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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Chloe O. v. State, Dept. of Health & Social Services, Office of Children's Services (9/20/2013) sp-6828

Chloe O. v. State, Dept. of Health & Social Services, Office of Children's Services (9/20/2013) sp-6828, 309 P3d 850

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

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         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                    

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                   THE SUPREME COURT OF THE STATE OF ALASKA  



CHLOE O.,                                            )  

                                                     )        Supreme Court No. S-14771  

                           Appellant,                )  

                                                     )        Superior Court No. 3AN-10-00232 CN  

         v.                                          )  

                                                     )  

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

DEPARTMENT OF HEALTH &                               )  

SOCIAL SERVICES, OFFICE OF                           )        No. 6828 - September 20, 2013  

CHILDREN'S SERVICES,                                 )  

                                                     )  

                           Appellee.                 )  

                                                     )  



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

                  Judicial     District,    Anchorage,        Peter    A.    Michalski       and  

                  Catherine M. Easter, Judges.  



                  Appearances:  Marjorie K. Allard, Assistant Public Defender,  

                  Renee McFarland, Assistant Public Defender, and Quinlan  

                  Steiner, Public Defender, Anchorage, for Appellant.  Janell  

                                                                           

                  M.  Hafner,  Assistant  Attorney  General,  and  Michael  C.  

                                                                                  

                  Geraghty, Attorney General, Juneau, for Appellee.  



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

                                      

                  Bolger, Justices.  



                  BOLGER, Justice.  


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

I.         INTRODUCTION  



                                     1 

                                                                           

                      Chloe O.  has a long history of substance abuse and mental health issues.  



                                                          

In August 2010, OCS took Chloe's fifteen-month-old daughter, Ashanti, into emergency  



custody  because  of  Chloe's  drug  abuse,  suicide  attempts,  assaultive  behaviors,  and  



                                                                                                      

affinity for unsafe people and situations.  OCS made many  unsuccessful attempts to  



assist Chloe in obtaining treatment for her substance abuse issues and, eventually, for her  



mental health issues.  



                                                                                                   

                      Following  a  trial,  the  trial  court  terminated  Chloe's  parental  rights  to  



Ashanti.    In  doing  so  the  trial  court  found  that  OCS  made  active  efforts  to  reunify  



                                                                                                 

Chloe's family by a preponderance of the evidence, rather than by the proper  clear and  



                                                   2  

convincing evidence standard.    Chloe appealed the trial court's termination order on  



several grounds, one of which was a challenge to the trial court's finding that OCS had  



                                                                        

made active efforts to reunify her family.   Before briefing was completed the parties  



                                                                                                          

agreed that the case should be remanded to allow the trial court to reconsider the active  



                                                                                                                     

efforts question under the correct evidentiary standard. Superior Court Judge Catherine  



Easter  held  an  evidentiary  hearing  on  the  issue  of  reunification  efforts  because  the  



                                                                                                    

original trial judge, Superior Court Judge Peter Michalski, had retired in the interim.  



                                                                          

Judge Easter found, by clear and convincing evidence, that OCS had made active efforts  



to reunify Chloe's family.  



                                                

                      Chloe's appeal requires us to address four issues.  We first decide whether,  



in reviewing Judge Easter's ruling that OCS made active efforts to reunify Chloe with  



                                                                                      

Ashanti, we are limited to considering the evidence presented at the hearing on remand,  



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



           2          OCS was required to make active reunification efforts because Chloe is an     



Indian child for purposes of the Indian Child Welfare Act, 25 U.S.C.  1901-1963.  



                                                                     -2-                                                                   6828  


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

                                                                                                           

or whether we may also consider evidence that was presented at the initial hearing before  



                                                                        

Judge Michalski.  We conclude that our review of this issue is limited to the evidence  



presented to Judge Easter on remand.  



                                                                      

                    Second, we conclude that the trial court's finding that OCS provided Chloe  



                                                                                   

with active efforts to reunify her family is supported by clear and convincing evidence.  



                                                                                                              

Third, we conclude that the trial court did not err when it found, beyond a reasonable  



                                                                                    

doubt, that Ashanti would likely suffer serious harm if she were returned to Chloe's  



                                                                                                                

custody.  Finally, we conclude that we are not required to remand this matter to allow the  



trial  court  to  investigate  whether  Chloe's  attorney  provided  her  with  ineffective  



assistance.  



II.       FACTS AND PROCEEDINGS  



          A.        Ashanti Is Taken Into OCS's Custody.  



                                                                                 

                    Chloe began using marijuana and alcohol in her pre-teen years, and by age  



18 she was regularly using marijuana, alcohol, cocaine, and hallucinogens.  She spent  



most of her youth in foster care, in the custody of OCS and the Division of Juvenile  



Justice (DJJ).  She was institutionalized multiple times as a minor because of her mental  



                 

health and substance abuse issues, and by the time she reached adulthood she had been  



prescribed antidepressant and antipsychotic medications; the record indicates that she  



may suffer from bipolar disorder and fetal alcohol syndrome (FAS).  



