Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Phillip J. v. State, Dept. of Health & Social Services, Office of Children's Services (12/13/2013) sp-6853

Phillip J. v. State, Dept. of Health & Social Services, Office of Children's Services (12/13/2013) sp-6853

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

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

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

                                                                                     

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



PHILIP J.,                                            )  

                                                      )         Supreme Court Nos. S-14810/14994  

                           Appellant,                 )         (Consolidated)  

                                                      )  

         v.                                           )         Superior Court Nos. 4BE-10-00013/14/  

                                                      )         15/16/17/18/19 CN; 4EM-11-00014 CN  

                                                                                             

STATE OF ALASKA,                                      )  

DEPARTMENT OF HEALTH &                                )         O P I N I O N  

SOCIAL SERVICES, OFFICE OF                            )  

CHILDREN'S SERVICES,                                  )        No. 6853 - December 13, 2013  

                                                      )  

                           Appellee.                  )  

                                                      )  



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

                                                                              

                  Judicial District, Bethel, Leonard Devaney, Judge.  



                  Appearances:         Randall       S.   Cavanaugh,         Kalamarides         &  

                                                                            

                  Lambert,  Anchorage,  for  Appellant.    Laura  Fox,  Assistant  

                  Attorney  General,  Anchorage,  and  Michael  C.  Geraghty,  

                  Attorney  General,  Juneau,  for  Appellee  State  of  Alaska.  

                  Carolyn Perkins, Assistant Public Advocate, Office of Public  

                  Advocacy, Anchorage, for Appellee Mother.  



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

                                                                                   

                  Bolger, Justices.  



                  FABE, Chief Justice.  


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

I.        INTRODUCTION  



                   Philip  J.  is  the  father  of  nine  children.    The  superior  court  terminated  



                                                                                                                 

Philip's parental rights to his seven oldest children and then to his eighth child.  Philip's  



                                                                                                    

appeals of the two separate termination orders (Case No. S-14810  and Case No. S- 



                                                                                        

14994)  were  consolidated  for  consideration  and  decision.  Philip  maintains  that  the  



                                             

superior court erred in finding that active efforts were made to keep this Indian family  



together in both termination orders.  He also argues that the superior court erred when  



it determined that his eighth child was a child in need of aid. We affirm both orders  



terminating Philip's parental rights.  



II.       FACTS AND PROCEEDINGS  



                                  

                   Philip  J.  and  Georgina  J.  are  the  biological  parents  of  nine  children:  

Sophie,  Anne,  John,  Katherine,  Nellie,  Olivia,  Alexandra,  Alyssa,  and  Pete.1                                  The  



              

children are members of the Asa'carsarmiut Tribe, and the Indian Child Welfare Act  



                                           2  

                                                                                                                    

(ICWA)  applies  to  this  case.               These  are  the  second  and  third  child  in  need  of  aid  



           3                                          4 

(CINA)  appeals related to this family.   The superior court terminated parental rights as  



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



          2        See  25  U.S.C.    1912  (2006)  (requiring  that   "[a]ny  party  seeking  .  .  .  



termination of parental rights to an Indian child under State law shall satisfy the court  

that active efforts have been made . . . to prevent the breakup of the Indian family"); id.  

                                          

 1903(4) (defining "Indian child" to include "any unmarried person who is under age  

                                                                   

eighteen and is . . . a member of an Indian tribe").  



          3        See AS 47.10.011 (specifying the conditions under which a child can be  



found to be in need of aid).  



          4        Philip appealed the February 2011 adjudication of his seven oldest children  



as children in need of aid.  Philip J. v. State, Dep't of Health & Soc. Servs., Office of  

Children's Servs., 264 P.3d 842 (Alaska 2011).  



                                                            -2-                                                      6853
  


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

                                                                                       

to the seven oldest children in a June 29, 2012 order and as to the eighth child, Alyssa,  

in a November 14, 2012 order.5  



               

          A.       OCS Involvement 2004-2006  



                                                    

                   Philip and Georgina's history with OCS began in August 2004 when Philip  



                                                                                                

and Georgina became "extremely intoxicated," and Philip "fired a rifle in the home and  



                                                            6                                                     7  

                                                               Philip was arrested for the offense.   OCS  

held the family hostage for three hours." 



investigated the incident and developed a safety plan addressing Georgina's substance  



abuse and Philip's violent behavior, but Georgina did not complete any of the suggested  



steps.  



                   One evening in April 2005, Philip assaulted Georgina while both were  

                                8   Philip also sexually assaulted a guest in the home.  As a result  

extremely intoxicated.                                                                                        



of the incident, Philip was charged with and pleaded no contest to third-degree assault  

                                                                              



and the manufacture of alcoholic beverages without a license or permit in a local option  

                                                                                            

       9  OCS initiated emergency removal proceedings, placing the children with Edna,  

area.              

Georgina's mother.  The superior court adjudicated the children in need of aid.10                                      The  

                              



first case plan was developed in May 2005 and updated in July 2005.  



          5        The ninth child, Pete, is the subject of a separate CINA proceeding.  



          6        Philip J. , 264 P.3d at 843.  



          7        Even before this incident, Philip had a criminal record.   He was convicted  



of fourth-degree assault in 2000, and in 2003 he pleaded no contest to driving while  

intoxicated.  



          8        Philip J. , 264 P.3d at 843.  



          9        Id. at 843-44.  



          10  

                                                                                

                   The children were found to be in need of aid under AS 47.10.011(6), (8),  

(9), and (10).  



                                                            -3-                                                      6853
  


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

                   The plans outlined services to address Georgina's substance abuse and the  

                                                                                                        



domestic violence perpetrated against her by Philip.  Georgina began the recommended  



                

substance abuse counseling, but she quickly ceased participation.  The case plan called  



for Philip to take classes at the Yukon Kuskokwim Correctional Center and meet with  



                                                                                                      

the Mountain Village ICWA staff.  While Philip was incarcerated, OCS was in contact  



with Philip's probation officer, and Philip was provided with a copy of the case plan.  

Philip participated in several classes while incarcerated.11  



                   The  family's  stability  improved  during  the  summer  of  2006,  and  OCS  



                                

returned the children.  Philip was no longer incarcerated, and he engaged with services.  



Edna was involved with the children on a daily basis, and the Tribe was monitoring the  



                                                                                            

family.  But despite Philip's effort prior to the children's return, he quickly ceased his  



                                   

clinic attendance.  And although not reported to OCS at the time, in December 2006,  



while  children  were  present  and  Georgina  was  intoxicated,  Philip  tried  to  rape  



Georgina's sister.  



               

         B.        OCS Involvement 2008-2010  

                   In July 2008 OCS again became involved with the family.12  Philip's sister  



                                                                                                    13  

                                                                                                          And  Philip  

Annika  testified  that  Philip  tried  to  force  her  to  have  sex  with  him. 



ultimately fought with Annika's husband.  The children were present during the incident.  



         11        Philip  received  certificates  of  completion  for  the  following  programs:  



"Spirituality, Emotional Freedom Technique, Danger of Nicotine and Tobacco, Goal  

Setting, The Vietnam War Experience, and Substance Abuse Classes."  



         12        Philip J. , 264 P.3d at 844.  



         13        Annika  testified  that  she  did  not  distinctly  remember  when  Philip  and  



Georgina  were  trying  to  take  her  clothes  off  because  she  was  too  intoxicated.    Her  

                                                                                                 

testimony was admitted over objection.  



                                                           -4-                                                    6853
  


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

Philip was convicted of fourth-degree assault on his sister's husband and sentenced to   



90 days in jail.  



                    An  OCS  worker  promptly  investigated  the  incident,  finding  "parental  



                                                           

substance abuse, lack of supervision by both parents, and exposure of the children to  



                               14  

                                   After the investigation, OCS substantiated most of the report,  

domestic violence."                                                       



finding that some of the children were neglected and some were exposed to mental injury  



from observing a fight between their father and uncle.  OCS neither took custody at that  



time, nor did it develop a family case plan.  



                                                                                                                 

                     OCS received another report of harm in October 2008, this time from the  



                      15  

Bethel Police.            OCS substantiated the report, finding that "the parents were abusing  



                                                     

substances, exposing the children to the elements, and exposing the children to domestic  



                16  

                    The children were placed in a foster home for that night, and the case was  

violence."                                                                                                  



referred to the OCS office in St. Mary's for case management.  



