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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thea G. v. State, Dept. of Health & Social Services, Office of Children's Services (1/9/2013) sp-6742

Thea G. v. State, Dept. of Health & Social Services, Office of Children's Services (1/9/2013) sp-6742

        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 



THEA G.,                                       ) 

                                               )       Supreme Court No. S-14663 

                       Appellant,              ) 

                                               )       Superior Court Nos. 

        v.                                     )       3PA-09-00048/00049 CN 

                                               ) 

STATE OF ALASKA,                               )       O P I N I O N 

DEPARTMENT OF HEALTH &                         )
 

SOCIAL SERVICES, OFFICE OF                     )       No. 6742 - January 9, 2013
 

CHILDREN'S SERVICES,                           )
 

                                               ) 

                       Appellee.               ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Palmer, Kari Kristiansen, Judge. 



                Appearances: Marjorie K. Allard, Assistant Public Defender, 

                and    Quinlan    Steiner,   Public    Defender,    Anchorage,      for 

                Appellant.    Megan   R.   Webb,   Assistant   Attorney   General, 

                Anchorage,   and  Michael   C.   Geraghty,   Attorney   General, 

                Juneau,  for   Appellee.    Mara   Rabinowitz,   Assistant   Public 

                Advocate, and Richard Allen, Public Advocate, Anchorage, 

                for Guardian ad Litem.  Native Village of Kotzebue, through 

                its ICWA Representative, Clara Henry. 



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

                [Winfree and Maassen, Justices, not participating.] 



                FABE, Chief Justice. 

                CARPENETI, Justice, dissenting. 


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

I.       INTRODUCTION 



                Thea G. challenges the superior court's order terminating her parental rights 

to her two children, Zach, age 12, and Abbie, age six.1             The superior court terminated 



Thea's parental rights based on her unremedied substance abuse issues. Thea raises three 



issues on appeal:       First, she challenges the superior court's finding that the Office of 



Children's Services (OCS) made active efforts to prevent the breakup of her family. 



Second,   she   challenges   the   finding   that   if   her   custody   over   Zach   and   Abbie   were 



continued   the   children   would   likely   suffer   serious   emotional   or     physical   damage. 



Finally, she challenges the finding that termination of her parental rights is in Zach's and 



Abbie's   best   interests.    Because   each     of   these   findings   is   supported   by  sufficient 



evidence, we affirm the superior court's order terminating Thea's parental rights to Zach 



and Abbie. 



II.     FACTS 



                Thea and her husband, Samuel, had two children, Zach, born in 1999, and 



Abbie, born in 2005.       Thea is a member of the Native Village of Kotzebue (the Tribe) 



and her children are eligible for membership, so the children are Indian children for 



                                                  2 

purposes of the Indian Child Welfare Act  (ICWA). 



                Thea has struggled with substance abuse and domestic violence since at 

least 2003.3    In an incident that year, Thea, while intoxicated, physically assaulted her 



mother and sister in a struggle over the mother's medication.              Zach was present during 



        1       Pseudonyms are used throughout to protect the privacy of the parties. 



        2       25 U.S.C.  1901-1963 (2006). 



        3       Thea testified that she was raised in an alcoholic family and began drinking 



as a teenager, but that her drinking problems worsened after Zach was born.  In addition 

to alcohol, her self-reported history of prescribed and non-prescribed drug use includes 

cocaine, marijuana, opioids, sedatives, and tranquilizers. 



                                                  -2-                                             6742
 


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

the scuffle.   While being arrested, Thea kicked a corrections officer in the groin.      Thea 



was convicted on two counts of domestic violence assault.  In other, unrelated, incidents 

that year, Thea was convicted of assault and disorderly conduct.4        Since that time, Thea 



has demonstrated a pattern of abusing substances - typically alcohol - resulting in run- 



ins with law enforcement, followed by attempts at treatment and periods of sobriety, and 



then, invariably, a relapse and descent into substance abuse again. 



               In July 2004, while Thea was pregnant with Abbie, Zach was taken into 



OCS's custody.     OCS's concerns included the family's inadequate housing, Thea and 



Samuel's substance abuse, and repeated incidents of domestic violence between the 



couple   in   Zach's   presence.  OCS   developed   a   case   plan   recommending   that   Thea 



participate in substance abuse treatment, a domestic violence assessment, and parenting 



classes.  Thea completed a 35-day residential treatment program at Old Minto Family 



Recovery Camp.      OCS returned Zach to his parents' physical care after about a month 



but retained legal custody for a year.   After completing treatment, Thea remained sober 



for   18   months, but in January 2006 she relapsed and was arrested for driving while 



intoxicated on alcohol and Valium with Zach and Abbie in her car.  She was convicted 



of DUI and resisting arrest. 



               Samuel died of natural causes in September 2008, and, following his death, 



Thea's substance abuse escalated dramatically.         She testified that she began abusing 



alcohol to the extent that her parenting was "terrible," and she was often intoxicated 



while caring for her children. 



               On May 8, 2009, Thea called the state troopers to report that Zach and 



Abbie   had   been   missing   from   her   home   for   hours. According    to   the   emergency 



       4       At the termination trial, Thea testified that she had been arrested multiple 



times for domestic violence and that each incident involved alcohol or drugs. 



                                              -3-                                           6742 


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

adjudication petition, the trooper who responded to her call found Thea to be "highly 



intoxicated" and unable to care for her children.             Thea later admitted that she had been 



"caring for her children in an intoxicated state without a sober caretaker" and that she 



was "unaware for a significant period of time" that the children were not in the home. 



Because   of   Thea's   history   of   substance   abuse,   OCS   took   Zach   and   Abbie   into   its 



custody.    The agency placed the children with Thea's neighbors, the Newtons.                       OCS 



developed a case plan for the family; the plan required Thea to participate in substance 



abuse treatment and urine analyses (UAs), refrain from misusing prescription and over- 



the-counter medications, complete parenting classes, and participate in counseling.  The 



plan provided liberal opportunities for Thea to have contact with the children. 



                 Within a month of the children's removal, Thea was involved in a single- 



car   accident   that   resulted   in   another   DUI   conviction.   Several   days   later,   Thea   was 



remanded       into   custody    for  alcohol    screening,     where    her   breath   alcohol    content 



registered .304. 



                 In late June 2009, following a referral by OCS, Thea began substance abuse 



treatment at Akeela House. She did not actively participate in the program, however, and 



withdrew after only 12 days. Her discharge report recommended that she receive mental 



health counseling and long-term treatment for mood-altering substances. 



                 For several weeks after Thea left Akeela House, she remained sober, she 



visited   her   children   daily   at   the   Newtons'   home,   and   she   applied   for   admission   to 



treatment at Salvation Army Clitheroe Center.              But before Thea entered that program, 



she relapsed again. 



                 By   the   close   of   2009,   Thea   was   once   again   sober.   She   attended   AA 



meetings, had a sober support system in place, participated in outpatient treatment at 



Alaska Family Services (AFS), and worked with OCS to gain admission to a residential 



treatment      program     at  Southcentral      Foundation      Dena    A   Coy.     As    a   result,  on 



                                                    -4-                                              6742
 


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

December 10, 2009, OCS placed Zach and Abbie with Thea for a trial home visit.  In 



disposition reports filed with the court in January 2010, Thea's social worker and the 



children's guardian ad litem praised Thea's performance leading up to and during the 



trial visit. But the trial visit ended later that month because Thea again relapsed.  The 



children were returned to the Newtons' home. 