                                                                                                        

                    In May 2009, 18-year-old Chloe gave birth to Ashanti.  While pregnant,  



           

Chloe used cocaine, alcohol, and marijuana.  When Ashanti was seven weeks old, Chloe  



                                

asked Autumn P. - a woman who had acted as Chloe's foster mother when Chloe was  



                                                                                                            

a teenager - to care for the baby while Chloe tended to pressing family matters.  This  



                                                                                      

arrangement was originally to be for a matter of days, but when Chloe decided to enter  



a substance abuse treatment program Autumn agreed to continue caring for Ashanti.  The  



                                                                

record does not indicate that Chloe entered treatment; nonetheless, Ashanti remained in  



                                                             -3-                                                        6828
  


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

Autumn's care.   At the time, Autumn, a licensed DJJ foster parent, was also caring for   



several teenage foster children and her own young daughter.  



                               

                    While Autumn was caring for Ashanti, Chloe sometimes took the child.  



During such times OCS received reports concerning Ashanti's safety.  OCS investigated  



reports  concerning  Chloe's  substance  abuse,  mental  health,  suicide  attempts,  and  



exposure of Ashanti to unsafe situations.  



                    In August 2010, OCS took emergency custody of Ashanti after Chloe was  



arrested and incarcerated following a violent altercation.  The trial court adjudicated  



                                                                                            

Ashanti a child in need of aid and committed her to OCS's temporary custody.  OCS  



placed Ashanti with Autumn, who had been the child's main caregiver for more than a  



year.  



          B.	       Chloe Declines To Participate In Mental Health Services; She Engages,  

                    Unsuccessfully, In Substance Abuse Treatment.  



                                                          

                    Chloe's OCS case plan called for her to participate in a substance abuse  



assessment  and  treatment,  urinalysis  testing,  a  mental  health  evaluation,  parenting  



                                                                                           

classes, and visitation with Ashanti, and it required her to acquire stable housing and  



employment.  According to social worker Jamie Kaufman-Bacher, who was responsible  



for the case from April through September 2010, Chloe was not concerned about her use  



                              

of substances.  She agreed to participate in substance abuse treatment, but she "outright  



                                                                           

refused" to participate in mental health services.  Kaufman-Bacher decided to focus her  



                                                                                                

initial efforts on Chloe's substance abuse rather than her mental health issues.  Kaufman- 



Bacher  testified  that  this  decision  was  based  on  several  factors:    Chloe  refused  to  



participate in a mental health assessment; it is not possible to force an unwilling client  



                                                                                                      

to accept mental health treatment; substance abuse was an important issue that Chloe was  



                                                                          

willing to work on; and Kaufman-Bacher did not want to overwhelm Chloe by involving  



her in too many services at once.  



                                                               -4-	                                                        6828
  


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

                     While drafting the case plan, Kaufman-Bacher consulted an OCS social  

                                             



worker who had worked with Chloe's family when Chloe was a minor.  That worker told  

                                              



Kaufman-Bacher that Chloe might have fetal alcohol syndrome.  Kaufman-Bacher, who  

                                                                                                   



was  trained  in  FAS,  testified  that social  workers  and  service  providers  interact  in  a  

                                                       



particular way with FAS clients, and she included the information about Chloe's possible  

                                       



FAS  status  in  her  referral  for  Chloe  to  participate  in  a  substance  abuse  assessment.  

                                                                



Kaufman-Bacher transferred the case to social worker Toi Registe in September 2010.  

                                                                                                        



At  that  time,  Chloe  had  declined  to  fill  out  paperwork  that  was  required  for  her  to  



participate  in  a  substance  abuse  assessment  through  the  Salvation  Army  Clitheroe  



Center, and the assessment had been rescheduled.  



                     Registe, who had the case from September 2010 through the termination  



                                                3  

                                                     At  their  first  meeting  Registe  and  Chloe  discussed  

trial,  met  with  Chloe  monthly.                                                      



Chloe's  need  to  participate  in  substance  abuse  and  mental  health  services.    Chloe  



informed Registe that she would not participate in the mental health component of her  

                                                                                                                             



case  plan,  but  she  agreed  to  participate  in  substance  abuse  services.                                  Registe,  like  

                                                                                                                  



Kaufman-Bacher, felt that the best course was to focus initially on Chloe's substance  



                                                                                                             

abuse issues.  Registe testified that she was aware of Chloe's possible FAS status.  She  



                                                                      

testified that she routinely helps FAS clients fill out referral forms in her office, avoids  



                                                                                                  

imposing too many case plan components on them at any point in time, writes reminder  



                          

notes for them, and provides them with reminder phone calls.  As to Chloe, Registe  



                                                                                                                 

testified that "there were many . . . times that whatever referral we were doing, we did  



          3  

                                                                                                                

                     Registe testified that she had difficulty meeting with Chloe because Chloe  

missed appointments and did not show up when the appointments were rescheduled.  