                                                     

                     In  September  2009  OCS  received  two  more  reports  indicating  that  the  

children had been neglected and exposed to domestic violence.17  And in November 2009  



an  Alaska  State  trooper  conducted  a  welfare  check  based  on  a  school  report  that  



Katherine had a severe bruise.  Katherine reported that she felt scared to go home, and  



                                                    

when the trooper investigated, he found Philip in a "highly intoxicated" state.  Eight days  



later, the troopers received another report in which Katherine reported intoxication and  



                                                                                                                       

domestic violence.  An OCS social worker investigated and substantiated the reports in  



          14        Philip J. , 264 P.3d at 844.  



          15        Id.  



          16        Id.  



          17        Id.  



                                                                -5-                                                          6853
  


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

December 2009.   Philip "denied anything having to do with domestic violence" and  



"said everything was fine."  OCS took no additional action in 2009.  



                    OCS received additional reports of harm from the Tribe in early 2010,  



alleging that Philip had sexually assaulted his daughter Anne and possibly his daughters  



                              18  

                                                                                                     

Sophie  and  Nellie.                The  Tribe's  reports  indicated  that  Philip  repeatedly  vaginally  



                                                                                                         19  

penetrated Anne.  When Georgina tried to intervene, Philip beat her.                                          Anne reported  



that her little sisters witnessed the alleged sexual assault and domestic violence.  



                                                                                                         

                    A  trooper  interviewed  Georgina  four  days  after  the  incident,  and  she  



reported  that  Philip  "went  after"  two  of  the  children.    Georgina  indicated  that  she  



                                                                        

confronted Philip to protect the other children, despite having an infant in her arms and  



                                                                                                    20  

that Philip hit her in the head and sides and kicked her in the legs.                                   Georgina reported  



                                                                                                                                  21  

                                                                                                          

that she was very afraid of Philip and that he had threatened to kill her and her children. 



                                           

                                                        

She also reported an earlier incident when Philip struck her with a table leg while he was  



                                                                                                          

intoxicated.  Philip was convicted of assault in the fourth degree and incarcerated until  

April 2010.22  



          18        Id.  Their aunt Cathy helped Sophie and Anne write letters detailing the  



abuse.  Cathy testified that Sophie dictated and that she wrote down Sophie's words and  

then Sophie signed it.  In her letter, Anne reported that her dad had humped her, that her  

                                                                                    

mom tried to take him off of her, but that her dad beat up her mom and then humped her  

                                                               

again.  



          19        Id.  



          20        Id.  



          21        Id.  



          22  

                                        

                    The trooper testified that Georgina reported that the incident took place on  

                                                                                                             

February 8, 2010, but the judgment cited January 26, 2010 as the date of the violation.  



                                                                -6-                                                         6853
  


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

                                                                                                                    

                    After the trooper met with Georgina, she sought medical care from the  



                                                                            

Yukon-Kuskokwim Health Corporation in Bethel, where an x-ray showed evidence of  



                                             

healing fractures in her ribs.   OCS offered to take Georgina and her children to the  



                 

Emmonak  Women's  Shelter  to  protect  them  from  domestic  violence,  but  Georgina  



declined the offer.  



                    In  February  2010,  while  Philip  was  incarcerated,  Edna  and  Georgina  



petitioned  the  Asa'carsarmiut  Tribal  Court  in  Mountain  Village  for  an  emergency  



protective  order  and  a  long-term  protective  order,  attesting  that  Philip  was  "always  



                                                           

drinking almost every other day and he [was] always beating on his wife and picking on  



                                                                                        

his children" and that the children were often scared to go home.  They further alleged  



                                                                                            

that Philip "even point[ed] a gun at Georgina and her kids and sa[id] he could kill them."  



                           

The Tribal Court issued the emergency protective order against Philip to protect both  

Georgina and the children.23  



                    On February 25, 2010, an OCS worker investigated the reports of sexual  



assault.  The OCS worker substantiated the report of harm based on physical and sexual  

                                                                                                                  



abuse as well as mental injury to the children.  The OCS worker concluded that because  

                                                 



Philip was in jail, there was no immediate safety threat, and OCS did not take custody  



at that time.  



                    The next month another OCS worker met with Georgina.  The OCS case  



worker discussed counseling services and the children's educational needs. At the time,  

                                                                                                                     



OCS efforts primarily targeted the needs of Georgina and the children.  Georgina agreed  

         



          23        Ultimately, the long-term protective order was issued in April 2010 after   



a  tribal  hearing,  and  it  prohibited  Philip  from   contacting  the  family;  entering  the  

boundaries of the Asa'carsarmiut Tribe, which includes Mountain Village; or going  

within  500  yards  of  his  children.    Because  he  was  no  longer  permitted  to  live  in  

                                                                                       

Mountain Village, he moved to Alakanuk.  



                                                              -7-                                                        6853
  


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

                                                    

to have Sophie and Anne participate in assessments and meet with the behavioral health  



                                                                                              24  

                                                                                                  The OCS worker  

aide in the village, but she was not receptive to any other options. 



suggested  that  the  family  work  with  the  Tribal  elder  council  to  improve  school  



                                                                    

attendance, made referrals for the family to see the behavioral health aide in Mountain  



Village, and provided assessment referrals to the Yukon-Kuskokwim Health Corporation  



in Bethel.  



                   Clinic staff at the Yukon-Kuskokwim Health Corporation received referrals  



from OCS for the children, and the clinic was willing to provide family counseling.  



Georgina  attended  an  initial  screening  but  did  not  participate  in  an  assessment,  and  



family counseling did not begin.  The conditions of Philip's release mandated that he  



                                                 

complete "[i]ntegrated treatment, mental health, [and] alcohol counseling" starting no  



                                                                                  

more than 48 hours from release.  And although Philip set up an appointment, he did not  



attend the appointment or get an assessment.  



          C.       The Seven Oldest Children Are Removed  



                                                                                        

                   In April 2010 the Tribe informed OCS that Philip had returned to Mountain  



Village,  in  violation  of  the  Tribal  Court  protective  order.    An  OCS  family  services  



supervisor went to Mountain Village to meet with the family.  The supervisor spoke with  



Georgina and identified domestic violence, sexual abuse, and substance abuse as safety  



threats.  The supervisor explained that OCS would remove the children if Georgina  



stayed with Philip and offered to take Georgina and the children to a domestic violence  



                               25  

shelter  in  Emmonak,              but  Georgina  said  she  "wasn't  going  anywhere."    Instead,  



Georgina  packed  clothing  for  the  children  and  handed  one  of  the  babies  to  the  



         24        This social worker testified that Georgina did not want referrals for herself     



but then testified that Georgina agreed to visit the behavioral health aide in Mountain   

Village.  



         25        Philip J. , 264 P.3d at 844.  



                                                           -8-                                                        6853  


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

                 26 

                                                                                                   

supervisor.          OCS took custody of the seven children, eventually placing them with their  



grandmother, Edna, in Mountain Village.  



                                                                                         

                    In May 2010  OCS specialist Iura Leahu was assigned to the family's case.  



                                                     

At this time, the children were still living with Edna.  Leahu met with and observed most  



of the children, discussed case planning with Georgina, and worked with the Tribe to  



develop a case plan.  Georgina was not receptive.  



                                                            

                    Leahu spoke with Philip, who had relocated to Alakanuk, several times on  



                           

the telephone to discuss the family case plan and safety threats in the home such as  



domestic  violence  and  substance  abuse.    Leahu  also  suggested  services  but  Philip  



refused.  Philip responded that he wanted time to contact his attorney and that he or his  



                                                                                            

attorney would contact Leahu.  Philip did not contact Leahu. Leahu and Philip's attorney  



                               

spoke once, but the attorney mainly questioned the need for certain provisions within the  



                                                                                   

plan.  Leahu testified that "[w]hen you have a parent denying anything on a case plan,  



it's difficult to move on."  Leahu suggested that Philip get an assessment at the local  



behavioral clinic.  Although Philip agreed to get an assessment, he did not make an  



appointment.  



                                                                                       

                    The Tribe similarly recommended that the children, Georgina, and Philip  



                                                                                            

participate in a psychological assessment.  The Tribe also suggested that Philip get a  



sexual abuse assessment.  OCS next began coordinating for the family to meet with  



                                                   

specialist Dr. Bruce Smith in St. Mary's for a comprehensive evaluation to identify an  



appropriate treatment plan.  



          26        Following removal Georgina twice called OCS asking when the children                 



would  be  returned   to   her.    On  both  occasions,  the  OCS  supervisor  explained  that  

Georgina  needed  to  engage  in  services  for  substance  abuse  and  domestic  violence.  

During the first call, Georgina said she didn't need anything and was fine.  On the second  

                                                                                                               

call, Georgina uttered obscenities and hung up on the supervisor.  



