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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Christopher C. v. State, Dept. of Health & Social Services, Office of Children's Services (6/28/2013) sp-6790

Christopher C. v. State, Dept. of Health & Social Services, Office of Children's Services (6/28/2013) sp-6790

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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CHRISTOPHER C.,                               ) 

                                              )       Supreme Court No. S-14892 

                       Appellant,             ) 

                                              )       Superior Court Nos. 4FA-07-00051 CN 

        v.                                    )       and 4FA-10-00020/00032/00033 CN 


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

DEPARTMENT OF HEALTH &                        ) 

SOCIAL SERVICES, OFFICE OF                    )       No. 6790 - June 28, 2013 

CHILDREN'S SERVICES,                          ) 


                       Appellee.              ) 


THERESE C.,                                   ) 


                       Appellant,             )       Supreme Court No. S-14894 


        v.                                    )       Superior Court Nos. 4FA-07-00051 CN 

                                              )       and 4FA-10-00020/00032/00033 CN 

STATE OF ALASKA,                              ) 

DEPARTMENT OF HEALTH &                        ) 

SOCIAL SERVICES, OFFICE OF                    ) 

CHILDREN'S SERVICES,                          ) 


                       Appellee.              ) 


               Appeals   from   the   Superior   Court   of   the   State   of   Alaska, 

               Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge. 

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

                Appearances:        Olena      Kalytiak    Davis,    Anchorage,      for 

                Appellant Christopher C.   Elizabeth Leduc and Rachel Cella, 

                Assistant    Public   Defenders,     and   Quinlan    Steiner,   Public 

                Defender, Anchorage, for Appellant Therese C.               Megan R. 

                Webb, Assistant Attorney General, Anchorage, and Michael 

                C. Geraghty, Attorney General, Juneau, for Appellee, State 

                of Alaska. 

                Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

                Bolger, Justices. 

                MAASSEN, Justice. 


                The    superior   court   terminated    the  parental   rights  of  Christopher     and 

Therese C. to four of their children.1      In doing so the court relied primarily on evidence 

that neither Christopher nor Therese had acquired the basic skills necessary to safely 

parent their children, despite more than a year of parenting training facilitated by the 

Alaska Department of Health & Social Services, Office of Children's Services (OCS). 

The superior court also relied on the fact that Therese, who had a history of substance 

abuse, had not maintained sobriety long enough to justify a finding that she was unlikely 

to relapse, adding to the dangers faced by children in her care.   Christopher and Therese 

both   appealed.    Both   challenge   the   superior   court's   findings   that   (1)   they   failed   to 

remedy conduct that endangers their children; (2) OCS made active efforts to prevent the 

breakup of their family; (3) their children will likely suffer serious physical or emotional 

harm if returned to the parents' custody; and (4) termination of their parental rights is in 

their children's best interests.  Each of these findings is supported by the evidence in the 

        1       Pseudonyms are used for family members and foster parents to protect their 


                                                -2-                                                6790 

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

 record.  We therefore affirm the superior court's order terminating the parental rights of 

 Christopher and Therese. 


         A.      The Family 

                 Christopher and Therese began dating as teenagers in 2001 or 2002.  Over 

 the next ten years they had six children together. At issue in this appeal are their parental 

 rights to four of those children:      Eric, Cal, Zander, and Chris,2 all Indian children for 

 purposes of the Indian Child Welfare Act (ICWA).3             The oldest boy, Eric, was born in 

 2004.   At the time of trial he was living in a therapeutic foster home in Fairbanks - a 

 potentially permanent, adoptive placement - where he was participating in weekly 

 therapy sessions.  Cal was born in 2006, Zander in 2008, and Chris in 2010.  These boys 

 live in Nenana with their foster parents, Sofie Innis and Rita Olech.               The home is a 

 potentially permanent placement for the three boys, as Innis and Olech wish to adopt 


         B.      OCS's Involvement With The Family Before July 2010 

                Between 2004 and May 2007 OCS received several reports alleging that 

Christopher and Therese were abusing substances and neglecting their children; these 

reports were not investigated, "screened out" for various reasons, or investigated and not 

substantiated.    In May 2007 OCS received a report that Therese was passed out in her 

basement surrounded by garbage and beer bottles while the children played next to her, 

that Christopher was also high, that the basement smelled of methamphetamine, and that 

the house was being "used as a crash pad for other drug users."             OCS investigated and 

         2       Christopher     and   Therese's    two   other   children,   not  involved    in  this 

 proceeding,   are   Cara,   who   was   born   in   2005   and   lives   with   Therese's   mother,   and 

 Mitchell, who was born in 2012 and is in OCS's custody, in foster care. 

         3       25 U.S.C.A.  1901 et seq. 

                                                -3-                                               6790 

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

asked the parents to submit to urinalysis testing, which came back positive for marijuana 

for   both   of   them. When   follow-up      investigations   revealed   no   further   evidence   of 

substance abuse, OCS closed its case, but it did refer the parents to a local Head Start 

program and to Denali Kid Care, and it provided information about other services as well. 

               The following month OCS received a report of domestic violence between 

Therese and Christopher and took Cal into emergency custody.4           OCS placed the boy with 

Christopher's     mother,   who    was   already  caring   for  Eric.  OCS     made    referrals  for 

Christopher and Therese for housing and medical services; provided them with   case 

management services, food, and transportation; and contacted their relatives. The parents 

stipulated to Cal's adjudication as a child in need of aid and worked with OCS to develop 

a case plan.   The plan called for Therese to participate in a substance abuse assessment 

and treatment, a parenting assessment, and domestic violence classes, and for Christopher 

to participate in parenting classes and an anger management assessment. 

               In late 2007 Therese attempted suicide, and OCS referred her to Maniilaq 

Counseling Center for a psychological assessment.           She was accepted at the center for 

treatment, which OCS anticipated would address her substance abuse, mental health, and 

parenting issues, but Therese, who was pregnant with Zander, did not participate in the 

program.  Instead she moved to Shungnak.  Christopher, who had admitted having issues 

with anger control, participated in a behavioral assessment that recommended he complete 

an anger management program, and OCS referred him to the Alternatives to Violence 

program at LEAP.  He had difficulty with attendance, but OCS intervened on his behalf 

and he eventually completed the program. 

               In May 2008, while OCS's permanency goal for Cal was the reunification 

of his family, OCS acted on a report that Christopher's mother was unable to care for Cal 

         4      It appears that Cal was the only child then living in the home. 

                                               -4-                                              6790 

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

and Eric due to physical disabilities, and Cal was moved to foster care in the Innis and 

Olech home in Nenana.5         Earlier in the year Therese had begun residential substance 

abuse   treatment   at   Dena   A   Coy   in   Anchorage,   and   she   successfully   completed   the 

program in July 2008.       While in the program she gave birth to her fourth child, Zander. 

OCS did not take custody of Zander, but Therese was unable to keep him with her in 

treatment; she voluntarily placed him in the care of Innis and Olech, who were already 

caring for Cal. 

