 

        33      See id. at 1260; Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of 

Family & Youth Servs., 74 P.3d 896, 903 (Alaska 2003). 

        34      See Barbara P., 234 P.3d at 1260 (Alaska 2010) (citing  V.S.B. v. State, 

Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 45 P.3d 1198, 1208 
(Alaska 2002) ("Compliance with treatmentplans does not guarantee that parental rights 
will not be terminated because it cannot guarantee that adequate parenting skills will be 
acquired from the treatment regimen.")). 

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

204 P.3d 1013, 1019-20 (Alaska 2009) (citation omitted). 

        36      Id. at 1020 (citingL.G. v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 

950 (Alaska 2000)). 

        37      Id. (citing L.G., 14 P.3d at 950). 

                                                  -20-	                                           6540
 

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

                The   court   found   beyond   a   reasonable   doubt   -   based   on   the   expert 

testimony of Dr. Rose, Dr. Collins, and Dr. Truitt, in combination with other evidence 

- that returning the children to Pravat was likely to cause them serious emotional and 

physical damage.  All three, and especially Dr. Rose and Dr. Collins, expressed doubts 

about Pravat's ability to reunite with his children in a safe manner. Pravat argues that the 

superior court placed too much weight on Dr. Rose's testimony.                 But we defer to a 

superior court's credibility determinations, particularly when they are based on oral 
testimony.38 

               Because the record adequately supports the superior court's findings, we 

hold the court did not err in concluding that Pravat's custody over the children would 

likely result in serious damage to them, and that his conduct is unlikely to change. 

        D.	     The    Superior    Court    Did    Not   Err   In  Finding    That    Terminating 
                Pravat's Parental Rights Was In The Best Interests Of The Children. 

               Under AS 47.10.088(c) and CINA Rule 18(c)(3), the superior court must 

consider the best interests of the child in deciding whether to terminate parental rights. 

The court can consider any factor of relevance to the child's best interests, including the 
child's need for permanency and stability.39       In this analysis, it is the best interests of the 

child, not the parent, that are paramount.40 

        38     Alyssa B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 165 P.3d 605, 617 (Alaska 2007) (citing Martin v. Coastal Vills. Region Fund, 
156 P.3d 1121, 1129 (Alaska 2007)). 

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

Servs., 102 P.3d 932, 936-37 (Alaska 2004). 

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

182 P.3d 1110, 1116 (Alaska 2008) (citation omitted). 

                                                -21-	                                          6540
 

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

               Dr. Collins testified that Pravat would not be ready to take custody for at 

least another two years, even under the best of circumstances.             At that point, Pravat 

would still require substantial support and services.  This court has previously held that 

"a child's need for permanence and stability should not be put on hold indefinitely while 

the child's parents seek to rectify the circumstances that cause their children to be in need 
of aid."41 Pravat's children require a permanence and stability that he cannot offer them 

and that the evidence suggests he will not be able to offer them within any reasonable 

period of time.  The superior court did not err in ruling that it was in the children's best 

interests to terminate Pravat's parental rights. 

V.      CONCLUSION 

               Because   the   evidence   supported   the   superior   court's   factual   findings 

regarding the State's efforts to promote reunification, and because those efforts were 

sufficient    as  a  matter   of  law   under   ICWA,     we   AFFIRM       the  superior   court's 

determination that the State made active efforts to prevent the breakup of Pravat's family. 

In addition, the evidence supported the superior court's findings that Pravat failed to 

remedy the harmful conduct that placed his children at substantial risk, that Pravat's 

custody of the children would likely result in serious emotional or physical damage to 

them, and that the termination of Pravat's parental rights is in the best interests of the 

children.    Accordingly,   we   AFFIRM   the   decision   of   the   superior   court   terminating 

Pravat's parental rights. 

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

233 P.3d 597, 603 (Alaska 2010). 

                                               -22-                                            6540 
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