                                                                -9-                                                         6853
  


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

                                                                                                                    

                    Around June 2010 Georgina moved to Alakanuk to be with Philip even  



                                                                                        

though the children were still living in Mountain Village. The next month, Georgina was  



                    

admitted to the emergency room at the Yukon-Kuskokwim Health Corporation with  



severe  injuries.    She  had  contusions  and  abrasions  all  over  her  body,  including  a  



laceration on her head that required stapling.  The x-rays indicated that both her arms  



                                                                                                       

were broken; there was one clean break and at least one place where the bone was broken  



                                                                                               

into multiple small pieces.  She was transferred to the Alaska Native Medical Center in  



                                                                                                

Anchorage where she had surgery on the arm fractures.                                    Her x-rays also revealed that  



                                                                         

she had old rib fractures that were healing. The Yukon-Kuskokwim Health Corporation  



                                                                            

emergency room doctor testified that "[s]he was most likely assaulted with a stick, bat  



                                                                            

or other striking object" based on "the nature of the bruises."  Philip stated that he had  

found her injured in their boat, but he did not report the incident to the police.27                                           The  



Alaska Native Medical Center filed a report of concern to OCS for Georgina's children  

                                                                         



based on the assault, indicating that Georgina would not identify her assailant. After her  

                                                                                                                         



release from the hospital, Georgina moved back to Alakanuk to be with Philip.  The  



children remained in the custody of their grandmother.  



                                                                                                                  

                     OCS next assigned social worker Debra Westdahl to the case, and she made  



referrals  for  Georgina,  Philip,  and  their  three  oldest  children  to  get  comprehensive  



                                           

psychological assessments in St. Mary's with Dr. Bruce Smith.  She also arranged for  



                                            

both parents to travel to St. Mary's for the assessments and for the children to travel so  



the family could have visitation.  The parents did not show up to the assessment or  



visitation.  Nonetheless, Dr. Smith conducted assessments of Sophie, Anne, and John.  



                                                                                             

Dr. Smith also made recommendations about visitation and case planning based on his  



          27  

                                                                                            

                     Philip informed medical authorities about his boat story and testified to it  

                                                                                            

before the superior court.  The superior court found Philip's "version of these facts to be  

unbelievable."  



                                                               -10-                                                              6853  


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

review of the parents' records.   Dr. Smith recommended that the children remain in the   



custody of their grandparents and that they have no contact with their father until an  



assessment and treatment recommendations were complete.  Dr. Smith observed that  



                                                                          

"[t]here  appear[ed]  to  be  an  escalating  pattern  of  harm  to  Georgina  which  if  left  



uninterrupted can lead to continued battery and even homicide."  He also recommended  



that both parents receive substance abuse counseling.  



                    Westdahl met twice in person and three times telephonically with Philip and  



                                   

Georgina in Alakanuk between August and November 2010 to discuss case planning.  



                                                                                                                

The November 2010 case plan indicates that during these meetings Philip "refused to  



                       

engage in any discussion regarding the current case plan.  He stated that he needed to  



                                                                                       

consult his attorney before he could participate in the case plan."  The case plan further  



described a teleconference between Philip, his attorney, the social worker, and OCS's  



                                                                                 

attorney during which his attorney "disputed each and every element of the case plan."  



                    The case plan also noted the scheduled assessment for Philip with Dr. Smith  



in August 2010 and directed Philip to complete Dr. Smith's recommendations to address  



substance abuse, sexual abuse, anger management, domestic violence, and parenting.  



                                  

The case plan further directed Philip to take classes at the Yukon-Kuskokwim Health  



                                             

Corporation to address those issues.  The case plan did not permit visitation between  



Philip  and  the  children,  based  on  Dr.  Smith's  earlier  recommendation.    Westdahl  



                                   

arranged for visitation between Georgina and the children.  They had three visitations  



between August and November 2010.  



                                                             -11-                                                       6853
  


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

            D.         Alyssa Is Removed  



                                                                                       

                       In February 2011 the superior court adjudicated the seven oldest children  



                                             28  

                                                               

as children in need of aid.                       At the time, Georgina was pregnant with Alyssa and still  



residing with Philip.  Westdahl met with them and tried to prevent Alyssa's removal  



upon her birth explaining "that families have been through the same that they've been  



                                                                                      

through . . . and . . . have worked through it and . . . been reunified."  The parents had not  



completed any steps in their case plan and would not agree to services.  



                                                                                                             

                       Alyssa was born in March 2011.  Six weeks later OCS filed an emergency  



                                                                                                    

petition for adjudication of a child in need of aid and for temporary custody, reporting  



                                                                                                    

that the parents "have refused for one year to engage in a case plan to reunify with their  



                                                                     

7 other children" and that Alyssa was at risk because the safety threats were unmitigated.  



When OCS removed Alyssa, Westdahl again asked the parents to participate in services.  



                    

Philip and Georgina refused and instead stated that they would speak to their counsel.  



                                                                                                                  

After the removal, OCS placed Alyssa with Edna and Alyssa's siblings in Mountain  



Village.  



            E.         OCS Involvement After Alyssa's Removal  



                                                                                                                        

                       OCS continued to make efforts to assist the family after Alyssa's removal.  



                   

Westdahl  visited  Alyssa  at  Edna's  home  on  a  monthly  basis  and  coordinated  and  



                                                                                                          

supervised visits between all eight children and both parents. Westdahl also coordinated  



                                                                                                                  

family travel to the supervised visitation in St. Mary's.   During the termination trial,  



            28         The superior court adjudicated all seven of the children as children in need                        



of aid based on physical harm, substantial risk of mental injury due to domestic violence,   

and neglect.  The superior court also found that the female children were children in need       

of   aid   based  on  sexual  abuse,  but  the  parties  stipulated  to  vacate  that  finding.    See  

Philip J. , 264 P.3d at 846 n.7.  



                                                                       -12-                                                                  6853
  


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

Westdahl  arranged  for  three  supervised  visitation  sessions,  including  transportation,  

between both parents and the five younger children.29  



                   During   the  termination  trial  in  July  2011,  Philip  expressed  interest  in  



participating in a behavioral assessment, and Westdahl scheduled another assessment for     



                                                     30  

Philip and Georgina with Dr. Smith.                       During the assessment Philip denied excessive  



substance use and domestic violence issues.  Dr. Smith diagnosed Philip with "alcohol- 



dependence, episodic pattern."  And Dr. Smith explained that if Philip "has consumed  



                                                                                                                    

alcohol  to  the  point  of  intoxication,  that  increases  that  moderate-to-high  risk  of  

                                                                                           31  and the establishment  

                                                                                                

violence."  Dr. Smith recommended several services for Philip 



of a safety plan to ensure the children are not alone with Philip until he addresses his  

                                       



problems.    Dr.  Smith  testified  that  an  intensive  outpatient  program  or  a  residential  

                                                



program with community aftercare would be appropriate to address Philip's needs.  



                                         

                   In November 2011 Philip contacted a behavioral health aide in Alakanuk  



                                         

in response to a court order to receive services.  The aide requested a copy of his recent  



assessment  and  later  reminded  Philip  to  provide  one,  but  Philip  did  not  submit  the  



                                                      

assessment information and did not attend any sessions.  And between late 2011 and  



early 2012, the case was assigned two new social workers.  The new social workers  



                                          

visited Alyssa and arranged visitation but apparently did not discuss the case plan with  



the parents.  



          29        Georgina was also able to visit Sophie and Anne in Mountain Village.  



          30        Westdahl arranged visitation in St. Mary's during the same trip.  



          31        Substance  abuse  counseling,  counseling  to  address  his  "inappropriate  



boundary  violations  as  it  relates  to  his  daughters,"  parenting  classes  to  help  him  

understand his children's developmental needs, and a batterer's intervention program.  



                                                            -13-                                                       6853
  


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

                    Social  worker  Deborah  Cramer  was  assigned  to  the  case  in  late  2011.  



                                 

During her work  on  the case, she updated the case plans, facilitated and supervised  



                                                                              

visitation in St. Mary's and in Alakanuk, provided resources including food and dry  



            

goods,  gave  the  family  phone  cards,  and  referred  the  parents  to  services,  including  



substance abuse treatment, domestic violence counseling, anger management counseling,  



                                                                                                

and parenting classes, but Philip declined to participate.  Cramer still provided referrals  



for  batterer's  intervention,  domestic  violence,  anger  management,  substance  abuse,  



inappropriate  sexual  behavior,  and  parenting  classes.    In  addition,  Cramer  referred  



Georgina  and  Philip  to  "a  culturally  appropriate,  Yup'ik-oriented,  four-to-five-day  



                                                                                                  

workshop" run by the Association of Village Council Presidents.  Philip and Georgina  



initially refused but later participated in the program.  