               By spring 2010, Thea was again drinking heavily.         In early March 2010, 



she was incarcerated on a DUI charge and underwent alcohol detoxification treatment. 



At the time, she reported that she was drinking half a bottle of vodka daily. 



               The   following   month,   Thea   began  a   four-month  residential   treatment 



program at Dena A Coy, on referral by OCS.   She successfully completed the program 



in August 2010, and she was discharged with a recommendation for participation in 



intensive outpatient care and attendance at AA/NA meetings.          She was also referred to 



AFS for continued substance abuse and mental health counseling.           She participated in 



the AFS program for a few months but did not complete it. 



               In the fall of 2010, Thea and the Newtons asked OCS to place the children 



with Thea again for another trial home visit.  Thea's social worker, Fennisha Gardner, 



denied the request, stating that Thea was not ready for such a visit and that she did not 



want to set Thea up for failure.     Despite OCS's denial of the request, Thea and the 



Newtons defied OCS and transferred the children to Thea, after which the Newtons left 



town for a number of weeks. 



               On November 3, 2010, Thea was arrested for driving while intoxicated on 



alcohol and Xanax with Zach and Abbie in her car.         She pleaded guilty to felony DUI 



and endangering the welfare of a minor and was sentenced to 34 months incarceration 



with 31 months suspended.      She received four years of felony probation, forfeited her 



car, permanently lost her driver's license, was fined $10,000 with $7,500 suspended, and 



was ordered to participate in and graduate from mental health court.  The children were 



                                              -5-                                        6742
 


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

not placed back with the Newtons; instead, they were placed with Thea's sister and her 



husband. 



                As   a   result   of   her   conviction,   the   mental   health   court   referred   Thea   to 



treatment at Set Free Alaska, where she was assessed on March 28, 2011.                      During the 



assessment,   she   repeatedly   "attempted   to   convince   staff   she   did   not   need   to   go   to 



[r]esidential [t]reatment and minimized issues."              Thea denied having problems with 



alcohol or drug use, and she assessed her risk of relapse as low.  The assessor, however, 



diagnosed Thea as being dependent on alcohol, sedatives, and cocaine.  She categorized 



Thea as being in the "precontemplation" stage of treatment, assessed Thea's relapse 



potential as high, and categorized her motivation to participate in treatment as 100% 



external.    The assessor recommended that Thea participate in high-intensity residential 



treatment. 



                While awaiting admission to a residential treatment program, Thea was 



scheduled to begin outpatient treatment at Set Free Alaska on April 21, 2011.  But a few 



days before her treatment was to begin, Thea was hospitalized for suicidal ideation.  Her 



blood alcohol level at the time exceeded .250.   Upon her release from the hospital, Thea 



began the outpatient treatment program, but she missed appointments from mid-May 



through mid-June due to yet another arrest, this time for driving with a revoked license, 



without insurance, and for avoiding an ignition interlock device.                On August 8, 2011, 



Thea   was   discharged   from   Set   Free   Alaska   for   violating   the   program's   rules.    Her 



discharge     summary      graded    her   progress    as  "unsatisfactory"      and   referred   her   to 



residential treatment.       Late in September 2011, after the termination trial had begun, 



Thea began residential treatment at Clitheroe Center.  The program was to last 90 days, 



following which Thea would be required to complete an aftercare program.   At the time, 



Thea admitted to having "a problem with alcohol and drugs," but she denied needing 



                                                   -6-                                             6742
 


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

residential treatment. She stated that she had entered the residential program at Clitheroe 



in part because it was required by the terms of her felony probation. 



III.    PROCEEDINGS 



                In March 2011, OCS filed a petition to terminate Thea's parental rights. 



Trial was held during two days in September and October 2011.                  Thea testified, as did 



her social worker and her counselor from Set Free Alaska.  In addition, OCS supervisor 



Karen Morrison testified as an expert regarding the risks of placing children with parents 



who have substance abuse problems and the effects on children of delayed permanency. 



The    Tribe,   which    had   intervened    in  the  proceeding     early   on,  participated    in  the 



termination trial through its non-attorney tribal representative, Clara Henry.  Following 



the trial, the superior court terminated Thea's parental rights to Zach and Abbie. 



                Thea   appeals   the   termination   order.    She   contests   the   superior   court's 



findings that OCS made active efforts to preserve her family, that her continued custody 



of the children would likely result in their suffering serious emotional or physical harm, 



and that termination of her parental rights is in the children's best interests. 



IV.     STANDARD OF REVIEW 



                A   trial   court's   determination   that   OCS   made   active,   but   unsuccessful, 



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

breakup of an Indian family presents a mixed question of fact and law.5                    We review 



                                                                  6 

factual findings under the "clearly erroneous" standard  and conclusions of law - such 



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



244 P.3d 1099, 1111 (Alaska 2010) (citing Sandy B. v. State, Dep't of Health & Soc. 

Servs., Office of Children's Servs., 216 P.3d 1180, 1186 (Alaska 2009)). 



        6       Id. (citing Marcia V. v. State, Office of Children's Servs. , 201 P.3d 496, 502 



(Alaska 2009)). 



                                                  -7-                                             6742
 


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

as whether the trial court's findings satisfy the requirements of ICWA - de novo.7 



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



to the party prevailing below leaves us with a definite and firm conviction that a mistake 

has been made."8 



              A trial court's determination that a parent's continued custody of a child 



will likely result in the child suffering serious emotional or physical damage is a factual 

finding that we review for clear error.9 



              A trial court's decision to admit expert testimony is reviewed for an abuse 

of discretion.10 We will find that the trial court abused its discretion if, after reviewing 



the record as a whole, we are left with a definite and firm conviction that the trial court 

erred.11 Whether expert testimony presented at trial satisfies the requirements of ICWA 



is a legal question that we review de novo.12 



       7      Id. (citing Carl N. v. State, Dep't of Health & Soc. Servs., Div. of Family 



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



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



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

Servs., 7 P.3d 946, 950 (Alaska 2000) (internal quotation marks and citation omitted)). 



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



Servs., 254 P.3d 1095, 1103-04 (Alaska 2011) (citing Barbara   P. v. State, Dep't of 

Health & Soc. Servs., Office of Children's Servs. , 234 P.3d 1245, 1253 (Alaska 2010)). 



       10     Barbara P. , 234 P.3d at 1253 (citing Lynden, Inc. v. Walker , 30 P.3d 609, 



612 (Alaska 2001)). 



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



Servs., 71 P.3d 811 (Alaska 2003) (quoting Peter Pan Seafoods, Inc. v. Stepanoff , 650 

P.2d 375, 378-79 (Alaska 1982) (internal quotation marks omitted)). 



       12     Lucy J. , 244 P.3d at 1111 (citing Ben M. v. State, Dep't of Health & Soc. 



Servs., Office of Children's Servs., 204 P.3d 1013, 1018 (Alaska 2009)). 



                                             -8-                                        6742
 


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

                A   trial   court's   determination   that   termination   of   parental   rights   is   in   a 

child's best interests is a factual finding that we review for clear error.13 



V.	     DISCUSSION 



        A.	     The Superior Court   Did   Not Err In Determining That OCS Made 

                Active But Unsuccessful Efforts To Provide Services And Programs To 

                Prevent The Breakup Of The Family. 



                Thea argues that the superior court erred in finding that OCS made active 



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

breakup of her family, as required by ICWA.14            She does not discuss the court's finding 



or the evidence supporting it; instead she argues   that the court erred by entering its 



finding     without   taking    into  account    assertions    made    by  the   Tribe   in  its  closing 



            15 

argument. 



                Thea's     argument      fails  for  several    reasons.    First,   her   argument     is 



unpersuasive   because   it   does   not   address   the   trial   court's   finding   or   the   evidence 



supporting it.    The record provides abundant support for the trial court's finding that 



OCS   provided   Thea   and   her   family   with   active   reunification   efforts.    These   efforts 



consisted of  multiple case plans; multiple referrals for substance abuse evaluations and 



support for treatment programs; multiple referrals for mental health evaluations and 



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



Servs., 249 P.3d 264, 270 (Alaska 2011) (citing Dashiell R. v. State, Dep't of Health & 

Soc. Servs., Office of Children's Servs., 222 P.3d 841, 850 (Alaska 2009)). 



        14      25 U.S.C.  1912(d) (2006). 



        15      The Tribe joins Thea's brief on appeal, specifically as to this issue. 



                                                   -9-	                                            6742
 


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

counseling; medical, dental, and mental health services for the children; regular family 

contact between Thea and the children; and a trial home visit.16 



                 Thea seems to argue that despite the evidence demonstrating that OCS 



provided these numerous services over the years that this case was pending, the trial 



court could not properly have found OCS's reunification efforts to be adequate without 



addressing   certain   claims   made   by   the   Tribe   in   its   closing   argument.    But   Thea   is 



incorrect in light of an examination of the Tribe's arguments. 



                 The Tribe's first claim was that, early in the case, OCS delayed in holding 



a placement decision meeting and in obtaining paternity testing.  The Tribe asserted that 



by these actions OCS hindered the Tribe's ability to advocate for the children to be 



placed with paternal relatives.          But even if the Tribe's assertions were accurate, this 



argument goes to placement, not reunification efforts.                 Our   caselaw establishes that 



placement   is   a   separate   issue   from   active   efforts,   and   that   the   two   issues   must   be 

analyzed separately.17      The exception to that rule - under which a placement decision 



        16       The    superior    court   considered    efforts   made    on   Thea's    behalf   by  the 



Department of Corrections and the mental health court, as well as those made by OCS. 

This is consistent with the language of ICWA, which does not specify that any particular 

entity   must   make   active   efforts, see   25   U.S.C.      1912(d)   (requiring   a   showing   that 

"active efforts have been made to provide remedial services and rehabilitative programs 

designed to prevent the breakup of the Indian family"), and with our prior decisions. 

See, e.g., Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 212 

P.3d 756, 765 (Alaska 2009) (efforts made by a parent's parole officers count as active 

efforts for purposes of ICWA); Martin N. v. State, Dep't of Health & Soc. Servs., Div. 

of Family & Youth Servs., 79 P.3d 50, 56 (Alaska 2003) ("While [a parent] is in prison, 

the   Department       of  Corrections     rather   than   [OCS]     has   primary    responsibility     for 

providing services to him[.]"). 



        17       See, e.g., Roy S. v. State, Dep't of Health & Soc. Servs., Office of Children's 



Servs.,   278   P.3d   886,   891   (Alaska   2012)   ("[F]ailure   to   follow   ICWA's   placement 

preferences cannot provide a basis for determining that OCS failed to undertake active 

                                                                                           (continued...) 



                                                   -10-                                              6742
 


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

may be relevant to an active efforts analysis - applies when a child's placement directly 

impacts   a   parent's   ability   to   participate   in   remedial   efforts.18 That   exception   is   not 



implicated here.       Indeed, in this case OCS placed the children with   the   Newtons at 



Thea's request so that the family could remain close, in order to support family contact, 

which was a core element of Thea's case plan.19 



                 The Tribe also claimed that OCS's efforts were flawed because the agency 



delayed in obtaining mental health services for the children.                 But the record does not 



support this allegation. Instead, the record reflects that the children received appropriate 



mental health services throughout the duration of the proceedings. 



                 Finally, Thea's argument fails because her allegation that the trial court 



ignored the Tribe's closing argument is rebutted by the court's statements on the record 



that "[t]he parties at trial included . . . the Native Village of Kotzebue," and "the parties 



submitted      closing    argument     briefing    .  .  .  and  the  Court   has   reviewed     all  those 

arguments."20      The trial court did not err in finding that OCS provided Thea with active 



efforts to prevent the breakup of her family. 



        17(...continued) 



efforts."); David S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 

270 P.3d 767, 780 (Alaska 2012) ("[P]lacement decisions present a separate analytical 

question from termination decisions."). 



        18      David S. , 270 P.3d at 779. 



        19       The superior court approved the non-relative placement, finding that OCS's 



objective constituted good cause to deviate from ICWA's placement preferences. 



        20       Thea provides no legal authority to support her implied assertion that the 



trial   court   must   individually   address   every   assertion   made   by   a   party   in   a   closing 

argument, and we have never required the trial court to do so. 



                                                   -11-                                              6742
 


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

        B.	     The Superior Court Did Not Err In Finding That Thea's Continued 

                Custody      Would   Likely   Result   In     The   Children   Suffering   Serious 

                Emotional Or Physical Harm. 



                Thea argues that the superior court erred in finding that the children would 



likely suffer serious emotional or physical damage if returned to her care.  She raises two 



challenges to the finding, which, by the terms of ICWA, must be supported by evidence 



beyond a reasonable doubt, including the testimony of one or more qualified expert 

witnesses.21   First, Thea argues that OCS supervisor Karen Morrison was not qualified 



to testify as an ICWA expert because (1) Morrison was not an expert in Native culture, 



and (2) as an employee of OCS, Morrison was unable to testify neutrally.  Second, Thea 



argues that even if Morrison satisfied the qualifications to testify as an ICWA expert, her 



testimony was flawed because it was based solely on her review of the OCS file and the 



trial exhibits and was not sufficiently specific to this case. 



                1.	     The   superior   court   did   not   abuse   its   discretion   in   qualifying 

                        Karen Morrison to testify as an expert witness for purposes of 

                        ICWA. 



                        a.	    Morrison's lack of expertise in cultural matters did not 

                               preclude her from testifying as an ICWA expert. 



                ICWA requires that before a court may terminate parental rights, the court 



must find "beyond a reasonable doubt . . . that the continued custody of the child by the 



parent or Indian custodian is likely to result in serious emotional or physical damage to 

the child."22  The finding, which must be supported by expert testimony, requires proof 



that the parent's conduct is unlikely to change and will likely cause serious harm to the 



        21      25 U.S.C.  1912(f) (2006). 



        22      Id. 



                                                 -12-                                             6742 


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

child in the future.23     These elements may be proved through the testimony of one or 



more expert witnesses, or by aggregating the testimony of lay and expert witnesses.24 



                The strict standard of proof required for this finding reflects Congress's 



goal to prevent the breakup of Native families "solely on the basis of testimony from 



social workers who lack[] the familiarity with Native culture necessary to distinguish 



between 'the cultural and social standards prevailing in Indian communities and families' 

and actual abuse or neglect."25       A witness may be qualified to testify as an expert under 



ICWA based on the witness's personal experiences or professional expertise in Native 

culture.26   But: 



                        When the basis for termination is unrelated to Native 

                culture   and   society   and   when   any   lack   of   familiarity   with 

                cultural mores will not influence the termination decision or 

                implicate   cultural   bias   in   the   termination   proceeding,   the 

                qualifications of an expert testifying under  1912(f) need not 

                include familiarity with Native culture.[27] 



                In the present case, OCS supervisor Morrison was qualified to testify as an 



expert without a showing that she was an expert in Native culture. Instead, her expertise 



was in the effects of substance abuse on families and the effects of delayed permanency 



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



2009) (citing L.G. v. State, Dep't of Health & Soc. Servs. , 14 P.3d 946, 950 (Alaska 

2000)). 



        24      L.G. , 14 P.3d at 950 (Alaska 2000). 



        25      Id. at 951 (citation omitted) (quoting 25 U.S.C.  1901(5)). 



        26      Id. at 951-52. 



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



                                                  -13-                                             6742
 


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

on children.28  Our decisions indicate that, in general, cases involving issues of parental 



substance abuse do not implicate cultural mores.29     Thea does not argue that her case is 



different, and she points to nothing to suggest that cultural issues or cultural bias played 



a role in OCS's actions, in expert witness Morrison's testimony, or in the superior court's 



decision to terminate her rights.  The superior court thus properly allowed Morrison to 



testify as an expert despite her lack of expertise in Alaska Native culture. 



                     b.	    Thea     has   waived   her   argument     that  Morrison was 

                            disqualified from testifying as an ICWA expert because 

                            of her status as an employee of OCS. 



              Thea's brief contains a single sentence alleging that Morrison should have 



been precluded from testifying as an ICWA expert because, as an OCS employee, she 



"lacked the impartiality and outside neutrality that   the   ICWA expert is supposed to 



provide."  Thea points to nothing in the record, nor does she cite any legal authority, to 

support this allegation.30 As such, Thea's argument is inadequately briefed and thus is 



       28     Thea does not challenge Morrison's expertise in the specified areas, so we 



do not review her qualifications to testify as an expert on those topics. 



       29     See, e.g., Christina J. v. State, Dep't of Health & Soc. Servs., Office of 



Children's Servs., 254 P.3d 1095, 1111 (Alaska 2011); Lucy J. v. State, Dep't of Health 

& Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1118 (Alaska 2010); Marcia 

V., 201 P.3d at 503; L.G. , 14 P.3d at 953-54. 



       30     In support of her allegation, Thea cites an online publication of the Native 



American Rights Fund.   That publication contains a "Practice Tip" discouraging the use 

of an employee of an agency seeking termination of parental rights as an expert witness 

for ICWA purposes, but the practice tip explicitly concedes that using such an employee 

as an ICWA expert is "not prohibited by the ICWA."          NATIVE  AM . RIGHTS  FUND , A 

PRACTICAL  GUIDE   TO   THE  INDIAN   CHILD  WELFARE  ACT     (online ed. rev. Sept. 2011) 

P ractice     Tip     at   Topic     14,    Expert      W itnesses,      Q uestion     14.7, 

http://narf.org/icwa/faq/expert.htm#Q7 (emphasis added). 



                                            -14-	                                      6742
 


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

deemed waived.31 



                 2.       The   superior   court's   finding   that  the   children   would   suffer 

                         harm if returned to Thea's custody was supported by sufficient 

                         evidence. 



                 Thea argues that the superior court's finding that her continued custody 



would likely result in serious harm befalling the children was not supported by sufficient 



evidence.     She limits her argument to complaints about Morrison's expert testimony, 



averring specifically that the testimony was defective because (1) Morrison based her 



testimony   on   a   review   of   the   OCS   file   and   trial   exhibits,   having   had   no   personal 



interactions   with   Thea   or   the   children,   and   (2)   Morrison's   testimony   was   "overly 



generalized"   and   not   grounded   in   the   specific   facts   and   issues   of   this   case. Both 



arguments are based on this court's decision in C.J. v. State, Department of Health & 

Social Services32 and its companion case, J.J. v. State, Department of Health & Social 



Services, Division of Family & Youth Services.33              Neither argument has merit. 



                 As to the first argument, it is well settled that an ICWA expert may testify 



based on a review of documents in the record, without having had any personal contact 



with the parties, as long as the witness's testimony is grounded in the facts and issues 

specific   to   the   case   before   the   court.34 Thea's   argument   is   based   on   an   erroneous 



interpretation of our decisions in C.J. and J.J. and is an argument that we have repeatedly 



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



Youth Servs., 77 P.3d 715, 719 n.14 (Alaska 2003) (citing Martinson v. ARCO Alaska, 

Inc. , 989 P.3d 733, 737 (Alaska 1999)). 



        32       18 P.3d 1214 (Alaska 2001). 



        33       38 P.3d 7 (Alaska 2001). 



        34       See,   e.g.,   Sandy   B.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 



Children's Servs., 216 P.3d 1180, 1192 (Alaska 2009); Ben M. v. State, Dep't of Health 

& Soc. Servs., Office of Children's Servs., 204 P.3d 1013, 1020 (Alaska 2009). 



                                                   -15-                                              6742
 


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

rejected in the past.35 



                As    to  the  second    argument,     the  expert's    testimony    in  this  case   was 



grounded   in   the   specific   facts   and   issues   facing   this   family. Witnesses   other   than 



Morrison established that Thea struggled with a longstanding alcohol abuse problem that 



was sometimes coupled with domestic violence; that she was locked in a repetitive cycle 



of abusing substances, participating in treatment, experiencing  a period of sobriety, and 



relapsing;   that   she   had   twice   been   convicted   of   driving   while   intoxicated   with   her 



children in her car; and that her potential for future relapses into abusive behaviors was 



high.   Thea does not challenge this testimony. 



                Morrison then testified that children living with a parent who exhibited this 



conduct were at risk of harm.   She testified that such a lifestyle is particularly alarming 



for children who are present when their parent is arrested for DUI or who witness the 



parent's involvement in domestic violence, both of which occurred in this case.  She 



noted that issues facing children who live with such parents include not "know[ing] 



when their mom's going to be sober, if the mom's going to be able to take care of them, 



if they're going to be safe, if mom's going to make sure they have all their needs met." 



In addition, because parents who are in denial about an unsafe situation are unlikely to 



protect their children from the dangers it poses, Morrison expressed particular concern 



about Thea's recent statement that she did not require treatment. In summary, Morrison 



testified that given this family's history, if Zach and Abbie were returned to Thea's care, 



they would be likely to suffer serious emotional or physical harm. 



                In reviewing a trial court's finding that a parent's continued custody poses 



a future risk of harm to a child, we are mindful that "ICWA does not require that the 



        35      E.g. , Ben M., 204 P.3d at 1020;  Marcia V. v. State, Office of Children's 



Servs., 201 P.3d 496, 507 (Alaska 2009); J.A. v. State, DFYS , 50 P.3d 395, 401 (Alaska 

2002). 



                                                   -16-                                               6742 


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

experts'   testimony   provide   the   sole   basis   for   the   court's   conclusion;   ICWA   simply 

requires that the testimony support that conclusion."36             Regarding expert testimony in 



particular, "the issues are whether the expert disregarded or was unaware of contrary 



evidence, and whether the testimony was so vague and generalized that the trial court 

clearly erred in according weight to it."37        Thea points to no evidence to contradict the 



lay testimony establishing her ongoing substance abuse and her relapse potential, and her 



conclusory      statement    that   Morrison's     testimony    was    "overly   generalized"     is  not 



supported by the record.        Aggregating the testimony of all the witnesses, substantial 



evidence demonstrated beyond a reasonable doubt that Thea's pattern of substance abuse 



was unlikely to change, and that those behaviors would place a child in Thea's custody 



at serious risk of physical or emotional damage.            Thus, the superior court did not err in 



finding, beyond a reasonable doubt, that Zach and Abbie would likely suffer serious 



physical or emotional damage if Thea were to retain custody of them. 



        C.	     The Superior Court Did Not Err In Finding That Termination   Of 

                Thea's Parental Rights Was In Zach's And Abbie's Best Interests. 



                Alaska Statute 47.10.088(c) requires that a court considering whether to 



terminate   a   parent's   parental   rights   must   "consider   the   best   interests   of   the   child." 



Alaska Child in Need of Aid Rule 18(c)(3) provides that before a court may terminate 



a   parent's   rights,   the  court   must   find  "by   a  preponderance       of  the  evidence    that 



termination of parental rights is in the best interests of the child."  Neither the statute nor 



the rule defines best interests, but guidance is found in AS 47.10.088(b), which lists five 



factors    "relating   to  the  best   interests  of  the   child"   that  a  court  may    evaluate    in 



determining whether a parent has timely remedied conduct or conditions that endanger 



        36      E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 992 (Alaska 



2002). 



        37      Ben M., 204 P.3d at 1020. 



                                                  -17-                                               6742 


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

a child.38  The factors are not exclusive, nor is consideration of each factor mandatory. 



In addition, we have noted that the "best interests" finding  required by AS 47.10.088(c) 



and CINA Rule 18(c)(3) requires a more comprehensive judgment than does determining 

whether      the  parent    has   timely   remedied     endangering      conduct     or  conditions.39 



Nevertheless, in an appropriate case, the factors listed in AS 47.10.088(b) provide a 



logical beginning for a trial court's consideration of best interests under AS 47.10.088(c). 



                Here, the trial court addressed each of the listed factors. First, given Thea's 



history, the court found little likelihood that the children could be returned to her care 

"within a reasonable time based on their age and need."40             Second, the court found that 



although Thea had participated in substance abuse treatment programs multiple times 



        38      AS 47.10.088(b) provides: 



                        In making a determination under (a)(2) of this section, 

                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 

                conduct or the conditions in the home; 



                        (3)     the harm caused to the child; 



                        (4)     the   likelihood   that   the   harmful   conduct   will 

                continue; and 



                        (5)     the history of conduct by or conditions created 

                by the parent. 



        39      Karrie B. ex rel. Reep v. Catherine J. , 181 P.3d 177, 186 (Alaska 2008). 



        40      In making this determination, the court took into account that the treatment 



program Thea began during the trial would require 90 days of residential treatment, 

followed by nine months of aftercare. 



                                                 -18-                                            6742
 


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

over the course of the case, her motivation was "simply to make the Court happy."  She 



disagreed with the recommendations of her current treatment provider, her probation 



officer, and OCS that she required residential treatment, and she was in denial about the 



period of sobriety she had demonstrated leading up to the termination trial.                  Third, the 



court found that Thea's behaviors had harmed the children by causing them trauma, 



subjecting them to removal from their home three different times, requiring them to 



experience their mother's incarceration, experiencing physical danger at the hands of an 



intoxicated driver, and, at least as to Zach, being exposed to domestic violence.  Fourth, 



the court analyzed Thea's history and found that Thea had neither remedied, nor made 



significant progress in remedying, her substance abuse addiction and that given her 



history, "there [was] a . . . strong likelihood that this harmful conduct [would] continue." 



Finally, the superior court recounted in detail Thea's history of harmful conduct. 



                We have held that "a superior court may consider 'any fact relating to the 

best interests of the child' in its best-interests analysis,"41 and that the superior court need 



not accord a particular weight to any given factor.42          The superior court's analysis in this 



case    conformed      to  this  approach.      The    court   did  not   stop  its  analysis   with   the 



AS   47.10.088(b)   factors   but   went   on   to   note   that   Zach   and   Abbie,   who   had   been 



traumatized and were in need of trusting relationships, were presently living with Thea's 



sister   and   her   husband   in   a   safe   and   protective   preadoptive   relationship. The   court 



observed that the children were reported to be doing well in this home.  The court noted 



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



Servs., 289 P.3d 924, 932 (Alaska 2012) (quoting Doe v. State, Dep't of Health & Soc. 

Servs., Office of Children's Servs., 272 P.3d 1014, 1025 (Alaska 2012)). 



        42      Id. at 933 (quoting Doe , 272 P.3d at 1025). 



                                                  -19-                                                6742 


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

that the children had been in OCS's custody for 29 months, a significant portion of their 

lives, and that further delays in permanency would cause them additional trauma.43 



                The superior court also considered Thea's conduct, noting that even though 



she understood that OCS would not tolerate her abuse of substances around her children, 



she physically endangered the children by driving intoxicated with them in her car.  The 



court noted that not only had Thea failed to remedy her substance abuse behavior but she 



had made no significant progress toward that end and had demonstrated that she was not 



inclined to change those behaviors.         The superior court observed that Thea's ongoing 



abusive behaviors were likely to result in the children suffering serious emotional or 



physical damage. 

                This case resembles J.H. v. State, Department of Health & Social Services ,44 



in which we affirmed the superior court's best interests finding based on evidence that 



the mother had repeatedly returned to using drugs following her unsuccessful attempts 



at   treatment.  In J.H. , the   mother, like   Thea, "remained   at high   risk   of returning   to 

substance abuse."45      There, we noted that there was "little doubt that a relapse by [the 



mother] would have placed [the child] at risk had she been returned to her mother's 



        43      Additional support for the trial court's finding is provided by social worker 



Gardner's testimony that "the children are in dire need of permanency . . . .  They should 

just be happy and peaceful and know a stable lifestyle.            Have to worry about little kid 

problems like studying and stuff instead of where is my mom, is she in jail or is she 

relapsed," and by expert witness Morrison's testimony that the children would be at risk 

if they did not quickly achieve permanency, because they had been unsettled for so much 

of their lives, and "when you're unsettled and you don't know where you're going to be, 

you don't know if you're going back, you don't know if you're going to stay, you don't 

know who your parents are going to be and who's going to take care of you, that's a 

pretty scary situation to be in." 



        44      30 P.3d 79, 87 (Alaska 2001). 



        45      Id. 



                                                 -20-                                           6742
 


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

home."46     And in Hannah B. , we recognized that a child's need for permanence and 



stability   should not be sacrificed indefinitely in order to allow the child's parents to 

rectify circumstances that placed their child in danger.47 



                 The evidence presented to the superior court supported the court's finding 



that termination of Thea's parental rights, in order to free Zach and Abbie for adoption, 



was in the children's best interests.         The superior court thus did not err in making that 



finding by a preponderance of the evidence. 



                 The dissent argues that the superior court erred because additional evidence, 



not presented to the court, might have demonstrated that a permanency goal other than 



adoption - presumably a goal such as guardianship or placement with a fit and willing 



relative - would have better served the children's interests.                The dissent is correct in 



noting that state and federal laws allow CINA cases to be  resolved through permanency 

outcomes other than reunification or adoption.48             But as we have held, the law does not 



require   a   court,   in   the   context   of   a   termination   proceeding,   to   consider   alternative 



outcomes, "except to the extent that the statute requires the court to order an arrangement 

that is in the child's best interest."49 



                 Indeed, in Dashiell R. v. State, Department of Health & Social Services, 

Office of Children's Services,50 we expressly rejected a father's argument that it was error 



to find that termination of his parental rights was in his children's best interests because 



        46      Id. 



        47       289 P.3d at 933 (quoting Kent V. v. State, Dep't of Health & Soc. Servs., 



Office of Children's Servs., 233 P.3d 597 (Alaska 2010)). 



        48      See, e.g., AS 47.05.065, .10.080(c) & (l); 42 U.S.C.  675(5)(C) (2006). 



        49       C.W. v. State, Dep't of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001). 



        50       222 P.3d 841 (Alaska 2009). 



                                                   -21-                                              6742
 


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

the children would likely remain with their paternal grandparents even if the father's 



parental rights were terminated.   We concluded that because the grandparents' custody 



would     be   temporary,     the  children    would     remain    "under    the  cloud    of  continuing 

uncertainty, [and] the children's need for permanence and security would not be met."51 



Similarly, in Hannah B. , we rejected the mother's argument that the superior court's best 



interests    finding    was   erroneous     because    the   child   was   placed    with   his  maternal 

grandmother, who supported reunification with the mother.52                  In affirming the superior 



court's best interests finding, we noted that it was   "very uncertain whether Hannah 



would   be   able   to   assume   responsibility   for   Jacob,   given   the   significant   amount   of 

treatment remaining and her pattern of relapse following residential treatment."53  Like 



Hannah, Thea has demonstrated a repeated pattern of relapse following treatment and, 



at a minimum, has a significant amount of treatment remaining before reunification could 



even be considered. 



                 Thea asserts that in some cases a child's best interests require preserving 



rather than severing ties to an unfit parent.         While such cases may exist, this is not one 



of them. Zach and Abbie have been in OCS's custody - in effect, in limbo - for nearly 



two and one-half years, waiting for Thea to act responsibly and step into her role as their 



parent.    These   children   are   not   teenagers,   on   the   verge   of   making   their   way   in   the 

world.54   They are children who require the guidance and direction that is best provided 



        51      Id. at 851. 



        52       289 P.3d at 933-34. 



        53      Id. at 934. 



        54       We note that while Zach was 12 years old at the time Thea's rights were 



terminated, he was only nine when Thea's conduct caused OCS to remove him from her 

care. 



                                                   -22-                                              6742
 


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

in a loving, stable family headed by functioning, trustworthy parents.                    After years of 



living   in   uncertainty,   these   children   are   finally   in   a   position   to   be   adopted   into   a 



permanent family with competent, stable parents, a resolution not available to them under 

any permanency goal other than adoption.55              Preserving Thea's parental rights, in order 



to ensure maintenance of the children's ties to her, would continue to expose the children 



to Thea's potentially dangerous behaviors   and would deprive them of the chance to 



become part of a permanent, stable family.              As the superior court noted, trust is very 



important for children, as is a sense of permanency, and the lack of this trust and stability 



may   be   traumatic   and   may   heighten   the   risk   that   a   child   will   engage   in   antisocial 



behaviors. 



                 The   dissent   argues   that   the   superior   court   lacked   pertinent   information 



when   it   found   that   termination   of   Thea's   parental   rights   was   in   her   children's   best 



interests.   We appreciate the concern that the trial court did not hear about the children 



from their former or current caregivers or, more importantly, from their therapist.  Such 



testimony, when available, is likely to result in a better-informed decision by a trial court 



called upon to decide whether to terminate a parent's rights. But here, the superior court 

based its decision on a preponderance of all of the evidence presented to it.56                       OCS 



        55       Adoption       requires     termination      of   Thea's      parental    rights.      See 



AS 25.23.130(a)(1); AS 47.10.088(a). 



        56       The dissent claims that evidence in the record demonstrates that Zach and 



Abbie were "strongly" or "extremely" bonded to Thea "just before" the termination trial, 

and that Zach "continually" expressed a fervent desire that the family be kept together. 

Yet the evidence cited by the dissent consists primarily of a permanency report authored 

by the children's guardian ad litem nearly a year and a half before the termination trial 

was held.     In her more recent report, authored six months before the trial, the guardian 

ad litem stated that while the children   "remain bonded with their mother . . . [t]hey 

cannot continue to wait" for her to become ready to parent them.  This report went on to 

                                                                                           (continued...) 



                                                    -23-                                              6742
 


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

presented sufficient evidence to demonstrate that termination of Thea's rights would 



serve her children's best interests. Thea declined the opportunity to present any contrary 



evidence despite her current argument that such evidence was indispensable to the trial 



court's decision.     We thus cannot conclude that based on the record before it, the trial 



court   clearly   erred   in   determining   that   termination   of   Thea's   rights   was   in   the   best 



interests of Zach and Abbie. 



                Compelling evidence was presented to the trial court that continued custody 



of the children by Thea would likely result in serious emotional or physical damage 



befalling them.     Evidence was also presented that termination of their parent's rights 



would provide the children with the opportunity to be welcomed into a permanent, stable 



family.  Absent evidence to the contrary, termination of Thea's parental rights was in the 



best interests of the children. The trial court's finding is affirmed. 



        D.      Thea's Remaining Arguments Are Without Merit. 



                Thea's   brief   contains   several   arguments   in   addition   to   those   addressed 



above.   She argues that the superior court erred by failing to solicit, sua sponte, 12-year- 



old Zach's preferences regarding termination of Thea's rights or to appoint counsel to 



represent Zach in the termination proceedings.              But these matters, which are properly 



within the superior court's discretion, were not raised in that court.  Thea has not alleged 



or demonstrated that the superior court committed plain error on these matters, so these 



arguments are not properly before us. 



        56(...continued) 



recommend that Thea's parental rights be terminated, so that Zach and Abbie could be 

adopted.   In reaching this recommendation, the report stressed that these children "need 

permanency.       They need stability, consistency and to always be safe - they cannot 

worry if their mother is going to start drinking again and if they are going to be removed 

from her again." 



                                                  -24-                                             6742
 


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

               Finally, Thea argues that the trial court erred in allowing the children's 



guardian ad litem, a non-attorney staff member of the state Office of Public Advocacy, 



to be "represented" by an OPA staff attorney during the termination proceedings.  We 



reject this argument, noting that OPA, not a named individual, was appointed to act as 

the children's guardian ad litem in these proceedings.  This is in accord with state law.57 



We have reviewed the record and have found no impropriety in the actions of either OPA 



representative. 



VI.    CONCLUSION 



               For   the  reasons   discussed   above,   the  decision  of  the  superior  court 



terminating Thea's parental rights to her children, Zach and Abbie, is AFFIRMED. 



       57      AS 25.24.310(c), 47.10.050(a). 



                                              -25-                                          6742 


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

CARPENETI, Justice, dissenting. 



                I disagree with today's opinion because the State provided the trial court 



with virtually no specific, particularized information concerning (1) the children who 



were before the court and (2) whether termination of their mother's parental rights was 



in their best interests.   This failure left the court in an information vacuum which made 



it impossible for the court to make an informed decision about whether termination was 



in these children's best interests.      I would therefore remand for the taking of evidence 



specific to Zach and Abbie's particularized situations, including the extent to which they 



have bonded with their mother, their current needs and developmental states, and (at least 



as to Zach) their preferences in the matter. 



                Zach and Abbie, the children before the court, lost their father to cancer in 



2008.  At the time of trial they were not infants but were children who had passed the age 

that, according to the legislature, is most critical to parental bonding.1  Both children, and 



especially Zach, had already formed strong bonds with their mother.                 The guardian ad 



litem's Permanency Report of April 14, 2010 - about 17 months before the termination 



trial - said this about Zach's bonding with his mother: 



                        [Zach]     is very   attached    to  his  mother     and 

                        continues     to  do   well  with   her   close  by   - 

                        regular contact, interaction on a daily basis, her 

                        participation in his school and extracurricular 

                        activities, etc.   With the loss of his father, he 

                        has   continually   expressed   his   concern   to   the 



        1       In   AS   47.05.065(5)(A)   the   legislature   found   that   "children   undergo   a 



critical attachment process before the time they reach six years of age."  Zach was 12 at 

the time of the trial, while Abbie was six. 



                                                  -26-                                              6742 


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

                         GAL that "my family" (himself, his mother and 

                         sister) all stay together. 



 (Emphasis added.) The guardian ad litem's Disposition Report of January 2010 noted 



 that the children had been placed with family friends who were very close neighbors and 



 that this allowed the children to remain in close proximity to their mother.  It noted that 



 the children "need stability, consistency and permanency with their mother as quickly 



 as possible - they share an extremely strong bond and this needs to be nurtured as a 



family unit ." (Emphasis added.) The March 2011Permanency Report from the guardian 



 ad litem - six months before the termination trial - reported that "[b]oth children 



 remain bonded with their mother." 



                 Despite the overwhelming evidence that Zach and Abbie shared strong 



bonds with their mother, the State presented no evidence to the superior court as to the 



 effect of terminating their mother's parental rights on the children.  Moreover, a review 



 of the testimony presented to the court shows that the State's case was almost entirely 



based on generalizations: 



                 *	      The State's expert had never met the children, had never met the 



                         mother, and had never observed her with her children.  The expert's 



                         testimony was in effect based on a review of the record.             While we 



                         have endorsed the idea that expert testimony may be based on a 



                                          2 

                         record review,   the record review here was remarkably skimpy.  The 



                         expert conceded that she "didn't read a lot about the kids," while 



                         stating    that  they   were    in  a  secure    placement.     Upon      cross- 



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



 2001)   (declining   to   hold   that   a   meeting   between   the   expert   and   the   parties   to   the 

 termination proceeding is necessary in every case, but reversing termination because the 

 expert's opinion was not sufficiently based on the particular facts of the case); J.J. v. 

 State, Dep't of Health & Soc. Servs., 38 P.3d 7, 9-10 (Alaska 2001) (same). 



                                                  -27-	                                            6742
 


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

                         examination, she admitted that she had not read anything else about 



                         the children other than that they were in a secure placement.  The 



                         expert commented on the amount of time the children were out of 



                         the home in placement, but admitted that she did not know that for 



                         some of that time they lived with their mother or were cared for by 



                         her. (Indeed, the State admitted at trial that the children were in their 



                         mother's care for enough of the time that the children were in foster 



                         care that the State sought to recover part of its foster care payments 



                         from the foster parents for that time.)          The expert was unaware of 



                         the amount of time the children had visited with their mother, and 



                         she did not know how frequently visitation took place, or how the 



                         visits went. 



                 *	      The   one   social   worker   called   by   the   State   was   not   the   assigned 



                         social worker, but was instead her supervisor.               Almost all of her 



                         testimony consisted of generalizations about what kinds of  harmful 



                         effects   on   children   might   be   expected   by   the   particular   acts   of 



                         parental neglect that were found in this case.  While her testimony 



                         was   strong   in   a   general   sense,   it   could   not   establish   that  these 



                         children     suffered    the  harmful     effects   that  might    generally    be 



                         expected. 



                 In comparison with the generalizations upon which the State relied, the 



record contains substantial evidence that these children, especially Zach, were extremely 



bonded with their mother.   The evidence showed that (1) Zach was very attached to his 



mother 17 months before the trial and that this attachment continued through the time of 



trial; (2) Zach had continually expressed his desire that his family (himself, his mother, 



and his sister) all stay together; (3) Abbie shared an extremely strong bond with her 



                                                   -28-	                                             6742
 


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

mother;   and (4) this bond continued up until the trial.     Yet no evidence was produced 

at the trial as to the effect of a termination of parental rights on Zach and Abbie.3   In light 



of this evidence of the strong connections between the children and their mother, the 



superior court should have weighed the loss of that bond in the best interests analysis. 



But it was unable to do so, because the State had not presented any evidence of the effect 



that termination of parental rights would have on the children. 



               Other than generalities, the court did not hear any testimony about these 



particular children, their needs and desires, their developmental states, or their progress 



in therapy.   The court heard testimony from the social worker that termination can, 



depending on the child, result in trauma to a child, but the court heard no testimony about 



how these particular children might be impacted by termination of their mother's parental 



rights. The testimony and the trial court's findings in this case appear to have been based 



on the best interests of children in general, rather than on the best interests of Zach and 



Abbie in particular.    The State's failure to present the court with evidence about the 



effect of termination on these particular children points up what I believe to be the legal 



error here: the reduction of the best interests finding to mere surplusage. 



               The legislature has set out five findings that a superior court must make 



before parental rights can be terminated: (1) that the child is in need of aid; (2) that the 



parental conduct remains unremedied; (3) that the State has made reasonable (or, in the 



case of Indian children, active) efforts to reunite the family; (4) that serious harm to the 



child will likely occur without termination; and (5) that termination is in the best interests 

of the child.4 The testimony and the trial court's best interests findings in this case were 



       3       Indeed, when counsel for the mother attempted to bring before the court 



evidence of   the children's preference at the time of trial, the State successfully resisted. 



       4       See AS 47.10.011; AS 47.10.086; AS 47.10.088. 



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based on the best interests of children in general, but not these particular children.  But 



if courts were justified in determining only the best interests of "generic children" in 



making a best interests finding, it would appear that whenever all the other termination 



findings   are   satisfied   -   a   child   in   need   of   aid   finding,   parental   conduct   remaining 



unremedied,   reasonable   efforts,   and   a   substantial   risk   of   harm   to   the   child   without 



termination      -    the   best   interests   of  the   generic    child   will   always    be   served    by 



termination.     But because we presume that the legislature intended that every part of a 



                                                        5 

statute have some purpose, force, and effect,  the court must look at the best interests of 

the particular children before it.6        That did not happen here. 



                 Given the specific evidence in the record that these children were closely 

bonded to their mother just before the termination trial began7  and the lack of evidence 



on this subject at trial, along with the lack of evidence regarding the children's particular 



         5       See Mechanical Contractors of Alaska, Inc. v. State, Dep't of Pub. Safety, 



91    P.3d   240,    248   (Alaska     2004)    (holding     that  when     court   engages     in  statutory 

construction it will presume every provision of statute "to have some purpose, force, and 

effect, and that no . . . provisions are superfluous."). 



         6       Perhaps in the case of an infant removed from a parent at or close to birth, 



who has had no opportunity to bond with the parent, a "generic child" analysis might 

suffice.    But in the case of a 12-year-old   like Zach, who was "very attached" to his 

mother   and   who   "continually   expressed   his   concern   .   .   .   that   [his]   family   all   stay 

together," a generic analysis is insufficient. 



         7       The strongest evidence in this regard pertains to Zach.                 But the evidence 



concerning Abbie is also substantial: When she was almost five, she was described as 

having "an extremely strong bond" with her mother, which remained unchanged when 

she   was   a   month   short   of   six. And   in   light   of   the   legislative   findings   contained   in 

AS 47.05.065(5)(a) - "children undergo a critical attachment process before the time 

they reach six years of age . . ." - the superior court should have been provided updated 

information regarding Abbie's bonding with her mother at the time of the termination 

trial. 



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                                                                                  8 

situations, including the preference of at least Zach in the matter,  I believe that we 



should vacate the superior court's best interest finding and remand so that the court can 



be provided with specific evidence pertaining to these children's best interests.                  Such 



evidence should include testimony by an expert who is at least well-versed in the facts 



pertaining to these children, and preferably one who has actually met Zach and Abbie 



and who can give expert testimony on the effect of termination on them:                    What is the 



state   of   their   bonds   with   their   mother?  How   will   termination   of   the   parent-child 



relationship affect their development?           Are there   permanency options available that 



might better serve the interests of these children than termination?                 It could include 



evidence by a social worker who has actually worked with these children, who knows 



their outlook and preferences, and can provide this information to the court. Armed with 



such information, the court could make an evidence-based decision on these children's 



best interests. 



                In evaluating what is in Zach and Abbie's best interests, the court would 



have options other than termination or reunification of the children with their mother. 



Although the testimony of the social worker suggested that these were the only options, 



the choice in a case such as this is not so simple.            Federal and state law contemplate 



permanency outcomes in addition to termination or reunification, including guardianship 

and placement with a fit and willing relative.9         We have stated that a trial court need not 



        8       Cf. AS 25.23.040(a)(5) (requiring court to obtain consent of minor child to 



adoption if child is ten years of age or older unless court dispenses with minor's consent 

in best interests of minor). 



        9       With regard to federal law, see 42 U.S.C.  675(5)(C) (listing reunification, 



adoption, legal guardianship, placement with a fit and willing relative, and "another 

planned permanent living arrangement" as possible permanency outcomes). With regard 

to state law, see AS 47.10.083 (gradual reunification); AS 47.10.084 (legal custody and 

                                                                                         (continued...) 



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consider such arrangements in the course of termination proceedings "except to   the 



extent   that   [AS   47.10.088]   requires   the   court   to   order   an   arrangement   that   is   in   the 

child's best interest."10     This is such a case.     While we have, on numerous occasions, 



reiterated this holding in rejecting appellants' claims that a trial court erred in failing to 



consider or order guardianship in lieu of termination, in each such instance the trial court 



had, at some point, considered whether guardianship was an appropriate permanency 



outcome for the child, or had at least examined the particulars of the child's situation and 



found that continued contact between the child and the parent was not justified given the 

particular facts of the case.11     In this case, the trial court conducted no such analysis or 



examination.      Today's opinion also relies on J.H. v. State, Department of Health and 

Social Services12 and Hannah B. v. State, Department of Health and Social Services, 



        9(...continued) 



guardianship); AS 47.10.080(c)(2) (placement with a fit and willing relative). 



        10      C.W. v. State, Dep't of Health & Soc. Servs., 23 P.3d 52, 57 (Alaska 2001). 



        11      See Doug Y. v. State, Dep't of Health & Soc. Servs., Office of Children's 



Servs., 243 P.3d 217, 219 (Alaska 2010) (child wanted father to go to jail "so his dad 

would quit beating him"); A.J. v. State, Dep't of Health & Soc. Servs., Div. of Family & 

Youth Servs., 62 P.3d       609, 615 (Alaska 2003) (parent had "history of interfering with 

the   children's   placements"   justifying   termination   over   guardianship); Lucretia   G.   v. 

State, Dep't of Health & Soc. Servs., 2006 WL 668725 at *6 (Alaska 2006) (unpublished 

opinion) (child regarded further contact with mother as "cause for alarm"); Matthew B. 

v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 2005 WL 628809 at 

*4    (Alaska    2005)    (unpublished      opinion)    (superior    court   specifically    considered 

guardianship but found that proposed guardian was unavailable for at least 12 months); 

Christopher D. v. State, Dep't of Health & Soc. Servs., 2004 WL 243556 at *3 (Alaska 

2004) (unpublished opinion) (guardianship not in best interests of severely emotionally 

disabled     children    dealing    with    attachment     disorders    who     needed    stable   home 

environment). 



        12      30 P.3d 79 (Alaska 2001). 



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Office of Children's Services13 as cases that resemble Thea G.'s case.          But the children 



in J.H. and Hannah B. were only three years old and four years old respectively, and 



those cases clearly did not involve the types of mature bonding issues and expressed 



preferences as does the present case. 



               I agree with the superior court and today's opinion that Zach and Abbie's 



mother has failed them terribly in many ways and that she is not now fit to act as their 



parent.  But that is not the question before us.     The question is whether it is in the best 



interests of these children - both of   whom are strongly bonded with their mother and 



one of whom has expressed the fervent desire that what remains of their family following 



their father's death be "kept together" - to sever the parental bond without considering 



the   effect  of  doing  so  on  the  children,   or  even  hearing   from   them,   and  without 



considering alternatives to termination.   Before that decision can be made, the superior 



court should be provided direct evidence on this issue so that it can make an informed 



decision on what is in the best interests of these children.        Because the court was not 



provided with that information, I respectfully dissent. 



        13     289 P.3d 924 (Alaska 2012). 



                                               -33-                                           6742 

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