Registe also testified that she often met with Chloe before or after Chloe's scheduled  

visits with Ashanti at the OCS office.  



                                                                -5-                                                              6828  


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

                                

together.  I would remind [her] of, you know, court reviews, her family contact, [and]  



assessments.  I've even offered to cab her to those."  



                                                                                                                 

                      In  October  2010  Chloe  participated  in  a  substance  abuse  assessment  



                                 

through Clitheroe; the recommendation was for outpatient treatment.  Chloe did not  



follow  through  with  the  referral,  nor  did  she  participate  in  urinalysis  to  which  both  



                                                   

Kaufman-Bacher and Registe had referred her, despite the social workers' emphasis on  



                                                                                                     

the importance of her participation and their explanation that missed urinalysis tests are  



                                                4  

                                                                

considered positive by OCS.                         When Chloe's substance abuse assessment expired in  



                                                                                                

February 2011 Registe referred her to a case management and substance abuse program  



                                                                

at Alaska Women's Resource Center.  Chloe's case manager at that program scheduled  



                                                  5  

weekly  meetings  with  Chloe.     Chloe  missed  numerous  scheduled  substance  abuse  



                                                    

assessments at AWRC before  finally completing an assessment on April 18, 2011,  



                                                                                                       6  

when Registe arranged for a taxi to take her to the assessment.   



                      Shortly before this assessment, on April 12, 2011, Chloe gave birth to her  



                                                                                                       

second daughter, Samara C., who quickly joined Ashanti in OCS's custody.  Also at  



           4          Over the course of the case Chloe was referred to participate in urinalysis         



testing several times.  She missed many more scheduled tests than she completed, and  

every urinalysis she completed tested positive.  Registe testified that Chloe missed 74  

tests  and  tested  positive  16  times.    Chloe  explained  her  reluctance  to  participate  in  

urinalysis by stating, "I didn't agree with them at times and at times I just didn't go."  



           5  

                                                                                                                        

                      Registe testified that the AWRC case manager's role was similar to any  

case manager's, which was "to help [Chloe] get any necessary assessments, treatment,  

any other services that [Chloe] needed," but the advantage of AWRC was that it provided  

                                                                                                                        

a  case manager to meet with Chloe every week.  



           6          Registe   testified             that   normally   AWRC                    only   allows   three              missed  



                                                                                                                                

appointments  before  terminating  a  client  from  the  program  but  that  they  made  an  

                                                                                                             

exception for Chloe, due to Registe's continual interactions with Chloe's AWRC case  

manager.  



                                                                     -6-                                                               6828
  


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

                                                                                                              

about this time, Chloe tested positive for marijuana and methamphetamine.  She admitted  



using marijuana but denied knowingly using methamphetamine, speculating that her  



marijuana may have been laced with it.  



                                                                                                  

                    Chloe's assessment recommended medium-intensity residential treatment.  



She enrolled in a program at Stepping Stones, where OCS planned to have Samara  



                                                               

placed with her after a 30-day orientation period, but Chloe left the program after only  



a  few  days,  because,  according  to  Registe,  "[s]he  did  not  like  the  people  up  in  her  



               7 

                                                                    

business."   After Registe and Chloe's AWRC case manager intervened, Stepping Stones  



agreed to allow Chloe to rejoin the program, but this time she left before completing the  



intake process.  



                    Chloe's case managers continued to investigate treatment programs, but  



with little success other than to have Chloe's name added to months-long waiting lists  



                                     

for  several  programs.             Chloe,  who  continued  to  use  drugs,  was  dismissed  from  the  



                                                           

AWRC program in May 2011 after not completing papers to allow her to be considered  



for additional treatment programs.  



                                                                            

                    On June 1, 2011, on a referral from OCS, Chloe participated in another  



                                                               

substance abuse assessment at Clitheroe.  The assessor recommended a 90-to-120-day  



residential treatment program, to be followed by 24 weeks of outpatient treatment, and  



                                                                                         

also  recommended  that  Chloe  follow  up  with  a  mental  health  provider.    Registe  



                                                            

attempted to have Chloe admitted to a dual-diagnosis treatment program at the Ernie  



                                  

Turner Center, but her criminal history rendered her ineligible for that program.  Registe  



          7         The  Stepping  Stones  program  included  a  parenting  class  component.  



                                                  

Parenting  classes  were  required  by  Chloe's  case  plan.    Registe  testified  that  before  

                                                                      

Chloe's admission to Stepping Stones, Registe had referred her to a hands-on parenting  

class but that Chloe had declined to participate.  