                    Philip  participated  in  a  substance  abuse  assessment.    Cramer  arranged  



transportation for Philip to go to this assessment in Emmonak, and Cramer facilitated the  



clinician's  agreement  to  work  with  Philip  on  this  and  other  issues.    Philip  refused  



additional sessions, and thus Cramer did not make further travel arrangements.  



                    On June 29, 2012, the superior court issued a written order terminating  



                                                                                                 32 

                                                                                                     The superior court  

Philip's and Georgina's parental rights to the seven oldest children. 



                                                                                

determined that the children were in need of aid under AS 47.10.011(6) (risk of physical  



            

harm), (8)(A) (mental injury), (8)(B)(i)-(ii) (risk of mental injury, particularly due to  



                              

domestic violence), and (10) (substance abuse).  The superior court also found that OCS  



                                            

had made active efforts in its attempts to motivate the parents who "without justifiable  



          32  

                                      

                    Also in late June, Georgina gave birth to Pete.  Cramer met with the parents  

                                                                                                          

and encouraged Georgina to go to a treatment program that would allow her to stay with  

Pete, but she refused.  Later Georgina moved to Mountain Village to live with Pete and  

was provided with a safety plan and encouraged to engage in services.  



                                                            -14-                                                           6853  


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

cause failed to participate in a suitable place or program designed to reunite the parents  

                                       



with their children."  



                                                                               

                   On November 6, 2012, the superior court issued findings in Alyssa's case,  



                                                                                          

relying on the evidence presented during the older children's case.  The superior court  



found that OCS had made active efforts to provide remedial and rehabilitative services  



designed  to  prevent  the  breakup  of  the  Indian  family,  including:    substance  abuse  



assessment  and  treatment,  mental  health  assessment  and  counseling,  transportation  



                                                                                           

assistance to attend services, team-decision-making meetings, parenting classes, anger  



                                                                 

management assessment and classes, efforts to locate parents, developing and updating  



a case plan, domestic violence counseling, and family visitation.  



                   On November 14, 2012, the superior court issued its termination order,  



finding that Alyssa was a child in need of aid under AS 47.10.011(1) (abandonment),  



(6)  (risk  of  physical  harm),  (8)(B)(i)-(ii)  (risk  of  mental  injury,  particularly  due  to  



                                                                                         

domestic violence), (9) (neglect), and (10) (substance abuse). The superior court further  



found that OCS had made active efforts to provide remedial services and rehabilitative  



programs designed to prevent the breakup of the Indian family and that those efforts had  



been  unsuccessful.    The  superior  court  commended  OCS  social  worker  Cramer's  



"excellent efforts" and found also that "OCS and the tribe made excellent efforts to  



support the grandparents who took on the job of raising all these children."  Finally, the  



                                          

superior court noted that its decisions rested strongly on "the parents' utter refusal to  



                                

work their case plans over these years, including the time Alyssa has been in custody."  



                                                           -15-                                                      6853
  


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

III.	      STANDARD OF REVIEW  



                     Whether OCS made active efforts to provide remedial and rehabilitative  

services to reunify the family as required by ICWA is a mixed question of law and fact.                                               33  



We review the content of the superior court's findings for clear error, but we review  

                                                                           

de novo whether those findings satisfy the requirements of the CINA rules and ICWA.34  

                                                                                            



Additionally, we review for clear error the superior court's factual determinations as to  

                                                                                              

whether the State met its evidentiary burden in showing that a child is in need of aid.35  



                     " 'Findings of fact are clearly erroneous if a review of the entire record in  

                                                                                                       



the light most favorable to the prevailing party below leaves [this court] with a definite  

                                                                                                                          



                                                                                    36  

and firm conviction that a mistake has been made.' "                                    We will not reweigh evidence  

                                                                       

when the record provides clear support for the superior court's decision.37  



IV.	       DISCUSSION  



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

                     Efforts To Provide Services And Programs To Reunify This Indian  

                     Father With His Seven Oldest Children.  



                     In a termination proceeding involving Indian children, the superior court  



must find, by clear and convincing evidence, that the State has made active efforts to  



provide remedial services and rehabilitative programs designed to prevent the breakup  

                                                                                       



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



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



          34	        Id.  



          35	        Id.  



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



Office of Children's Servs., 235 P.3d 203, 209-10 (Alaska 2010)).  



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

                                             

Servs., 290 P.3d 421, 428 (Alaska 2012).  



                                                                 -16-	                                                          6853
  


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

                                                                                              38  

of the Indian family and that those efforts were unsuccessful.                                    The court conducts an  



active  efforts  inquiry  on  a  case-by-case  basis  because  "no  pat  formula"  exists  for  



                                                                                  39  

distinguishing  between  active  and  passive  efforts.                                  We  look  "  'to  the  state's  



                                                                                                              40  

involvement in its entirety' " when reviewing a finding of active efforts.                                         



                                                                                     

                    In  general,  active  efforts  will  be  found  when  OCS  "  'takes  the  client  



                             

through the  steps  of the plan rather than requiring that the plan be performed on its  



            41  

                                                                                                        

own,'  "        but not when  "the  client must develop  his  or  her  own  resources  towards  



                                                  42  

                                                                                                                

bringing  [the  plan]  to  fruition."                   In  assessing  whether  OCS  met  the  active  efforts  



                                                              

requirement,  "a  court  may  consider  'a  parent's  demonstrated  lack  of  willingness  to  

                                        43  Active efforts are required even if the parent is incarcerated  

participate in treatment.' "                 



but may include programs offered by the Department of Corrections and the efforts made  

                                                                                                                   

by a parent's parole officer.44  



          38        25 U.S.C.  1912(d) (2012); see also CINA Rule 18(c)(2)(B).  



          39        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).  



          40  

                                                           

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

                                                                                                  

244 P.3d 1099, 1114 (Alaska 2010) (quoting Maisy W. v. State, Dep't of Health & Soc.  

Servs.,Office of Children's Servs., 175 P.3d 1263, 1268 (Alaska 2008)).  



          41        N.A. v. State, Div. of Family & Youth Servs. , 19 P.3d 597, 602-03 (Alaska  



2001) (quoting A.A. , 982 P.2d at 261).  



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



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



          43        Id. (quoting Maisy W. , 175 P.3d at 1268); Wilson W., 185 P.3d at 101-02.  



          44  

                                                                                           

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

                                                                                                                

212 P.3d 756, 765 (Alaska 2009); see Dashiell R. v. State, Dep't of Health & Soc. Servs.,
  

                                                                                                                (continued...)
  



                                                               -17-                                                         6853
  


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

                                                                                                                                                    

                           Here  the  superior  court  determined  that  "OCS  .  .  .  met  its  burden  [to  



                                                                                                         

demonstrate] that there have been active efforts to provide remedial services designed  



to  prevent  the  breakup  of  the  .  .  .  family  which  have  remained  unsuccessful."    The  



                                                                                                                                                                 

superior court found that OCS's efforts included:   (1) family case planning in 2005  



before  the  Tribe  requested  that  the  case  be  closed;  (2)  twice  offering  to  transport  



Georgina  and  the  children  to  a  shelter  "to  escape  Philip";  (3)  efforts  "to  provide  



                                                                                                                    

substance abuse treatment and mental health counseling to the parents"; and (4) "a case  



                                       

plan [in 2005 and 2010] that included domestic violence counseling or classes."  The  



                                                                                                      

superior court relied substantially on the parents' failure to participate in a suitable plan  



                                                                                       

or program designed to reunite the parents with their children.  The superior court found  

that this refusal rose to the level of abandonment as defined in AS 47.10.011(4).45  



                                                                                         

                           Philip challenges the superior court's findings as to active efforts, arguing:  



(1) that the superior court failed to make findings as to the efforts of particular social  



workers and that the efforts of social workers Westdahl and Leahu were inadequate;  



(2) that OCS failed to make referrals for a batterer's intervention program or substance  



                                                                                                                                               

abuse evaluation; (3) that OCS should have sought a court order to compel Philip to  



attend psychological and behavorial assessments; (4) that he was willing to participate  



              44(...continued)  



Office of Children's Servs., 222 P.3d 841, 849 (Alaska 2009).  



