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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Christina J. v. State, Dept. of Health & Social Services, Office of Children's Services (7/8/2011) sp-6576

Christina J. v. State, Dept. of Health & Social Services, Office of Children's Services (7/8/2011) sp-6576, 254 P3d 1095

        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 


CHRISTINA J.,                                      ) 
                                                   )   Supreme Court No. S-14022 
                        Appellant,                 ) 
                                                   )   Superior Court No. 4FA-09-00045 CN 
        v.                                         ) 
                                                   )   O P I N I O N 
STATE OF ALASKA, DEPARTMENT                         )
OF HEALTH & SOCIAL SERVICES,                       )   No. 6576 - July 8, 2011
OFFICE OF CHILDREN'S SERVICES,                      )
                        Appellee.                  ) 

                Appeal    from  the    Superior   Court   of   the  State  of   Alaska, 
                Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge. 

                Appearances:        Olena     Kalytiak    Davis,    Anchorage,      for 
                Appellant.    Megan   R.   Webb,   Assistant   Attorney   General, 
                Anchorage, and John J. Burns, Attorney General, Juneau, for 

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

                CHRISTEN, Justice. 


                Christina J. appeals from the termination of her parental rights to her son, 

Gideon, an Indian child.      Christina spent much of her own childhood in OCS custody 

after being removed from her parents' home due to their substance abuse and domestic 

violence.    She developed substance abuse problems as a young teenager and became 

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involved in an abusive relationship with Gideon's father, Damian, shortly after leaving 

OCS custody at age 18.          Gideon was born when Christina was 19, and was removed 

from   parental   custody   when   he   was   four   months   old   after   OCS   received   reports   of 

domestic violence by Damian and substance abuse and neglect by both parents.                       Over 

the   next   several   months,   Christina   was   convicted   of   minor   consuming   alcohol   on 

multiple occasions.  She participated in substance abuse, domestic violence, and mental 

health   assessments   but   did   not   complete   the   treatment   programs   arranged   for   her 

pursuant to those assessments.         Nine months after taking custody, OCS petitioned for 

termination   of   parental   rights.   The   termination   trial   took   place   approximately   five 

months later in July 2010.  Damian relinquished his parental rights but the superior court 

made the necessary findings to terminate Christina's parental rights.  Christina appeals. 

We affirm the superior court's termination of Christina's parental rights. 


        A.      Christina's Childhood (October 1989 To October 2007) 
                Appellant Christina J.,1 was born in Fairbanks and raised in Fort Yukon. 

OCS2  removed Christina from her parents' custody in 2001, when she was 11 or 12 years 

old.  Prior to that time, Christina was exposed to alcohol abuse and domestic violence in 

her parents' home; at one point, her mother attempted suicide.               Shortly before she was 

removed by OCS, Christina's brother committed suicide in the home. These events were 

a cause of emotional trauma and ongoing grief in Christina's later life.                While in OCS 

custody, Christina initially lived in a foster home in Eielson; she subsequently spent five 

        1       This opinion uses pseudonyms to protect the family's privacy. 

        2       Christina's   contacts   with   OCS   began   when   it   was   still   known   as   the 

Department of Family and Youth Services (DFYS). 

                                                   -2-                                               6576 

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months at the Residential Diagnostic Treatment Center (RDT), where she was treated for 

depression and grief, and 30 days at the Presbyterian Hospitality House. 

                Christina began drinking at age 12. She was convicted of minor consuming 

alcohol offenses at least twice before she turned 14.   Another minor consuming charge 

immediately after Christina's 14th birthday was dismissed for jurisdictional reasons. 

Christina spent time in substance abuse treatment at the Adolescent Residential Center 

for Help (ARCH) (five months) and the McLaughlin Youth Center (approximately two 

years).   Although she completed substance abuse treatment at both facilities, Christina 

testified that she felt she was placed at McLaughlin because OCS "didn't know what to 

do    with   [her],  because    [she]   was    leaving   foster   homes    where    [she]   didn't   feel 

comfortable."      Christina left McLaughlin at age 17; she stayed briefly at the Fairbanks 

Youth Facility and at a foster home, but subsequently left.              She did not ask OCS for a 

different placement because she "didn't want to listen to all their excuses."                Christina 

remained in OCS custody until she turned 18 in 2008.  OCS assigned Christina an OCS 

employee to assist in her transition out of custody, but Christina does not appear to have 

substantially worked with the employee; Christina testified to being "tired" of working 

with OCS at the time. 

        B.	     Christina's   History   Between   Age   18   And   Gideon's   Birth (October 
                2007 To February 2009) 

                Christina   was   still   18   when   she   met   and   began   dating   Damian   in   Fort 

Yukon.      Damian   is   approximately   ten   years   older   than   Christina   and   he   assaulted 

Christina from the beginning of the relationship. Christina moved to Venetie to live with 

Damian in a house he owned there.           Damian paid their shared bills. 

                Damian continued to be abusive after Christina became pregnant with their 

child, Gideon, in 2008.      Christina testified to one incident that occurred when she             was 

five months pregnant and Damian, intoxicated, woke Christina by grabbing her hair and 

                                                  -3-	                                            6576

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

slapping her.   The couple traveled to Fairbanks in January 2009 in anticipation of the 

baby's birth.   Two weeks before the birth, Damian came back to their room at a hotel, 

drunk.    Christina knew that Damian became abusive when he was intoxicated and she 

sought help from the front desk to stop him from entering the room, but Damian punched 

through the window to get in.   Damian was gone by the time the police arrived.  He was 

later convicted of criminal mischief for the incident. 

               Christina relocated to a different hotel but she allowed Damian to stay with 

her there.  Four days before Gideon's birth, Christina was in her room at the hotel when 

Damian returned.     He was intoxicated.     Damian grabbed Christina, punched her in the 

face, pushed her down, and pulled out a knife.   He started to approach Christina but then 

stopped and said he wanted to stab himself.       Christina fled from the room, but Damian 

caught her, threw her to the ground, and punched her in the face.           Damian was later 

convicted of Fourth Degree Assault and sentenced to jail.          Christina testified that she 

thought being beaten by Damian caused her to go into labor early. 

               Gideon was born four days later, on February 18, 2009.  He tested positive 

for cocaine at birth, although Christina testified that she was unaware of this fact. 

        C.	    OCS Involvement Prior To Temporary Custody Petition (February 
               2009 To May 2009) 

               Christina remained in Fairbanks for several weeks after Gideon was born 

to get treatment for postnatal medical problems, including postpartum depression, and 

low blood count requiring a blood transfusion.           Christina and Damian subsequently 

returned to Venetie and resumed their relationship.  Christina testified that "it was going 

pretty   good"   during   this   period,  though  she  also  described  instances   of   domestic 

violence.   In April 2009, for example, Damian slapped Christina while she was holding 

Gideon in her arms, causing her nose to bleed so that some of the blood fell on the baby. 

                                               -4-	                                        6576

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

On another occasion Damian pushed Christina to the floor, kicking her in the stomach 

and calling her names. 

               On April 14, 2009, OCS received a protective service report of domestic 

violence between Christina and Damian when Gideon was present.   Jon Markkanen, an 

OCS social worker, attempted to locate the couple in Venetie but learned they were in 

Fairbanks.  He met with them there and developed an informal safety plan under which 

Christina and Damian would live with Karen, Christina's former foster mother, when 

they were in Fairbanks and with Ronda, Damian's mother, when in Venetie. Markkanen 

also discussed options for substance abuse and anger management treatment through a 

therapy program at the Old Minto Recovery Camp (OMRC).                   Christina and Damian 

agreed that they needed to get help and were willing to pursue treatment.  Christina later 

testified that she was confused by the plan and was under the impression that they were 

not allowed to go back to Venetie. 

               Christina   and   Damian   stayed   in   Fairbanks   with   Karen.   On   April   30, 

Markkanen heard from Karen that Christina had been out drinking for the past week, 

leaving Gideon in Karen's care. Karen also reported that Christina had attempted suicide 

and was in the hospital.     Christina was intoxicated at the time of the attempt and later 

testified that she did not clearly remember the events leading up to it.           However, she 

acknowledged the attempt and noted that she was going through postpartum depression 

and "didn't understand why [Damian's abuse] was happening to [her]."  Soon after being 

discharged from the hospital, Christina was admitted to the emergency room.                 While 

there, emergency room staff observed that she had   wounds and bruises from an assault. 

Christina could not remember who had given her the bruises,               though she seemed to 

assume, and the trial court concluded, that Damian was responsible. 

               Markkanen met with Christina on May 11.            He had secured a bed for her 

at Grandma's House, a domestic violence shelter in Fairbanks that is culturally geared 

                                                -5-                                           6576

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

toward Alaska Natives  and would have allowed Christina to keep Gideon with her. 

Both Markkanen and the owner of Grandma's House offered Christina a ride to the 

shelter.   Markkanen also discussed substance abuse treatment providers with Christina. 

Christina declined the offer to go to Grandma's House.  She later explained that she did 

not go because she needed to collect her personal belongings from various places and 

because a friend was going to take her and Gideon to the Interior Alaska Center for Non- 

Violent Living shelter.   Markkanen testified that Christina said she wanted to go back to 

Karen's home. It is not entirely clear from the record where Christina went upon leaving 

the hospital, but it appears that Gideon remained with Karen; Christina may have been 

staying at the Center for Non-Violent Living. 

                On May 20, Karen informed OCS that Damian, intoxicated, had taken 

Gideon from her home and she did not know where they had gone.                     Christina testified 

that   she   later  located    Damian     and   Gideon    at  a  hotel.   According       to  the  OCS 

predisposition report, Karen found the entire family at a hotel.              Because both parents 

were intoxicated, she removed Gideon and took him to Tanana Valley Clinic where he 

was found to be mildly dehydrated. 

                Two days later, OCS filed a petition to adjudicate Gideon as a child in need 

of aid and a petition for temporary custody.  The petition alleged Gideon to be a child in 
need of aid under AS 47.10.011(6), (8), (10), and (11).4               Prior to the hearing on the 

        3       Christina is an Alaska Native. 

        4       These subsections provide for CINA findings where the child has suffered 

or is at risk of suffering substantial physical harm; is at risk of mental injury as a result 
of exposure to domestic violence; is at substantial risk of harm associated with a parent's 
substance abuse; or is at substantial risk of physical harm or mental injury associated 
with a parent's mental illness or emotional disturbance.            See AS 47.10.011. 

                                                  -6-                                             6576

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

petition to adjudicate, Markkanen again secured a bed for Christina at Grandma's House 

and talked to her about the possibility of going there with Gideon, but she refused. 

               The superior court granted temporary custody to OCS effective June 5, 
2009.5   Gideon was placed in emergency custody in Fairbanks.              He was subsequently 

placed with Damian's mother, Ronda, in Venetie.6             In early June 2009, the case was 

transferred to OCS caseworker Ivory McDaniel.             An initial case plan for both parents 

became effective on June 9. 

        D.	    Temporary Custody Petition To Adoption As Sole Goal (June 2009 To 
               November 2009) 

               On June 19, Christina, who was staying in Fairbanks at the Interior Alaska 

Center for Non-Violent Living, was arrested for underage drinking after she contacted 

police to report she had been in a fight. She was convicted of habitual minor consuming 

alcohol and sentenced to 20 days in jail with 19 days suspended.           Christina returned to 

the Center for Non-Violent Living for a few days, then went to Venetie.              Damian was 

incarcerated for assault at the time (Christina was not the victim) and he remained in 

Fairbanks.  While in Venetie, Christina was allowed to visit Gideon for four hours a day 

at Ronda's home. 

               On July 16, Ronda brought Gideon to Fairbanks for a visit with Damian. 

While she was there, she told McDaniel that she could no longer care for Gideon, in part 

because Christina was not following the safety plan and Ronda felt unable to intervene. 

Gideon was placed in an emergency foster home in North Pole.  McDaniel did not have 

        5      The initial custody order provided for temporary custody through June 9. 

The   superior   court   subsequently   made   its   provisional   findings   non-provisional   and 
entered an order for temporary custody for 120 days. 

        6      OCS was unable to license Karen as a foster parent; it is unclear from the 

record why this was the case. 

                                                -7-	                                          6576

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

a telephone number to reach Christina in Venetie, so she asked Ronda to have Christina 

contact her.  McDaniel also contacted a tribal elder in Venetie and the ICWA worker in 

Fort Yukon "in hopes that someone could relay the message" to Christina regarding 

Gideon's new placement.  Christina testified that she had left telephone numbers where 

she could be reached and was not aware that McDaniel had attempted to contact her. 

Christina left a message for McDaniel a few days later, saying she was having a hard 

time and complaining that OCS was working harder with Damian than with her.  She 

provided two telephone numbers for McDaniel to return her call, but McDaniel testified 

that there was no answer at either number when she tried to do so.  Christina called again 

on July 24 and spoke to McDaniel.  They discussed the assessments Christina needed to 


                After   missing     an  in-person   substance   abuse   assessment   scheduled   by 

McDaniel, Christina was able to complete a telephonic substance abuse assessment with 

Shades of Growth on July 24.  Christina told the assessor that she started drinking at age 

thirteen and denied using methamphetamine or cocaine, although she gave contradictory 

information in subsequent assessments.             Christina stated that she did not believe her 

drinking   was   a   problem,   leading   the   assessor   to   conclude   that   she   was   in   the   "pre- 

contemplation stage of change" and at a high risk for relapse. In light of Christina's prior 

treatment episodes and continued drinking, the assessor recommended that Christina 

participate in a Level III.3 residential treatment program,  as well as a domestic violence 

awareness class, an Alcoholics Anonymous support group, parenting classes, and GED 


        7       As the assessor testified, a Level III.3 treatment is a clinically managed 

medium-intensity, long-term residential program. 

                                                   -8-                                               6576 

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

                When   they   spoke   in   late   July,   Christina   and   McDaniel   also   discussed 

arrangements for Christina to visit Gideon.  McDaniel later tried to contact Christina in 

Venetie to schedule visitation but could not get in touch with her.            At around this time, 

McDaniel was contacted by Christina's birth mother, who said that Christina had been 

visiting her birth parents in Fort Yukon but had left to go to Fairbanks.              On August 8 

McDaniel learned   from Damian, who was participating in NorthStar's work release 

program in Fairbanks, that Christina was in town.             Christina later explained that she 

returned to Fairbanks because she "thought if [she] moved to Fairbanks, it [would] be 

easier . . . to work with OCS," but she claimed that she continued to experience difficulty 

contacting her caseworker. 

                On August 17 Christina was convicted of minor consuming alcohol and 

was incarcerated   for approximately 12 days.           McDaniel visited Christina in jail and 

arranged for Gideon to visit her there.        McDaniel also arranged for Christina to have a 

behavioral assessment while incarcerated. Christina told the assessor about the domestic 

violence she witnessed during her childhood and described   Damian's assaults.  She 

stated that she and Damian had been drunk in front of Gideon, though she noted that they 

tried to take him to a babysitter when they planned to drink.  She said she began drinking 

at age 12,    had used crack cocaine on a regular basis before she met Damian, and had 

tried methamphetamine.         The assessor concluded that Christina had "shown that she is 

unable to keep herself healthy and safe, and it should be considered that she is unable to 

keep her child safe as well."  The assessment recommended that Christina participate in 

the Changing Patterns program or a similar victim-focused program, as well as individual 

therapy, an in-patient substance abuse program, and a psychiatric evaluation. 

                While Christina was incarcerated, McDaniel brought her an application for 

Dena A Coy, a women's dual treatment mental health and substance abuse facility in 

Anchorage.     Christina agreed to go to Dena A Coy, where she would be able to have 

                                                 -9-                                            6576

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

Gideon with her after an initial trial period; however, she later testified that she "didn't 

want to go because [she] didn't think [she would] have a lot of family support down 

there, and it was away from home."            McDaniel arranged for Christina to enter Dena A 

Coy   upon   her   release   from   jail   and   arranged   transportation   to   Anchorage   for   her. 

McDaniel urged Christina to return to Venetie during the weekend between her release 

from jail and her departure for Anchorage and provided a plane ticket for her to do so. 

But Christina chose to stay in Fairbanks with Karen.              Christina left Karen's house the 

night before she was scheduled to fly to Anchorage and she did not return.                  McDaniel 

and another social worker searched for Christina in downtown Fairbanks, but Christina 

missed her flight.      McDaniel contacted staff at Dena A Coy, who reluctantly agreed to 

hold a bed for Christina for one more day. 

                Christina called McDaniel later that evening. McDaniel characterized their 

phone call as "confrontational" and stated that Christina sounded intoxicated. McDaniel 

told Christina she would reschedule a flight to Anchorage for the following day and 

Christina should meet her at OCS.  The next day, Christina missed her flight again.  She 

was arrested the following day under a downtown bridge for a drinking-related offense. 

During Christina's 16 days of incarceration following this arrest, OCS set up visits with 

Gideon.    McDaniel also brought Christina a Fairbanks Native Association application 

for   treatment   programs   at   the   Women   and   Children's   Center   and   the   Ralph   Perdue 

Center, both located in Fairbanks.  Christina was placed on the waitlist in both programs 

but apparently failed to keep her place by calling in weekly; McDaniel testified that these 

calls had to be made by the applicant, so she could not have called in on Christina's 


                McDaniel also arranged for Christina to take a mental health assessment 

with Turning Point Counseling Services while she was incarcerated.   Christina told the 

evaluator, "Alcohol is my biggest problem"; she also mentioned domestic violence and 

                                                  -10-                                            6576

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

her refusal to leave Damian as factors contributing to Gideon's removal.  The evaluator 

diagnosed    Christina  with  alcohol   dependence   and   anxiety  disorder,   described  her 

prognosis as "guarded" and noted that she had "minimal social supports or resources that 

could help her succeed in outpatient services."    The evaluator recommended extended 

residential treatment to address her chemical dependency and abuse and trauma histories. 

She also recommended post-treatment outpatient care and participation in Alcoholics 


              In mid-September 2009 Christina was released from jail into Karen's care 

as a third-party custodian.  OCS arranged for supervised visits with Gideon one to two 

times per week.    Christina was also required to participate in random urinalysis testing 

(UAs).    McDaniel     encouraged    Christina  to  attend  Shades   of  Growth's   intensive 

outpatient treatment program until she could get into a treatment facility.        Christina 

attended one or two sessions but stopped attending because she "didn't feel like [she] 

was getting anything out of it" and because, as she told McDaniel, she wanted to work 

on getting her GED instead.   McDaniel also referred Christina to parenting classes and 

supervised visits at the Resource Center for Parents and Children, but Christina did not 

attend any of these classes because she moved back to Venetie. 

              Around this time, OCS added the concurrent goal of adoption to the case 

plan's initial goal of reunification.   Christina was reincarcerated for violating the terms 

of her release in late October.   After her release, she returned to Venetie with Damian, 

who had also been recently released from custody.       They did not initially inform OCS 

of their move.  After making contact with Christina and Damian, McDaniel was able to 

speak with them "probably once a month," by her estimate, and sent letters attempting 

to get them engaged in services. Her communications with the couple during this period 

were primarily through Damian.      In November 2009, five months after taking Gideon 

                                            -11-                                       6576

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

into custody, OCS changed its goal from reunification or adoption to solely adoption.8 

McDaniel notified Damian that the goal had changed, both by telephone and in a letter. 

       E.	    Goal   Of   Adoption    To  Eventual    Termination     (December    2009   To 
              September 2010) 

              In   December    2009,  Christina  left  a  message  for  McDaniel   asking  if 

McDaniel could   bring   Gideon   to   Venetie the next time she visited.    There is   some 

ambiguity as to whether McDaniel received this message, but the record is clear that 

McDaniel never took Gideon to visit Christina in Venetie. McDaniel often had difficulty 

communicating with Damian and Christina when they were in Venetie because they had 

no functioning telephone.    Christina had no visits with Gideon from November 2009 

until January 2010. 

              Christina had earlier expressed interest in attending Old Minto Recovery 

Camp with Damian.       McDaniel testified that OMRC may have been appropriate for 

Damian, but it was not one of the recommended service providers for Christina because 

it did not provide the level of treatment Christina needed and because it would not allow 

Christina to separate from Damian and "work on herself as an individual." Nevertheless, 

in January 2010, Christina called McDaniel and asked for plane tickets so that she and 

Damian could fly to OMRC the following day. McDaniel, who testified that she did not 

know before this time that Christina was planning to attend OMRC, told Christina that 

this was insufficient notice to provide the tickets and reiterated that OMRC was not a 

recommended placement.  She later learned from the staff at OMRC that Christina and 

Damian would not have been eligible to attend the program even if they had been given 

tickets to get there because neither had completed the required medical intake paperwork. 

       8      This permanency plan was approved in February 2010. 

                                            -12-                                        6576 

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

               McDaniel arranged to fly Christina and Damian from Venetie to Fairbanks 

to visit Gideon in January and   February 2010.          The couple returned to Fairbanks in 

February 2010 and Christina moved back in with Karen. 

               On March 2, 2010, McDaniel filed a Petition for Termination of Parental 

Rights.  Also in March, Christina was remanded to NorthStar Center, a halfway house, 

to   serve   the   remainder   of   her   September   2009   alcohol-related   charges. McDaniel 

arranged for supervised visits with Gideon during Christina's time at NorthStar Center. 