                After completing the treatment program at Dena A Coy, Therese returned 

to Shungnak, then moved back to Fairbanks. There, in November 2008, she was residing 

at the Interior Alaska Center for Non-Violent Living when OCS placed Cal with her for 

a trial home visit.   But in January 2009 Therese was asked to leave the Center "after an 

incident of intoxication and assaultive behavior towards staff," and Cal was returned to 

his foster home in Nenana.        OCS then helped Therese transition to Our Grandmother's 

House, a Fairbanks domestic violence shelter serving Alaska Natives.  In February 2009 

Therese     participated   in  a  behavioral    health   evaluation,   after  which    she  entered    a 

residential treatment program at the Women and Children's Center for Inner Healing in 

Fairbanks.   But she left that program after just three days, and the next day, March 1, she 

was arrested for assaulting Christopher and his mother.             Her blood-alcohol content on 

arrest was .198.    Upon her release OCS helped her enter the Fairbanks Rescue Mission, 

but later in March she was arrested for violating probation conditions, including "drinking 

of a whole bottle of alcohol."   She served 15 days in jail, returned to the Rescue Mission 

in May 2009, and was asked to leave in June.   In September 2009 OCS paid for her and 

         5       The record is not clear where Eric, who was not in OCS's custody, went at 

 this time. 

                                                -5-                                                6790 

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

Zander to go to Anchorage so that she could once again enter residential treatment at 

Dena A Coy. 

                 In October 2009 OCS placed Cal with Christopher for a trial home visit. 

Christopher   was   then   living   with   and   caring   for   his   mother,   who   was   confined   to   a 

wheelchair, and had Eric in the household as well. 

                 In December 2009 Therese left Dena A Coy without completing treatment 

and     entered   another    treatment     program     at  Stepping     Stones    Treatment     Center    in 

Anchorage; she left that program the following month.   Homeless and unable to care for 

Zander, she asked the foster parents, Innis and Olech, to take him in again, which they 

did.    In February 2010 Therese returned to Our Grandmother's House for sober living 

support, testing positive for marijuana and cocaine upon admission; later that month she 

gave   birth   to   her   fifth   child,   Chris,   and   both   she   and   the   baby  tested  positive   for 

marijuana.     OCS took Chris into its custody and placed him in foster care in Fairbanks. 

 OCS hoped that placing Chris locally rather than in Nenana, with Innis and Olech, would 

help him bond with his parents and would help Christopher and Therese in their efforts 

toward unification with the baby. 

                 On March 1, 2010, Therese completed another substance abuse assessment, 

which   recommended   that   she   participate   in   a   "high   intensive"   residential   treatment 

program.       Later   that   month   she   was   asked   to   leave   Our   Grandmother's   House   for 

violating its rules, and the following month she was arrested for committing an assault 

while intoxicated.      She pleaded no contest to two counts of assault in the fourth degree 

and was placed on probation for 18 months; a condition of her probation was that she not 

use   alcohol.    She   then   entered   a   residential   treatment   program   at   the   Women   and 

Children's Center, which she successfully completed in October 2010. 

                 Sometime before March 2010 Zander left the care of Innis and Olech and 

joined his brothers Eric and Cal in Christopher's home.  In early March 2010 Christopher 

                                                  -6-                                                6790

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

told an OCS representative that he was willing to work with a family support worker to 

improve his ability to care for his children and to develop plans to address his children's 

health and educational needs. 

                Several   days     later   OCS   filed  a  non-emergency       petition   for  temporary 

custody of Eric and Zander. The petition was based on concerns about domestic violence, 

neglect, Therese's mental condition and substance abuse issues, and Christopher's failure 

to protect the children from Therese's endangering behaviors.   The children remained in 

Christopher's   care   subject   to   monthly   visits   by   OCS.     A    Court-Appointed   Special 

Advocate   also   visited   the   home   regularly,   as   did   staff   from   the   Resource   Center   for 

Parents and Children (Resource Center), which had been referred by OCS to provide 

services as part of an intensive parenting program for Christopher, Therese, and their 

children.   OCS also provided Christopher with daycare assistance, transportation, food, 

a referral for drug testing, and help with applying for public assistance, enrolling the 

children in school, and establishing his paternity of Zander and Chris.  In addition, OCS 

helped Christopher obtain new birth certificates for the children that listed him as their 

father.   With these in hand Christopher could obtain cards for   the   children from the 

Bureau   of   Indian   Affairs   (BIA),   which   would   entitle   them   to   medical   care   at   Chief 

Andrew Isaac Health Center.6 

        C.	     OCS's      Involvement       With    The    Family    From     July   2010    Until   The 

                Termination Of Parental Rights In 2012 

                In early July 2010 OCS social worker Justin Heminger visited Christopher's 

home, saw that the children were sick, and asked Christopher whether he had taken them 

to the doctor. Christopher responded that he had and had been given prescriptions to treat 

ear infections.     Heminger concluded that Christopher had not filled the prescriptions, 

         6       Without BIA cards Christopher was limited to a single doctor's visit at the 

 Center for each child, but there was no restriction on his access to the emergency room. 

                                                  -7-	                                                6790 

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

however, because he had lost one and the boys tore up the other, and he had not tried to 


get new ones. 

                On July 16, 2010, OCS investigated a report that the children were again ill 

and uncared for and that Christopher's home was unsanitary.  A social worker found that 

Christopher and his mother had gone berry picking and had left the children in the care 

of two teenagers, ages 14 and 15.   The home was filthy, with garbage on the floor, dirty 

dishes    in  the  sink,   spoiled  food   in  the  refrigerator,   and   kitchen    knives   within   the 

children's reach.  The boys were sharing a mattress on the floor, with no bedding, despite 

the fact that Zander had an "extremely contagious" staph infection.                 The social worker 

took Zander to the emergency room, where he was treated for the staph infection, a severe 

ear infection, and flu.  Zander's diaper had not been changed in so long that the feces in 

it were decomposing.  His skin was so encrusted with feces and mucus that he bled when 

hospital staff cleaned him.  His clothing was too filthy to be returned to him, so he left the 

hospital in a gown.      OCS placed him with Innis and Olech. 

                OCS removed Eric and Cal from Christopher's home shortly thereafter. 

Eric's mouth was infected and he needed dental work, including removal of some teeth, 

and Cal, like Zander, had a staph infection.  OCS placed both boys with Innis and Olech, 

who reported that the boys hoarded food and hid it in their beds.  Heminger, an expert in 

assessing risk and safety threats in this context, testified that such behavior is typical of 

children who have been deprived of food. 

                Following the July 2010 removals, Christopher proposed a safety plan under 

which the boys would be returned to his home and   cared for, in his absence, by his 

         7       At about this same time the Resource Center family worker who visited the 

 home weekly reported to her supervisor over the course of several weeks that she was 

 concerned about hygiene in the home and the boys' physical health and well-being, and 

 she reported having urged Christopher to obtain medical treatment for the boys. 

                                                  -8-                                                 6790 

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pregnant 17-year-old sister.      OCS had serious reservations about this plan, as did the 

superior court.     The court found that Christopher's plan - expecting a teenager to care 

for herself as well as six-year-old, four-year-old, and two-year-old children, all while 

recovering from childbirth and caring for her own first-born child - was unrealistic. 

                OCS   was   troubled   by   the   pattern   into   which   Christopher   and   Therese 

appeared to have fallen:   OCS removed their children, the parents worked on a case plan, 

and OCS returned the children only to have to remove them again.                OCS arranged for 

Christopher   and   Therese   to   participate   in   psychological   testing. Kevin   Lankford,   a 

psychological associate, examined them in August 2010, prepared reports for OCS, and 

testified at the termination trial as an expert in administering psychological evaluations 

and   making     treatment   recommendations.       According      to   Lankford,   Christopher   had 

borderline verbal comprehension, weakness in his working memory, and poor insight and 

judgment. Lankford recommended that Christopher complete another parenting class and 

noted that Christopher would benefit from having material repeatedly modeled for him. 

He also recommended that Christopher receive counseling to improve his social skills. 

                Lankford      reported   that   Therese    had   borderline    intellectual   ability, 

demonstrated poor insight and judgment, and had difficulty controlling her anger.  He 

identified important strategies for counselors working with Therese:             repetition of tasks 

and breaking tasks into simple, concrete steps.8 

                As a result of the evaluations, OCS determined that both parents required 

parenting training with a more "hands-on" approach; its revised approach emphasized the 

         8       Another reason OCS asked Lankford to evaluate Therese was that she was 

 having     difficulties  in  her  substance   abuse   treatment    program    at  the  Women     and 

 Children's Center.     Following Lankford's report OCS worked with the Center to extend 

 Therese's stay there and to design a treatment program specifically tailored to her needs. 

                                               -9-                                             6790

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

demonstration of parenting skills with follow-up practice by the parents, as opposed to 

written instruction and workbooks.      OCS coordinated with staff at the Resource Center 

to implement this more hands-on program.         Heminger described the new approach as 

"super-repetitive, super-concrete . . . hands on, every step of the way."       He described 

Lankford's evaluations as the "keystone" of OCS's renewed efforts. 

              In September 2010 the superior court held a placement review hearing.  The 

parents requested that Chris be placed with Therese at the Women and Children's Center, 

where she was participating in residential treatment, and that Cal, Eric, and Zander be 

returned to Christopher.    The superior court directed that Chris be placed with Therese 

but denied the request as to the older boys.    The court noted that Christopher now had 

unfettered access to health care, but it found that it was his failure to follow through with 

health care, not a lack of access, that had caused the children's removal.      The superior 

court found   that Christopher had "made no showing at all that he understands and is 

capable of recognizing [the children's] need for care, nor has he presented any evidence 

indicating an ability to follow through on recognized needs if medical issues arise in the 

future."   The superior court acknowledged that Christopher's home was now clean, but 

it found that returning the children would place them "in imminent danger of harm."  The 

court found that Christopher had not demonstrated an ability to care for the children; 

specifically, the court noted that Christopher had not fed them properly in the past, even 

though OCS had provided food, that he had declined OCS's offer of daycare assistance, 

and that parenting classes had been ineffective.  The court found that Christopher had not 

shown "how he would ensure that the children will be fed and bathed and kept clean with 

fresh diapers and clothes.  He has not provided any evidence that indicates he has a plan 

for prioritizing his tasks." 

              Chris's placement with Therese did not last. Therese successfully completed 

treatment in October 2010 and moved with Chris into a shelter, but the baby fell off of a 

                                            -10-                                         6790

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

bed and hurt his head.   Therese felt overburdened and asked that Chris be returned to 

foster care.   Chris went back to his foster home in Fairbanks, and Therese moved back in 

with Christopher. 

              Over the months that followed, Resource Center staff members worked with 

Christopher and Therese intensively.     A family services worker met with them every 

week.   Sessions consisted of an hour of parenting instruction, during which the worker 

explained and modeled outcomes and behaviors the parents would have to demonstrate 

before reuniting with their children, followed by supervised visits of one or two hours 

with the children, during which the parents were expected to practice what had just been 

modeled for them.     Instruction focused mainly on improving parental supervision and 

disciplinary methods and addressing the parents' inappropriate reliance on food to control 

the children's behavior.   Sessions were conducted primarily at the Resource Center's 

visitation room but sometimes moved off-site for visits to restaurants, a park, a fair, and 

a fiddlers' festival, and for activities such as bowling and miniature golf. 

              OCS was hoping to place Chris with Therese once again for a trial home 

visit if she continued to respond well to services.   OCS was hoping to return the other 

boys to the home as well, in time.   To further assist the parents in meeting these goals, 

OCS     referred  them  both  for  drug  testing  and  counseling  through   Tanana   Chiefs 

Conference (TCC).     OCS referred Therese to Ralph Perdue Center for substance abuse 

after-care services, which she began in November 2010.       OCS encouraged the parents' 

continuing participation in the Resource Center's parenting services, and it began trial 

weekend-long visits for Chris at the family home.     It also attempted, unsuccessfully, to 

arrange for the parents to visit the older children at their foster home in Nenana.9 

        9      OCS arranged several times to drive the parents to Nenana for visits that 

 were to last several hours.   But none of these visits took place because each time the 


                                           -11-                                         6790 

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

                The    parents   began    counseling     at  TCC,   but   after  several   sessions   the 

counselor's scheduling problems interfered and the sessions ended.  Therese participated 

in the after-care program at Ralph Perdue until January 11, 2011, when she relapsed and 

was discharged.       She later admitted to having relapsed a number of times during the 

program.     When OCS learned of her latest relapse it decided not to attempt any further 

placements with Christopher and Therese for the foreseeable future. 

                In early February 2011 Eric - then seven years old - was removed from 

Innis and Olech's home and placed in therapeutic foster care in Fairbanks, following a 

report that he had choked the foster parents' five-year-old daughter. His therapeutic home 

is a potential adoptive placement for him. 

                In March 2011 OCS changed Chris's foster placement, moving him from 

his foster home in Fairbanks and placing him with Innis and Olech in Nenana.  The move 

was intended to unite permanently three of the siblings, Cal, Zander, and Chris; by this 

time OCS anticipated that the boys would not be reunited with their parents but would 

instead be adopted by Innis and Olech.           Later that month, the superior court approved a 

change in the permanency goals of these three boys, along with Eric, still in a separate 

placement in Fairbanks, from reunification to adoption. 

                In   April   2011   Therese   relapsed   yet   again.   She   and   Christopher   were 

smoking and drinking together when they got into an argument that turned physical.  As 

a result Therese was charged with assault; she pleaded guilty to a reduced charge of 

harassment and was ordered to serve 15 days for having violated probation conditions 

related to her 2010 assault convictions.          Christopher did not seek help for Therese or 

otherwise help her reconnect with treatment. 


 parents   overslept   and   their   social   worker   was   unable   to   contact   them. Other   visits 

 arranged for Fairbanks were more successful. 

                                                 -12-                                                6790 

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

                OCS again referred Therese for a substance abuse assessment and treatment, 

this time for wrap-around services at Ralph Perdue.             An assessment was scheduled for 

mid-July, but Therese missed the appointment; instead she went to Shungnak to attend 

a funeral, not notifying OCS of her plans. While in Shungnak, Therese, who had recently 

become pregnant again, consumed gallons of homebrew during several bouts of drinking 

and became involved in a family altercation during which she was repeatedly kicked in 

her   stomach.      She   did  not   seek  medical   care   but   instead  remained     in  the  village, 

continuing to drink for several days before being medivaced to Kotzebue, where she was 

hospitalized for a week. 

                In late August 2011 Therese completed her assessment at Ralph Perdue, 

which recommended that she "enter   and   complete a Long Term Clinically Managed 

Medium Intensity Residential Treatment Facility." Therese denied to the assessor that she 

had problems with alcohol or marijuana; however, she tested positive for cannabis and 

opiates.10   She explained that it was the loss of her children that had caused her most 

recent relapse.  She told the assessor that she did not want to participate in treatment but 

that   OCS   was   requiring   her   to   do   so. According   to   the   assessor,   Therese   did   not 

recognize that her use of alcohol and drugs caused problems in her life, and she did not 

understand why OCS was involved with her family. 

                That same month OCS referred Christopher, too, to Ralph Perdue for an 

assessment.     Christopher told the assessor that his problem was OCS's custody of his 

children. He said that he was not troubled by his use of mood-altering substances and that 

he did not identify his marijuana use as a problem, despite his daily use of it and possible 

exposure to his children.        He reported that two years earlier he had abstained for 18 

         10      According to a stipulation of facts filed with the superior court, the opiates 

 result was likely due to morphine Therese was given in the hospital. 

                                                 -13-                                                6790 

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

months but he had begun using again because of OCS's involvement in his life, and he 

had been unable to quit since then despite three attempts. The assessor recommended that 

Christopher participate in outpatient treatment. 

                In   September   2011   OCS   filed   a   petition   to   terminate   Christopher's   and 

Therese's   parental   rights   to   Eric,   Cal,   Zander,   and   Chris. Therese   began   residential 

treatment     that  month    at  the  Women      and   Children's    Center.    In   November       2011 

Christopher began an outpatient treatment program through Ralph Perdue.  In December 

2011, while both parents were in treatment, they were married. 

                The parents' attendance at parenting sessions at the Resource Center lagged 

toward the end of 2011, and late in the year they stopped participating altogether.                As a 

result, weekly visits with the children were moved from the Resource Center to OCS's 

office.   Both parents completed their substance abuse treatment programs in January 

2012.   The next month their sixth child, Mitchell, was born.            OCS assumed emergency 

custody of the baby and placed him in foster care with Eric.  The parents had daily visits 

with Mitchell, held jointly with their weekly visits with the older boys on the days those 

visits were held. 

                In late March 2012 the superior court began a trial on OCS's petition to 

terminate Christopher's and Therese's parental rights to Eric, Cal, Zander, and Chris. 

After three days of testimony, Christopher's mother became ill and had to be hospitalized 

in Anchorage, and the court continued   the proceedings in order to accommodate the 

family's schedule. 

                In April 2012, during the continuance, airport police stopped the couple on 

their way to Kobuk, a dry village.          Police found a 750-milliliter bottle of whiskey in 

Therese's bag and three 750-milliliter bottles of whiskey taped to Christopher's body. 

Therese told the officer that they were taking the alcohol to her mother in Kobuk.  When 

the termination trial resumed in May, Katharina Johnson of Fairbanks Native Association, 

                                                 -14-                                             6790

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

who had earlier performed assessments on both Therese and Christopher, testified as an 

expert in drug and alcohol assessment and the treatment of substance abuse.  She testified 

that the smuggling incident demonstrated a significant reversal in Therese's path toward 

sobriety, and that Therese now required "more intense treatment, something that was 

longer term by - a lot longer than six months."  Also during the continuance Christopher 

tested positive for cannabis. 

                 The termination trial concluded on June 1, 2012.               In September 2012 the 

superior     court    issued   a   highly    detailed   and    thorough     written   order    terminating 

Christopher's   and   Therese's   parental   rights   to   the   four   boys.     Both   parents   appeal. 

Christopher and Therese each challenge the superior court's findings that (1) they did not 

remedy conduct or conditions under their control that placed the children in danger; (2) 

OCS made active efforts to prevent the breakup of the Indian family; (3) their continued 

custody of the children would likely result in the children suffering serious emotional or 

physical   harm;   and   (4)   termination   of   their   parental   rights   is   in   the   children's   best 



                 In   Child   In   Need   of   Aid   (CINA)   cases,   we   review   the   superior   court's 

factual findings for clear error and its legal determinations de novo.11  Factual findings are 

clearly    erroneous     if,   after  reviewing   the  record    in  the  light   most   favorable    to  the 

prevailing party, we are left with a definite and firm conviction that the superior court's 

decision was mistaken.12        Conflicting evidence is generally not sufficient to overturn the 

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

 Servs., 290 P.3d 421, 427-28 (Alaska 2012) (citing Christina J. v. State, Dep't of Health 

 & Soc. Servs., Office of Children's Servs., 254 P.3d 1095, 1103-04 (Alaska 2011)). 

         12      Id. (quoting Barbara P. v. State, Dep't of Health & Soc. Servs., Office of 


                                                   -15-                                               6790

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

superior court's factual findings, and we will not reweigh evidence when the record 

provides clear support for the superior court's ruling.13          Whether a parent has remedied 

conduct or conditions that endanger a child, whether the child will likely suffer harm if 

returned to the parent's custody, and whether termination of the parent's parental rights 

is in the child's best interests are factual determinations.14          Whether OCS made active 

efforts to prevent the breakup of the family as required by ICWA is a mixed question of 

fact and law.15   Whether the superior court's findings satisfy the requirements of ICWA, 

state CINA statutes, and Alaska court rules is a legal question.16 


        A.	     The Superior Court Did Not Err In Finding That Christopher And 

                Therese      Failed   To   Timely     Remedy      Conduct     Or    Conditions     That 

                Endangered Their Children. 

                Alaska     Statute   47.10.088(a)(2)     requires   a  court  to  find,  by   clear  and 

convincing evidence, that a parent has failed to timely remedy conduct or conditions that 

endanger   the   parent's   children   before   the   court   may   terminate   parental   rights.   The 


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

         13      Id. at 428 (quoting Maisy W. v. State, Dep't of Health & Soc. Servs., Office 

 of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008)). 

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

 Servs., 249 P.3d 264, 270 (Alaska 2011) (citing Barbara P. , 234 P.3d at 1253 (remedy 

 of conduct and conditions; likelihood of harm if returned to parent); Dashiell R. v. State, 

 Dep't of Health & Soc. Servs., Office of Children's Servs. , 222 P.3d 841, 850 (Alaska 

 2009) (child's best interests)). 

         15      Id.   (quoting  Dale   H.   v.   State,   Dep't   of   Health   &  Soc.   Servs.,   Office   of 

 Children's Servs., 235 P.3d 203, 210 (Alaska 2010)). 

         16      Dale H. , 235 P.3d at 210 (citing Carl N. v. State, Dep't of Health & Soc. 

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

                                                 -16-	                                            6790

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

superior   court   found   that   this   requirement   was   met   here.    It   began   its   analysis   by 

considering the length of time the children had been in state custody - five years for Cal 

(age six at the time of trial), over two years for Eric and Zander (ages eight and four), and 

since birth for Chris (age two).         The court then discussed Therese's substance abuse 

before considering issues that affected the parents jointly and those relating to Christopher 

in particular.  The court was most concerned that in the nearly two-year period following 

the children's removal, neither parent had developed basic parenting skills. 

                The   superior   court   relied   on   the   testimony   of   Resource   Center   workers 

Amber Thompson and Meghan Maroney, who testified that Christopher and Therese had 

made no appreciable progress despite over a year of parenting sessions in which proper 

techniques for supervision and discipline were repeatedly modeled and demonstrated; the 

instructors could never move beyond very basic parenting skills.17              Thompson, Maroney, 

and Heminger described visits during which neither parent acted protectively when the 

boys darted across a street, the parents watched movies and ignored the boys' needs, or 

the parents focused on the baby, Mitchell, to the extent that the other boys gave up trying 

to interact with them.      Maroney testified that the parents used food as a substitute for 

verbal   communication,   and   that   she   was   very   concerned   about   the   parents'   lack   of 

structure and their failure to provide consistent discipline and guidance.  She testified that 

the boys reacted to transitions to and from visits with their parents with anxiety, which 

they dealt with by throwing age-inappropriate tantrums, and that while she would have 

expected   these   behaviors   to   dissipate   over   time,   they   did   not. She,   Thompson,   and 

Heminger all testified that while the parents had demonstrated some positive behaviors, 

         17      Thompson testified as a lay witness; Maroney was qualified as an expert 

 in parenting education to mitigate safety threats to children. 

                                                  -17-                                                6790 

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

their overall progress had been inconsistent and their parenting abilities in 2012 were no 

better than they had been in 2010, when the children were removed. 

                In addition, the superior court found that Therese's ability to parent her 

children had been substantially impaired by her substance abuse, which, along with the 

physical violence that sometimes resulted, placed her children at substantial risk of both 

physical and mental harm.  The court found that Therese had not remedied her addictive 

behavior. It based these findings on Therese's long history of substance abuse and related 

violence, her numerous failed attempts at treatment, her relapses following completion 

of treatment programs, her short current period of sobriety, and expert witness Johnson's 

testimony that Therese currently needed to complete another, longer, course of treatment. 

The superior court found that Therese's proclivity toward violence when intoxicated and 

her potential to relapse would endanger the children if they were returned to her care. 

                In finding that the children would be at risk from the combined parenting of 

Therese and Christopher, the superior court questioned Christopher's ability to support 

Therese in her sobriety. The court found that Christopher "has consistently demonstrated 

that he will help to hide [Therese's] relapses rather than seek help for her, thus placing the 

boys at risk if they are in their parents' care during a relapse."          This finding addresses 

Christopher's testimony that he would ask Therese to leave if she were to relapse and 

endanger the children.      He testified that he had never asked her to leave in the past:  "I 

didn't really.  I'd said I would, but I never did."  His explanation as to why he had never 

done so provides little support for a claim that he would behave differently in the future: 

 "It's just a big emotional thing that I have for her and I love her and [we have] been 

through a lot in the past, so."    The superior court ultimately concluded that Christopher 

"is not a sober support for [Therese]." 

                The   superior   court   was   also   concerned   because   Christopher,   even   after 

completing      treatment,   tested   positive   for  cannabis   during    the  continuance     in  the 

                                                -18-                                            6790

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

termination trial, saw no reason to stop using the drug, and failed to appreciate that his use 

might affect his children, especially if it were to coincide with a relapse by Therese. 

                Christopher disputes the superior court's finding about his own failure to 

remedy conduct that endangered the boys, arguing that his home life was more stable in 

2012 than it had been in 2010 and justified the immediate return of his children.  But this 

argument   does   not   address   the   basis   for   the   superior   court's   finding,   which   is   that 

Christopher has not provided evidence that he is capable of parenting the boys safely.  In 

addressing this aspect of the superior court's decision, Christopher simply dismisses the 

testimony of expert and lay witnesses about his parenting abilities as "nebular accusations 

and petty criticisms."       This is insufficient to demonstrate error in the superior court's 

finding of fact. 

                Having reviewed the record, we conclude that the superior court's finding 

that Christopher failed to remedy dangerous conduct or conditions is supported by clear 

and convincing evidence, and we therefore affirm the finding.18 

                Therese argues that the same finding is erroneous as to her because she no 

longer has a problem with alcohol or drugs, because she was able to articulate at trial 

appropriate parenting skills that she had learned through the Resource Center program, 

and because the superior court's finding that the children were in need of aid was not 

based on her neglect of them. 

         18      The superior court did not clearly err by failing to accept Christopher's 

 assertion that Heminger and the Resource Center staff members who were "judging" him 

 were unfamiliar with Native cultural ways.           Heminger was qualified, without objection, 

 as   an   expert   in   providing   social   services   to   clients   of   Alaska   Native   descent,   and 

 Maroney testified that roughly half of the Resource Center's clients are Alaska Native 

 and that the Center regularly incorporates parents' cultural values into its family contact 


                                                  -19-                                               6790

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

                As    to  her   first  point,  Therese     asserts  that  the   superior    court  did   not 

adequately consider positive factors in her life, citing her more than eight months of 

sobriety (including her four months in residential treatment), her testimony that she no 

longer desires alcohol or drugs, her understanding that her anger issues are related to her 

substance abuse issues, the availability of other family members and friends to provide 

her with sobriety support, the fact that she and Christopher were married and living in 

appropriate housing, and the fact that she had not engaged in domestic violence or been 

arrested for more than a year. 

                 The   superior   court   did   consider   Therese's   period   of   sobriety, finding it 

"encouraging" and entitled to some weight; but it also found that "in light of her long 

history of alcohol addiction and repeated failed treatment attempts over the past five 

years, four and one-half months of sobriety outside of residential treatment is insufficient 

to   establish   a  timely    remediation     of  [Therese's]    addiction."     The     superior   court's 

conclusion based on this evidence is in line with our prior decisions.                  For example, in 

Sherry   R.19   we   rejected   a   mother's   argument   that   her   sobriety   for   a   year   before   her 

termination trial demonstrated that she had remedied the conduct that endangered her 

children.  We noted that the mother's sobriety was "a relatively new phenomenon in her 

life.  She has struggled with substance abuse and relapsed after treatment a number of 

times.   Additionally, although she recognizes that she has had problems with alcohol, it 

         19      Sherry R. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

 Servs ., 74 P.3d 896 (Alaska 2003). 

                                                  -20-                                                  6790 

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

is unclear the degree to which she accepts her problem."20             The facts of the present case 

do not differ significantly from those in Sherry R .21 

                The evidence Therese cites is indeed positive, but it is not enough to show 

that the superior court clearly erred in finding that she had not remedied her substance 

abuse issues by the time of trial, particularly given expert witness Johnson's unrebutted 

testimony that Therese is still in need of additional and lengthy substance abuse treatment, 

a need that she does not acknowledge. 

                As to her second point, Therese's ability to describe appropriate parenting 

skills at trial does not refute the testimony of Heminger and Resource Center workers that 

in the preceding year she had proven unable to consistently provide her children with safe 

parenting, even in the controlled environment of supervised visitations. 

                Finally, Therese argues that the superior court erred because it found that she 

failed to remedy inadequacies in her parenting skills but had not found that those same 

         20      Id. at 902. 

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

 Servs., 244 P.3d 1099, 1112-13 (Alaska 2010) (affirming finding that nine-month period 

 of   sobriety   following   years   of   alcohol   abuse   was   insufficient   to   demonstrate   timely 

 remedying of conduct); Barbara P. v. State, Dep't of Health & Soc. Servs., Office of 

 Children's   Servs.,   234   P.3d   1245,   1261   (Alaska   2010)   (nearly   six-month   period   of 

 sobriety); Natalie D. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 

 Mem. Op. & J. No. 1239, 2006 WL 438651 at *6 (Alaska, Feb. 22, 2006) (four-month 

 period of sobriety); Kira I. v. State, Dep't of Health & Soc. Servs., Div. of Family & 

 Youth Servs., Mem. Op. & J. No. 1195, 2004 WL 2830860 at *4 (Alaska, Dec. 10, 2004) 

 (six-month period of sobriety); Ruth S. v. State, Dep't of Health & Soc. Servs., Div. of 

 Family & Youth Servs. , Mem. Op. & J. No. 1180, 2004 WL 1950244 at *4, *6 (Alaska, 

 Sept. 1, 2004) (five-month period of sobriety); Jerry C. v. State, Dept. of Health & Soc. 