              45           It appears that the superior court's findings include a typographical error.   



The cited statute section, AS 47.10.011(4), provides that a court may find a child to be                     

a child in need of aid if it finds by a preponderance of the evidence that "the child is in              

need of medical treatment to cure, alleviate, or prevent substantial physical harm or is in   

need of treatment for mental injury and the child's parent, guardian, or custodian has  

knowingly failed to provide the treatment."  But AS 47.10.011(1) states that a child is  

                                                                   

a child in need of aid if "a parent or guardian has abandoned the child as described in  

                                                                                                                                                        

AS  47.10.013,  and  the  other  parent  is  absent  or  has  committed  conduct  or  created  

                                                                                                                  

conditions that cause the child to be a child in need of aid under this chapter."  



                                                                                     -18-                                                                              6853
  


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

                                 

in  services,  contrary  to  the  superior  court's  finding;  and  (5)  that  he  was  justifiably  



reluctant  to  participate  in  the  assessments  with  Dr.  Smith  due  to  self-incrimination  



              46 

concerns. 



                    1.        The findings regarding the efforts of social workers  



                    Philip  challenges  the  superior  court's  findings,  suggesting  that  it  was  



                                                                       

necessary for the court to address each element of the case plan and each social worker  



separately.  Specifically, Philip claims that social worker Westdahl did not refer him to  



anger  management,  domestic  violence,  or  batterer's  programs,  and  that  she  did  not  



provide him with specific information about the other referrals.   Philip further claims  



                                        

that social worker Leahu's efforts were passive because Leahu suggested that Philip seek  



                                                                                                             

an assessment from a local behavioral health clinic in Alakanuk but did not set up an  



                                                                                           

appointment for him.  Philip also argues that "[t]here were no active efforts by the social  



workers after the referral to Dr. Smith" in August 2010.  



                                                                                                      

                    The superior court was not required to make particular findings as to each  



social  worker  or  each  component  of  the  case  plan.    Rather,  the  superior  court  may  



                                                                                                                     47  

consider "the state's involvement in its entirety" in evaluating active efforts.                                         And  



                                                                                            

inadequate efforts in one period of state involvement do not render the entirety of the  

state's  efforts  inadequate,  even  when  that  period  lasts  for  a  matter  of  months.48  



          46        Although Philip also refers to several other issues in his points on appeal  



for S-14810, these issues are waived on appeal because he did not brief them.  Hymus  

       

v. DeRamus , 222 P.3d 874, 885 n.42 (Alaska 2010).  



          47        Lucy J. , 244 P.3d at 1114 (quoting Maisy W. , 175 P.3d at 1268); see also  

                                 

Roland L. v. State, Office of Children's Servs. , 206 P.3d 453, 456 (Alaska 2009) (stating  

                                                                     

that OCS's acknowledged failure of active efforts during three months did not determine  

                                                                                            

the outcome of the case, including 26 months of total involvement).  



          48  

                                                                                                             

                    Maisy W. , 175 P.3d at 1268-69 (three-month failure of active efforts did not  

                                                                                                            (continued...)  



                                                             -19-                                                        6853
  


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

Importantly, "a parent's demonstrated lack of willingness to participate in treatment may  



                                                                                                         49 

                                                                                                             And we have  

be considered in determining whether the state has taken active efforts." 



excused   "further   active   efforts   once   the   parent   expresses   an   unwillingness   to  

participate."50  



                    The superior court's consideration of OCS's efforts spanned involvement  



                                                                                                  

from 2004 through the termination trial in 2011.  The superior court found that the  



scheduled assessment for the oldest children and the parents, the parents' decision not  



                                                                                                                   

to attend that assessment, the social workers' attempts "to motivate the parents to engage  



                                                                      

in their case plan," and the parents' "lack of performance" demonstrated that active  



                                                                                    

efforts were made.  The superior court also cited several OCS efforts in the facts section  



                                                                                                             

of its decision, including family case planning in 2005; offers to transport Georgina and  

                                                                                   51  efforts to provide substance  

                                                                                       

the children to a shelter for domestic violence victims; 



abuse  treatment  and  mental  health  counseling;  and  the  development  of  a  case  plan  



                                                                 

recommending domestic violence classes.  Because the superior court may consider the  



          48(...continued)  



preclude termination of ICWA parent's rights when OCS made substantial efforts during  

three years); E.A. v. State, Div. of Family & Youth Servs. , 46 P.3d 986, 990 (Alaska  

                                                                                               

2002) (seven-month failure of active efforts over several years of OCS involvement with  

                                                                 

family  did  not  preclude  termination  of  ICWA  parent's  rights  when  parent  was  

uncooperative once active efforts began again).  



          49  

                                                                                                                     

                    Maisy W. , 175 P.3d at 1268 (quoting N.A. v. State, Div. of Family & Youth  

Servs., 19 P.3d 597, 603 (Alaska 2001)); see Lucy J., 244 P.3d at 1114.  



          50  

                                                               

                    Wilson W. v. State, Office of Children's Servs., 185 P.3d 94, 102 (Alaska  

2008).  



          51  

                                                                                              

                    OCS  made  this  offer  to  take  Georgina  and  the  children  to  a  domestic  

violence shelter on two separate occasions.  



                                                             -20-                                                        6853
  


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

state's efforts comprehensively, this finding is adequate, and there is no need for specific  



findings about each social worker.  



                                                            

                    Philip's  interactions  with  both  of  the  social  workers  whose  efforts  he  



                                                                                                                

challenged highlight his refusal to engage with services.  Westdahl testified that she did  



                                                                                                         

not make referrals for Philip because he repeatedly declined her offers for services and  



                                                                                            

refused outright to participate in assessments.  Westdahl twice traveled to Alakanuk and  



                                                                                                                 52  

encouraged Philip and Georgina to access services, and they twice refused.                                           Social  



                                                                                      

worker Leahu had experienced the same reluctance from Philip, despite speaking with  



                                                     

both  Philip  and  Philip's  attorney  about  accessing  local  services.    Despite  Leahu's  



                                  

referrals for Philip to  participate in offered services, Philip failed to make or attend  



appointments.    OCS  did  organize  and  schedule  specific  assessments  for  Philip  in  

August 2010 with Dr. Smith53 and again in October 2011 when Philip expressed interest  



in services in his trial testimony.  



                    Finally OCS was not unreasonable in its approach of postponing some  



                                                                                                                    54  

                                                                                                                        OCS  

treatment decisions until the parents had completed a psychological assessment. 



          52        When Philip later agreed to an assessment during the termination trial, OCS  



organized another assessment in October 2011.  



          53        This was the first scheduled appointment with Dr. Smith, which Philip  



missed.  Philip contends that his reluctance to meet with Dr. Smith stemmed from self- 

                                                                 

incrimination concerns because "OCS wanted Dr. Smith to question [Philip] without an  

                                                                                                     

attorney present, about sexual assaults and sexual abuse of minors." But Philip relegates  

                                                                                                          

this argument to four sentences in his brief and cites no legal authority in support of his  

claim.  Because a "single conclusory paragraph without citation of any authority . . . is  

                                                                                                                        

not adequate to put the issue before the court," we need not consider Philip's contention.  

                                                          

Fairview Dev., Inc. v. City of Fairbanks , 475 P.2d 35, 36 (Alaska 1970).  



          54  

                                                                                        

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

Servs., 249 P.3d 264, 272 (Alaska 2011) ("OCS reasonably decided to put off Pravat's  

                                                                                                           (continued...)  



                                                             -21-                                                       6853
  


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

workers  testified  that  they  had  "asked  for  assessments  so  that  [they]  could  get  



recommendations for the case plan to help the parents" and that they had "wanted an  



expert, someone like Dr. Smith, who could assess this family and tell [them] exactly what  



was needed."  Philip contends that efforts were not made after 2010, but he fails to  



                                                 

appreciate the impact of his constant refusal to engage with services, including missing  



the 2010 appointment with Dr. Smith.  



                                                                     

                          As found by the trial court and supported by the record, over a period of  



                                                                                                                              

seven years, OCS made active efforts to provide Philip with the services necessary for  



                                                                             

the retention of and reunification with his children. The superior court's findings and  



conclusions were not error.  



                                                    

                          2.	          Lack  of  referral  for  a  batterer's  intervention  program  or  a  

                                       substance abuse evaluation in Bethel  



                          Philip also argues that OCS's efforts were inadequate because he did not  



receive a referral for a batterer's intervention program even though a case worker had  



                                                                                                               55  

suggested that he should participate in such a program.                                                            Philip also claims that the  



                                        

social workers "did not make a referral [for a] substance abuse evaluation either locally  



             54(...continued)  



participation in parenting, anger management, and Fetal Alcohol Spectrum Disorder  

classes until after he completed a psychological assessment" even though there was a  

delay in scheduling the assessment.).   



