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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Martha S. v. State, Dept. of Health & Social Services, Office of Children's Services (1/13/2012) sp-6632

Martha S. v. State, Dept. of Health & Social Services, Office of Children's Services (1/13/2012) sp-6632

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

                THE SUPREME COURT OF THE STATE OF ALASKA 

MARTHA S.,                                    ) 
                                              )       Supreme Court Nos. S-14049/14072 
                       Appellant,             )       (Consolidated) 
                                              ) 
        v.                                    )       Superior Court Nos. 4FA-09-00116 CN 
                                              )       and 4FA-09-00117 CN 
STATE OF ALASKA,                              ) 
DEPARTMENT OF HEALTH &                        ) 
SOCIAL SERVICES, OFFICE OF                    )       O P I N I O N 
CHILDREN'S SERVICES,                          ) 
                                              )       No. 6632 - January 13, 2012 
                       Appellee.              ) 
                                              ) 
                                              ) 
WILLIAM S.,                                   )       Superior Court Nos. 4FA-09-00116 CN 
                                              )       and 4FA-09-00117 CN 
                       Appellant,             ) 
                                              ) 
        v.                                    ) 
                                              ) 
STATE OF ALASKA,                              ) 
DEPARTMENT OF HEALTH &                        ) 
SOCIAL SERVICES, OFFICE OF                    ) 
CHILDREN'S SERVICES,                          ) 
                                              ) 
                       Appellee.              ) 
                                              ) 

               Appeal   from     the   Superior   Court   of   the   State  of   Alaska, 
               Fourth Judicial District, Fairbanks, Michael A. MacDonald, 
               Judge. 

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                Appearances:      Christi   A.   Pavia,   Pavia   Law   Office   LLC, 
                Anchorage, for Appellant M.S. Dianne Olsen, Law Office of 
                Dianne Olsen, Anchorage, for Appellant W.S.              Laura Fox, 
                Assistant Attorney General, Anchorage, and John J. Burns, 
                Attorney General, Juneau, for Appellee State of Alaska. 

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

                FABE, Justice. 

I.      INTRODUCTION 

                Martha   and   William   are   the   parents   of   six   children. They   appeal   the 

superior court's order adjudicating their two youngest children as children in need of aid 

and placing the   children in the custody of the Office of Children's Services (OCS). 

Martha and William argue that the superior court abused its discretion in making various 

evidentiary rulings and contend that it was clearly erroneous for the superior court to find 

that the children were in need of aid and that continued custody by the parents would be 

contrary   to   the   children's   best   interests.   We   affirm   the   superior   court's   decision   to 

adjudicate the children as in need of aid and to keep them in the custody of OCS for a 

period not to exceed 18 months. 

II.     FACTS AND PROCEEDINGS 

        A.      Facts Leading To OCS Custody Of Andy And Allie 
                Martha and William are the parents of Andy and Allie.1              Andy is twelve 

years old and Allie is eight.  Both Andy and Allie are Indian children within the meaning 

        1       We use pseudonyms to protect the parties' privacy. 

                                                 -2-                                              6632 

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of the Indian Child Welfare Act (ICWA).2                Martha and William also have four older 

children: Rachel, Willie, Aaron, and Charlie.               At the time this   case   was initiated in 

October 2009, Martha and William had briefly separated, but they have since reconciled. 

The family resides in Fairbanks. 

                 The family has a long history with OCS. The first report of harm regarding 

the family occurred in 1991 when the eldest child was only a toddler.   Since then, OCS 

has received numerous reports of domestic violence, sexual abuse, and physical abuse, 

some   of   which   have   been   substantiated.      In   February   2005   Rachel   and   Willie   were 

adjudicated as children in need of aid.  The superior court found that Rachel was a child 

in   need   of   aid   under   AS   47.10.011(8)   (mental   injury   as   a   result   of   conduct   by   or 

conditions created by the parent) because of William's verbal abuse. It found that Willie 

was a child in need of aid under AS 47.10.011(6) (substantial physical harm as a result 

of conduct by or conditions created by the parent) as a result of William beating Willie 

after Willie was charged with burglary. But the superior court ultimately determined that 

Rachel and Willie could remain in their parents' home. 

                 All four older children have a history of serious problems.  Rachel became 

pregnant at age 16 and now has three children who are in OCS custody.  In 2004 the 

Division   of   Juvenile   Justice   (DJJ)   filed   a   petition   to   adjudicate   Willie   as   a   juvenile 

delinquent after he was accused of sexually assaulting two mentally disabled boys at the 

Boys and Girls Club, and Willie received one year of probation.  In 2008 Aaron was also 

adjudicated a delinquent minor after admitting two separate allegations of fourth degree 

assault, one against another child and one against William. According to his elementary 

        2        See 25 U.S.C.  1903(4) (2006).          The children are affiliated through their 

mother   with   the   Native   Village   of   Fort   Yukon,   also   known   as   the   Gwichyaa   Zhee 
Gwich'in Tribe.       The tribe intervened on November 30, 2009. 

                                                    -3-                                                 6632 

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school principal, Charlie had the least difficulty of the four older children, but he was 

suspended from school at least once. 

                William admits that as a result of his contact with OCS, he distrusts and 

feels "defiant" toward OCS and that he and Martha have instructed their children not to 

talk to OCS about the family.   In an August 2005 abuse history evaluation at the LEAP 

Alternatives to Violence Programs in Fairbanks, William stated that he had been at "war" 

with OCS "for the past 14 years" and admitted that he had threatened to shoot OCS 

caseworkers who came to his home.   There are numerous reports of William cursing at 

and threatening violence against OCS staff, often in front of his children. 

                Andy   began   experiencing   behavioral   difficulties   at   school   as   early   as 

preschool and kindergarten.        The principal at Andy's elementary school testified that 

because Andy was acting in an unsafe manner toward other children, he was placed in 

a program for children with behavioral and emotional problems.                 Martha and William 

believed that Andy's behavior grew worse in that program because he was surrounded 

by children with severe problems, and they removed Andy mid-year and home-schooled 

him for the rest of first grade.   When Andy returned at the start of second grade, he had 

fallen   significantly   behind   academically   and   was   returned   to   the   first   grade. Andy 

continued to manifest behavioral problems, but his parents were opposed to testing Andy 

for emotional disturbance.  Martha and William did work with the school in other ways. 

For example, if Andy was having a bad day, William would go to the school and talk to 

him to "try to get him back on track."  But by the end of second grade, Andy's behavior 

had escalated to the point where he was facing expulsion, and the staff at his elementary 

school recommended that Andy transfer to a school that could devote more resources to 

his special needs. 

                Andy   transferred,   and   his   new   teacher   described   his   main   problem   as 

struggling   "with   behavioral   outbursts,   which   consist   of   physical   outbursts,   hitting, 

                                                  -4-                                            6632
 

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kicking, punching, throwing objects, which is both inflicted upon himself and his peers 

and   adults."   She   recognized,   however,   that   Andy   was   "very   intelligent"   and   "very 

compassionate   and   very   loving,"   and   that   he   expressed   genuine   remorse   after   his 

outbursts.   Andy's teacher attributed his outbursts to his "very impulsive" nature.  She 

also noted that in September 2009, a month after Andy started at the new school, Martha 

and William had agreed to have Andy tested for emotional and behavioral disturbances. 

                The events leading to OCS's current involvement with the family began on 

October 15, 2009 when Andy "tried to choke himself twice" while at school, once with 

a shoelace and once with a sock.        Andy was nine years old at the time.         Andy told his 

teacher "I'm gonna choke myself" and listed several feasible ways that he could kill 

himself.   Martha and William came to the school immediately, and the principal set up 

what she called a "volatile student screening or threat assessment." 

                The   written   assessment   noted   that   "Andy   exhibits   extreme   aggressive 

behavior and little anger control at school" and "has a history of making threats towards 

others."   But it also observed that Andy had a normal ability to show empathy and that 

his parents were easily reachable when needed and came to the school immediately when 

notified of the choking incident.      The school's report concluded that Andy presented a 

"medium" level of concern and recommended creation of a "student intervention plan" 

that required Andy to be supervised at all times, to undergo daily checks of his backpack 

for potentially harmful items, and to participate in school-based counseling.  The report 

also noted that Martha and William agreed to closely supervise Andy at home and that 

the   counselor    provided    them   with   recommendations       for  out-of-school    counseling 

options.  William expressed skepticism about Andy's counselors, however, at one point 

referring to them as "quacks." 

                Around the time of Andy's choking incident on October 15, his brother 

Willie had been barred from all school district properties after an incident that occurred 

                                                 -5-                                           6632
 

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when Willie went inside Allie's elementary school.   The principal found Willie in a stall 

of the girls' bathroom, and a young girl who was also in the bathroom alleged that Willie 

had   tried   to   pull   her   into   the   stall. Despite   the   order   barring   him   from   all   school 

premises, on October 16 Willie was found on school grounds at a high school and was 

arrested.   Martha   was   present   and   was   also   arrested   after   screaming   obscenities   and 

kicking at the officers.  Martha pleaded guilty to interfering with arrest, and she was also 

barred from all public school premises.  Shortly after this incident, William left an angry 

voicemail laced with obscenities for the principal at Allie's elementary school.  The 

principal reported to the school district that she feared for her safety, and William was 

also barred from school district premises.   Angry with the school district, on October 22 

William picked Andy up from school early and said that he was going to "pull [Andy] 

out of school." 

                According   to   an   OCS   worker   who   called   the   school,   school   officials 

expressed concern that Martha and William would not "follow through" with getting 

Andy therapy, particularly since William said he was pulling Andy out of school.  OCS 

also called Allie's   elementary school, and the counselor there reported that she was 

concerned about Allie because Willie's incident in the girls' bathroom occurred when 

Willie was picking Allie up from school.  Allie did not have any history of problems at 

school. 

                On October 23 two OCS workers went to Martha's home and told her that 

they had received a report about Andy and Allie and that they needed to take the children 

to Stevie's Place, a child advocacy center, for interviews.  Because of William's history 

of making threats against OCS workers, Alaska State Troopers accompanied the OCS 

workers to the home.   The OCS workers asked Martha not to tell William that they were 

going to Stevie's Place, but Martha did not comply with this request and called William. 

                                                   -6-                                             6632
 

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OCS then asked law enforcement to be present at Stevie's Place as well.  When William 

arrived at Stevie's Place, he again threatened to kill anyone who tried to take his kids. 

               Both   Andy   and   Allie   were   interviewed   at   Stevie's   Place. During   his 

interview, Andy related that he was not supposed to talk to OCS but denied that anyone 

had abused or hurt him.   The program manager for Stevie's Place asked Andy about his 

attempts to harm himself at school, but Andy "was very reluctant to talk about that."  The 

program manager also interviewed Allie.   Allie was talkative and described her family, 

and at some point she mentioned that she had a "bad secret" with one of her brothers. 

When    prompted about the secret, Allie said several times, "I'm not supposed to talk to 

you about that," but she did share that the secret had "something to do with her making 

[her brother] feel comfortable."       The manager testified that she was concerned because 

Allie described it as a "bad secret."   OCS decided to take both children into emergency 

custody. 

        B.      Facts Pertaining To Andy After OCS Assumed Custody 

               Because of the report that Andy had tried to harm himself and because of 

his agitated behavior at Stevie's Place, including pounding his head and fists against the 

wall, the program manager for Stevie's Place recommended that Andy be taken to the 

emergency room for a mental health evaluation. OCS asked the police to transport Andy 

to the emergency room because OCS was afraid he would try to jump out of a normal 

vehicle.   Andy's parents were not allowed to go with him to the hospital. 

               Based on the recommendations of the doctors at the emergency room, Andy 

was admitted to North Star Hospital in Anchorage on October 24, 2009. Andy's parents 

were not notified that he was being transferred to North Star until he was on the airplane 

to Anchorage.     Andy told Brandy Fuesting, the OCS worker who transported Andy to 

North Star, that he was afraid William would kill her because William had told Andy he 

would kill any OCS worker who took his kids. 

                                                 -7-                                          6632
 

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                A psychiatrist at North Star initially diagnosed Andy with posttraumatic 

stress disorder (PTSD), and Andy was later also diagnosed with oppositional defiant 

disorder and intermittent explosive disorder.  Andy's psychiatrist and clinical therapist 

reported     that   during  his  first   weeks  at   North  Star,   Andy   no  longer    threatened    or 

attempted to harm himself but that he was "assaultive" and made threats towards others, 

including     threatening    to  kill  the  staff  members'      families.   Andy's      therapist   and 

psychiatrist also testified that Andy needed inpatient treatment at that time and would not 

be safe outside of a controlled environment.           OCS would not permit Andy to have any 

contact with his parents, including on Andy's birthday.             Andy's therapist testified that 

she thought some contact would be beneficial and that the facility usually conducted 

family therapy sessions twice a week. 

                Because North Star is a short-term, acute facility, in December 2009 Andy 

was transferred to the residential diagnostic and treatment unit (RDT) at Family-Centered 

Services of Alaska in Fairbanks. Andy's therapist there agreed with the diagnoses given 

to Andy at North Star.      PTSD remained Andy's primary diagnosis, but the psychiatrist 

at RDT also diagnosed Andy with major depressive disorder.                  Patients usually stay at 

RDT for six to twelve months, and the program uses a points system that allows patients 

to earn more privileges as their treatment progresses. 

                At a status hearing in March 2010, the RDT program director testified that 

Andy was progressing, but that the program had not begun family therapy with Andy. 

OCS   also   decided   not   to   allow   Martha   or   William   to   participate   in   treatment   team 

meetings at the facility until Andy had been there for three or four months.  By the time 

of the adjudication hearing in August 2010, however, OCS's expert psychologist Dr. 

William J. van Doorninck testified that RDT had been a "treatment failure" for Andy and 

that RDT's model was not well-suited to him.              Andy's therapist testified that Andy's 

                                                  -8-                                             6632
 

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outbursts of aggression made it very difficult for him to advance levels and agreed that 

RDT had not worked for Andy. 

                One week prior to the adjudication hearing, Andy returned to North Star 

in Anchorage.  Andy's clinical therapist at North Star, Chris Yinkey, testified that Andy 

had returned to North Star because of physical aggression, lack of impulse control, and 

harm toward others displayed at RDT.            Yinkey testified that North Star was an acute 

facility   and   was primarily   seeking   to   stabilize Andy   with   regard   to   his   oppositional 

defiant disorder and that once Andy was stabilized he should be transferred back to 

another long-term residential treatment program.   Yinkey also testified that if Andy did 

not continue treatment, it was likely that he would continue to have chronic problems 

with aggression, depression, and anxiety and would continue to be a high risk for suicide 

attempts. 

        C.      Facts Pertaining To Allie After OCS Assumed Custody 

                Allie began counseling sessions with Cynthia Bridgman, a licensed clinical 

social worker at Hope Counseling Center.             On October 27, 2009, after her first session 

with Bridgman, Allie spontaneously told Brandy Fuesting, the OCS worker who was 

driving her back to her foster home, that her uncle "does not touch my privates, no he 

doesn't."    Fuesting   asked   Allie   if   anyone   did,   and   Allie   replied:   "No   one. No   one 

touches my privates."       Fuesting asked Allie to tell her about her family, and Allie said 

that there are some things she does not like about one of her brothers.              Fuesting asked 

Allie to tell her about them, and Allie said that she watches "sex movies" with him. 

Allie also reported that during the movies, she and her brother "have good hugs and 

kisses but not bad ones, not bad ones."           Allie also said that no one knows about the 

movies and that it was a secret.        After taking Allie back to her foster home, Fuesting 

reported the conversation to other OCS workers and Bridgman, and they decided to 

interview Allie a few days later. 

                                                  -9-                                            6632
 

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                 Allie was taken back to Stevie's Place, where she was observed by the 

program   manager,   Lori   Markannen,   while   Fuesting   interviewed   her.            According   to 

Markannen,   in   her   interviews   with   Fuesting,   Allie   "elaborated   a   bit   about   watching 

movies with her brother [Aaron].  At one point, she labeled them sex movies.  And there 

wasn't a lot more than that."        Markannen clarified that Allie did not explain what she 

meant by "a sex movie."         William later testified that on some occasions he had noticed 

on his cable bill that his sons had ordered pornographic movies but stated that he was 

unaware that Allie had been exposed to them.  Allie's brother Aaron testified that he had 

ordered pornography with his brother but maintained that he had not exposed Allie to it 

and   that   he   had   only   ever   hugged   and   kissed   Allie   in   an   appropriate   way. Aaron 

described one incident where he went to help Allie use the computer and one of his 

brothers   had   left   a   pornographic   video   playing   that   Allie   may   have   seen   for   a   few 

seconds. 

                 Allie continued therapy with the Hope Counseling Center's clinical social 

worker Cynthia Bridgman, and at the adjudication trial Bridgman testified about further 

disclosures   made   by   Allie   during   her   counseling   sessions.      Bridgman   qualified   her 

testimony by pointing out that it was not her job to determine the truthfulness of Allie's 

disclosures,   but   instead   that   her   goal   was   to   help   Allie   cope   with   and   resolve   any 

problems she might be dealing with.             One of Bridgman's main concerns was Allie's 

"sexual reactivity":  "[W]hen a child has a sexual experience whether it be exposure or 

personal experience and then they act on it.   They try to re-engage or engage in that . . . 

behavior." 

                 Bridgman related one conversation where she was discussing boundaries 

and body parts with Allie after Allie had walked in on a boy using the bathroom in her 

foster home.      Bridgman drew a penis as part of the discussion about body parts, and 

recounted Allie saying "that it's not supposed to be crooked, it's supposed to be straight" 

                                                   -10-                                              6632
 

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and explained "that she had seen her brother[s'] . . . penis[es], that she had touched [one 

brother's] penis while she was in [her] dad's bed and measured it with a tape measure." 

Bridgman said that she would categorize this as "exploration" rather than sexual abuse. 

                Bridgman   also   recounted   an   incident   reported   by   Allie's   foster   mother 

where Allie and another foster child living in the house were playing in a ditch "without 

their pants on" and one of the girls explained that "they were playing s-e-x."  Bridgman 

and another therapist addressed this incident in a joint session with both girls, where 

Allie explained "that they played s-e-x, took off their clothes, kissed and hugged, and 

then she demonstrated by laying on her stomach and . . . thrusting her hips.                  And she 

stated that it can hurt your belly sometimes when you do that."  Bridgman classified this 

as an example of sexual reactivity and stated that she and the other therapist did not think 

there was any coercion involved on the part of either girl.            Bridgman also testified that 

Allie's concern about having "secrets" had lessened over time and that Bridgman's goal 

was for Allie to feel comfortable speaking freely and not to feel burdened by secrets. 

                Finally, Bridgman explained that at a recent session, she had asked Allie 

if she thought there was anything that "she thought the judge should know."  Bridgman 

recounted Allie's statements about "good things" and "bad things" at her various houses, 

at one point detailing sexual abuse: 

                [Allie] said that [she] had   sex   at mom and dad's.           At that 
                point I asked her to tell me more about that and she said with 
                David   my   neighbor.      I   asked   her   where,   she   said   in   her 
                bedroom - in [her] bedroom with the door locked.               I asked 
                her if the clothes were on or off, she said they were off.  She 
                then added that it was his idea and it felt good. . . .       I tried to 
                be    emotionless     as  far  as  not  giving    her  affirmation     or 
                criticism but just taking the information as best as I could. 

                She indicated that she also did it with her brother . . .         in his 
                and [her] dad's bed. I did not ask a lot of questions about that 
                but she told me that he had told her to take her clothes off . . . 

                                                  -11-                                            6632
 

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

                and he laid on top of her . . . . [A]nd she said it hurt [her] 
                insides, he's too big for [her]. 

Bridgman noted that these reports conflicted with Allie's earlier statements that no one 

had ever touched her privates. Martha and William later testified that there were no boys 

in the neighborhood named David and that none of the rooms in their house had locks. 

Bridgman   concluded   by   explaining   that   sexual   reactivity   could   cause   Allie   to   be   at 

greater risk for possible abuse.   Bridgman thought that Allie had made good progress in 

therapy and did not have a substantial impairment in her ability to function, but she 

cautioned that Allie's ability to return home depended on her parents' abilities to address 

her concerns and keep her safe. 

        D.      Facts Pertaining To The Parents And To Services Provided By OCS 

                On October 26, 2009, after a court proceeding related to the family, the two 

OCS   caseworkers   who   had   attended   the   proceeding   were   in   the   parking   lot   of   the 

courthouse when William revved the engine of his vehicle and then accelerated quickly 

in the direction of the caseworkers, "blaring" his horn.   The caseworkers jumped out of 

the way and reported that the vehicle missed them by "an arm[']s length."                     Based on 

William's previous threats to kill any OCS caseworker who tried to take his children, the 

OCS caseworkers reported that they thought he was trying to kill them.                   William was 

charged with felony assault in the third degree and ultimately pleaded guilty to and was 

incarcerated for misdemeanor fourth degree assault. 

                While William was in jail in October 2009, OCS held a team decision- 

making      meeting    in  which    Martha    participated;    William     chose   not   to  participate 

telephonically.     William directed that all further OCS communication go through his 

attorney. Allie's therapist recommended against visitation and although Martha had one 

visit with Allie in November 2009, according to the OCS visitation supervisor, Martha 

did not follow guidelines for the visit.  In December 2009, two months after the children 

                                                  -12-                                            6632
 

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

had been removed, Martha and   William were granted supervised visitation with the 

children for 30 to 60 minutes once per week.              These visits took place in Martha and 

William's church because William had been banned from OCS premises after yelling and 

spitting    at  an  OCS     worker    there.   OCS      created   a  case   plan   for  the   family   on 

December 23, 2009, but Martha refused to sign it. 

                In   February     2010    OCS    arranged    for   the  family    to  be  evaluated    by 

William   J. van Doorninck, Ph.D., an expert in psychology from Colorado who was 

recommended by the Kempe Center, an organization that specializes in child protection 

work.    Dr.   van   Doorninck   completed   his   evaluation   based   on   a   records   review   and 

interviews   with   OCS   caseworkers,   Allie,   Andy,   the   guardian   ad   litem,   and   Martha. 

William did not attend his scheduled appointments with Dr. van Doorninck. 

                In his written evaluation, Dr. van Doorninck described Allie as a "bright, 

engaging, socially skilled child" and noted that while "[t]o date, [Allie] has not disclosed 

clear evidence of being the victim of physical or sexual abuse . . . [s]he does describe 

being     subjected     unwillingly     to   explicit   sexual    material."    Dr.   van    Doorninck 

recommended that Allie receive "an extended period of time in psychological treatment 

and in a normalized family environment" and suggested that Allie could have visits with 

her parents up to twice a week, supervised by her therapist or a parenting coach.  In his 

oral testimony, Dr. van Doorninck observed that Allie had "considerabl[y] more coping 

skills"   than   Andy   and   was   "a   remarkably   mature   child   for   her   age."   But   he   also 

cautioned that the evidence in the record "concerning sexualized behavior" should be 

taken very seriously and that "her vulnerability to being sexualized and, frankly, sexually 

abused is a - is a real danger." 

                With respect to Andy, Dr. van Doorninck noted in his written evaluation 

that although Andy had improved with treatment from the psychological "collapse" he 

suffered     in  fall  2009,  "he   was   insufficiently    stable  to  return   to  a  home    setting." 

                                                  -13-                                             6632
 

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Dr. van Doorninck observed that "[Andy] acknowledges that he has witnessed a good 

deal   of   domestic   violence   against   his   mother   and   older   siblings"   and   that   "[Andy] 

continues to be burdened by self-defeating, distorted, and rigid judgments of himself." 

Dr. van Doorninck concluded: 

                [Andy's] psychiatric symptoms are best understood, in my 
                opinion, as the result of multiple psychological traumas over 
                his entire lifetime.    If [Andy] were to return to his parents['] 
                home in the near future, it is certain that he will not have the 
                opportunity to resolve the above described issues.  Extended 
                and   intensive   psychosocial   and   behavioral   treatment   in   a 
                setting    away    from    his  parents'    home    will   certainly   be 
                necessary before he can form a healthy and separate identity, 
                a more realistic and functional view of interpersonal conflicts, 
                and more effective and socially appropriate coping skills. 

                Dr. van Doorninck recommended that Andy receive "an extended period 

of time in residential treatment" and that he have visits with his family only once a month 

to allow Andy to "escape the dysfunctional patterns within his family."                     In his oral 

testimony, Dr. van Doorninck agreed that Andy's primary diagnosis was posttraumatic 

stress disorder. 

                Dr. van Doorninck conducted an independent psychological evaluation of 

Martha, including an interview of Martha and a review of Martha's visits with Andy and 

Allie.   William   was   present   at   some,   but   not   all,   of   the   visits. Dr.   van   Doorninck 

observed that while William was present, Martha "consistently defer[red]" to William 

and that she "interacted very little" with the children.            When William was not present, 

Martha "emphasized her own needs." Dr. van Doorninck testified that Martha was more 

likely to take a "background role," and he concluded in his report that Martha is "not 

able to protect her children from physical, sexual, and psychological abuse," including 

an inability to "accept outside help for her children." 

                                                  -14-                                             6632
 

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                 William refused to meet with Dr. van Doorninck and instead hired his own 

expert, Stephen Parker, Ph.D., to conduct his psychological evaluation.                    On March 15, 

2010, Dr. Parker completed his evaluation of William.   Dr. Parker observed that "[o]f all 

the interviews I have conducted in the last thirty years . . . this one was remarkable in 

how impervious [William] was in his inability to understand other people's point of 

view."  According to Dr. Parker, William "essentially attributed all of the problems with 

the schools, counselors, and OCS to the attitude they had or the lies they were telling." 

Dr. Parker also noted that William believed that "the threats to kill people were justified 

because he was protecting his own home." 

                 Dr.   Parker   diagnosed   William   with   major   depressive   disorder,   mild   to 

moderate, and personality disorder, severe, with paranoid features. Dr. Parker explained 

that    William's     personality     disorder    makes     it  "difficult   for   him   to   change     his 

behavior . . . .   He vigilantly interprets the behavior of people in authority in a way that 

fits   into   his   pre-existing   framework   that   they   are   out   to   harm   him   and   his   family." 

Dr. Parker stated that this mental condition could place William's children at risk if they 

were returned to his custody because they suffered greater mental injuries as a result of 

William's behavior than as a result of the family being broken up. 

                 Dr. Parker later submitted an evaluation of Andy as an addendum to his 

evaluation     of   William.    Dr.   Parker    conducted      two   interviews   with    Andy.     While 

acknowledging that he did not "doubt that [William's] intimidating, controlling and at 

times paranoid behavior . . . has mentally injured [Andy]," Dr. Parker recommended that 

Andy be placed back with his family as soon as therapeutically possible.                      Dr. Parker 

expressed that "[Andy] is strongly attached to his father . . . [and] there is no realistic 

good alternative to returning him to his family that will not result in [Andy's] having 

severe attachment issues."  Dr. Parker clarified that his opinion was "not an opinion that 

[OCS] has not been correct in the need for temporary placement outside the home" and 

                                                   -15-                                              6632
 

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

that it was "in no way an endorsement of [William], his outrageous and offensive verbal 

behavior, his inability to put the needs of his children before his own, or his method of 

relating to others and parenting through intimidation." 

               In his oral testimony, Dr. Parker agreed that Andy had a severe emotional 

disturbance, likely "complex posttraumatic stress disorder," but reiterated his opinion 

that the mental injury suffered by Andy as a result of his removal from his family was 

greater than any mental injury to Andy caused by William.           Dr. Parker recommended 

that Andy receive therapy at least twice a week; attend school outside of the home, 

preferably    in  a  program   designed   to  address  his  behavioral   needs;   and  enroll  in 

productive extracurricular activities such as sports.   He also suggested that an inpatient 

program with "lots of family contact" could be successful, and agreed that if Andy were 

placed back with his family with no treatment he would be at a high risk for suicide 

attempts and dangerous and assaultive behavior. 

               In April 2010 Martha and William's visits with Allie were reduced to every 

other   week   on   the   recommendation   of   Bridgman,   Allie's   therapist.  When   a   new 

caseworker     was   assigned   in  May   2010,   Martha   and  William    requested   increased 

visitation, but OCS did not consult with Bridgman until August 2010.  The superior court 

found in August 2010 that this was an abuse of discretion   and   ordered   OCS to put 

together a new visitation plan for Allie, warning OCS that a failure to do so would risk 

a finding that the department was not making active or reasonable efforts.          Martha and 

William's visits with Andy at RDT were increased in May   2010.              When Andy was 

transferred back to North Star, his parents were allowed phone contact twice daily and 

were able to visit him in person in August 2010. 

               Throughout the period prior to the adjudication trial, Martha and William 

repeatedly expressed that they did not want to participate in OCS case plans or services 

other than visitation.  William also testified that if Andy was returned home, he would 

                                              -16-                                         6632
 

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

not allow OCS to check on Andy either at home or at school.                 Martha testified that she 

would potentially allow home visits depending on the individual caseworker and whether 

she had notice of the visits but that she would not take parenting classes or work with a 

parenting coach. 

        E.      Proceedings After OCS Assumes Custody 

                On November 6, 2009, the superior court issued findings and an order 

extending OCS's temporary custody of Andy and Allie until a contested probable cause 

hearing could be completed.   On November 30, 2009, after the eight-day probable cause 

hearing, the superior court issued findings and an order for temporary custody through 

March 26, 2010, the date originally scheduled for the adjudication trial.                The superior 

court found probable cause to believe that "there is a substantial risk that [Allie] will 

suffer sexual abuse in the conditions that exist in the parents' homes," based on Allie's 

"disclosure   that   she   engaged   in   'hugging   and   kissing'   with   an   older   brother   while 

watching pornographic movies alone with him in his room"  and "the parents' insistence 

that the children maintain secrecy about anything that occurs in the home." The superior 

court also found probable cause to believe that "[Andy] has suffered mental injury as a 

consequence of being raised in an unhealthy home full of rage and conflict." 

                In April 2010 the parties rescheduled the adjudication and disposition trial 

and stipulated that OCS would retain custody of the children until the trial.  On May 25, 

2010,   the   superior    court   again   postponed   the   adjudication    and   disposition    trial   at 

William's request and issued an order extending OCS custody of the children through 

the date of the trial. 

                The 15-day adjudication and disposition hearing occurred in August and 

September 2010.  William repeatedly interrupted the proceedings by yelling obscenities 

at the witnesses, storming out of the courtroom, and talking on his cell phone.                He also 

expressed his disregard for the proceedings by reading a novel.  On October  4, 2010, the 

                                                  -17-                                            6632
 

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

superior    court   issued   oral  findings    that  Andy    was   a  child  in  need   of  aid  under 

AS   47.10.011(4),   (8),   (9),   and   (11)   and   that   Allie   was   a   child   in   need   of   aid   under 

AS 47.10.011(6), (7), (8), (9), and (11).        On October 5, 2010, the superior court issued 

a written order memorializing its oral findings that Andy and Allie were children in need 

of aid and authorizing their continued placement outside the home for a period not to 

exceed 18 months, until April 2012. 

                Martha and William challenge several evidentiary rulings by the superior 

court.  They challenge the admission of Dr. van Doorninck's expert testimony because 

he is not licensed to practice in Alaska, the admission of Cynthia Bridgman's hearsay 

testimony regarding Allie's statements to her under Alaska Evidence Rule 803(4) as 

statements for the purposes of medical diagnosis or treatment, and the admission of OCS 

permanency supervisor Judith Ringstad's testimony admitted under Alaska Evidence 

Rule   803(1)   as   a   present   sense   impression.    Martha   and    William    also   appeal   the 

adjudication of Andy and Allie as children in need of aid under multiple subsections of 

AS 47.10.011.  They argue that the superior court erred in finding that OCS made active 

efforts to prevent the breakup of the Indian family. Finally, Martha and William contend 

the superior court erred in  finding that returning the children to them was contrary to the 

children's best interests and was likely to cause them serious emotional or physical 

damage. 

III.    STANDARD OF REVIEW 

                In a case involving the removal of children from their parents' custody, we 

review a superior court's findings of fact for clear error, including "the superior court's 

factual determination[] as to whether the State met its evidentiary burden in showing that 

                                                 -18-                                            6632
 

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

the children are in need of aid."3       "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."4               Conflicting evidence is 

ordinarily not enough to overturn a superior court's factual findings, and we "will not re- 
weigh evidence when the record provides clear support for the trial court's ruling."5  We 

give "particular deference" to the superior court's factual findings when "they are based 

primarily on oral testimony, because the trial court, not this court, judges the credibility 
of witnesses and weighs conflicting evidence."6              Whether the superior court's factual 

findings comport with the requirements of the Indian Child Welfare Act and Alaska's 
Child in Need of Aid statutes are questions of law that we review de novo.7                  "Whether 

the   State   has   complied   with   ICWA's   'active   efforts'   requirement   presents   a   mixed 
question of law and fact."8 

                "We review a trial court's decision to admit or exclude evidence, including 

expert witness testimony, for abuse of discretion and will only reverse an erroneous 

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

Servs., 249 P.3d 264, 270 (Alaska 2011). 

        4       Id. at 269-70 (quoting Dale H. v. State, Dep't of Health & Soc. Servs., 235 

P.3d 203, 209-10 (Alaska 2010)). 

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

Servs., 182 P.3d 1110, 1114 (Alaska 2008). 

        6       Josephine B. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 174 P.3d 217, 222 (Alaska 2007). 

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

214 P.3d 284, 290 (Alaska 2009). 

        8       Id. 

                                                  -19-                                             6632
 

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

decision if it affected the substantial rights of a party."9        "An abuse of discretion exists 

only when we are left with a definite and firm conviction, after reviewing the whole 
record, that the trial court erred in its ruling."10 

IV.	    DISCUSSION 

        A.	     The Superior Court Did Not Abuse Its Discretion In Its Evidentiary 
                Rulings. 

                1.	     The expert testimony from the psychologist licensed out of state 
                        was admissible. 

                Dr. van Doorninck is a psychologist from Colorado who was hired by OCS 

to evaluate the family.   At the adjudication trial, Dr. van Doorninck was qualified as an 

expert without objection.   William now argues that Dr. van Doorninck's testimony was 

inadmissible   because   Dr.   van   Doorninck   is   not   licensed   to   practice   psychology   in 
Alaska.11    William points to AS 08.86.170(a), which provides that, unless licensed, "a 

person may not use the title 'psychologist'," and AS 08.86.180(a), which provides that, 

unless   licensed,   "a   person   may   not   practice   psychology   or   hold   out   publicly   as   a 

psychologist      or  as  practicing    psychology."      William     also   relies  on  the   statutory 

procedures      in  place   to  allow   an  out-of-state    psychologist    to  obtain   a  license   by 
credentials or a courtesy license.12     William alleges that Dr. van Doorninck, even without 

        9       Cartee   v.   Cartee,   239   P.3d   707,   721   (Alaska   2010)   (internal   citations 

omitted). 

        10      Schofield v. City of St. Paul, 238 P.3d 603, 606 (Alaska 2010) (quoting 

Getchell v. Lodge, 65 P.3d 50, 53 (Alaska 2003)). 

        11       Although he did not object to Dr. van Doorninck's qualifications at trial, 

William claims that he relied on Dr. van Doorninck's statement that he did not need to 
be licensed and that he otherwise would have objected to his qualifications as an expert. 

        12      AS 08.86.150 (allowing for license by credentials rather than examination); 

                                                                                        (continued...) 

                                                  -20-	                                           6632
 

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

a license, could have been a qualified expert witness if he testified only about general 

issues,   but   that   he   crossed   the   line   into   "practicing"   psychology   by   evaluating   and 

administering psychological tests to Martha, Allie, and Andy. 

                 William's argument is without merit. Alaska Evidence Rule 702, governing 

the admissibility of expert testimony, has no licensing requirement; it only states that an 

expert witness can be qualified based   on   "knowledge, skill, experience, training, or 

education." And ICWA does not include any licensing requirement for "qualified expert 

witnesses"      under   25   U.S.C.      1912(e).    We     have   already    determined     that   expert 

witnesses need not be licensed in Alaska in order to testify here.  In Handley v. State, a 

criminal defendant sought to admit expert testimony about alcoholic blackouts in support 
of his diminished capacity defense.13           The trial court excluded the testimony after the 

State objected that the expert "was not qualified because he is not a clinical psychologist, 

qualified to be licensed under Alaska law" and "that he was not otherwise qualified, by 
virtue of his training and experience."14         After reviewing the expert's qualifications, we 

reversed, holding that it was an abuse of discretion for the trial court to exclude the 

testimony and expressly concluding that "[t]here is no requirement that a witness possess 
a particular license or academic degree in order to qualify as an expert."15              Here, William 

and Martha do not question Dr. van Doorninck's qualifications based on his knowledge, 

skill, experience, training, or education; they simply argue that he did not go through the 

        12(...continued) 

12 Alaska Administrative Code (AAC) 60.030 (2011) (describing application procedures 
for   license   by   credentials);   12   AAC   60.035   (providing   procedures   for   obtaining   a 
courtesy license). 

        13       615 P.2d 627, 629 (Alaska 1980). 

        14      Id. 

        15      Id. at 630. 

                                                   -21-                                              6632
 

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

proper     procedures     to  become      licensed   in   Alaska    before   evaluating     the  family. 

Dr. van Doorninck's lack of an Alaska license has no bearing on the admissibility of his 

expert testimony.   The trial court did not abuse its discretion by allowing the testimony. 

                2.	     In CINA cases, statements made by a child to a therapist are 
                        admissible under Alaska Evidence Rule 803(4). 

                During the adjudication trial, Cynthia Bridgman testified about numerous 

statements   made   by   Allie   during   her   therapy   sessions   that   related   to   alleged   sexual 

experiences or exposure to sexual material.           In recounting these statements, Bridgman 

clarified that her role was to provide treatment for Allie and that she was not conducting 

forensic interviews.      The superior court concluded that the statements were admissible 

because   they   were   made   for   the   purposes   of   medical   diagnosis   or   treatment   under 

Evidence Rule 803(4).        The superior court further explained that "[t]he circumstances 

and details are necessary to the treatment[,] including the identity of the perpetrator and 

the circumstances of the sexual contact and the nature of the sexual contact. [Allie] 

understands the purpose of therapy and g[ave] the statements understanding . . . th[at] 

context." 

                Martha   and     William   challenge   the   superior   court's   decision      to   admit 

Bridgman's testimony, arguing that these were hearsay statements and that the superior 

court abused its discretion by allowing the statements to be admitted for the truth of the 

matter under the medical treatment exception.               Martha and William also allege that 

Allie's statements should not have been admitted under Evidence Rule 803(4) because 

they were made over the course of many therapy sessions rather than for the purpose of 

an initial diagnosis.     Finally, they argue that even if some of Allie's statements were 

admissible under Evidence Rule 803(4), "the scope of the exception" does not allow for 

"the identity of any assailant." 

                                                  -22-	                                            6632
 

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

                Evidence Rule 803(4) provides a hearsay exception for "[s]tatements made 

 for purposes of medical diagnosis or treatment and describing medical history, or past 

 or present symptoms, pain, or sensations, or the inception or general character of the 

 cause   or  external   source   thereof  insofar   as  reasonably   pertinent   to  diagnosis   or 

treatment."    The commentary provides that the statements need not be made only to a 

physician, suggesting "hospital attendants, ambulance drivers, or even members of the 
 family" as acceptable substitutes.16 

                Here, statements made by Allie to Bridgman in her capacity as clinical 

 social worker were properly considered under Evidence Rule 803(4).  The commentary 

to the rule provides that the statements need not be made to a physician, and many other 

 courts have applied this rule to mental health workers under rules similar to Evidence 
 Rule 803(4).17   As the Alabama court of appeals has explained, this hearsay exception 

 applies where "the purpose of the child's counseling sessions . . . [is] for treatment" 

rather    than   "designed    primarily   for  an   evaluation   of  the   child  for  a  custody 
recommendation."18 

        16      Commentary Alaska E. R. 803(4). 

        17      See, e.g.,M.B. v. R.P., 3 So. 3d 237, 247-48 (Ala. Civ. App. 2008); Cabinet 

for Health & Family Servs. v. A.G.G. , 190 S.W.3d 338, 343-44 (Ky. 2006);In re O.A.W., 
 153 P.3d 6, 13-14 (Mont. 2007);In re J.D.H., 130 P.3d 245, 248-50 (Okla. 2006); In re 
Jessica C., 690 A.2d 1357, 1363-64 (R.I. 1997); In re Dependency of M.P., 882 P.2d 
 1180, 1183-85 (Wash. App. 1994). 

                Federal courts have also allowed statements to mental health workers to be 
 admitted under Federal Rule of Evidence 803(4), which is identical to Alaska's rule. 
See, e.g., United States v. Kappell, 418 F.3d 550, 556-57 (6th Cir. 2005); United States 
 v. Yellow, 18 F.3d 1438, 1442 (8th Cir. 1994). 

        18     M.B., 3 So. 3d at 248. 

                                               -23-                                          6632
 

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

                Alaska courts have only addressed the use of this   hearsay exception to 

admit a child's allegations of abuse in the context of criminal cases.  In Sluka v. State, 

the court of appeals held that a three-year-old child's statement to a physician identifying 

her physical abuser was inadmissible under the exception because it was not sufficiently 
related to diagnosis or treatment.19         The court of appeals noted that other courts had 

reached different results and explained that a "major influence" on its decision was that 

the State had not shown that the child was unavailable as a witness or that the child 

"knew     or   understood    that   her   statements   identifying    Sluka   were   important   to   her 
treatment."20   But in State v. Nollner, the court of appeals held that another three-year-old 

child's statements identifying her assailant in the case of sexual abuse were admissible 
under this exception for the purpose of a grand jury proceeding.21  The court of appeals 

observed that "[t]here is significant authority for the state's position that [the child's] 

statements were properly admitted as an exception to the hearsay rule, as statements 
made for purposes of medical diagnosis or treatment."22              The court further noted that in 

the two years since its decision in Sluka, the "body of authority" allowing "admission of 

statements concerning the identity of an assailant in a child abuse case" appeared "to be 
growing."23 

                We have allowed a child's out-of-court allegations of sexual abuse to be 

admitted under the residual hearsay exception when there are sufficient guarantees of 

        19      717 P.2d 394, 399 (Alaska App. 1986). 

        20      Id. n.3.   It is worth noting, however, that Evidence Rule 803(4) is a hearsay 

exception for which the declarant's availability is immaterial. 

        21      749 P.2d 905, 908-09 (Alaska App. 1988). 

        22      Id. at 908.
 

        23      Id.
 

                                                  -24-                                             6632
 

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

trustworthiness.24     In that context, we have observed that "[t]he out-of-court statements 

of   a   child   in   proceedings   where   abuse   is   alleged    are   often   quite   necessary   to   the 
administration       of  justice."25   In  In    re  A.S.W.,    we   also   explained    that   in  a  CINA 

proceeding, the due process concerns regarding a child's out-of-court accusations of 

abuse are less troubling than in a criminal case because the purpose of the hearing is not 

punitive and a judge, not jury, is making determinations: 

                 Child in Need of Aid ("CINA") proceedings are designed to 
                 protect   children   from   injury   or   mistreatment   and   to   help 
                 safeguard their physical, mental and emotional well-being. 
                 These     confidential     proceedings      are   not   concerned      with 
                 imposing   either   criminal   penalties   or   civil   liability   on   the 
                 alleged   abuser.     The   focus   of   a   CINA   proceeding   is   not 
                 whether      conduct     constituting     child   abuse    occurred,    but 
                 whether the child's well-being is imperiled. 

                         In    addition,   CINA      proceedings     are   tried  before    a 
                 judge, not a jury.      While, in a jury trial, the   admission of 
                 improper evidence may pose a threat to the accuracy of the 
                 outcome, in a CINA proceeding, the judge is more capable of 
                 attributing the proper weight to the evidence presented by the 
                 parties.[26] 

                 We     conclude     that  the   superior   court    did  not   abuse   its  discretion    by 

admitting   Allie's   statements   to   Bridgman,   including   the   statements   identifying   her 

        24       See, e.g., In re A.S.W., 834 P.2d 801, 804 (Alaska 1992); Broderick v. 

King's Way Assembly of God Church, 808 P.2d 1211, 1218 (Alaska 1991). 

        25       In re A.S.W., 834 P.2d at 804 (also noting that "[t]he unusually compelling 

need for children's hearsay statements in sex abuse cases is demonstrated primarily by 
the   fact   that   the   statements   often   constitute   the   only   proof   of   the   crime. Physical 
corroboration is rare, for the crimes committed are predominantly nonviolent in nature." 
(quoting Judy Yun, Note, A Comprehensive Approach to Child Hearsay Statements in 
Sex Abuse Cases, 83 COLUM . L. REV . 1745, 1749-50 (1983))). 

         26      Id. at 806 (internal citations omitted). 

                                                    -25-                                               6632
 

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

brothers as potential assailants, under Evidence Rule 803(4).               The court of appeals has 

recognized that a child's statements identifying an assailant in the case of potential sex 

abuse    can   be  made    for  the  purposes     of  treatment,   and   we   have   admitted    similar 

statements under the residual exception in other CINA proceedings.                  In this particular 

case, Bridgman testified that her sessions with Allie were for the purpose of treatment 

and that she was not acting as a forensic investigator, and the superior court expressly 

found that Allie understood the purpose of her sessions with Bridgman.                   The superior 

court did not abuse its discretion in admitting Bridgman's testimony under Evidence 

Rule 803(4). 

                3.	     We     do   not   need    to  address     the   admissibility     of   Judith's 
                        Ringstad's testimony. 

                William argues that it was an abuse of discretion for the superior court to 

admit   testimony   from   Judith   Ringstad,   an   OCS   permanency   supervisor,   describing 

statements made to her by Sara Alden, an OCS staff manager.                 Alden was the manager 

on duty during an incident where William came to the OCS offices and yelled and spit 

at OCS staff.      OCS called the police, and William was escorted from the premises and 

subsequently banned from the OCS offices.   Alden related this incident to Ringstad, the 

supervisor   for   the   family's   case,   approximately   30   minutes   after   it   happened.    The 

superior court admitted Ringstad's testimony under Alaska Evidence Rule 803(1), which 

provides a hearsay exception for present sense impression:   "[a] statement describing or 

explaining an event or condition made while the declarant was perceiving the event or 

condition, or immediately thereafter."          We do not need to reach the question whether 

Alden's   statement   made   30   minutes   after   the   event   falls   within   the   present   sense 

impression exception. Any error in admitting these statements was harmless because the 

record contains many examples of William cursing at and threatening OCS workers, 

including   William's   conviction   for   misdemeanor   fourth   degree   assault.         Moreover, 

                                                  -26-	                                           6632
 

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

William conceded that he feels "defiant" toward OCS.                 William stated that he was at 

"war" with OCS for the "past 14 years" and acknowledged that he had threatened to kill 

caseworkers who came to his home.   Thus any error in admitting Ringstad's statements 
was harmless.27 

                4.	     The superior court did not improperly rely on previous CINA 
                        cases or Department of Juvenile Justice files involving Martha 
                        and William's other children. 

                William also argues that it was error for the superior court to take judicial 

notice of a previous CINA case involving the family as well as the juvenile delinquency 

records   of Willie   and   Aaron.     The   superior   court's   adjudication   order   states   that   its 

findings are "[b]ased on the evidence received at the [adjudication] hearing, the court's 

previous findings in this case, and the court's records in this case."                In the superior 

court's previous written findings on probable cause, the superior court said that it was 

"taking notice of the findings entered by Judge Hopwood" in the 2004 CINA case.  But 

the superior court explained that it was taking notice of that file because the file was 

supported by testimony given in the present case.  The probable cause finding also refers 

to   the   guardian   ad   litem's   exhibits,   which   included   Willie's   and   Aaron's   juvenile 

delinquency records, but the superior court expressly recognized that those exhibits were 

"subject to certain objections" made by Martha and William.                  Given that the juvenile 

        27      See Dobos v. Ingersoll, 9 P.3d 1020, 1024-25 (Alaska 2000) (declining to 

reach the issue of whether the admission of testimony was proper under Rule 803(1), the 
present sense impression exception to hearsay, because any error would be harmless 
since   there   was   substantial   evidence   to   support   the   finding   of   negligence   and   the 
testimony offered contributed only a "small role"). 

                                                  -27-	                                           6632
 

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

records were supported by live testimony, the            superior court did not err in considering 
findings from previous cases or juvenile justice files.28 

        B.	     The   Superior   Court   Did   Not   Err   In   Finding   That   Andy   And   Allie 
                Are Children In Need Of Aid. 

                Martha and William appeal the adjudication of Andy and Allie as children 

in need of aid and the disposition order placing the children in the custody of OCS.  In 

order to grant an adjudication petition the superior court must find by a preponderance 

of   the   evidence   that   the   child   is   in   need   of   aid   under   one   or   more   subsections   of 
AS 47.10.011.29     The superior court must also conclude that OCS has made active efforts 

to provide remedial services and rehabilitative programs designed to prevent the breakup 
of the Indian family but that those efforts have proved unsuccessful.30                If a child is an 

Indian child, the superior court must find by clear and convincing evidence, including 

the testimony of qualified expert witnesses, that continued custody by the parent is likely 
to result in serious emotional or physical damage to the child.31 

        28      Trial courts often correctly rely upon a family's history with OCS to make 

findings.   See Audrey H. v. State, Office of Children's Servs., 188 P.3d 668, 679 n.35 
(Alaska 2008) ("the determination of whether OCS made reasonable efforts may involve 
consideration of all interactions between the parent and OCS"); Erica A. v. State, Dep't 
of Health & Soc. Servs., Div. of Family & Youth Servs., 66 P.3d 1, 7 (Alaska 2003) ("the 
reasonableness of the division's efforts . . . must be viewed in light of the entire history 
of   services");  see   also   Ralph   H.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 
Children's Servs., 255 P.3d 1003, 1006 (Alaska 2011) (upholding an adjudication of 
children as in need of aid based in part upon OCS's "prior contact with the family"). 

        29      AS 47.10.011; CINA Rule 15(c).              At the State's request, in this case the 

superior court made its adjudication findings under the higher clear and convincing 
evidence standard. 

        30      25 U.S.C.  1912(d) (2006); CINA Rule 17(c). 

        31      25 U.S.C.  1912(e) (2006); CINA Rule 17(d)(2). 

                                                  -28-	                                            6632
 

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

                The superior court found Andy and Allie to be children in need of aid under 

multiple subsections of AS 47.10.011.           But only one statutory basis is required to find 
that a child is in need of aid.32     Additionally, at the State's request, the superior court 

made its adjudication findings under the higher clear and convincing evidence standard, 

although only the preponderance of the evidence standard was required.                      While the 

superior court chose to make findings based on a clear and convincing standard, we 
review them under the preponderance standard.33  Under the preponderance standard, the 

superior court did not err in adjudicating Andy and Allie as children in need of aid. 

                Martha and William challenge the superior court's findings that Andy and 

Allie are children in need of aid under AS 47.10.011, subsections (4), (6), (7), (8), (9) 

and (11).     While some of the findings are primarily based on conduct by or conditions 

created by William, the superior court expressly found that Martha had aligned herself 

with William and had not been "able to separate herself from [William's] agenda and 

ideology and conduct," concluding that "her outcome will be tied to [William's] outcome 

until that stops."  The record supports the trial court's assessment that Martha has shown 

an inability to separate herself from William's agenda against OCS and that she has 

failed to protect her children from William's abusive behavior and conditions.                   When 

OCS took custody of Andy and Allie, despite being told by OCS members not to contact 

William   because   he   had   previously   threatened   OCS   members,   she   did   so   anyway. 

According to Dr. van Doorninck, Martha's relationship with the children is focused on 

facilitating her own needs.   She has realigned herself with William by reconciling after 

a   brief   period   of   separation,   and   has   expressed   no   desire   to   separate   herself   from 

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

212 P.3d 756, 762 (Alaska 2009). 

        33      To support a clear and convincing standard, the superior court would have 

to make more extensive findings. 

                                                  -29-                                              6632 

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William's actions.      Until she has done so, William and Martha's conduct are properly 
evaluated together.34 

                1.	     The superior court did not err in finding that Andy and Allie 
                        are children in need of aid under AS 47.10.011(8). 

                The superior court found that both Andy and Allie are children in need of 

aid under AS 47.10.011(8), which provides that a child is in need of aid if conduct or 

conditions created by the parent have resulted in mental injury to the child or have placed 

the child at substantial risk of mental injury.        The superior court explained that Andy's 

mental health diagnoses and Allie's sexual reactivity "are the sort of mental injur[ies] 

that would qualify them for findings under that subpart."                The superior court further 

found that "these injuries are the product of the parents' household and, with regard to 

[Andy], the product of the father's behavior."   The superior court concluded that "[w]ith 

regard   to   both   [Andy]   and   [Allie],   there's   a   pattern   of   ignoring   and   isolating   and 

corrupting behaviors that would, if continued, result in even further mental injury." 

                Alaska Statute 47.17.290(2) requires that mental injury be "evidenced by 

an    observable    and   substantial    impairment     in  the   child's   ability  to  function    in  a 

developmentally appropriate manner" and supported by the testimony of a qualified 

expert witness.   There is substantial evidence that Andy suffered mental injury.  Andy's 

treatment teams at North Star and RDT, as well as Dr. van Doorninck and Dr. Parker, 

agreed that Andy's primary diagnosis was likely PTSD, and the superior court also heard 

testimony from Dr. van Doorninck that PTSD need not be caused by a single-event 

trauma   but   can   be   the   result   of   exposure   to   multiple   psychological   traumas   during 

childhood. 

        34      See Wilson W. v. State, Office of Children's Servs., 185 P.3d 94, 99 (Alaska 

2008) (accepting a superior court finding that the conditions created by father's abusive 
behavior can be imputed to the mother when she fails to act to protect the children). 

                                                  -30-	                                              6632 

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

              Martha and William contend that there was no evidence of a specific trauma 

that could have caused Andy's diagnosis of PTSD and point to testimony that Andy's 

diagnoses of ADHD and oppositional defiant disorder could have a genetic component. 

But numerous experts, including Dr. Parker, the psychologist hired by William, testified 

that William's history of death threats, bullying, and intimidation in front of his children, 

combined with William's insistence on isolating the family from any social services, 

placed the children at risk.   Dr. Parker   noted that William continued to believe that 

threats to kill people were justified and concluded that William suffered from "major 

depressive disorder, mild to moderate," and "personality disorder, severe, with paranoid 

features."  Dr. Parker further warned that it would be "difficult for [William] to change 

his behavior" and that this mental condition could continue to place the children at risk. 

Dr. van Doorninck testified that Martha was "unable to protect her children" and that 

both Martha and William have shown they are unwilling to modify their behavior.  They 

have repeatedly expressed that they do not want to participate in OCS case plans or 

services other than visitation. William testified that he would not allow OCS home visits 

or even allow OCS to check on Andy at school.         Martha has refused parenting classes. 

Given Andy's sustained mental injuries, William's continued abusive behavior, and 

Martha's inability to protect Andy, the superior court did not err in finding that by a 

preponderance of evidence Andy is a child in need of aid under AS 47.10.011(8). 

               Similarly, the superior court concluded that Allie was subjected to the same 

unstable conditions as Andy and placement in "the parents' household" would put her 

in a dangerous environment that would "result in even further mental injury." Bridgman 

did recognize that Allie did not have a substantial impairment in her ability to function, 

and Dr. van Doorninck similarly   testified that Allie was mature, bright, and socially 

skilled for her age.   But there was adequate evidence to support the superior court's 

finding that William's terrorizing and isolating behavior placed Allie at substantial risk. 

                                            -31-                                        6632
 

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

And according to Bridgman, Allie displayed sexual reactivity.  Regardless of the origin 

of Allie's sexual reactivity, Dr. van Doorninck testified that Allie is at substantial risk of 

being sexually abused and that Martha lacked the skills to protect her from that abuse. 

The record supports the finding of a preponderance of evidence that Allie currently 

displays mental injury as evidenced by her sexual reactivity and is at risk of suffering 

future mental injury as a consequence of inadequate supervision and a hostile home 

environment.  The superior court did not err in finding that Allie is a child in need of aid 

under AS 47.10.011(8). 

                2.	     The superior court did not err in finding that Andy and Allie 
                        are children in need of aid under AS 47.10.011(11). 

                The superior court also found that both Andy and Allie are children in need 

of aid under AS 47.10.011(11), which provides that a child is in need of aid if the parent 

"has a mental illness, serious emotional disturbance, or mental deficiency of a nature and 

duration that places the child at substantial risk of physical harm or mental injury."  The 

superior   court   explained   that   William   has   a   personality   disorder   and   has   displayed 

behavior     that   "is   terrorizing  and  traumatic."    The    children   have   been   exposed     to 

William's verbal assaults on school officials and OCS workers, as well as his physical 

assaults on other members of the household, placing them at risk of mental injury. 

                Dr. Parker diagnosed William with a "personality disorder, severe, with 

paranoid features" and predicted that this disorder would make it difficult for William 

to change his behavior toward OCS and other authorities.                 Dr. Parker also described 

William     as  displaying    "intimidating,     controlling   and   at  times  paranoid    behavior." 

William does not dispute this diagnosis but argues that a personality disorder "is not a 

mental   illness"    under   AS    47.10.011(11).     The    statute,   however,    uses   the  broader 

language of "mental illness, serious emotional disturbance, or mental deficiency," and 

the superior court heard expert testimony from Dr. van Doorninck that this language 

                                                  -32-	                                           6632
 

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

encompasses William's personality disorder.             It was not error for the superior court to 

find that William's personality disorder placed both children at substantial risk of mental 
injury for the reasons discussed in the previous section.35 

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

                Martha and William argue that OCS failed to make active efforts under 

ICWA to provide remedial services and rehabilitative programs designed to prevent the 

breakup of the Indian family.          The superior court found that active efforts had been 

made;   OCS   offered   services   -   including   parenting   classes,   parenting   coaches,   and 

mental health assessments - even though Martha and William consistently refused to 

cooperate.    The superior court also found that OCS had provided visitation and mental 

health treatment services to Allie and Andy. 

                Martha and William's longstanding refusal to cooperate with OCS and 

William's verbally abusive and threatening behavior toward OCS staff made it difficult 

for OCS to provide services to the family.          We have held that "a parent's demonstrated 

lack of willingness to participate . . . may be considered in determining whether the State 
has taken active efforts,"36 and we have "excused OCS from pursuing further active 

efforts   in   .   .   .   cases   where   the   parents   have   evinced   no   interest   in   cooperating   with 

        35      The superior court also found that Andy was a child in need of aid under 

AS 47.10.011(4) and (9), and Allie was a child in need of aid under AS 47.10.011(6), 
(7), and (9).  Given that only one finding is necessary to find that a child is in need of aid 
under AS 47.10.011, we need not examine whether Andy and Allie are children in need 
of aid under these additional subsections. 

        36      N.A.  v. State, Div. of Family & Youth Servs., 19 P.3d 597, 603 (Alaska 

2001). 

                                                 -33-	                                           6632
 

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

OCS."37     In   this   case,   there   is   no   doubt   that   Martha   and   William   have   refused   to 

cooperate.    William described himself as "defiant" toward and "at war" with OCS and 

admitted that he instructs his children not to cooperate with OCS.                William refused to 

participate in some OCS meetings and in the evaluation with Dr. van Doorninck. Martha 

and William repeatedly expressed that they did not want to participate in any services 

other than visitation.   And William testified that if the children were returned home, he 

would not allow OCS to conduct home visits. William also has a long history of verbally 
abusing and threatening violence toward OCS caseworkers.38   Given the magnitude of 

the parents' resistance, it was not error for the superior court to find that active efforts 

had been made. 

        37      Wilson W., 185 P.3d at 101. 

        38      Martha and William make some valid complaints about restrictions imposed 

by OCS on their ability to contact their children and participate in their treatment.  For 
example,   OCS   took   Andy   and   Allie   into   custody   on   October   23,   2009.    Andy   was 
immediately transported to an emergency room in Fairbanks and then to North Star 
psychiatric   facility   in   Anchorage   without   being   able   to   talk   to   his   parents. At   the 
probable cause hearing in mid-November, Andy's therapist testified that OCS would not 
allow Andy to have any contact with his parents. 

                By resisting or limiting visitation and preventing the parents from being 
involved with the children's treatment, OCS may have further entrenched Martha and 
William's hostile attitude toward OCS.           But the superior court also found that, entirely 
apart    from   his  interactions    with  OCS,     William's    conduct    created   a  hostile   home 
environment for the children.        As we have noted, "the trial court, not this court, judges 
the credibility of witnesses and weighs   conflicting evidence." Josephine B. v. State, 
Dep't of Health & Soc. Servs., Office of Children's Servs., 174 P.3d 217, 222 (Alaska 
2007). 

                                                  -34-                                            6632
 

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

        D.	     The   Superior   Court   Did   Not   Err   In   Finding   That   Returning   The 
                Children To Their Parents' Custody Was Contrary To The Children's 
                Welfare      And    Was   Likely     To   Cause    Them     Serious   Emotional   Or 
                Physical Damage. 

                Finally, Martha and William argue that it was clearly erroneous for the 

superior court to find that returning Andy and Allie to their parents' custody would be 

contrary to their welfare and was likely to cause them serious emotional or physical 

damage.     The superior court found that "[t]he critical component with regard to both 

[Andy]'s   mental   needs       and   [Allie]'s   mental   needs   is  treatment[]    and  professional 

intervention, yet the parents are unable and unwilling to work with professionals to get 

that   treatment."    The   superior   court   further   observed   that   Martha   and   William   had 

expressly stated that they remained unwilling to cooperate with OCS. 

                Martha and William focus on Dr. Parker's testimony that Andy was likely 

to   suffer   greater   harm   from   being   removed     from    his  family   than   from   William's 

behavior, and on Martha's testimony that she would protect Allie from any risk of sexual 

abuse. 

                There was sufficient testimony from qualified expert witnesses, as required 

by ICWA, to support the superior court's finding.             William's psychologist, Dr. Parker, 

agreed that if Andy were placed back in his parents' home without proper treatment he 

would   be   at   high   risk   for   suicide   or   other   dangerous   behavior. Dr.   van   Doorninck 

testified   that   Andy    was    "insufficiently    stable   to  return   to  a  home     setting"   and 

recommended that he spend "an extended period of time in residential treatment."  Chris 

Yinkey, Andy's therapist at North Star, also recommended that Andy return to a long- 

term residential treatment program after being stabilized at North Star and cautioned that 

Andy   would   be   at   high   risk   for   aggression   and   suicide   attempts   without   continued 

treatment. 

                                                  -35-	                                            6632
 

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

                Dr. van Doorninck also recommended that Allie remain outside the home 

and receive "an extended period of time in psychological treatment," along with twice- 

weekly visits with her parents.   Dr. van Doorninck cautioned that Allie's "vulnerability 

to being sexualized and, frankly, sexually abused is a - is a real danger."  And although 

Cynthia   Bridgman   thought   that   Allie   had   made   good   progress   and   did   not   have   a 

substantial impairment in her ability to function, she emphasized that Allie's ability to 

return   home   depended   on   her   parents'   ability   to   keep   her   safe. Despite   Martha's 

testimony that she would protect Allie, the superior court also heard testimony from 

Martha and William that they remained unwilling to cooperate with OCS and would not 

allow     OCS     caseworkers      to   check    on    the  children     at  home     or   in   school. 

Dr. van Doorninck expressly found that Martha lacked the ability to "protect her children 

from   physical,   sexual,   and   psychological   abuse."     There   was   sufficient   evidence   to 

support the superior court's finding that it was contrary to the best interests of Andy and 

Allie to return home. 

V.      CONCLUSION 

                We AFFIRM the superior court's evidentiary rulings with regard to the 

admissibility     of  Dr.   van   Doorninck's      expert   testimony    and   Cynthia    Bridgman's 

testimony, and its reliance on the prior adjudications of William and Martha's older 

children.    We   decline   to   reach   the   issue   whether   Judith   Ringstad's   testimony   was 

admissible,   since   any   error   would   be   harmless.   We   AFFIRM   the   superior   court's 

decision to adjudicate Andy and Allie as children in need of aid. 

                                                 -36-                                            6632
 
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