Christina also completed an updated substance abuse evaluation with Shades of Growth 

while at NorthStar.    She told the assessor she had not consumed alcohol since October 

2009.   As in the July 2009 assessment, she stated that she did not believe her drinking 

was a problem.      The assessor indicated that Christina displayed high defensiveness, 

which    "usually    indicates  a  person   is  concealing   information    or  minimizing     their 

problems." The assessor cited other signs that Christina could be attempting to minimize 

the extent of her alcohol problem:        Christina said in this assessment that she started 

drinking at age 15 (rather than 13 as she had stated in the July 2009 assessment or 12 as 

she ultimately testified at trial) and she reported drinking smaller quantities than she had 

acknowledged previously.   The assessor again concluded that Christina was in the "pre- 

contemplation"      stage   and   recommended       residential  treatment,   domestic    violence 

education, and parenting classes.      She also recommended a psychiatric evaluation. 

               After her release in late March, Christina told McDaniel she was living with 

Karen.   McDaniel again set up random UAs for Christina, who called in inconsistently 
and   missed   multiple   UAs   during   April   2010.9   Christina   also   began   the   Changing 

Patterns domestic violence program but attended for only three or four weeks of the nine- 

month program; she testified that she "thought it'd be better" if she attended after she got 

        9      The one test Christina took was negative. 

                                               -13-                                            6576 

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

out of treatment, but she did not discuss this decision with McDaniel.               Christina stated 

this was partly due to the difficulty she had contacting McDaniel. 

                In Spring 2010 Christina asked McDaniel for a letter that would move her 

up the waiting list for subsidized housing.  McDaniel refused to write the letter because, 

as she later explained, "the letter states that the parents are at the point of reunification 

with the child and need[] the housing to accommodate that." McDaniel believed that 

Christina was not seeking substance abuse treatment and was not yet at the point of 

reunification with Gideon.   Christina took two UAs in May 2010; one was negative, but 

the other came back positive for cocaine.            McDaniel did not discuss this result with 

Christina, who had fallen out of contact and stopped calling in for UAs during the month 

of June.   At some point after the positive UA result, Damian called to schedule a visit 

with Gideon. McDaniel testified that she believed he was calling on behalf of the couple. 

Because Gideon had chicken pox, his parents were not allowed visitation with him at that 


                Christina was arrested for minor consuming alcohol on June 24.  She pled 

no contest and was sentenced to 90 days in jail, with 60 days suspended and the option 

of completing the treatment program at the Ralph Perdue Center in lieu of serving jail 

time.  Christina entered the Ralph Perdue Center in Fairbanks on June 28.  She testified 

that she entered the program because she wanted to get her son back, and that she had 

already   made   the   decision   to   go   there   before   she   was   arrested. The   Ralph   Perdue 

program was not long enough or intensive enough to qualify as a Level III.3 residential 

treatment program as recommended, but it is unclear whether McDaniel was aware that 

Ralph Perdue did not meet these requirements or whether she discussed the issue with 

Christina when she provided applications to the program.               On the day she checked in, 

Christina   reestablished   contact   with   OCS   and   arranged   for   visitation   with   Gideon. 

According      to  Christina,   she   had  difficulty   reaching    McDaniel   and     had   to  contact 

                                                  -14-                                            6576

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

McDaniel's supervisors at OCS to set up visitation.  Christina completed the program at 

Ralph Perdue on July 26 but at trial she testified she was not familiar with the program's 

after-care plan. 

                 The   termination   trial   took   place   beginning   on   July   21,   2010.  Damian 

appeared telephonically and agreed to relinquish his parental rights at the outset of the 

trial. The court heard extensive testimony from Christina, McDaniel, and Markkanen. 

Joyce   Copeland   and   Lisa   Hay   -   who   had   conducted   Christina's   substance   abuse 

assessments and behavioral assessment - also testified, qualifying without objection as 

expert witnesses on substance abuse and domestic violence, respectively.                       Copeland 

testified   regarding   the   effects   parents'   alcohol   abuse   may   have   on   young   children, 

including deprivation of basic needs, trust and emotional issues, higher likelihood of 

legal problems in later life, and poor academic performance.                  She also noted the link 

between   domestic   violence   and   alcohol   abuse.         Hay   also   testified   to   this   link   and 

described the emotional and psychological problems experienced by children exposed 

to domestic violence. Hay stated that children between birth and age three are especially 

vulnerable to developing social and behavioral problems as a result of such exposure. 

                 On   September   16,   2010,   the   superior   court   issued   a   58-page   decision 

terminating Christina's parental rights. The court concluded that: (1) Gideon was a child 

in need of aid under AS 47.10.011(6), (8), (9), and (10); (2) Christina failed, within a 

reasonable time, to remedy the conduct that placed Gideon at substantial risk of injury; 

(3)   OCS   made   active   efforts   to   prevent   the   breakup   of   the   family;   (4)   Christina's 

continued custody of Gideon was likely to result in serious emotional or physical damage 

to him; and (5) termination of Christina's parental rights was in Gideon's best interest. 

The superior court took judicial notice that on August 3, 2010, six days after closing 

arguments   in   the   trial,   Christina   was   again   arrested   for   minor   consuming   alcohol. 

According to the reply brief Christina filed on appeal, that charge was later dismissed. 

                                                   -15-                                              6576

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


                In CINA cases, we review the superior court's factual findings for clear 
error.10  "Conflicting evidence is generally insufficient to overturn the superior court, and 

we will not reweigh evidence when the record provides clear support for the superior 
court's ruling."11     As we have noted, whether a parent has "remedied the conduct or 

conditions . . . that place the child at substantial risk" and "whether returning the child 

to the parent would place the child at substantial risk of physical or mental injury" are 

factual determinations best made by a trial court after hearing testimony and reviewing 

evidence,   not   legal   determinations   to     which   this   court   may   apply   its   independent 
judgment. 12    Best interest determinations are likewise factual findings subject to clear 

error review.13  However, whether the expert testimony requirement of ICWA is satisfied 

is a pure question of law to be reviewed de novo.14           And whether OCS has made active 

efforts as required by ICWA is a mixed question of law and fact; our court reviews the 

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

Servs., 175 P.3d 1263, 1267 (Alaska 2008) (citing Brynna B. v. State, Dep't of Health 
& Soc. Servs., Div. of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004)). 

        11      Id. (internal citations omitted). 

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

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

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

Servs., 77 P.3d 715, 721 (Alaska 2003) (citing G.C. v. State, Dep't of Health & Soc. 
Servs., Div. of Family & Youth Servs., 67 P.3d 648, 650-51 (Alaska 2003)). 

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

204 P.3d 1013, 1018 (Alaska 2009) (citing E.A. v. State, Div. of Family & Youth Servs., 
46 P.3d 986, 989 (Alaska 2002)). 

                                                  -16-                                            6576

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

questions of law de novo.15      "We bear in mind at all times that terminating parental rights 

is a drastic measure."16 


        A.	     The Superior Court Did Not Err By Finding That Christina Failed, 
                Within A Reasonable Time, To Remedy The Conduct That Placed 
                Gideon At Substantial Risk Of Harm. 

                Alaska     Statute   47.10.088(a)(2)      provides    that  parental   rights   may   be 

terminated if the court finds by clear and convincing evidence that the parent involved 

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

substantial risk of harm" or "has failed, within a reasonable time, to remedy the . . . 

conditions in the home that place the child in substantial risk" of physical or mental 

injury. In reaching its determination, the court may consider "any fact relating to the best 

interests of the child," including:      (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 harmful conduct or conditions; (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.17 

                In   its   August   2009   predisposition   report,   OCS   identified   a   number   of 

conditions that placed Gideon at risk, including his parents' inconsistent presence in his 

life, his parents' substance abuse problems, and the domestic violence in the family 

home.      The    report   outlined   changes    Christina    needed    to  make    to  remedy     those 

        15	     Id. 

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

Servs., 79 P.3d 50, 53 (Alaska 2003) (quoting R.J.M. v. State, Dep't of Health & Soc. 
Servs., 946 P.2d 855, 861 (Alaska 1997)) (internal quotation marks omitted). 

        17      AS 47.10.088(b). 

                                                  -17-	                                           6576

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

conditions, in particular completing a treatment program, building a support network to 

help her stay sober, and following through on the recommendations she received from 

mental health and domestic violence assessments. 

                1.	     Christina   did   not   remedy   the   conduct   that   placed   Gideon   at 
                        substantial risk of harm. 

                The   superior   court   found   that   Christina   failed   to   remedy   the   substance 

abuse and domestic violence issues that led OCS to take custody of Gideon. Specifically, 

the court noted that Christina was aware of Joyce Copeland's recommendation that she 

enter a Level III.3 long-term substance abuse treatment program, yet failed to take the 

steps necessary to enter Dena A Coy or Women and Children's Center (both of which 

would have allowed Gideon to live with her), or even OMRC (which McDaniel had 

made clear was not recommended for Christina).                She eventually entered the Ralph 

Perdue program, a 28-day program that did not meet Level III.3 requirements.  The 

superior court found that Christina's motives for attending Perdue were "mixed," and 

gave "little weight" to the possibility that she entered the program because she realized 

she needed to do something about her drinking.  The court also characterized Christina's 

answers to questions about what she had learned in treatment as "shallow and insincere." 

The superior court further concluded that "[o]n the domestic violence front, [Christina] 

did virtually nothing," attending only a few sessions of the Changing Patterns domestic 

violence treatment program and continuing her relationship with Damian despite the 

recommendation that she end it. 

                Christina contends that the conditions causing Gideon's removal had been 

remedied by the time of termination:  she had completed substance abuse treatment and 

had been sober for 34 days, and she testified that she was no longer seeing Damian, 

whose violent behavior had been the immediate cause of Gideon's removal.                   Christina 

                                                 -18-	                                          6576

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

also   argues   there   is   no   evidence   that   she   drank   alcohol   around   Gideon   or   that   her 

drinking caused him harm. 

                The superior court's conclusions are supported by the record.                 Although 

Christina   denied   having   received   a   copy   of   the   substance   abuse   assessment,   Joyce 

Copeland testified that the first assessment she gave Christina (which resulted in the 

recommendation for Level III.3 treatment) was mailed to Christina's address in Venetie 

and that she appeared to have picked up the second assessment.  McDaniel also testified 

to   having    discussed    Copeland's     assessment   with     Christina   and   explained     that   the 

recommendation was for a long-term treatment program.                   Despite being aware of this 

recommendation,   Christina   missed   multiple   opportunities   to   attend   substance   abuse 

treatment, including opportunities that would have allowed Gideon to be placed with her 

during     treatment.    She    disappeared    and   was   subsequently      arrested   when    she  was 

scheduled to go to Dena A Coy.  She appears to have lost her place on the waitlist for the 

Women and Children's Center by failing to call in on a weekly basis.                       She did not 

complete the requisite medical tests to attend OMRC, and she only called McDaniel one 

day before she wanted to travel to OMRC.               Christina acknowledged that she stopped 

attending the Changing Patterns domestic violence program after three or four weeks, 

testifying that she thought it would be better to attend after she had finished substance 

abuse treatment. 

                In   light   of   her   failure   to   follow   through   with   recommended   treatment 

despite several opportunities to do so, we are unconvinced by Christina's claim that the 

superior court erred when it found she failed to remedy her substance abuse problems 

by   attending   a   shorter   treatment   program   and   staying   sober   for   34   days. Christina 

attended multiple treatment programs as a teenager and she had multiple opportunities 

to recognize that alcohol was a significant danger to her and to Gideon.                  According to 

Joyce Copeland, Christina lacked a support network to help her stay sober.  These factors 

                                                  -19-                                             6576

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

placed her at high risk of relapse.18          The superior court also noted in its findings that 

Christina     was   arrested   for   minor   consuming        alcohol   within   eight   days   of   leaving 
treatment at Ralph Perdue - about one week after the conclusion of trial.19                        Because 

evidence of this arrest was not before the court at trial and Christina had no opportunity 

to   be   heard   on   the   issue,   the   superior   court   should   not   have   considered   the   arrest. 

However, we find that the superior court's conclusion that Christina failed to remedy her 

conduct is supported by the evidence showing that Christina failed to pursue several 

opportunities   for   recommended   treatment   and   was   determined   to   be   at   high   risk   of 

relapse based on Copeland's assessment.  Thus, although the court erred by considering 

the post-trial arrest, its error was harmless. 

                 Even     if   it   is  true   that   Christina's   drinking  has   generally   not   been   in 

Gideon's presence, we have held that a child need not be present when substance abuse 
is   occurring   in   order   to   suffer   its   negative   impacts.20 And   as   the   State   points   out, 

Christina's drinking resulted in long absences and an unsafe environment that placed 

Gideon at risk regardless of whether he directly witnessed substance abuse. 

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

Servs., 234 P.2d 1245, 1261 (Alaska 2010) (holding that "the trial court properly relied 
on the mother's history of relapses and the questionable degree to which she accepted 
that she had a substance abuse problem" when it found that she had failed to remedy 
substance abuse issues despite a period of sobriety) (citing Sherry R. v. State, Dep't of 
Health   &   Soc.   Servs.,   Div.   of   Family   &  Youth   Servs.,   74   P.3d   896,   902-03   (Alaska 

         19      On August 20, 2010, the State filed documents associated with Christina's 

post-trial arrest. 

         20      See, e.g.,Barbara P., 234 P.3d at 1258-59 (holding mother's testimony that 

she   took   precautions   to   avoid   exposing   children   to   her   drug   use   had   only   limited 
relevance because "the statute does not require that a child be present when the drug use 

                                                    -20-                                               6576

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

                Christina's     failure  to  pursue    recommended       treatment    to  address    both 

substance abuse and patterns of domestic violence also increases the risk that she will 

continue to be involved in violent relationships.           As Lisa Hay testified, alcohol use by 

victims of domestic violence often exacerbates their injuries and decreases their ability 

to get help.    Hay noted that, although breaking up with Damian was a "good step" for 

Christina, participating in a program like Changing Patterns would be important to help 

her "learn why she was in [an abusive] relationship in the first place" and avoid such 

relationships in the future. Finally, the superior court expressed doubt that Christina had, 

in fact, separated from Damian:  "Given the amount of time she has been with [Damian], 

her financial dependence upon him . . . , [and] her past expressions of an unwillingness 

to leave him, the court does not find her uncorroborated testimony that she has ended her 

relationship with [Damian] credible."           We have held that "trial courts are in the best 
position to weigh witness credibility,"21  and the superior court's conclusion appears to 

be supported by the record.        To the extent Christina has not addressed the underlying 

factors that made her a victim of domestic violence and may even still be involved with 

her abuser, she has failed to remedy the conditions placing Gideon at risk. 

                2.	     Christina was given a reasonable time in which to remedy the 
                        conditions placing Gideon at substantial risk of harm. 

                Christina argues that she was not given "a reasonable time" to remedy the 

conditions placing Gideon at risk of harm.             She puts particular emphasis on what she 

describes as the "shocking" timeline of the case.  Gideon was born in February 2009 and 

taken   into   OCS   custody   in   June   2009,   when   he   was   less   than   four   months   old.  In 

September 2009, OCS added adoption as a concurrent goal to reunification. Two months 

        21      Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

212 P.3d 756, 762 n.16 (Alaska 2009) (citing Josephine B. v. State, Dep't of Health & 
Soc. Servs., Office of Children's Servs., 174 P.3d 217, 222 (Alaska 2007)). 

                                                  -21-	                                              6576 

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

later, in November 2009, the goal was modified to adoption only.  OCS filed its petition 

for termination in early March 2010, for a total of approximately nine months between 

the time Gideon was taken into custody and the filing of the petition.               The termination 

trial took place in July 2010, when Gideon was 17 months old - approximately 13 

months after OCS initially took custody. 

                Christina argues that AS 47.10.088, which mandates that OCS petition for 

termination when a child has been in foster care for at least 15 of the past 22 months, 

"soundly suggests that 22 months is a reasonable time period during which both the 

'efforts' required and the decision regarding the initiation of a termination can be made." 

Christina also points to language from the superior court's findings that she would need 

"a total of 15 to 21 months to complete the steps in her case plan" and "[13] months 

would not . . . afford her adequate time."   She also cites recent CINA cases in which this 

court has terminated parental rights after periods of multiple years. 

                These arguments are not persuasive.           First, as Christina acknowledges in 

her brief, AS 47.10.088(g) explicitly allows OCS to file a petition for termination before 

the   expiration   of   the   mandatory   foster   care   period   (i.e.,   15   out   of   22   months)   if   it 

"determines that filing a petition is in the best interests of the child."             This provision 

suggests that the 22-month period is not intended as a minimum time OCS must wait 
before filing.22   Rather, OCS determines when to file a petition based exclusively on the 

best interests of the child; the statute defines "reasonable time" not as a specific number 

of months or by reference to parents' needs, but as "a period of time that serves the best 

interests    of  the  child,  taking    in  account    the  affected   child's   age,  emotional     and 

        22      Indeed, where a child has been in foster care for 15 consecutive months, the 

statute potentially sets 15 months as the maximum period before OCS is required to 
pursue termination. 

                                                  -22-                                               6576 

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

developmental needs, and ability to form and maintain lasting attachments."23          As the 

superior court noted, this period is likely to be shorter for young children; the legislature 

has recognized, and expert witnesses confirmed in this case, that children "undergo a 

critical attachment process before . . . they reach six years of age," and a failure to bond 
with adult caregivers during this time can result in lasting emotional damage.24 

               Christina also omits crucial context from the superior court's description 

of the time she needed to complete treatment.       The superior court did observe that 13 

months would not be adequate time for Christina to complete her case plan, but the court 

went on to state, "The force of this argument is blunted, however, by the fact that, by the 

time of trial, [Christina] had done virtually nothing to start changing her behaviors that 

placed [Gideon] at substantial risk of harm."   The court's language implies that it would 

not have expected Christina to complete the treatment she needed within13 months, but 

her failure to make any real progress toward doing so indicated that there was a very low 

likelihood of returning Gideon to her care within a reasonable time based on his age and 

needs    -   a  permitted  consideration   under   AS   47.10.088(b).   The    superior  court 

concluded, "Given [Christina's] slow progress to date, [Gideon] could be two and one- 

half or three years old before [Christina] was ready to be a stable, protective parent for 

him.   [Gideon] cannot wait that long:    His needs for permanence, stability and security 

are too great." 

               Gideon's young age and the slow pace of Christina's progress are also 

significant in distinguishing this case from other parental termination cases Christina 

cites.   It is true that the nine-month period between OCS's taking custody of Gideon and 

       23     AS 47.10.990(28). 

       24     AS 47.05.065(5) (providing for expedited placement of children, especially 

those under age six). 

                                             -23-                                         6576 

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

petitioning for termination of parental rights was unusually brief relative to the majority 

of CINA cases.       As Christina points out, OCS has frequently remained involved with 
families for multiple years before petitioning for termination.25 

                 But as noted, very young children have unique needs for permanency and 

bonding.    McDaniel cited Gideon's age as an important factor in the speed with which 

OCS added adoption as a concurrent goal, noting "it is different to look for permanency 

for an infant than a 10-year-old or a 14-year-old" and "the fact that [OCS involvement] 

started so early in this child's life is definitely a factor" in the timing of termination 
proceedings.26    We do not suggest that 13 months is an objectively "reasonable time" for 

parents    to  remedy     their  conduct;    as   reflected   in  our  past   CINA     decisions,    this 

        25      See, e.g., Jon S., 212 P.3d at 759-60 (two years and two months between 

CINA petition and termination petition); Thomas H. v. State, Dep't of Health & Soc. 
Servs., Office of Children's Servs., 184 P.3d 9 (Alaska 2008) (four and a half years 
between initial OCS involvement and termination trial; one and a half years between 
removal of second child and termination trial); Maisy W. v. State, Dep't of Health & Soc. 
Servs., Office of Children's Servs., 175 P.3d 1263, 1265-66 (Alaska 2008) (at least one 
and a half years between OCS taking custody and petitioning for termination); Sherry 
R. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 74 P.3d 896 
(Alaska 2003) (ten years between initial OCS involvement and termination petition).  In 
cases where   OCS has petitioned for termination less than one year after taking custody 
of an infant, there is typically a history of OCS involvement with the parents' older 
children.    See,   e.g., Barbara   P.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 
Children's Servs., 234 P.3d 1245 (Alaska 2010) (one month between child being taken 
into OCS custody a few days after birth and petition for termination, where OCS had 
become involved with older sibling about one and a half years earlier). 

        26      McDaniel implied that OCS's involvement with a child as young as Gideon 

was indicative of a particularly troubling situation:           "It is very hard for reports of harm 
to come out of Venetie because they have no [Village Public Safety Officer], there's no 
troopers out there, and especially since this child was not going to school and the fact 
that this child came into our radar within two months of birth and the activities of the 
parents were already very dangerous, lethal, and sporadic is a definite concern." 

                                                  -24-                                            6576

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

determination must be made on a case-by-case basis and the amount of time considered 

"reasonable" will vary.        But we emphasize that the statute clearly puts the criteria for 

"reasonable time" in terms of the child's needs.   Based on Gideon's age and Christina's 

lack of progress, we cannot say that it was clear error for the superior court to find that 

the time allowed Christina was "reasonable" in light of Gideon's needs. 

                We hold that the superior court did not err by finding that Christina failed 

to remedy, within a reasonable time, the conditions placing Gideon at risk. 

        B.	     The Superior Court Did Not Err By Finding Clear And Convincing 
                Evidence Of Active Efforts By OCS To Reunify The Family. 

                Under   the   Indian   Child   Welfare   Act   (ICWA),   "Any   party   seeking   to 

effect . . . termination of parental rights to . . . an Indian child under State law shall 

satisfy the court 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 have proved unsuccessful."27         We have previously cited one commentator's 

description of "active efforts" as distinguished from "passive efforts": 

                Passive efforts are where a plan is drawn up and the client 
                must develop his or her own resources towards bringing it to 
                fruition.   Active efforts, the intent of the drafters of the Act, 
                is   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.28 

        27	     25 U.S.C.  1912(d) (2006). 

        28      A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 


                                                  -25-                                                6576 

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

When evaluating the State's efforts, we look to the State's involvement in its entirety29 

and   may    consider  "a  parent's  demonstrated    lack  of  willingness   to  participate  in 
treatment."30  Active efforts must be proven by clear and convincing evidence.31 

               The superior court found that OCS made active efforts to help Christina 

reunite with her son, "reasonably pursu[ing] substance abuse treatment as the first and 

most important step" in her case plan.     The superior court cited OCS's initial efforts to 

create a safety plan, as well as McDaniel's ongoing efforts to assist Christina.  The court 

found that these efforts included:  arranging assessments for substance abuse, domestic 

violence, and mental health; helping Christina apply to multiple treatment programs; 

making travel arrangements to get to assessments, UAs, and treatment programs; and 

scheduling visitation with Gideon in a variety of locations, including during Christina's 

periods of incarceration.  Although Christina testified that McDaniel was frequently out 

of the office and difficult to reach, the superior court found this testimony "lacking in 

credibility" and typical of Christina's tendency to "shift blame to others or . . . excuse her 

own behaviors" when confronted with her own failures to communicate.            The superior 

court gave greater credence to McDaniel's testimony that she traveled only four or five 

days a month, received very few messages from Christina, and was frequently unable to 


1999)    (quoting   CRAIG  J.  DORSAY,  THE    INDIAN   CHILD   WELFARE     ACT    AND  LAWS 
AFFECTING INDIAN JUVENILES MANUAL 157-58 (1984));see also Dale H. v. State, Dep't 
of Health & Social Servs., 235 P.3d 203, 213 (Alaska 2010). 

       29     Maisy W., 175 P.3d at 1268-69 (affirming termination even though the State 

conceded it had not made active efforts during a three-month period, where the State's 
efforts as a whole met the standard). 

       30     Id. at 1268 (citing N.A. v. State, DFYS, 19 P.3d 597, 603 (Alaska 2001)). 

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

212 P.3d 756, 763 (Alaska 2009). 

                                             -26-                                        6576

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

return Christina's calls because Christina could not be reached at the contact numbers she 


                Christina argues before this court that OCS was "complacent and work- 

shy" in its implementation of what she calls a "perfunctory plan."  She objects to the fact 

that OCS communicated with her through Damian, thus sending mixed messages about 

her continued relationship with him. Christina also argues that McDaniel did not pursue 

maternal-side      placement     options    for  Gideon    in  Venetie    or  Fort   Yukon,    observed 

Christina and Gideon together on only a few occasions, did not address Christina's 

housing   or   financial   needs,   wrongly   chose   to   address   Christina's   substance   abuse 

problems before addressing domestic violence as a contributing factor in her alcohol use, 

and focused on encouraging Gideon's potential adoptive mother rather than choosing to 

visit Christina in Venetie. 

                The extensive record of OCS involvement in this case amply supports the 

superior court's finding of active efforts.         McDaniel and other OCS staff initiated most 

of the steps in Christina's case plan, including scheduling assessments, setting up UAs, 

and facilitating applications and transportation to treatment programs (which, with the 

exception of Ralph Perdue, Christina chose not to attend). Christina's claim that she was 

unable to reach McDaniel is not credible given McDaniel's testimony and the superior 

court's assessment of Christina's defensive attitude; in fact, it appears that Christina's 

own frequent moves and unreliable contact information were responsible for hindering 

communication with OCS and undermining the success of its efforts. 

                Nor do Christina's other arguments support her characterization of OCS as 

"complacent."  As the State notes in its brief, "[i]t was ultimately Christina's decision to 

remain with Damian" and "McDaniel was simply recognizing the reality that the couple 

was   living    together   again"    when   she   communicated   through        Damian.     Moreover, 

McDaniel testified that she discussed maternal-side relative placements with Christina's 

                                                  -27-                                             6576

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

mother and "worked with the [Fort Yukon] tribe extensively to locate other relatives" for 

possible   placement,   determining   that   there   was   no   relative   placement   available   on 

Christina's side of the family.      Although McDaniel observed Christina and Gideon in 

person on relatively few occasions, she received and reviewed regular reports from OCS 

employees who supervised visitation.           McDaniel's refusal to provide a letter to help 

Christina obtain subsidized housing is consistent with OCS's policy, which required that 

the family in question be eligible for reunification; McDaniel testified that she would 

have provided the letter had Christina been engaged in treatment and moving toward 

reunification, but that Christina was not yet doing so. McDaniel also noted that Christina 

had rejected available housing options, such as living with Karen or her birth parents or 

going to the Grandma's House shelter. 

                McDaniel's decision to focus on Christina's substance abuse problems as 

the first step in treatment was reasonable.         Lisa Hay testified, and the superior court 

found, that Christina would not benefit fully from domestic violence treatment or other 

forms of education until she had addressed her substance abuse.               Finally, Christina's 

claim that McDaniel failed to visit her and Gideon in Venetie appears to focus on the 

brief period between OCS taking temporary custody in June and Ronda's surrender of 

Gideon in July.  McDaniel's ongoing contact with Christina at other times was sufficient 

to compensate for any shortcomings during this period, and the fact that McDaniel did 

not visit Christina in either Fort Yukon or Venetie at other times must be attributed, at 

least in part, to Christina's "nomadic" lifestyle and failure to keep OCS up-to-date on her 


                The superior court acknowledged, and we agree, that "perhaps greater effort 

could have been made to provide visits from November 2009 through February 2010." 

But the superior court noted that Christina's lack of communication largely impeded 

OCS's ability to help Christina during this period. In addition, we have held that periods 

                                                -28-                                           6576

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

of inactivity are not fatal to a finding of active efforts where OCS's participation has 
been active "in   its entirety."32     Even taking into account this less-active period, and 

assuming   that   McDaniel   could   have   done   more   to   observe   Christina   and   Gideon   in 

person or refer Christina to alternative housing options, we conclude the superior court 

correctly found OCS's work in its entirety took Christina "through the steps of [her] 
plan"33   and   constituted   active   -   though   unsuccessful   -   efforts   to   keep   the   family 


        C.	     The Superior Court Did Not Err By Concluding That Gideon Would 
                Be At Substantial Risk Of Emotional Or Physical Damage If Returned 
                To Christina's Custody. 

                ICWA provides that "[n]o termination of parental rights may be ordered . . . 

in the absence of a determination, supported 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."34  Such a determination requires proof that a parent's conduct is likely to harm 

the child and that the parent is not likely to change her conduct.35           The expert witnesses 

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

        33      A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 

1999)     (quoting    CRAIG   J.  DORSAY,  THE      INDIAN    CHILD    WELFARE      ACT     AND  LAWS 

        34      25 U.S.C.  1912(f) (2006). 

        35      L.G.  v. State, Dep't of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 


                                                  -29-	                                           6576

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

providing testimony are not necessarily required to meet with the parties, but "the expert 
opinion should be based on the particular facts and issues of the case."36 

                 The   superior   court   found   that   Gideon   had   been   exposed   to   domestic 

violence   and   subjected   to   neglect   while   in   Christina's   care.     The   court   also   found 

evidence beyond a reasonable doubt that Christina's conduct, and its effects on Gideon, 

were unlikely to change:         she had "done virtually nothing to help herself change since 

the CINA petition was filed" and was, according to the expert testimony of Copeland and 

Hay, at a high risk for substance abuse relapse and/or a continued pattern of abusive 


                 Christina argues that the two expert witnesses had little individual contact 

with her and failed to address specific issues facing Native rural families.  She contends 

that Gideon was not impaired by the four months he spent with her, and "the fact that 

[she]   had   been   sober   and   away   from   Damian   at   the   time   of   trial   only   shows   less 

likelihood   of   harm."       Finally,   Christina   cites   the   New   York   case   of  Nicholson   v. 
           37  for   the  proposition     that  a  mother's    inability   to  prevent   her   child   from 

witnessing domestic violence cannot be the sole basis for removing the child, and that 

battered mothers are good candidates for rehabilitation "because they typically enter the 

child welfare caseload not because of any deficit in parenting." 

                 We find the superior court's findings to be supported by the record.  The 

court's finding that Gideon was a child in need of aid clearly set out the evidence and 

        36       C.J. v. State, Dep't of Health & Soc. Servs., 18 P.3d 1214, 1218 (Alaska 

2001); see also J.A. v. State, DFYS, 50 P.3d 395, 400-02 (Alaska 2002) (holding that 
expert testimony was sufficient to support the conclusion that father's children would be 
seriously   harmed   if   returned   to   him,   even   though   the   experts   did   not   interview   the 

        37       203 F. Supp. 2d 153 (E.D.N.Y. 2002). 

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expert testimony the court relied on in concluding that Christina's parenting posed a 

substantial threat of harm to Gideon.  And both Christina's history and the testimony of 

Copeland and Hay support the finding that Christina is unlikely to change her behavior 
in   a  reasonable     time.38   Christina's     claim   that   the  evidence    was    insufficient   is 

unpersuasive.  We have established that expert witnesses need not meet with individual 
parties in order to provide testimony regarding the risks of continued custody.39                 Here, 

both of the State's expert witnesses did  interview Christina in person, and Copeland 

conducted an additional assessment over the telephone.   Each witness testified not only 

about the general effects of domestic violence and substance abuse, but also about the 

specific implications of Christina's assessments. Both Copeland and Hays were qualified 

as experts in their fields with regard to Native and non-Native families.                The fact that 

neither witness specifically addressed Native issues is not determinative; our court has 

held    that  expert   testimony    on   Native   culture   is  unnecessary     where    the  basis   for 
termination does not implicate cultural bias.40 

        38      The    superior    court   cited  Christina's    post-trial   arrest  as  "convincing 

evidence that she has not yet been able to change her behavior patterns" and that Gideon 
would therefore be at risk in her custody.  As discussed, it was improper for the superior 
court to consider evidence of an arrest that was not part of the trial record.                 But we 
conclude that this error was harmless because the superior court had more than sufficient 
other   evidence   of   Christina's   failure   to   change   her   conduct:    the   court   also   cited 
Christina's multiple Minor Consuming Alcohol convictions prior to trial and the fact that 
she had "done virtually nothing to help herself change since the CINA   petition was 
filed," had resisted participating in the long-term treatment options recommended for her 
and made available to her, and had made visitation with Gideon difficult by frequently 
changing her residence. 

        39      C.J., 18 P.3d at 1218. 

        40      L.G., 14 P.3d at 952-53. 

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                 Christina's argument that Gideon showed no signs of impairment as a result 

of   spending   time   with   her   is   undermined   by   the   testimony   the   superior   court   heard 

regarding   the   long-term   emotional   and   psychological   harms   to   children   exposed   to 

domestic violence and substance abuse. As discussed, Christina's claims of sobriety and 

separation from Damian are unconvincing given her failure to pursue more extensive 

treatment.  Similarly, Christina's reliance on Nicholson is misplaced:   the superior court 

found that Gideon was a child in need of aid based not only on exposure to Damian's 

domestic violence, but also on Christina's own substance abuse and related neglect. 

                 We hold that the superior court did not err by finding that Gideon would 

be at substantial risk of emotional or physical damage if returned to Christina's custody. 

        D.	      The Superior Court Did Not Err By Finding Termination Of Parental 
                 Rights Was In Gideon's Best Interests. 

                 Under AS 47.10.088(c), a court is required to consider the best interests of 

the child before terminating parental rights.  CINA Rule 18(c)(3) similarly provides that 

the court must find that termination is in the best interests of the child.                The superior 

court found that Gideon's visits with Christina had generally gone well, but that "[h]is 

ability    to  bond   with   [Christina]   has    been   hampered      by  her   roaming    lifestyle   and 

infrequent   visits   with   him   stemming   from   her   failure   to   keep   OCS   apprised   of   her 

whereabouts."       The   superior   court   also   noted   that,   because   of   her   treatment   needs, 

Christina was not likely to be able to have Gideon with her in the near future.  The court 

raised concerns about Christina's ability to address Gideon's potential special needs (as 

indicated by tests showing he was delayed) in addition to the many other challenges she 


                 Christina's   arguments   on   this   point   are   largely   repetitive   of   arguments 

already discussed:       she characterizes Damian's drinking and domestic violence as the 

"direct and primary causes of Gideon's removal" and contends that if OCS helps her find 

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housing and a job, Gideon may be able to live with her within a reasonable time.  She 

argues that there was little evidence presented that Gideon had bonded with his foster 

family.  She also reiterates her desire to stay close to family members as a reason for not 

seeking treatment in Anchorage and for moving frequently. 

                Given Christina's ongoing problems with substance abuse and domestic 

violence and her refusal to pursue treatment despite multiple opportunities to do so 

(including opportunities in Fairbanks, home of Christina's foster mother and the closest 

city to Fort Yukon and Venetie), there is strong support for the superior court's finding 

that Christina is unlikely to be      capable of caring for Gideon within a reasonable time. 

McDaniel testified that Gideon exhibited attachment to his foster mother, with whom he 

had lived for over 12 months by the time of trial.           Even if there is, as the superior court 

found,   "insufficient   evidence   from   which   [to]   conclude   that   [Gideon]   has   failed   to 

completely   bond   with   [Christina]"   and   limited   evidence   of   bonding   with   the   foster 

mother, Gideon's foster home offers to provide him with immediate stability at this vital 

developmental stage - something his mother, despite her apparently genuine desire to 

care for her son, cannot provide now or in the near future.  The superior court did not err 

by finding termination of parental rights to be in Gideon's best interest. 


                We AFFIRM the decision of the superior court to terminate Christina J.'s 

parental rights. 

                                                 -33-                                            6576
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