             55           The expert in social work testified that OCS had sought an assessment to         



determine if Philip needed a batterer's intervention program and that she believed anger   

management class would address a different issue.  



                                                                                -22-	                                                                          6853
  


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

                                                                                                                                                          56  

                                                                                                           

or in Bethel."  But OCS is not required to refer a parent to specific support programs, 



and OCS's actions were not deficient in this respect.  



                                                                                                                             

                        We have upheld an active efforts finding where OCS delayed efforts in  



                                                                     57  

                                                                                                                                       

order to obtain evaluation of a parent.                                   At trial an expert in social work testified that  



                                                               

Philip "need[ed] an assessment to get into a batterer's intervention program," which is  



why  OCS  had  not  offered  Philip  that  particular  program.    Several  witnesses  also  



explained  that  OCS  was  waiting  to  get  recommendations  from  a  comprehensive  



                                                                                                          

assessment before referring Philip to particular programs.  Philip's lack of cooperation  



and failure to acknowledge his problems extended the time during which he was not  



                                    58  

                                                                                                   

referred to services.                   Thus, the superior court did not err in its consideration of OCS's  



                                                                

efforts with respect to a batterer's program.  OCS's efforts must be examined in their  



                                                                                                                       

entirety, and the failure to provide a referral to one program in a case plan does not  

necessarily undermine those efforts as a whole.59  



                                                                                                                                                 

                        With   respect   to   substance   abuse   counseling,   OCS   arranged   for   a  



                                                                             

comprehensive assessment in St. Mary's, which would have included an evaluation of  



                                                                                                             

Philip's substance abuse issues.  OCS also made referrals to behavioral aides who could  



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



244 P.3d 1099, 1115 (Alaska 2011) (stating that "[a]ny argument" that the mother should   

have been referred to a specific plan was "simply not persuasive").  



            57          See Pravat P., 249 P.3d at 272.  



            58          See id. (acknowledging in a situation where evaluation was also needed that  



a "lack of cooperation . . . excuse[d] minor faults in OCS's efforts").  In Pravat P. , the  

                                                 

evaluation needed to begin services was pushed off for nine months.  Id. at 267.   



            59          Lucy J. , 244 P.3d at 1114.  



                                                                           -23-                                                                     6853
  


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

                                                                                60  

                                                                                      

have addressed substance abuse in their counseling.                                  Philip's contention is therefore  



inconsistent with the record.  



                     3.        OCS's decision not to seek a court order  



                                                                                          

                     Philip contends that OCS "could have sought and obtained a court order for  



                                                                                                                                   61  

                                                                                          

the evaluations," relying on Alyssa B. v. State, Department of Health & Social Services. 



But the question in Alyssa B . was whether it was an abuse of discretion for the superior  

                                                                                              



court to order Alyssa to undergo a psychological evaluation in a child in need of aid  



                                                                                                                   62  

                                                                                                                       Alyssa B.  

proceeding in light of Alaska CINA Rule 16(b) and Alaska Civil Rule 35(a). 



                                                                                                           

does  not  answer  the  question  whether  OCS  is  required  to  seek  a  court  order  to  



                                          63  

demonstrate active efforts.                   In  Wilson W. v. State, Office of Children's Services, we  



                                                                                                                  

suggested that "requiring OCS to seek court orders for every uncooperative parent would  



                                                                                                                  64  

                                                                                                                       Here, the  

put a huge and pointless burden on the department and the court system." 



fact that OCS could have done more does not undermine the other active efforts that  



          60         Philip points to the efforts in  Jon S. v. State, Department of Health & Social     



Services, Office of Children's Services, 212 P.3d 756 (Alaska 2009), noting that the case                                 

plan in Jon S. involved a "referral for a substance abuse assessment."  Id. at 766 n.38.  

But the case plan in this case did include referral to substance abuse counseling.  Philip  

                                                                                                         

was simply uncooperative and resistant to accessing services.  The fact that Philip never  

                                                                                                

received  substance  abuse  counseling  does  not  render  the  superior  court's  finding  

erroneous.  



          61         123 P.3d 646, 650 (Alaska 2005).  



          62  

                                 

                    See id. (concluding that CINA Rule 16(b), which allows a court to order  

mental and physical examinations of a child's parents at the predisposition phase of a  

CINA proceeding, does not limit the court's authority under Alaska Civil Rule 35(a) to  

                                                          

order a mental examination at the adjudication stage).  



          63        Id. at 650-51.  



          64         185 P.3d 94, 102 (Alaska 2008).  



                                                               -24-                                                          6853
  


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

OCS   made.   "[T]he   active   efforts   requirement   does   not   require   perfection."65  



Additionally, there was no evidence that a court order would have compelled Philip to  



                                                                                

accept services, as he did not follow past court orders for treatment.  The superior court's  



                                                                    

finding that the social workers "attempted to motivate the parents to engage in their case  



                                                                          

plan to no avail" was supported by substantial evidence, and it did not clearly err by  



finding active efforts in the absence of an OCS initiated court order to force Philip to  



                                         66  

participate in his case plan.                



                                                                                                                   

                    4. 	      The superior court's consideration of Philip's lack of willingness  

                              to participate in services   



                                                

                    Philip argues that the superior  court erred in finding that he was unwilling  



                                                                                                     

to participate in services.  The superior court found that there was clear and convincing  



                      

evidence that  the State made active efforts "[b]ased on the parents' lack of performance  



and [the] State[']s efforts to engage the parents."  In particular, the superior court cited  



       

the parents' failure to attend the 2010 assessments with Dr. Smith and their refusal to  



                                                                               

work on their case plan "[e]ven while being advised that they could lose custody of their  



                                                                                            

yet to be born child."  In another portion of its decision, the superior court agreed with  



                                                                                                            

an OCS worker that "17 months has been enough time for the parents to at least begin  



their case plan."  



                                            

                    The trial judge may consider "the willingness of the parent to complete the  



steps  necessary  for  reunification  in  evaluating  whether  OCS  met  the  active  efforts  



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



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



          66        See K.N. v. State, 856 P.2d 468, 477 (Alaska 1993) (citing In re Brown , 736  



P.2d 1355, 1358 (Idaho 1987)) (concluding that, although the State could have done  

more, it is unlikely that further efforts would have been effective in light of the father's  

                                     

attitude).  



                                                              -25-	                                                        6853
  


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

                                 67 

                                                                                                             

requirement."                         A parent's lack of cooperation with a case plan may indicate that further  



                                                                                                             68  

                                                                                                                                                                                            

efforts by the State are unlikely to be effective.                                                                  For instance, "[i]f a parent has a long  



                                                                                                                                                                        

history of refusing treatment and continues to refuse treatment, OCS is not required to  



                                                                                                                                                                              69  

                                                                                                                                                                                   In A.A. v.  

keep up its active efforts once it is clear that these efforts would be futile." 



                                                                                                                                                         

State, we upheld a finding of active efforts even though the State had failed to develop  



                                                                                                                                                                                                      70  

                                                                                               

a case plan, because A.A. had exhibited a lack of willingness to engage in treatment. 



                                                                                                                     

And in Lucy J. v. State, Department of Health & Social Services, Office of Children's  



Services, we affirmed the superior court's active efforts finding, citing Lucy's failures  



                                                                                                                                                                        71  

                                                                                                                                                                             Similarly in  

to complete steps in her case plan or attend meetings arranged by OCS. 



David S . v. State, Department of Health & Social Services, Office of Children's Services,  



                                                                                                                                             

we cited a father's refusal to speak with his OCS worker as undermining his argument  



                67              Wilson W., 185 P.3d at 101 (citing K.N., 856 P.2d at 477);  see also Lucy J.,                                                                            



Dep't of Health & Soc. Servs., Office of Children's Servs.                                                                          , 244 P.3d 1099, 1117 (Alaska  

2011) (noting evidence of "Lucy's repeated failures to complete the elements of her case                                      

plan, engage in meaningful substance abuse treatment, and show up for meetings that                                                                               

OCS had arranged for her");                                         E.A. v. State, Div. of Family & Youth Servs. , 46 P.3d 986,  

991 (Alaska 2002) (noting other cases that allow a parent's willingness to cooperate to                                

be considered in deciding whether the State has made active efforts);                                                                                           N.A. v. State, Div.  

of Family & Youth Servs., 19 P.3d 597, 603 (Alaska 2001) (stating that the parent's     

decision to leave a treatment program before completion indicated that there was no                                                                                                      

reason to believe that attempting another treatment program would have had a successful                               

impact); A.A. v. Dep't of Family & Youth Servs. , 982 P.2d 256, 262 (Alaska 1999).  