                                                              -7-                                                           6828  


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

helped Chloe apply to a dual-diagnosis program at Clitheroe, where she was placed on  



a waiting list.  



                   Around this time, Chloe agreed to participate in a mental health assessment.  

                                                                                          



Registe  referred  Chloe  for  an  assessment  at  Southcentral  Foundation,  which  she  



completed on June 30, 2011.  Chloe's diagnoses included posttraumatic stress disorder,  

                      



attention deficit/hyperactivity disorder, and mood disorder.  The assessor recommended  



that Chloe participate in intensive one-on-one therapy, which, according  to Registe,  

                                                                                                               



Chloe did "on and off for maybe a month or a month and a half."                               Registe offered to help  



Chloe obtain further mental health services but Chloe refused her offer.  



                                                               

                   In August 2011, when Chloe was about to begin treatment at Clitheroe, she  



was  arrested  and  charged  with  reckless  endangerment  for  an  incident  in  which  she  



                                    

caused a car accident.   One of her resulting probation conditions was to complete a  



substance abuse treatment program.  



                                           

                    On  September  13,  2011,  Chloe  entered  the  dual-diagnosis  program  at  



Clitheroe.  She was quickly placed on a behavior contract because of inappropriate  



                                                                             

language, boundary violations, and missing or being late to treatment sessions.  She was  



discharged from the program after a few weeks.  



                                                               

                   By February 2012, when the termination trial was held, Chloe was in the  



process  of  completing  another  substance  abuse  assessment.    She  began  outpatient  



treatment but participated sporadically and stopped attending in August 2012 after being  



              

arrested  for  using  drugs  and  failing  to  fulfill  her  probation  requirements.    She  was  



                                                                   

scheduled to participate in another substance abuse assessment in November 2012, but  



she did not show up.  



                                                             -8-                                                       6828
  


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

          C.	       The Trial Court Terminates Chloe's Parental Rights To Ashanti, But  

                   Employs An Incorrect Standard In Making A Required Finding.  



                   In August 2011 OCS filed a petition to terminate Chloe's parental rights to  

                                                    



Ashanti.  Trial was held in February  2012.  At the close of the trial the trial court judge,  

                                                                     



Judge Michalski,  made findings on the record that Ashanti was a child in need of aid,  



                      

Chloe had not remedied conditions that endangered Ashanti, and termination of Chloe's  



parental  rights  was  in  Ashanti's  best  interests.    The  trial  court  also  found  -  by  an  



                                             

incorrect standard of proof - that OCS had made active efforts to prevent the family's  



             8  

breakup.   



                    Chloe appealed, arguing in part that the trial court's order was defective  



                                                                              

because the court used an incorrect standard of proof in its decision.  After briefing had  



                                                            

begun the parties agreed that the appeal should be remanded to allow the trial court to  



                                                                                                     

determine the active-efforts issue under the correct standard of proof.  We remanded the  



                                

case to the trial court for the limited purpose of determining, by the correct standard of  



proof, whether OCS made active efforts to reunify the family.  



                                                                                         

          D.	       On  Remand  The  Trial  Court  Finds,  By  Clear  And  Convincing  

                   Evidence,  That  OCS  Made  Active  Efforts  To  Reunify  Chloe  With  

                   Ashanti.  



                                         

                    Since issuing his decision Judge Michalski had retired, and the case was  



reassigned to Judge Easter.  On January 11, 2013, Judge  Easter held an evidentiary  



                                                                                                              

hearing "limited for the purpose of the state showing or attempting to show by clear and  



convincing evidence that they made active efforts to reunify the family."  Social workers  



Kaufman-Bacher and Registe testified at the hearing, as did Chloe.  



          8         CINA  Rule  18(c)(2)(B)  requires  this  finding  to  be  made  by  clear  and  



convincing  evidence,  but  the  trial  court  made  the  finding  by  a  preponderance  of  

evidence.  



                                                             -9-	                                                         6828  


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

                                                                                               

                   At the close of the hearing the trial court found, by clear and convincing  



evidence,  that  OCS  had  made  active  but  unsuccessful  efforts  to  reunify  the  family.  



                                                                                               

According to the trial court the case was not close; the court found that OCS's efforts had  



been "pretty extraordinary," and it stated "the evidence is overwhelming that the state  



by clear and convincing evidence made active efforts to reunify this family."  The trial  



                                                                                                    

court found that OCS's initial focus on Chloe's substance abuse was "clearly indicated  



                                          

. . . because of the mother's resistance to address the mental health issues at that time."  



It  noted  with  approval  OCS's  intent  to  keep  Chloe's  case  plan  simple  so  as  not  to  



                                              

overwhelm her.  The trial court also found that OCS "went above and beyond the call of  



duty" in providing visitation between Chloe and Ashanti.   



                   The court concluded:  



                                              

                   Quite  frankly,  I  don't  know  what  more  the  department  

                   could've done in this case. And as I said, I think they went  

                                                                                          

                   beyond the call of duty in trying desperately to get [Chloe]  

                   some help so that she could be reunified with [Ashanti] and  

                   unfortunately [Chloe] just simply didn't take advantage of the  

                   opportunities that were given to her. There's only so much  

                   you can do unless a person wants to help themselves and for  

                                                                                         

                   whatever reason, [Chloe] just simply didn't take advantage of  

                   the opportunities that the department gave her such that she  

                   could be reunified with her daughter.  



The appeal then returned to this court.  



III.      STANDARD OF REVIEW  



                                                           

                   In CINA cases, we review the trial court's factual findings for clear error  

and its legal determinations de novo.9  

                                                         Factual findings are clearly erroneous if, after  



                                                                          

reviewing the record in the light most favorable to the prevailing party, we are left with  



          9  

                                  

                   Sherman B. v. State, Dep't of Health & Soc. Servs., 290 P.3d 421, 427-28  

                                                                                     

(Alaska 2012) (citing Christina J. v. State, Dep't of Health & Soc. Servs., 254 P.3d 1095,  

1103-04 (Alaska 2011)).  



                                                            -10-                                                         6828  


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

                                                                                                         10  

                                                        

a definite and firm conviction that the trial court's decision was mistaken.                                 Conflicting  



                                                                                                      

evidence is generally not sufficient to overturn a trial court's factual findings, and we  



will not reweigh evidence when the record provides clear support for a trial court's  

ruling.11  



                   Whether OCS made active efforts to provide remedial and rehabilitative  



                                                                

services designed to prevent the breakup of the Indian family is a mixed question of fact  

            12  Whether a parent's due process right to receive effective assistance of counsel  

and law.                                                             

was violated is a question of law.13  Whether a child would likely suffer serious physical  



or emotional harm if returned to a parent's custody is a question of fact.14  



IV.	      DISCUSSION  



          A.	      Our Review Of The Trial Court's Active Efforts Finding Is Limited To  

                            

                   Evidence Presented At The Hearing On Remand.  



                   Chloe's argument that OCS did not provide her with active reunification  



efforts is based in large part on the testimony of Rose Sandhofer, a witness called by  

                                                                     



OCS at the initial termination trial.  During the hearing on remand, however, Chloe  

                                                                   



insisted that Judge Easter should not base her decision on a review of the evidence  



          10       Id.  (quoting Barbara P. v. State, Dep't of Health & Soc. Servs.                           , 234 P.3d  



1245, 1253 (Alaska 2010)).  



          11       Id.  at 428 (quoting Maisy W. v. State, Dep't of Health & Soc. Servs. , 175  

                                   

P.3d 1263, 1267 (Alaska 2008)).  



          12       Pravat  P.  v.  State,  Dep't  of  Health  &  Soc.  Servs. ,  249  P.3d  264,  270  



(Alaska 2011) (quoting Dale H. v. State, Dep't of Health & Soc. Servs. , 235 P.3d 203,  

                                                                                        

210 (Alaska 2010)).  



          13  

                                                                              

                   Stanley B. v. State, DFYS, 93 P.3d 403, 408-09 (Alaska 2004) (citing S.B.  

v. State, Dep't of Health & Soc. Servs., 61 P.3d 6, 10 (Alaska 2002)).  



          14       Pravat P., 249 P.3d at 270 (citing Barbara P. , 234 P.3d at 1253).  



                                                            -11-	                                                     6828
  


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

presented to Judge Michalski at the original hearing; instead Chloe asked Judge Easter  



                                                                          

to hold a new evidentiary hearing and decide the active-efforts issue after "observ[ing]  



the live testimony of the relevant witnesses."  At the hearing on remand, neither OCS nor  



                                                         

Chloe called Sandhofer to testify, nor did either party ask the trial court to take notice of  



                                                                             

Sandhofer's earlier testimony.  The record does not indicate that Judge Easter reviewed  



                                                                                                           

the earlier evidence, nor does Judge Easter's decision make any mention of Sandhofer's  



testimony.  



                                                                        

                    Nevertheless, Chloe argues that we should consider Sandhofer's testimony  



                                                                                    

when reviewing Judge Easter's finding, on remand, that OCS made active reunification  



efforts.  We find no merit to this argument.  On appeal, we review a trial court's decision  



                                                                   15  

                                                                                    

in light of the evidence presented to that court.                     Because Sandhofer's testimony was not  



                                                                                                    

before the trial court when it made its finding on remand, we do not include Sandhofer's  



testimony in our review of that finding.  



          B.	       The Trial Court Did Not Err In Finding, By Clear And Convincing  

                                                                          

                    Evidence, That OCS Made Active Efforts 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 trial 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  



          15        Cf. Paula E. v. State, Dep't of Health & Soc. Servs., 276 P.3d 422, 430  



(Alaska 2012) ("[W]e will consider only the evidence that was admitted at the hearing.").  



                                                             -12-	                                                          6828  


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

passive efforts."16  Generally, active efforts entail a social worker taking a parent through  

                                                                



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

parent to develop his or her own resources.17  In determining whether active efforts have  



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



                                                                                 18  

                                                                                     A parent's demonstrated lack  

with OCS, rather than focus on a distinct period of time. 



of willingness to participate in services may be considered in determining whether the  

State's efforts were adequate.19  



                    Chloe argues that OCS's efforts to provide her with reunification services  

                                                          



were flawed in two ways.  First, she claims OCS erred in focusing on her substance  

                                                   



abuse issues early in the case, rather than simultaneously working to address her mental  



                    20  

                                                                         

health issues.          Second, she claims that once she agreed to participate in  mental health  



services, OCS did not provide her with adequate services.   



                                                                     

                    As to her first argument, Chloe's social workers focused on her substance  



                                                                                                                 

abuse issues early in the case because substance abuse was a serious issue that Chloe was  



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



1999) (quoting A.M. v. State , 945 P.2d 296, 306  (Alaska 1997)) (internal quotation  

marks omitted).  



          17       Lucy  J.  v.  State,  Dep't  of  Health  &  Soc.  Servs. ,  244  P.3d  1099,  1114  



(Alaska 2010) (quoting Wilson W. v. State, Office of Children's Servs., 185 P.3d 94, 101  

                                               

(Alaska 2008)).  



          18       Maisy W. , 175 P.3d at 1268-69 (quoting E.A. v. State, Div. of Family &  

                                                       

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



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

                                                                                                                    

at 306).  



          20        Chloe does not challenge the adequacy of the efforts OCS provided in  



helping her address her substance abuse issues.  The record is clear that those efforts  

                                                    

were active, but that Chloe did not succeed in the treatment provided.  



                                                             -13-                                                       6828
  


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

willing to address, and she flatly refused to participate in mental health services.                                                         We  



agree with the trial court that this approach was sound.  As the trial court noted, both     



substance abuse and mental health issues were "clearly indicated" as areas of concern for  



                                        

Chloe, but "because of the mother's resistance to address the mental health issues at that  



                                                                                               

time . . . the department did the right thing" in initially focusing on Chloe's substance  



abuse.   



                                                                

                       Chloe argues that OCS cannot "passively accept a parent's reluctance to  



                                                                                                     

participate in a mental health evaluation," but her argument is contradicted by the social  



                                                                                            

worker's testimony that it is not possible to force an unwilling client to participate in  



                                                                                 

mental health treatment.  Chloe's assertion that OCS should have obtained a court order  



                                                                                                                         

requiring her to participate in mental health services is also unavailing.  We have stated  



that "[e]ven putting aside our precedent which excuses further active efforts once the  



                                                                                                                                   

parent expresses an unwillingness to participate, requiring OCS to seek court orders for  



                                                                                                                          

every uncooperative parent would put a huge and pointless burden on the department and  

the court system."21  Thus, the trial court's finding that OCS's action in initially focusing  



                                                                                                    

on Chloe's substance abuse issues was appropriate and is adequately supported by the  



record.  



                       Chloe's second argument, that OCS failed to provide her with adequate  



                                                 

mental health services, also fails.  OCS referred Chloe for a mental health assessment,  



                                                                                                                             

which  called  for  her  to  participate  in  intensive  one-on-one  therapy.                                               Chloe  began  



                                                                             

participating in therapy, but she stopped after a few sessions.  She then refused her social  



worker's offer to help her reengage in mental health services.  Chloe accepted the social  



                                                                                                                      

worker's assistance in entering a dual-diagnosis treatment program at Clitheroe, but she  



         

was discharged from the program because of her inappropriate behaviors.  Given this  



           21          Wilson W., 185 P.3d at 102.  



                                                                      -14-                                                                     6828  


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

record, the trial court's finding that OCS made active but unsuccessful efforts to provide  

                                                                                                                  



services to reunite Chloe with Ashanti is not in error.  



          C.	       The Trial Court Did Not Err In Finding That Ashanti Would Likely  

                                                                                              

                    Suffer Serious Harm If Returned To Chloe's Custody.  



                    Before terminating a parent's parental rights to an Indian child, a trial court  

                                                                             



must find, beyond a reasonable doubt, that returning the child to the parent would likely  

                                                                               



                                                                                                  22  

result in the child suffering serious physical or emotional damage.                                   This finding must  

                                                 23  The trial court must find that the parent has engaged  

be supported by expert testimony.                                                         



in  conduct  that  is  likely  to  harm  the  child  and  that  the  harmful  conduct  is  likely  to  

                                           

continue.24  



                    Chloe asserts that the trial court's finding that Ashanti would likely suffer  



serious harm if returned to her custody is not supported by expert testimony.  But Rose  

                                                                                                                   



Sandhofer, an expert in child protection, testified that Ashanti needs the security of a  

                                     



permanent  placement  and  cannot  afford  to  wait  for  Chloe  to  resolve  the  issues  that  



                                                                        25  

prevent  her  from  acting  as  Ashanti's  parent.                            Sandhofer  testified  that  Chloe's  



unresolved substance abuse and mental health issues "would be very concerning to a  



child of two and a half that is totally dependent on their care provider," and that placing  

                                                                                          



Ashanti  with  Chloe  would  be  "asking  for  disaster"  and  would  be  "devastating"  to  



                                                                                                               

Ashanti.  Sandhofer's testimony is consistent with the remaining evidence presented to  



                                                                         

the trial court.  We thus find no error in the trial court's finding that continued custody  



          22        Pravat P., 249 P.3d at 274 (quoting                 Ben M. v. State, Dep't of Health & Soc.  



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



          23        Id. (citing Ben M., 204 P.3d at 1020).  



          24	       Id.  



          25        Sandhofer's testimony is properly before us on this point as this finding was  



made by Judge Michalski in the original hearing, at which Sandhofer testified.  



                                                             -15-	                                                       6828
  


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

                        

of  Ashanti  by  Chloe  would  likely  result  in  Ashanti  suffering  serious  emotional  or  



physical damage.  



                                                                                     

          D.	       We  Do  Not  Remand  This  Appeal  To  Allow  The  Trial  Court  To  

                    Determine Whether Chloe Received Ineffective Assistance Of Counsel.  



                                                                                             

                    Finally, Chloe argues that if we determine that we cannot consider Rose  



Sandhofer's testimony in our review of the trial court's active-efforts finding, we must  



             

remand  this  matter  to  the  trial  court  for  consideration  of  whether  Chloe  received  



                                                                                    

ineffective assistance of counsel during the proceeding on remand.  She argues that her  



attorney's failure to call Sandhofer to testify about OCS's reunification efforts on remand  



                                                                  26  

may have constituted ineffective assistance.                          



                                                                                                    

                    Chloe is not arguing that she did receive ineffective assistance during the  



                                                                 

remand  hearing,  but  she  is  asking  us  to  send  the  matter  back  to  the  trial  court  for  



                                       27  

                                            We note that a second remand of this appeal would result  

consideration of the issue.  



in a significant additional delay in Ashanti attaining permanency.  Our statutes make  



clear that children's proceedings are to be expeditiously resolved.  AS 47.05.065(5)  



                                                                                   

stresses  the  importance  of  expeditious  placement  of  children  in  state  custody.    AS  



                                                                                         

47.10.088(k) requires a trial court to rule on a termination petition within 90 days after  



          26        During the initial hearing Sandhofer, a social worker employed by OCS  



who was qualified to testify as an expert in matters related to child protection, testified  

                                                               

that  if  she  had  been  assigned  to  Chloe's  case  she  would  have  done  certain  things  

                                                                                           

differently  in  regard  to  Chloe's  mental  health  issues.    But,  ultimately,  when  asked  

whether, considering her misgivings about certain aspects of Chloe's case and looking  

                                                                  

at  the  case  as  a  whole,  she  believed  OCS  had  made  active  efforts  to  help  Chloe,  

                                                                            

Sandhofer replied, "Absolutely.  Without a doubt, no question."  



          27        Chloe is represented on appeal by the state public defender's office, the  



                                                                                          

same agency that represented her during the proceeding on remand.  As Chloe notes in  

                               

her brief, any claim of ineffective assistance of counsel should be prosecuted by conflict- 

free counsel.  



                                                              -16-	                                                        6828
  


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

                                                      

the last day of the termination trial.  AS 47.10.080(i) imposes a similar 90-day limit for  



                     

an  appeal  to  be  decided.    A  remand  for  potentially  lengthy  litigation  of  a  claim  of  



ineffective  assistance  of  counsel  would  contravene  the  language  and  spirit  of  these  



statutes.  



                   In addition, our review of the record convinces us that Chloe's proposed  



attack  on  the  representation  she  received  during  the  remand  proceeding  would  not  



                                                                         

succeed.    In  order  to  succeed  in  an  ineffective  assistance  challenge,  a  litigant  must  



                                                                                             

demonstrate two things.  First, she must show that her attorney's performance was below  



                                                                                                  28  

a  level  that  any  reasonably  competent  attorney  would  provide.                                   An  "attorney's  



                                                                                                                         

reasonable tactical decisions are virtually immune from subsequent challenge even if, in  

                                                                              29  Second, the litigant must then  

                                                                                                                 

hindsight, better approaches could have been taken."  



demonstrate that "an improved . . . performance would have made a difference in the  

                                 



                                  30  

outcome of [the] case."               Chloe's challenge could not pass either aspect of this test.  



                   First, it is probable that Chloe's attorney made a reasonable tactical choice  



in  deciding  not  to  call  Sandhofer  to  testify  on  remand.    While  Sandhofer  criticized  



aspects of the assigned social workers' approach to Chloe's case, her testimony generally  

                                                                                      



supported OCS's actions, and she ultimately testified that there was "no question" that  

                                                                                                     



OCS made active efforts to reunify the family.  



                    Second, it is unlikely that Sandhofer's testimony would have affected the  



outcome of the case.  Chloe points to several of Sandhofer's statements that she feels  



          28       David S. v. State, Dep't of Health & Soc. Servs. , 270 P.3d 767, 785-86  



(Alaska 2012) (quoting State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988)).  



          29       Alexander v. State         , 838 P.2d 269, 273 (Alaska App. 1992) (citing Jones ,  



759 P.2d at 569-70).  



          30       David S. , 270 P.3d at 786.  



                                                            -17-                                                       6828
  


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

                                                                                                                  

could  have influenced  the trial court's determination  that OCS  provided  Chloe with  



                                               

active efforts at reunification.  The statements may be summarized as follows:  (1) given  



                                                      

Chloe's  history  in  OCS  custody  and  her  potentially  serious  mental  health  issues,  



                                                                                                  

addressing her mental health issues should have been a priority for her social workers;  



                                                                              

(2) the social workers should have tried to convince Chloe to participate in mental health  



                                                                

services; (3) OCS should have pursued a diagnosis of FAS for Chloe; (4) Chloe should  



                       

have received a psychiatric assessment rather than a mental health evaluation; and (5)  



                                                                                                           

Chloe's abuse of substances may have been an attempt to self-medicate her mental health  



problems.  



                    However, social workers Kaufman-Bacher and Registe were clearly aware  



                                                                                        

of Chloe's mental health issues and her history with OCS. They each testified that Chloe  



categorically  refused  to  participate  in  the  mental  health  portion  of  her  case  plan.  



Sandhofer's testimony does not contradict or diminish Kaufman-Bacher's testimony that  



                                                                                                           

it is impossible to force an unwilling client to accept mental health treatment.  And  



                                                                                                             

Sandhofer testified that it made sense to work with Chloe on issues on which she was  



willing to work rather than not to work a plan with her at all.  Nothing in the record  



                                                               

indicates that Chloe's social workers did not try to convince her to accept mental health  



                                                                                             

services.  And both Kaufman and Registe testified that they dealt with Chloe as if she  



                                  

had FAS, so a formal diagnosis would have had no bearing on how the social workers  



approached the case.  



                    Sandhofer   also   testified   Chloe   should   have   received   a   psychiatric  



assessment.  But the record suggests that Chloe did receive a psychiatric assessment.  



                                                                            

The assessment Chloe received at Southcentral - which the lawyers and social workers  



                                                                                  

referred to as a mental health assessment - was titled "Intake/Psychiatric Assessment,"  



                                                               

and it contained a "psychiatric problem list, plan & specific recommendation."  The  



record does not indicate whether Sandhofer ever considered this assessment.  



                                                              -18-                                                         6828
  


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

                                                                                                

                   Sandhofer did not testify that Chloe's mental health issues were the cause  



                                                                                                                

of her substance abuse issues.  She simply "wonder[ed] if the substance abuse is not self- 



medicating."  That speculation provides scant support for Chloe's claims.  



                   Finally, when asked directly whether Sandhofer believed that OCS had  



                                               

made  active  efforts  to  reunify  Chloe  with  Ashanti,  her  response  was  unequivocal:  



                                                                 

"Absolutely.  Without a doubt, no question."  Given this conclusion, we find it extremely  



                                                                 

unlikely the trial court's decision on remand would have been different had Sandhofer's  



testimony been before the court.  



V.        CONCLUSION  



                                              

                   We AFFIRM the trial court's order terminating Chloe's parental rights to  



Ashanti.  



                                                            -19-                                                      6828
  

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