 Servs., Div. of Family & Youth Servs., Mem. Op. & J. No. 1137, 2003 WL 21564518 at 

 *4 (Alaska, July 9, 2003) (six-month period of sobriety); Craig F. v. State, Dep't of 

 Health & Soc. Servs., Div. of Family & Youth Servs. , Mem. Op. & J. No. 1132, 2003 WL 

 21117676 at *6 (Alaska, May 14, 2003) (seven-month period of sobriety). 

                                                 -21-                                              6790

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

inadequacies had caused her to neglect the children in the past.   We find no merit to this 

argument.      The superior court found that the children had suffered serious neglect at 

Christopher's hands because of his inadequate parenting skills while Therese was not in 

the home.      The court found that Therese exhibited the same inadequacies.                     The court 

found   that   because   neither   parent   had   improved   their   parenting   skills   following   the 

children's removal, the children would be at risk of suffering the same level of neglect if 

they were returned to the care of either or both parents.               Given these findings and the 

evidence   supporting   them,   it   was   not   error   for   the   superior   court   to   conclude   that 

Therese's failure to develop and demonstrate safe parenting skills constituted a failure to 

remedy conduct or conditions that would endanger the children if they were to be placed 

in her care.22 

                 Having reviewed the record, we conclude that the superior court's finding 

on this issue as to Therese, like its finding as to Christopher, was supported by clear and 

convincing evidence, and we therefore affirm it. 

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

                 Active   Efforts   To   Provide   Services   And   Programs   To   Prevent   The 

                 Breakup Of The Indian Family. 

                 25 U.S.C. 1912(d) and Alaska Child in Need of Aid Rule 18(c)(2) require 

a   court   to  find   by  clear   and   convincing      evidence    that   the  state  made     active   but 

unsuccessful efforts to provide remedial services and rehabilitative programs designed to 

prevent   the   breakup   of   the   Indian   family   before   the   court   may   terminate   a   parent's 

parental rights to an Indian child. Courts review OCS's reunification efforts on a case-by- 

case basis because "no pat formula exists for distinguishing between active and passive 

         22       Cf. Jeff A.C., Jr. v. State, 117 P.3d 697, 703 (Alaska 2005) (conduct or 

 conditions relied upon by a court in terminating a parent's rights need not be the same 

 as the conduct or conditions that formed the basis for the child's CINA adjudication). 

                                                   -22-	                                                 6790 

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

efforts."23  Generally, active efforts require a social worker to take the parent through the 

steps of the reunification case plan, rather than simply devising a plan and requiring the 

parent to develop his or her own resources to meet it.24             In determining whether active 

efforts have been made, a court may consider all services provided during the family's 

involvement with OCS; it need not focus on a distinct period of time.25                 In addition, "a 

parent's demonstrated lack of willingness to participate in treatment may be considered 

in determining whether the state has taken active efforts."26 

                The superior court devoted nearly ten pages of its decision to the efforts 

OCS made to reunify this family.  The court stated that before March 2010 OCS focused 

its   efforts   "primarily"   on   Therese's   substance   abuse   issues,   but   that   it   also   offered 

Christopher domestic violence services through LEAP, a substance abuse evaluation, and 

urinalysis testing.    The superior court found that OCS did not make "active efforts" to 

assist the parents in developing parenting skills before 2010, but starting in 2010 OCS 

made "extensive" efforts in this area.27        Christopher characterizes the court's statements 

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

 1999) (quotingA.M. v. State , 945 P.2d 296, 306 n.12 (Alaska 1997)) (internal quotation 

 marks omitted). 

         24      Lucy J. , 244 P.3d at 1114 (quoting Wilson W. v. State, Office of Children's 

 Servs., 185 P.3d 94, 101 (Alaska 2008)). 

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

 Servs., 175 P.3d 1263, 1268-69 (Alaska 2008) (quoting E.A. v. State, Div. of Family & 

 Youth Servs., 46 P.3d 986, 990 (Alaska 2002)). 

         26      N.A. v. State, DFYS, 19 P.3d 597, 603 (Alaska 2001) (citing A.M. , 945 P.2d 

 at  306). 

         27      The superior court found that by July 2010 OCS had made the following 

 efforts intended to avoid having to remove the children from the home: 


                                                 -23-                                              6790

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

as a finding that before March 2010, OCS made "no effort whatsoever" to assist him.  He 

argues that this "glaring finding," combined with OCS's purported lack of initiative or 

assistance prior to the July 2010 removal, casts doubt on OCS's efforts to support him 

throughout the duration of the case.        We reject these assertions as unsupported by the 


                Christopher also argues that OCS's efforts after the children's removal in 

July 2010 were inadequate because (1) OCS took too long in helping Christopher obtain 

the children's BIA cards to allow them to receive medical care at Chief Andrew Isaac 

Health   Center;   (2)   OCS   did   not   follow   through   on   Lankford's   recommendation   that 

Christopher receive hands-on parenting training; (3) services offered by the Resource 

Center were not sensitive to Christopher's cultural background; (4) Christopher had very 

little contact with his Resource Center worker; (5) Heminger did not regularly update 

Christopher's case plan or clarify his concerns to Christopher; (6) Heminger did not visit 

Christopher's home after January 2011; and (7) Heminger did not make enough effort to 


                OCS     supported    [Therese's]   entry   into  the  Women's      and 

                Children's treatment program so [Therese] could eventually 

                rejoin the family as a sober care provider. It offered childcare 

                to    [Christopher].        It  offered    [urinalysis   testing]    to 

                 [Christopher] and [Therese].   It provided intensive parenting 

                education classes through [the Resource Center]. It provided 

                parenting classes in 2007 through the STAR program.  It has 

                provided counseling through Fairbanks Community Health 

                and TCC.      It provided LEAP classes for [Christopher].  It 

                offered transportation services.        It assisted with application 

                for public assistance.  It assisted with enrolling the school-age 

                children    in  school.   And    it   assisted  the  family  with  the 

                provision of food boxes. 

                                               -24-                                            6790

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

"enforce" telephonic visits or in-person visits with the children when they were in foster 

care in Nenana. 

                We address these arguments in order and find no merit in any of them. First, 

the superior court found that OCS "bore some fault for taking too long in obtaining the 

BIA cards," but the court concluded that OCS's lack of action was of little import both 

because Christopher could have obtained medical care for the children at the facility's 

emergency room, and because "the children's removal in July 2010 was caused, not by 

lack   of   access   to   BIA-provided   health   care,   but   by   [Christopher's]   failure   to   follow 

through on the medical care for his children."28 

                 Second,     the  superior    court   found    that  OCS    and   the   Resource     Center 

modified       their    techniques      of    parenting      training    to    implement       Lankford's 

recommendations as to what would most benefit Therese and Christopher.                          The court 

specifically found that "the parents' complaint that OCS did not implement the hands-on 

training is not supported by the evidence." Testimony by Heminger and Resource Center 

workers supports this finding. 

                 Third, the superior court found that the parenting training did not fail due 

to a lack of cultural sensitivity.      Instead, the court found that the Resource Center 

                 was willing to incorporate important cultural values into the 

                 program and the supervised visits, but the parents failed to 

                  identify   their   cultural   needs   other   than   bringing   important 

                  cultural foods to a few visits to share with the boys.  Parental 

                  input was essential for [the Resource Center] to incorporate 

                  cultural   needs   into   its   program   for   [the   parents],   but   the 

                 parents     were    not  forthcoming      with    what   they   felt  they 


         28       Social    worker     Heminger      testified   that  at  the   time   he   was    helping 

 Christopher obtain the BIA cards he was unaware of their significance in the children's 

 ability to access free health care at Chief Andrew Isaac. 

                                                  -25-                                                  6790 

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

This finding was supported by the testimony of Resource Center workers, who testified 

that they incorporated Native cultural practices into their parenting sessions to the extent 

Christopher and Therese were willing to identify the practices that were important to 

them.   Christopher asserts in his brief that a Native caseworker was more helpful than a 

later non-Native caseworker who, he asserts, was "not at all familiar with Native culture." 

In the cited testimony, however, Christopher's only specific complaint was about the two 

caseworkers' different styles of teaching, contending that he did better with a hands-on 

approach; but the trial court found that OCS understood the parents' special educational 

needs and made substantial efforts to accommodate them. 

                Fourth, Christopher had the opportunity to meet with his Resource Center 

worker for an hour each week before visiting with his children.  Resource Center workers 

testified that Christopher was not as involved as he could have been in their sessions, and 

that his attendance fell off over time.        The superior court made findings consistent with 

this testimony. 

                Fifth, while Heminger arguably did not update the case plan as often as he 

should have, this was due in part to the fact that Christopher's needs did not change over 

the   course   of   the   case. And   Heminger   testified   that   he   regularly   discussed   with   the 

parents   his   expectations   and   goals   for   them.   The   superior   court   found   Heminger's 

testimony on this point credible, and it noted that failure to complete paperwork does not 

equate to a failure to provide active efforts. 

                 Sixth, Heminger did not inspect Christopher's home after January 2011 

because after that time the conditions in the home did not pose a threat to the children; 

OCS was retaining custody due to the parents' lack of parenting ability.                The court noted 

this in its termination order. 

                Finally, Heminger testified that telephone visits were not successful because 

the parents often did not answer their phones, and the superior court found this to be the 

                                                  -26-                                               6790

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

reason.   Both Christopher and Heminger testified, and the superior court found, that the 

attempted in-person visits to Nenana did not occur because the parents did not make 

themselves available.      After four failed attempts, the parents did not accept Heminger's 

offer to try again. 

               In addition to raising several of these same unavailing arguments, Therese 

argues that OCS's efforts were inadequate because they did not constitute "appropriately 

tailored services [offered] in a timely fashion."   She bases this assertion on OCS's focus 

on her substance abuse issues during the first several years of the case, and on its failure 

to determine before 2010 that she had significant cognitive deficits that would benefit 

from a special approach to treatment and the provision of services. 

               The superior court listed the efforts that OCS had made in providing services 

to Therese over the years, including arranging and paying for repeated substance abuse 

assessments and residential treatment programs and providing transportation assistance 

both before and after 2010.      The court found that OCS's focus on Therese's substance 

abuse problems from 2007 to 2010 was appropriate.   From 2010 onward, the court noted 

that OCS offered Therese a psychological evaluation, modeling-based hands-on parenting 

education, hands-on substance abuse treatment, grief counseling (which Therese refused), 

vocational   rehabilitation    services   (which   Therese   also   refused),   housing  assistance, 

transitional housing, couple's counseling, and trial home visits. 

               As we have noted, OCS's duty to make active efforts for a family does not 

require perfect efforts.29  In Pravat P. we observed that "[o]ur concern is not with whether 

the State's efforts were ideal, but with whether they crossed the threshold between passive 

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

 Servs., 249 P.3d 264, 272 (Alaska 2011). 

                                              -27-                                             6790 

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

and active efforts."30     Here, as in Pravat P. , "the multiple actions taken by OCS and 

summarized by the superior court, viewed as a whole, decisively crossed the threshold 

into active efforts. This is certainly not a case in which a plan was drawn up and the 

parent was left to his own devices in carrying it out."31 

                The record provides sufficient evidentiary support for the superior court's 

finding that OCS made active but unsuccessful efforts to reunify Christopher and Therese 

with their children.     The finding is affirmed as to both parents. 

        C.	     The Superior Court Did Not Err In Finding That The Children Would 

                Likely Suffer Serious Emotional Or Physical Harm   If Returned   To 

                Christopher's Or Therese's Custody. 

                25 U.S.C.  1912(f) requires a court to find, beyond a reasonable doubt, that 

a parent's continued custody of an Indian child will likely result in serious emotional or 

physical damage to the child before the court may terminate parental rights.                 Proof that 

the parent's custody is likely to cause the child serious harm requires a showing both of 

harmful conduct and that the harmful conduct is not likely to change.32  This proof must 

include qualified expert testimony based upon the particular facts and issues of the case.33 

                The   superior   court   found   beyond   a   reasonable   doubt   that   returning   the 

children to the care of Christopher or Therese would cause the children serious emotional 

         30      Id.   (citing  Dale   H.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of 

 Children's Servs., 235 P.3d 203, 213 (Alaska 2010)). 

         31	     Id. (citation omitted). 

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

 204 P.3d 1013, 1020 (Alaska 2009) (citing L.G. v. State, Dep't of Health & Soc. Servs. , 

 14 P.3d 946, 950 (Alaska 2000)). 

         33      E.A.  v. State, Div. of Family & Youth Servs., 46 P.3d 986, 991 (Alaska 

 2002) (citing 25 U.S.C.  1912(f) (2000); C.J. v. State, Dep't of Health & Soc. Servs., 

 18 P.3d 1214, 1218 (Alaska 2001)). 

                                                 -28-	                                             6790

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

or physical harm.      The court discussed the severe level of neglect that Cal, Zander, and 

Chris were exposed to before their removal from the family home in July 2010.                       Citing 

the testimony of expert witnesses Heminger, Maroney, and Lankford and lay witness 

Thompson, the court found that despite the Resource Center's year-long work with both 

parents, there was "no progress on the part of either parent in obtaining parenting skills," 

which   "establishes   beyond   a   reasonable   doubt   that   if   placed   back   in   their   home,   the 

children will suffer similar neglect." (Emphasis in original.) 

                Relying   on   Maroney's   testimony,   the   court   found   that   during   visits   the 

children would throw age-inappropriate tantrums to gain their parents' attention "because 

that is the only skill that works to obtain parental attention.  And then, when attention is 

obtained, the children are calmed with food to the point of illness."               The superior court 

found credible Heminger's testimony that after Mitchell was born the parents focused 

their attention on him so completely that Eric had "given up" trying to gain his parents' 

attention   during   their   supervised   visits.    The   court   found   credible   Heminger's   and 

Maroney's testimony that, as late as April 2012, both parents continued to place their own 

needs before those of their children.  The superior court cited expert witness Lankford's 

testimony that Christopher's failure to develop parenting skills since his evaluation meant 

that there was "an increased likelihood of neglect if the children are [placed] in his care." 

The court also cited Lankford's testimony that Therese would be unable to safely parent 

the children if she were not sober, and that she was prone to violence when intoxicated. 

The court went on to find that her present period of sobriety was "too short to ensure 

lasting sobriety has been achieved."            Considering this evidence in the aggregate, the 

superior court found that neither Christopher nor Therese has "the skills necessary to be 

safe parents," that their conduct was likely to cause harm to the children, and that neither 

parent was likely to change their harmful conduct in a reasonable time.                    The superior 

court found beyond a reasonable doubt that the parents were unlikely to improve their 

                                                  -29-                                               6790

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

parenting skills in a reasonable time and that the children would suffer serious emotional 

and physical harm if they were returned to their parents' custody. 

                Christopher       and    Therese     raise  separate     challenges     to  this   finding. 

Christopher argues that the finding is erroneous because "[t]he weight of the evidence 

shows that Christopher has remedied the problems which caused the children's removal." 

The evidence he cites is scant, consisting of a statement by Maroney that she did not think 


that the children would suffer substantial physical harm if placed with Christopher,                      a 

statement by a witness qualified as an expert in midwifery and neonatal care who testified 

at Mitchell's temporary custody hearing that she was not concerned about Therese's 

ability to care for her new baby,35 and Lankford's initial focus on Therese's conduct when 

asked about the likelihood of harm if the children were returned to their parents' care. 

This evidence does little to demonstrate that Christopher remedied the conditions that had 

caused his children harm while in his care, and it conflicts with abundant testimony cited 

by the superior court that Christopher had not demonstrated an ability to safely care for 

his children. 

                Finally, Christopher asserts that the superior court improperly conflated his 

conduct with Therese's.  He cites two statements in the superior court's decision that he 

asserts demonstrate the impropriety of the court's analysis.               The first statement begins 

"[t]he evidence, taken in the aggregate, establishes . . . ."           As the State correctly points 

out, "aggregate" in this context refers to the superior court's aggregating the testimony 

of lay and expert witnesses about each parent's conduct; it does not indicate that the 

         34      Christopher does not acknowledge Maroney's testimony that she "would 

 be very concerned about emotional impacts on - on the children" if they were returned 

 to their parents' care.     (Emphasis added). 

         35      This testimony was incorporated by the superior court into the termination 

 trial record. 

                                                  -30-                                               6790

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

superior court improperly conflated Christopher's behavior with Therese's behavior.  The 

second   statement Christopher relies on is that "[t]he court reluctantly  concludes that 

[Christopher and Therese] do not presently have the skills necessary to be safe parents."36 

 We find nothing improper about this statement and do not interpret it to indicate that the 

superior court conflated the two parents' conduct.          In addition, as the State points out, 

given that Christopher and Therese were recently married and want to raise their children 

together,   it   cannot   have  been  improper    for  the  superior  court   to  consider  dangers 

presented to the children by a household headed jointly by them both. 

               Therese argues that the superior court's finding is erroneous because she has 

recently made progress in ordering her life, having remained sober for over eight months 

(four months of which were in a residential treatment program) and   not having been 

involved in domestic violence for a year.       Therese's argument is essentially the same as 

her argument that the superior court erred in finding that she failed to remedy conduct and 

conditions that endanger the children.  The difference is that the present finding must be 

supported by evidence beyond a reasonable doubt, including testimony of one or more 

expert witnesses.37  Our review of the record indicates no error on the superior court's part 

in reaching the same conclusion under this more exacting standard.38  Besides, the court's 

determination that the children would suffer serious harm if returned to Therese's care is 

independently supported by the court's finding that she had not acquired the basic skills 

necessary to safely parent her children. 

         36     Emphasis Christopher's. 

         37     See E.A. v. State, 46 P.3d at 991. 

         38     The    superior   court's   finding   was   supported    by  testimony    of  expert 

 witnesses Heminger, Maroney, Lankford, and Johnson. 

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                We thus find adequate support in the record for the superior court's finding, 

beyond   a   reasonable   doubt,   that   the   children   will   likely   suffer   serious   emotional   or 

physical harm if returned to the custody of Christopher or Therese, and the finding is 


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

                Christopher's Parental Rights Was In The Best Interests of Eric, Cal, 

                Zander, And Chris. 

                Before a court may terminate parental rights, AS 47.10.088(c) requires it to 

consider the best interests of the child, and CINA Rule 18(c)(3) requires it to find, by a 

preponderance of the evidence, that termination of parental rights is in the child's best 

interests. The superior court found by a preponderance of the evidence that termination 

of Christopher's and Therese's parental rights would serve the best interests of each of 

the four boys.      The superior court examined each child's situation separately.               It began 

by noting Cal's lengthy history in state custody, his repeated removals from his parents' 

home, and the positive relationship he had developed with his foster parents.   The court 

noted that Cal has difficulty understanding where and to whom he belongs.  The superior 

court next discussed Zander's special educational needs, his difficulty in transitioning 

after visits with Christopher and Therese, and testimony that he was doing well in his 

foster   parents'   care.    The   court   noted   that   Zander   has   lived   half   his   life   outside   his 

parents' home.      As for Chris, the court noted that he receives "his foster parents' 'total 

attention' from the time he wakes until he goes to bed."  The court noted that he has lived 

his entire life outside his parents' care.        Eric, the superior court observed, was placed in 

therapeutic foster care because of inappropriate conduct toward another child following 

his removal from Christopher and Therese, and he has spent the last two years in state 

custody.    The court noted that all of the boys appear to have learning disabilities and 

developmental delays, and it found that they all, "especially two year old [Chris], need 

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permanency."  The superior court found that all of the boys "need parents who can attend 

to   [their]   special   needs,"   and   it   found   that   because   Christopher   and   Therese   had   not 

"acquired the basic parenting skills necessary to care for their children's physical and 

medical   needs,   it   is   unlikely   that   the   parents   will   be   able   to   care   for   the   presently- 

identified special needs of the boys let alone recognize special issues that may arise in the 


                 These findings are supported by the testimony of Maroney, who expressed 

"grave concerns" about the parents' apparent lack of motivation "to eliminate or mitigate 

at least some of those safety risks that were present before."  Maroney testified that each 

of the boys has needs that "are immense in terms of needing very routine structure and 

consistency in their lives in order to feel safe."             She stressed that children who miss 

attachment opportunities early in life require a great deal of work in order to rebuild 

trusting,   secure   relationships   and   to    form    attachments,   not   only    to   their   childhood 

caregivers but also as they grow into adults and develop their own intimate relationships. 

She concluded that these children "are going to need incredible amounts of consistency 

and   safety    throughout   the   remainder   of   their   childhood      in  order   to  regain   healthy 

attachments . . . that were lost early on in their childhood."                 She was concerned that 

Christopher and Therese did not have the ability to provide the necessary consistency and 

to eliminate safety risks in their home. 

                 Christopher argues that the superior court's finding is erroneous because he 

loves the boys, shares a bond with them, and wants to care for them.                    He argues that if 

Cal, Zander, and Chris are adopted by Innis and Olech the boys will lose contact with 

him, Therese, and Eric.         He asserts, without elaboration, that the boys' best interests 

require that they maintain family and tribal contact, have a Native male role model, and 

learn Native culture from Christopher. 

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                Therese argues that the finding is erroneous because insufficient evidence 

was presented regarding the children's specific needs and because the superior court 

failed to consider the children's cultural needs. 

                Christopher's and Therese's arguments do not adequately address the factors 

relied upon by the superior court in making its finding and are thus not sufficient to rebut 

that   finding.   Besides,   the   parents'   assertions   about   the   children's   cultural   needs   are 

relevant to placement, not termination.           Challenges to placement decisions, including 

challenges      based   on   cultural   concerns,    are  not   properly    raised   in  a  termination 


                The   superior   court's   finding,   by   a   preponderance   of   the   evidence,   that 

termination of Christopher's and Therese's parental rights is in the best interests of these 

four children is adequately supported by the record and is therefore affirmed. 


                For    the   foregoing    reasons    we    AFFIRM       the   superior   court's    order 

terminating the parental rights of Christopher and Therese to their children Eric, Cal, 

Zander, and Chris. 

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

 Servs., 244 P.3d 1099, 1120 (Alaska 2010). 

                                                 -34-                                                6790 

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