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



                69             Id. (citing K.N., 856 P.2d at 477).  



                70             982 P.2d at 262.  



                71             244 P.3d 1099, 1117 (Alaska 2010).  



                                                                                                -26-                                                                                          6853
  


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

                                                                            

that OCS should have made additional efforts to arrange visitation for the following  



           72  

month.         



                    There  were  repeated  instances  when  Philip  declined  to  participate  in  



                                                                                                              

services.  In April 2010 a court order in his criminal case required Philip to participate  



                                                                                   

in "[i]ntegrated treatment, mental health, [and] alcohol counseling."  The order referred  



him to a local clinic.  The behavioral health aide trainee testified that Philip "called to  



make  an  appointment,  but  when  the  appointment  came  he  failed  to  appear  to  his  



scheduled appointment."    



                                                                          

                    Leahu similarly testified that when he worked with the family from May  



                                                                                                                

to around July 2010, Philip "didn't want to work a case plan with me."   Still, Leahu  



                                                                                                        

began arranging the assessment with Dr. Smith.  Leahu also discussed the case plan with  



                                                                                       

Philip and his attorney and coordinated transportation for Anne to Bethel when she got  



sick.  



                                                                                                           

                    Westdahl described OCS's many efforts in the summer of 2010, including  



setting  up  transportation  and  lodging  for  the  parents  and  children  in  St.  Mary's,  



                                                                                      

scheduling the assessments for both parents and the three oldest children, and arranging  



visitation.  The parents canceled on the day they were scheduled to go to St. Mary's.  



                                                                                                        

Westdahl also testified that she met with and spoke to the parents on the phone several  



                                                                          

times to develop the case plan from 2010 to 2011.  Although Westdahl continued to offer  



                                                                                                         

an assessment to Georgina and Philip, "[t]hey refused," told Westdahl they would speak  



                                                    

with counsel about the offer, and never called Westdahl back.  Westdahl reported that  



                                                                                          

she continued to remind both parents about their case plan.  Yet Philip did not compete  



          72        270 P.3d 767, 778 (Alaska 2012) ("[Father's] refusal to speak with [his case  



                                                                                                            

worker] on October 1 undermines his argument that OCS should have arranged more  

than  three  visits  between  October  1  and  the  beginning  of  the  termination  trial  in  

November.").  



                                                             -27-                                                            6853  


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

any of his case plan while Westdahl was assigned to the case.  And both parents refused  

                                                             



to acknowledge the family's problems, indicating that further efforts were unlikely to be  

                                                           

effective.73  



                    Philip points to some evidence that he was willing to participate in services,  

                                                                        



including his completion of classes while incarcerated in July 2005 and his meeting with  

                                                                                                         



a behavioral aide on two occasions in Mountain Village following his release.  But we  



                                                                                         

will only overturn the superior court's finding if we have a definite and firm conviction  

                                              74 and our examination of the record confirms that the  

that a mistake has been made, 



superior court did not err in finding Philip uncooperative.  Its reliance on that finding in  

                                                                                           



the active efforts analysis was also appropriate.  



          B.	       The Superior Court Did Not Err In Finding That Alyssa Was A Child  

                                                                                                             

                    In Need Of Aid.  



                    Philip first challenges the superior court's findings under AS 47.10.011 that  



Alyssa was a child in need of aid.  He indicates that OCS's concerns about future risks  



to Alyssa were insufficient to support removal.  



                    In a termination proceeding, AS 47.10.088(a)(1) requires the superior court  



                         

to find, by clear and convincing evidence, that a child has been subjected to conduct or  



                                                          

conditions described in AS 47.10.011. Here the superior court found that OCS presented  



                                 

clear and convincing evidence that Alyssa had been exposed to conduct or conditions  



                                                                                                    

listed in several subsections of AS 47.10.011:  (1) (abandonment), (6) (physical harm),  



                                 

(8)(B)(i)-(ii) (mental injury or risk of mental injury, particularly as a result of exposure  



          73        See K.N., 856 P.2d at 477 (taking into account the father's denial of mental  



problems  and  resistance  to  State  intervention  in  concluding  that  active  efforts  were  

                                                                       

made).  



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

                                             

Servs., 249 P.3d 264, 269-70 (Alaska 2011).  



                                                             -28-	                                                       6853
  


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

                                                             

to domestic violence), (9) (neglect), and (10) (substance abuse).  Only one statutory basis  



                                                                               75  

is required for a finding that a child is in need of aid.                           



                                                                                                  

                    We have explained that "the state is not required to wait to intervene until  

a child has suffered actual harm"76 and that the statute "contemplate[s] an analysis of  



                    77  

                                                         

future harm."           In Martin N. v. State, Department of Health & Social Services, Division  



of Family & Youth Services, the father's past acts of violent behavior toward the mother,  



                                                                                             

including reckless use of a firearm, were sufficient to support the finding that there was  



                                   78  

a present risk of harm.                The superior court's findings in this case relied largely on  



Philip's past record of unmitigated substance abuse and domestic violence.  We need not  



address all statutory bases found by the superior court to affirm the superior court's  



                              

finding that Alyssa was a child in need of aid.  Here we conclude that the superior court  



did not err in finding that Alyssa was a child in need of aid due to Philip's domestic  



violence and his substance abuse.   



          75        See AS 47.10.011 ("[T]he court may find a child to be a child in need of aid          



if it finds by a preponderance of the evidence that the child has been subjected to any of  

the following . . . ."); Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                 

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



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

                                                                              

Servs., 79 P.3d 50, 54 (Alaska 2003) (citing O.R. v. State, Dep't of Health & Soc. Servs.,  

                                                                                       

968 P.2d 93, 98 (Alaska 1998)).  



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



            

Servs ., 134 P.3d 343, 348 (Alaska 2006) (quoting Martin N. , 79 P.3d at 55) (discussing  

AS 47.10.011(8)(B)).  



          78        Martin N. , 79 P.3d at 54.  



                                                              -29-                                                         6853
  


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

                                                                               

                    1.	      Mental injury or risk of mental injury as a result of exposure to  

                             domestic violence  



                                                                                               

                   Under AS 47.10.011(8)(B)(i) and (ii), the superior court may find a child  



                                                                   

to be a child in need of aid if it finds that the conduct of the parent has placed the child  



                            

at substantial risk of mental injury as a result of exposure to domestic violence.  This  



court has held "that domestic violence in the home, even if not committed against the  



                                                                 79  

children, poses a high risk of mental injury."                        



                   The superior court found that Alyssa was "at substantial risk of mental  



                                                                                                                

injury as a result of a pattern of terrorizing, isolating, or corrupting behavior that will, if  



                                                   80  

                                                       The superior court further found that the parents'  

continued, result in mental injury." 



                                                                               

conduct placed Alyssa "at substantial risk of mental injury as a result of exposure to  

domestic violence and repeat domestic violence."81 



                                                                                                   

                    Although Philip attests that "[t]here was no indication during Alyssa's life  



                               

that [Philip] beat up [Georgina]," we have observed that the statute accounts for future  



                                                                                       82  

harm based on one parent's past abuse of the other parent.                                 "[W]itnessing domestic  



          79       Sarah  G.  v.   State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  



Servs., 264 P.3d 831, 834 (Alaska 2011) (citing  Winston J., 134 P.3d at 348) (holding  

that a mother's past pattern of dangerous behavior was evidence enough to find her  

children in need of aid under AS 47.10.011, even though the behavior was not going on  

                             

at the time of the petition).  



          80       See AS 47.10.011(8)(B)(i).  



          81       See AS 47.10.011(8)(B)(ii).  



          82        Winston J., 134 P.3d at 348 (holding that prior domestic violence by a  



                                                                                                    

father against a child's mother allows a superior court to find a risk of mental injury to  

the child).  



                                                            -30-	                                                      6853
  


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

violence is mentally harmful to children."83 Philip's pattern of domestic abuse against  



                                                                               

Georgina, including the most recent violent incident in 2010 when he broke both of her  



                                                                                                              

arms, is sufficient to support the finding that intervention was appropriate.  The State was  

                                                                                84  The superior court's finding is  

                                                                                                                    

not required to wait until Alyssa suffered harm to act.  



thus not clearly erroneous.  



                    2.        Substance abuse  



                    Alaska Statute 47.10.011(10) allows a court to find that a child is in need  

                                                                                                         



of aid if the "parent['s] . . . ability to parent has been substantially impaired by the  



                                                                          

addictive  or  habitual  use  of  an  intoxicant,  and  the  addictive  or  habitual  use  of  the  



                                                                    

intoxicant has resulted in a substantial risk of harm to the child."  The superior court here  



                                                                                                               

found by clear and convincing evidence that Philip's substance abuse met that standard  



                                                                                                                   

with respect to "the children including Alyssa."  The superior court based its finding on  



                                                                       

"the  prior  adjudication  under  this  subsection  in  2005,  the  parents'  refusal  to  follow  



                                                                                                              

substance abuse recommendations, and [Philip's] continued use of alcohol that leads [to]  



escalation of his violence."  



                    Philip maintains that there was no evidence of active substance abuse.  But  



                                                                                                    

the superior court relied on the many severe and violent incidents involving alcohol to  



reach its conclusion under this subsection, including an incident when Philip fired a  



                                                                                               

shotgun in the home while drinking; an incident when Philip assaulted a houseguest  



                                                                                        

during a bout of drinking; and an incident when Philip was convicted of alcohol-related  



crimes.    The  superior  court  also  noted  that  Philip  had  not  followed  through  with  



treatment for his substance abuse.  Despite referrals by numerous social workers, Philip  



          83        Id . (quoting Martin N. , 79 P.3d at 55).  



          84        See Martin N., 79 P.3d at 54 (citing O.R. v. State, Dep't of Health & Soc.   



Servs ., 968 P.2d 93, 98 (Alaska 1998)).  



                                                             -31-                                                            6853  


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

has not participated in a full course of substance abuse counseling since 2006.  Because  

                                          



these findings are supported by Philip's criminal convictions and the extensive testimony  



                                                                          

from OCS case workers, the superior court did not clearly err in finding that Alyssa was  



a child in need of aid due to Philip's substance abuse.   



                                                                              

          C.	      The Superior Court Did Not Err In  Determining With Respect To  

                   Alyssa That OCS Made Active Efforts To Keep The Indian Family  

                   Together.  



                   Philip contends that OCS failed to make efforts with respect to several  



specific  treatment  programs  identified  in  his  case  plan  and  generally  after  his  2012  



                                                                        

assessment by Dr. Smith.  He also argues that the superior court clearly erred in finding  



him unwilling to participate in services.  



                                                                                                           

                   The superior court found that OCS made "excellent efforts" to prevent the  



                                                                            

breakup of the Indian family with regard to Alyssa.  The superior court relied on social  



                                                        

worker Cramer's testimony, which it found to be "compelling and credible," and took  



into account "the development of safety plans, case plans, referrals for assessments,  



                                                  

assessments, travel arrangements to receive assessments and to participate in visitation,  



meeting with the parents, and recommendations and encouragement to participate in  



recommended treatment."  



                                                                                                                     85 

                                                                                                                        the  

                   In assessing whether active efforts have been made under ICWA, 



              

superior court may consider all services provided during a family's involvement with  



        86  

            Thus, with respect to Alyssa, the superior court properly considered OCS's  

OCS.                           



efforts toward the seven oldest children.   



          85       25 U.S.C.  1912(d) (2006).  



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



216 P.3d 1180, 1188-89 (Alaska 2009).  



                                                            -32-                                                         6853  


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

                                                                                                

                     Philip maintains that OCS's efforts in offering referrals to sexual offender  



                                            

treatment, substance abuse treatment, batterers' intervention programs, and the Healthy  



                                                                                

Families Program were inadequate.  But OCS has discretion in determining what efforts  



                                                                                           87  

                                                                                                Furthermore, as discussed  

to pursue based on the case plan and the parent's needs. 



with regard to OCS's efforts in the case involving the seven oldest children, "a court may  

                                                                               



consider 'a parent's demonstrated lack of willingness to participate in treatment' " in its  

                                 

active efforts assessment.88  

                                              



                     Philip  contends that he was never referred to counseling to address his  

                                 



inappropriate boundary violations, despite a recommendation by Dr. Smith for such  



services.  Philip also challenged the adequacy of OCS's efforts related to substance  



abuse, which included a referral in 2012 for  residential substance abuse treatment.  He  



suggests that Cramer's "generic referral to YK Behavior Health" was insufficient and  



that she should have taken additional steps to locate a specific batterer's intervention  

        



program.  And he suggests that OCS should have better facilitated access to Healthy  



Families.  



                                           

                     But  Cramer  testified  that  when  she  referred  Philip  to  the  Yukon- 



Kuskokwim  Health  Corporation,  she  specifically  requested  parenting  classes  and  



services  to  address  domestic  violence,  anger  management,  substance  abuse,  and  



                                                                                      

inappropriate sexual behavior.  She also testified that while Philip attended a substance  



                                                                                          

abuse assessment in Emmonak and the counselor agreed to address additional problems,  



                                       

Philip did not continue to attend counseling appointments.  Cramer referred Philip and  



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



244 P.3d 1099, 1115 (Alaska 2010) (stating that "[a]ny argument" that the mother should   

have been referred to a specific plan was "simply not persuasive").  



           88  

                                                                

                     Id. at 1114 (quoting Maisy W. v. State, Dep't of Health & Soc. Servs., Office  

of Children's Servs. 175 P.3d 1263, 1268 (Alaska 2008)).  



                                                                  -33-                                                            6853
  


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

Georgina to Healthy Families in May 2012, but Philip refused to comply. Despite that  



                                                                                                             

refusal, Cramer persisted in her recommendation during the termination trial, and Philip  



eventually attended and completed Healthy Families only after the conclusion of the  



hearing.  



                    Philip contends that "OCS dug in their heels and stopped active efforts"  



                                                                                                             

after  Philip  met  with  Dr.  Smith.    This  argument  is  undermined  by  trial  testimony  



                                                                     

suggesting  that  after  Philip  participated  in  his  assessment  with  Dr.  Smith,  Cramer  



referred him to the behavioral health clinic at the Yukon-Kuskokwim Health Corporation  



                                                                   

despite his outright refusal to participate in treatment.  The superior court did not err in  



finding that active efforts were made given Cramer's efforts and Philip's reluctance.  



                                                                                       

                    Cramer testified that she "basically begg[ed Philip] to work his case plan,"  



and that despite her many referrals, he "flatly" refused.  Although she did not fill out  



                                                                            

additional forms to provide access to services that Philip had already refused, this choice  



was  reasonable  given  Philip's  long-standing  reluctance  or  refusal  to  participate  in  



                                              

treatment.  Given that Cramer made significant effort to engage Philip with services and  



                                  

that we have excused "further active efforts once the parent expresses an unwillingness  



                      89  

                                                                                                       

to participate,"         the superior court did not err in finding that Cramer provided "excellent  



                                                                   

efforts" in the face of general reluctance by Philip or in deciding that active efforts had  



been made in this case.  



                                                                                                             

                    Philip also challenges the superior court's finding that he was not willing  



                                                              

to participate in services and treatment.  He argues that his participation in a substance  

abuse evaluation and his deposition responses90 demonstrate his willingness to participate  



          89         Wilson W. v. State, Office of Children's Servs.                      , 185 P.3d 94, 102 (Alaska  



2008).  



          90        It is unclear whether the content of Philip's deposition was admitted into  



                                                                                                               (continued...)  



                                                              -34-                                                             6853  


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

in services and that fault lies with the social workers who "failed to make the proper  



referrals." 



                                                                         

                    Westdahl and Cramer both testified that Philip consistently declined their  



                                                                                          

offers to provide services, and the superior court found that Cramer made "excellent  



efforts." We do "not reweigh evidence when the record provides clear support for the  

superior court's ruling."91  



V.        CONCLUSION  



                   We AFFIRM the superior court's orders terminating Philip's parental rights  



to his children Sophie, Anne, John, Katherine, Nellie, Olivia, Alexandra, and Alyssa.  



          90(...continued)  



evidence.  At trial, in response to objection, the court responded that "I'm going to have  

                                              

[the deposition] played.  I'm not sure if I'm going to admit, but at least . . . it'll be a part  

                                                                                                           

of the record."  The deposition was played, but the judge never ruled on its admissibility.  

                                                                         

In the relevant portion of the deposition, dated July 16, 2010, Philip states that he would  

                                  

be willing to get counseling.  



          91       Maisy W. , 175 P.3d at 1267 (citing D.M. v. State, Div. of Family & Youth  

                                    

Servs., 995 P.2d 205, 214 (Alaska 2000)).  



                                                            -35-                                                         6853  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC