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. Chloe W. v. State, Dept. of Health & Social Services, Office of Children's Services (11/7/2014) sp-6965

Chloe W. v. State, Dept. of Health & Social Services, Office of Children's Services (11/7/2014) sp-6965

         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  



CHLOE W.,                                                )  

                                                         )    Supreme Court No. S-15351  

                           Appellant,                    )  

                                                         )    Superior Court No. 1JU-10-00053 CN  

         v.                                              )  

                                                         )    O P I N I O N  

STATE OF ALASKA, DEPARTMENT                              )
  

OF HEALTH & SOCIAL SERVICES,                             )    No. 6965 - November 7, 2014
  

OFFICE OF CHILDREN'S SERVICES,   )
  

                                                         )  

                           Appellee.                     )  

                                                         )  



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

                                                                  

                  Judicial District, Juneau, Louis J. Menendez, Judge.  



                  Appearances:         Olena      Kalytiak      Davis,      Anchorage,        for  

                  Appellant.    David  T.  Jones,  Senior  Assistant  Attorney  

                  General,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                                                                        

                  General, Juneau, for Appellee.  



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

                              

                  Bolger, Justices.  



                  FABE, Chief Justice.  

                  BOLGER, Justice, concurring.  


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

I.         INTRODUCTION  



                                    1  

                     Chloe W.  appeals the termination of parental rights to her three-year-old     

                                                 2  under the Indian Child Welfare Act of 1978 (ICWA).  

son Timothy, an "Indian child"                                                                                    



She claims the trial court erred by:  (1) relying too heavily on a stipulation filed after the  

                                                                                                   



close  of  evidence,  which  Chloe  contends  was  the  result  of  ineffective  assistance  of  



                                                                                  

counsel; (2) finding that Chloe had not remedied the conduct that placed Timothy at risk;  



(3)  finding  that  OCS  made  active  efforts  to  reunify  the  family;  and  (4)  finding  that  



terminating Chloe's parental rights was in Timothy's best interests.  Because the trial  



                                                                 

court's findings are amply supported by the record and its legal rulings are correct, we  

affirm the trial court's order terminating Chloe's parental rights to Timothy.3  



II.        FACTS AND PROCEEDINGS  



                     Chloe lives in Juneau and is a member of the Tlingit and Haida Tribes of  

                                                                                                         



Alaska.    As  a  child  she  suffered  physical,  emotional,  and  sexual  abuse,  as  well  as  



                        

abandonment.    Chloe  was  reported  to  have  learning  disabilities  at  school,  and  she  



                                                       

dropped out in the eleventh grade.  She worked sporadically over the years but has been  



                                                                                        

unemployed since 2004.  At age 19 Chloe lost her first child shortly after his birth due  



                                                                                                  

to a congenital heart defect and premature lung development.  She started to take Xanax  



                                                                                                 

in 2008, when she was prescribed a high dosage for anxiety, in addition to Abilify and  



Neurontin  for  mood  stabilization.    In  August  2009  Chloe  began  treatment  with  



psychiatrist Dr. Paul Topol, who diagnosed her with depression and substance abuse.  



           1         We use pseudonyms to protect the family's privacy.  



           2         See 25 U.S.C.  1903(4) (2012).  



           3         Timothy's father voluntarily relinquished his parental rights on May 30,  



2012.  



                                                                  -2-                                                           6965
  


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

Dr.  Topol  continued  the  Xanax  prescription  and,  because  Chloe  told  him  she  was  

                                                                                                            



addicted to "pain killers," he prescribed Suboxone, an opiate maintenance drug.  When  



Chloe became pregnant with Timothy, Dr. Topol continued her prescriptions to avoid  



serious health risks.  Dr. Topol treated Chloe monthly until August 2013.  



                    Timothy  was  born  prematurely  on  August  1,  2010,  at  Alaska  Native  



                                                                                  

Medical   Health   Center   in   Anchorage.      Timothy   tested   positive   at   birth   for  



benzodiazepines, consistent with Xanax.  When health professionals noticed that Chloe  



                                                                                            

was lethargic and drowsy, they called OCS because they were concerned that she might  



                                                                                         

drop  the  baby.    Chloe  signed  an  OCS  Protective  Action  Plan.    OCS  contemplated  



                                                                  

placement of Timothy in a relative's home, and ultimately, Chloe and Timothy moved  



in with the Campbells, Chloe's aunt and uncle who live in Juneau.  



                    On August 17 OCS filed a Petition for Adjudication of Child in Need of  



                                   

Aid and for Temporary Custody, based on reports that Chloe was uncooperative, heavily  



                                                

medicated, and unable to tend  to Timothy's basic needs.  Meanwhile, Timothy was  



                                                           

experiencing symptoms of withdrawal, such as elevated respiration, high temperatures,  



                                                         

and a mild increase in muscle tone.   The court awarded OCS temporary custody of  



                                                                                             

Timothy and continued his placement with the Campbells. But the relationship between  



                                                                                                                

Chloe and the Campbells became strained and adversarial, so Chloe moved into public  



housing.  



                                                            

                    On  September  25  Juneau  police  responded  to  a  report  that  Chloe  was  



suicidal.    Chloe's  visitation  was  reduced  due  to  further  reports  of  drowsiness  and  



                                                                     

impairment   from   Timothy's   doctor,   OCS   workers,   and   Juneau   police.      OCS  



recommended  medical  detoxification,  working  with  Dr.  Topol  on  mental  health  



                                                           

alternatives to medication, and various outpatient counseling.  On November 2, due to  



lack  of  progress,  OCS  changed  Timothy's  permanency  plan  to  adoption.                                             On  



                                                                                                                  

December 14 Superior Court Judge Patricia A. Collins adjudicated Timothy a child in  



                                                             -3-                                                        6965
  


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

                                                                                     4 

need of aid under AS 47.10.011(6), (9), and (10)  but concluded that adoption would not 



                                                                       

be  appropriate  as  a  permanency  goal  after  only  90  days,  so  the  goal  was  shifted  to  



reunification.   



                                                                          

                        At a disposition hearing on March 30, 2011, OCS stated that it had stopped  



                                                                      

receiving  reports  of  drowsiness,  and  Chloe's  attorney  told  the  court  that  Chloe  had  



                              

weaned herself off Xanax and was following her case plan.  The court continued the  



                                                                                                                                          

permanency goal of reunification and granted OCS continuing custody for up to two  



                                                                                

years.  But in August and September Chloe again showed signs of being intoxicated or  



                                                                       

heavily medicated.  OCS continued to work with Chloe to comply with her case plan.  



Concerned that Chloe's home was unsanitary, a social worker drove Chloe to pick up a  



carpet cleaner and purchased and delivered cleaning supplies to her home.  Because  



Chloe would not allow OCS to inspect her home, OCS would not supervise in-home  

visits.5  



                                                                                                                                

                        On April 4, 2012, OCS filed a Petition for Termination of Parental Rights,  



alleging  that  Timothy  was  not  safe  with  Chloe  because  of  her  recurrent,  severe  



depression, borderline personality disorder, and pain-pill-seeking behavior.  After the  



                                                                                                                             

termination trial, held in August 2012, Superior Court Judge Louis J. Menendez denied  



                                                                                            

the petition. The superior court found that Timothy remained a child in need of aid under  



            4           AS 47.10.011 provides in pertinent part that the court may find a child 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:  (6) substantial physical harm or risk of harm due to                                          

the parent's conduct; (9) conduct by the parent has subjected the child to neglect; or (10)             

the parent's ability to parent has been substantially impaired by the addictive or habitual  

use of an intoxicant, which has resulted in a substantial risk of harm to the child.  



            5  

                                                                                                                                           

                        OCS approved in-home visits supervised by the Tribe for three hours per  

                                                                                                        

day, three days per week from May through July 2011 but these visits were discontinued  

                                  

because the Tribe was no longer available to provide services.  Chloe did have in-home  

visits supervised by OCS in 2012 and early 2013.  



                                                                           -4-                                                                     6965
  


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

                                                                6  

AS  47.10.011(10)  and  AS  47.10.011(11).     But  the  superior  court  reasoned  that  



termination was not in Timothy's best interests:  Chloe had been a consistent part of  



Timothy's life, Timothy was a healthy child, and there was reason to believe that Chloe  



                                                                                                          

could continue to stabilize and grow  as a parent and that with careful planning  and  



                                                         

counseling, Timothy could transition into Chloe's home.  The superior court further  



                                                                          

found that OCS had not presented evidence beyond a reasonable doubt that Timothy was  



likely to suffer serious emotional or physical harm, and that "renewing in-home visitation  



and parenting instruction, continuing mental health therapy for [Chloe,] and a gradual  



and specific transition plan towards reunification with [Timothy] may obviate the need  



for  termination."    The  superior  court  fashioned  another  plan  for  the  parties  and  



                                                     

committed  to  conducting  monthly  review  hearings  to  monitor  Chloe's  progress  in  



meeting the requirements of her detailed case plan.  



                   In May 2013 OCS social worker Carol Graham filed a Second Petition for  



                                                            

Termination of Parental Rights, asserting that despite her sustained and concerted efforts  



                                                                                             

to engage Chloe in the case plan to facilitate reunification, Chloe had not made sufficient  



progress.    The  petition  alleged  that  Chloe  continued  to  be  evasive  about  which  



medications  she  was  taking  and  to  exhibit  signs  of  drug-seeking  behavior.    OCS  



submitted evidence that Chloe lacked the skills necessary to parent adequately and had  



not participated in the recommended parenting classes.  OCS submitted to the court a  



psychological   evaluation   of   Chloe,   prepared   by   clinical   psychologist   Dr.   Elisa  



                                                                                                   

Youngblood, based on her meetings with Chloe in March 2013.   Dr. Youngblood's  



report stated that Chloe was "likely to be irresponsible and engage in antisocial behavior"  



          6  

                                                                                                                 

                   AS 47.10.011(11) provides that a child may be found in need of aid if the  

court finds by a preponderance of the evidence that the parent has a mental illness,  

                           

serious emotional disturbance, or mental deficiency that puts the child at substantial risk  

of injury.  



                                                             -5-                                                         6965  


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

                                                                                                

and "to rebel against authority, have turbulent family relationships, and blame others for  



                                                                                          

her problems."  It was Dr. Youngblood's impression that Chloe "ha[d] relapsed on taking  



too much prescribed medication to the point that her parenting would be significantly  



impaired   and   the   safety   of   her   son   would   be   jeopardized."      Dr.   Youngblood  



recommended medical detoxification and then, due to the severity and complexity of  



                                                

Chloe's substance abuse history, full participation in an inpatient or residential treatment  



program for one year.  Chloe did not participate in the recommended treatment.  



                   The second termination trial took place in July 2013.  The superior court  



incorporated the prior proceedings and heard additional testimony from a number of  



                                                                                    

witnesses.  Chloe testified about her desire to care for her son, her work with parenting  



                                                  

coach  Martin  Tyska  of  Catholic  Community  Services,  and  the  efforts  she  made  to  



improve  her  life  and  make  sacrifices  for  her  son.    She  discussed  her  mental  health  



                                                         

treatment and medications, explaining that her speech sounds slurred when she is sleep  



deprived.  Dr. Youngblood, Tyska, and OCS representatives Carol Graham and Kristina  



Weltzin  testified  about  occasions  in  2013  when  Chloe  was  inappropriately  hostile,  



appeared intoxicated, or otherwise showed signs of a dependence disorder.  



                                                                                                               

                   Dr. Topol testified that he had treated Chloe continuously since 2009.  He  



discussed  Chloe's  mental  health  issues,  as  well  as  her  treatment  and  medication  



                                                                   

management.  Dr. Topol stated that, if taken as prescribed, Chloe's medication would not  



cause someone to be overly sleepy or lethargic or to slur her speech.  Dr. Topol testified  



                                                                                   

that while Chloe was continuing to make progress as an outpatient, she still struggled  



with impulsivity and anxiety, and more intensive therapy would help.  



                   In August 2013 OCS filed a motion to reopen the testimony under Alaska  



         

Civil Rules 59(a) and 60(b)(2), based on new evidence that Dr. Topol had discharged  



                                                                                           

Chloe from treatment because she had been dishonest with him and was using duplicate  



prescriptions.  Rather than taking live testimony from Dr. Topol, the parties entered a  



                                                            -6-                                                      6965
  


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

stipulation   about   Dr.   Topol's   new   information,   adding   that   Chloe   denied   any  

                                                          



wrongdoing.   



                                                       

                    In September 2013 the trial court granted the second petition to terminate  



                                                                                                   

Chloe's parental rights to Timothy, based on its determination that Chloe was in relapse  



                                                                                       

and thus presented a serious, substantial risk that Timothy would be exposed to danger.  



                                                                                                                   

The superior court noted that multiple sources reported that Chloe continued to misuse  



her medications, missed numerous appointments, refused to attend the recommended  



                                                

treatment,  and  appeared  to  be  receiving  prescriptions  from  separate  sources.    The  



                                                                                                                

superior court emphasized that Chloe needed but refused inpatient treatment and that her  



                                                                                                                           

personality disorder likely would interfere with her ability to meet Timothy's needs.  The  



                                                                                                               

superior court remarked that it had been a close call whether termination would be in  



                                                                                                              

Timothy's best interests after the first trial, but it was no longer a close call.  The superior  



court  issued  written  findings  and  conclusions  and  ordered  termination  of  Chloe's  



                                                                                                   

parental rights and responsibilities to Timothy.  It found clear and convincing evidence  



that Timothy was a child in need of aid under AS 47.10.011(10) and AS 47.10.011(11),  



that Chloe had not remedied the conduct or conditions that put Timothy at substantial  



                            

risk of harm, and that OCS had made active efforts to provide remedial services and  



rehabilitative programs designed to prevent the breakup of the family.  The superior  



                                           

court further found beyond a reasonable doubt, relying on the testimony of qualified  



experts under ICWA, that returning Timothy to Chloe likely would result in serious  



damage  to  Timothy.    The  court  concluded  that  Timothy's  best  interests  would  be  



promoted by terminating Chloe's parental rights because there was severe danger in  



moving  him  back  and  forth,  and  he  needed  and  deserved  a  permanent  and  stable  



                            

placement, which could not be achieved by continuing Chloe's parental rights.  Chloe  



appeals.  



                                                              -7-                                                        6965
  


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

III.      STANDARD OF REVIEW  



                                                                                                       

                   Before terminating parental rights under ICWA and the Child in Need of  



                                                                   

Aid (CINA) statutes and rules, the superior court must find by clear and convincing  



evidence  that  the  child  has  been  subjected  to  conduct  or  conditions  described  in  



                     7 

                        

AS 47.10.011;  that the parent has not remedied, or has not remedied within a reasonable 



time, the conduct or conditions in the home that place the child at substantial risk of  



                                     8 

                                                                 

physical or mental injury;  and in the case of an Indian child, that active but unsuccessful 



                             

efforts  have  been  made  to  provide  remedial  services  and  rehabilitative  programs  

                                                                             9   ICWA also requires that the trial  

                                                                                                                    

designed to prevent the breakup of the Indian family.  



court find, "by evidence beyond a reasonable doubt, including testimony of qualified  



                                                                                               

expert witnesses, that the continued custody of the child by the parent . . . is likely to  



                                                                                         10  

                                                                                                           

result in serious emotional or physical damage to the child."                                 Finally, the trial court  



                                                      

must determine by a preponderance of the evidence that "termination of parental rights  

is in the best interests of the child."11  



          7        AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).  



          8        AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i)-(ii).  



          9        25 U.S.C.  1912(d) (2012); CINA Rule 18(c)(2)(B).  



          10       25 U.S.C.  1912(f); see also CINA Rule 18(c)(4).  



          11        CINA Rule 18(c)(3); see also AS 47.10.088(c).  



                                                             -8-                                                       6965
  


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

                                                                                                                                          12  

                                                                   

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



                                                 13  

                                                                                 

and questions of law de novo.                        Factual findings are clearly erroneous if review of the  



                                                     

entire record leaves us with  "a  definite and firm conviction that a mistake has been  



            14  

made."            Whether  the  trial  court  erred  in  determining  that  OCS  made  active  but  



                                                                                        

unsuccessful efforts to provide remedial services and rehabilitative programs designed  

to prevent the breakup of the Indian family is a mixed question of fact and law.15  



IV.	       DISCUSSION  



                                                                                                               

           A.	        The   Trial   Court   Did   Not   Err   In   Considering   The   Stipulation  

                      Regarding Dr. Topol's Proposed Testimony, And Entering Into The  

                      Stipulation Did Not Amount To Ineffective Assistance Of Counsel.  



                      After  the  evidence  at  the  second  termination  trial  closed,  Dr.  Topol  



informed OCS that he had discharged Chloe from treatment, and OCS moved to reopen  



                                                                                 

the evidence to present Dr. Topol's testimony.  In lieu of requiring that Dr. Topol testify  



in court, the parties entered into a stipulation providing as follows:  



                      Between  the  close  of  evidence  in  the  second  trial  in  the  

                                                                   

                      above-mentioned case and August 9, 2013, Dr. Paul Topol,  

                                                                                

                      MD discharged [Chloe] as a patient and is no longer treating  

                                            

                      or providing prescriptions to [Chloe].  Dr. Topol sent a letter  

                      to the Attorney General's office providing this information  

                      and indicating that this action was taken because he received  



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



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

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



           13	       Id. at 428 (citing Christina J., 254 P.3d at 1104).  



           14  

                                                                                                                          

                     Id. at 427-28 (quoting Barbara P. v. State, Dep't of Health & Soc. Servs.,  

                                                       

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

marks omitted). 



           15          Christina J., 254 P.3d at 1104 (citing Ben M. v. State, Dep't of Health &  



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



                                                                    -9-	                                                            6965
  


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

                   information   that   duplicate   prescriptions   were   filled   in  

                   Wasilla, Alaska, rather than destroyed. [Chloe] denies any  

                   wrongdoing.  



The trial court relied in part on this stipulation to find that Chloe had relapsed.  



                   Chloe now contends that the trial court gave improper weight to the parties'  

                                                                                                               



stipulation to Dr. Topol's proposed testimony and that her attorney's decision to enter  



the stipulation amounted to ineffective assistance of counsel.  OCS responds that the  



                                                                                 

stipulation was properly submitted in lieu of testimony and that any error was harmless  



                                                                                           

because the superior court clearly relied on a broad  base of evidence in reaching its  



decision and not just the statements in the stipulation.   



                                                                                 

                   The trial court did take note of Dr. Topol's decision not to continue Chloe's  



treatment, pointing out that Chloe's "greatest champion," Dr. Topol, had learned in  



August 2013 that Chloe was lying to him about multiple prescriptions and therefore  



                                                     

discharged her.  But the trial court did not rely exclusively on the parties' stipulation  



                                                          

regarding the discharge from treatment and instead considered all of the trial testimony  



to find that Chloe had relapsed in 2013.  The trial court found evidence of relapse from  



                                                                                                   

observations of Chloe's behavior, her symptoms of overmedication, a relapse in her use  



of benzodiazepines, pill-seeking behavior, and her persistent issues with addiction to  



prescription  medication.    The  trial  court  even  observed  that  "[b]eyond  Dr.  Topol,  



multiple professionals testified regarding their direct observations of [Chloe's] continued  



                                                                                                

substance  use."    The  trial  court  noted  that  OCS  had  presented  evidence  of  Chloe's  



                                                                 

overmedication, slurred speech, sleepiness, and late or missed appointments, provided  



                                       

by people who knew her, including Tyska, Weltzin, Dr. Youngblood, and Dr. Destiny  

              16 who provided evidence of Chloe's continued drug use and its detrimental  

Sergeant,                                                                            



          16       Dr.  Sergeant  was  Chloe's  treating  psychologist.                       Dr.  Sergeant  did  not  

                                                                                                                   

                                                                                                          (continued...)  



                                                            -10-                                                         6965  


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

                                                                                                                    

effect on her ability to safely parent Timothy.  The trial court concluded that based on  



                                                 

this  evidence,  Chloe  could  not  take  care  of  Timothy  and  reunification  could  not  be  



considered.    We  therefore  conclude  that,  even  without  the  stipulated  testimony,  the  



                                                                   

record supports the trial court's finding that Chloe relapsed, putting Timothy at risk of  



substantial harm.  And in any event, the trial court properly considered the information  



                                                                 

provided in the stipulation because parties may stipulate to any factual or legal matter,  

even adjudication and disposition.17  



                                                                                                               

                    We also reject Chloe's argument that she received ineffective assistance of  



                               

counsel because her attorney decided to enter the stipulation rather than request a hearing  



to address the statements Dr. Topol made in his affidavit.  A parent has a due process  



                                                                                                             18  

right to effective counsel in a termination of parental rights proceeding.                                       When we  



review the question whether a litigant has raised successfully an ineffective assistance  



                                                                                                       19 

                                                                                                           Under the first  

challenge, we apply the two-pronged test established in Risher v. State .  



                                                        

prong, the litigant must show that her attorney's performance was below a level that any  



                                                                                                    

reasonably competent attorney would provide, bearing in mind that "reasonable tactical  



          16(...continued)  



testify, but her May 31, 2013 report stated that when Chloe arrived for her bi-monthly  

                               

appointment,  she  appeared  very  drowsy  and  her  speech  was  slurred.    Dr.  Sergeant  

attributed this behavior to Chloe's statement that she took Ambien at 3:00 a.m. and then  

                                                                                                      

only slept about 30 minutes, despite warnings not to take Ambien that late and without  

                                                                                      

having a full night of sleep.  



          17        See CINA Rule 14.  



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



61 P.3d 6, 10 (Alaska 2002) (citing  V.F. v. State, 666 P.2d 42, 47-48 (Alaska 1983)).  



          19  

                                                                     

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

                      

270 P.3d 767, 784-86 (Alaska 2012) (quoting Risher v. State , 523 P.2d 421, 425 (Alaska  

1974)).  



                                                             -11-                                                        6965
  


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

decisions are virtually immune from subsequent challenge even if, in hindsight, better   



                                                           20  

approaches  could  have  been  taken."                           Under  the  second  prong,  the  litigant  must  



                                                                                

demonstrate that counsel's improved performance would have affected the outcome of  



             21  

                                                                                           

the case.         It is not necessary to address the first prong of the test when the litigant has  

not satisfied the second prong.22  



                                                           

                     It is hard to fathom how the decision to enter into the stipulation rather than  



allow Dr. Topol to present live testimony would not have been a reasonable tactic to  



                                                                                                                

minimize the impact of the testimony, particularly where the stipulation set out Chloe's  



                                           23  

denial  of  any  wrongdoing.                     But  we  need  not  address  whether  Chloe's  attorney's  



                                                                                                                    

decision to stipulate to Dr. Topol's testimony was tactical, because Chloe has failed to  



demonstrate that an improved performance by her attorney would have made a difference  



in  the  outcome  of  the  case.    Here,  the  superior  court  expressly  relied  on  the  other  



substantial  live  testimony  and  evidence  presented  to  demonstrate  that  Chloe  had  



relapsed.   



          20         Chloe  O.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  



Servs.,  309  P.3d  850,  858-59  (Alaska  2013)  (citation  and  internal  quotation  marks  

                            

omitted).  



          21        David S. , 270 P.3d at 784; see also  Chloe O., 309 P.3d at 859.  

                                                                             



          22  

                                                                    

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

that where a parent argued that his attorney's various failures amounted to a denial of his  

due process right to effective assistance of counsel at the termination trial, it was not  

                                                                                      

necessary to address the first prong because the parent had not demonstrated how any  

of the attorney's alleged errors in performance actually harmed him).  



          23         Similarly,  in  Chloe  O.,  we  determined  that  "it  [was]  probable  that  [a  



mother's] attorney made a reasonable tactical choice in deciding not to call [an expert  

witness] to testify on remand." 309 P.3d at 859.  



                                                                -12-                                                          6965
  


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

                    Finally, we turn to the concurring opinion's concern about our decision to   



review   Chloe's   ineffective   assistance   claim   without  first  providing   her   with   "a  fair  



                                                                                                                  24  

opportunity to develop a record" for her challenge in the superior court.                                             Effective  

assistance of counsel in parental rights termination proceedings is a constitutional right.25  

                                                                              



But when ineffective assistance of counsel is alleged, "[t]he knottiest issue presented is  

                                                  



the practical application of a post-trial remedy, given the time constraints that apply in  

                                       

a parental termination case because of a child's need for permanency."26   The two most  

                                                                                                                



common approaches to the issue are direct appeal and post-judgment motion to the trial  

                                                                                                                       



         27  

court.       As the Hawaii Supreme Court noted not long ago:  "A majority of jurisdictions  



has concluded that direct appeal is the most appropriate method for raising ineffective  

                                                                                        



assistance  of  counsel  in  termination  proceedings,  due  to  the  particular  need  for  

                                         

expeditious resolution and finality in child custody disputes."28  



                     The argument in favor of the direct appeal approach is that it generally is  

                                                                                                          



faster and minimizes delay.  Delaying custody resolution adversely affects the parties'  

                                             



rights,  extends  uncertainty  in  the  child's  life  by  leaving  the  child  in  the  limbo  of  

                                                                                                                 



          24         Concurrence at 26.  



          25        David  S. ,  270  P.3d   at   784  (citing In  re  K.L.J. ,  813  P.2d  276,  283  n.6  



(Alaska 1991) (right to counsel);  V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (right to     

effective assistance of counsel)).  



          26  

                                                                   

                    N.J. Div. of Youth & Family Servs. v. B.R. , 929 A.2d 1034, 1039 (N.J.  

                                          

2007); see also In re RGB , 229 P.3d 1066, 1085 (Haw. 2010) (noting "state courts have  

                                                                                                                   

struggled to determine the proper procedural vehicle for raising ineffective assistance of  

counsel in termination of parental rights proceedings").  



          27        See  Susan Calkins, Ineffective Assistance of Counsel in Parental-Rights  



Termination Cases:  The Challenge for Appellate Courts, 6 J. A 

                                                                                                    PP .   PRAC .   &   PROCESS  

179, 199-205 (2004).  



          28        In re RGB , 229 P.3d at 1085 (citations omitted).  



                                                               -13-                                                          6965
  


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

                                                                                            

impermanent foster care, and increases the possibility of the child suffering permanent  



         29  

harm.         The arguments against the direct appeal approach are that the appellate court  



                                                                                              

may not be able to determine the claim's merits from the record and trial counsel still  

may be representing the parent.30  



                                                                            

                     Although it may be preferable to establish a court rule setting out how to  



                                                                                                 31 

                                                                                                     we have not done so; we  

raise an ineffective assistance of counsel claim in this context, 



                                                                                       

instead have resolved claims as presented to us.  And we have decided claims on direct  



appeal when the issue was not raised in the trial court, despite the parent asking for a  



remand for the trial court to consider the matter, implicitly recognizing that we would  



                                                                                             32  

                                                                                                 For example, we recently  

remand for an evidentiary hearing if it were appropriate. 



                                                                                                             

concluded  in  Chloe  O.  v.  State,  Department  of  Health  &  Social  Services,  Office  of  



Children's Services that it was unnecessary to remand the case to the trial court for  



                                                                                                33 

                                                                                                     We recognized that such  

consideration of a parent's ineffective-assistance allegations. 



           29        Calkins, supra note 27, at 207, 235.  



           30        Id. at 209-10.  



           31        See id.  at 212 (suggesting court rule so parties know appropriate procedure   



in advance).  



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



Servs., 309 P.3d 850, 852, 858-59 (Alaska 2013) (rejecting remand request because (1) it  

would contravene child in need of aid statutes' emphasis on expeditious resolution and  

                                                         

(2) parent's proposed claim clearly had no merit under test for ineffective assistance of  

                                                                                         

counsel); see also Julia D. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                                

Servs., Mem. Op. & J. No. 1467, 2013 WL 5314609, at *4-5 (Alaska Sept. 18, 2013)  

             

(holding parent's ineffective assistance claim had no merit); Stanley B. v. State, DFYS,  

93 P.3d 403, 408-09 (Alaska 2004) (same).  



           33        309 P.3d at 858.  



                                                                  -14-                                                             6965
  


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

                                                                                                                                   34  

                                          

a remand "would result in a significant additional delay in . . . attaining permanency." 



                                                                              

Through its statutory scheme for child protection, the legislature has "ma[d]e clear that  



                                                                                             35  

children's  proceedings  are  to  be  expeditiously  resolved."                                    And  "[a]  remand  for  



                                                                                        

potentially  lengthy  litigation  of  a  claim  of  ineffective  assistance  of  counsel  would  



                                                                                  36  

contravene the language and spirit of these statutes."                                Thus in  Chloe O., we directly  



examined the claim of ineffective assistance of counsel and determined that the parent's  



                                                                                 37  

challenge did not pass either prong of the Risher test.    We adopted the same approach  



                                                                                                             38                    39 

                

when we reviewed the ineffective assistance claims raised in Stanley B.                                         and Julia D .  



                     We  have  also  consolidated  a  parent's  concurrent  appeals  of  both  a  



                                                                                                       

termination judgment and a later decision denying a post-judgment claim for ineffective  



                                                                                                            40  

assistance under Alaska Civil Rule 60(b)(6), issuing a single decision.    And we have  



decided claims on direct appeal when the parent unsuccessfully attempted to replace  



counsel during the trial court proceedings on the ground of ineffective assistance of  



          34        Id.  



          35        Id.  



          36        Id.  



          37         See id. at 858-59.  



          38         93 P.3d 403, 408-09 (Alaska 2004).  



          39         Mem. Op. & J. No. 1467, 2013 WL 5314609, at *4-5 (Alaska Sept. 18,     



2013).  



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

                                                                                             

270 P.3d 767, 774, 784-86 (Alaska 2012); see also Dan A. v. State, Dep't of Health &  

                                                                                                                    

Human Servs., Office of Children's Servs. , Mem. Op. & J. No. 1404, 2012 WL 104482,  

                                                                                                          

at *6-7 (Alaska Jan. 13, 2012) (resolving both merits appeal and ineffective assistance  

     

of counsel claim after staying case at trial court's request for limited remand on parent's  

                                                                                                                     

Alaska R. Civ. P. Rule 60(b)(6) motion).  



                                                               -15-                                                          6965
  


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

counsel.41  In a recent case where the parent unsuccessfully attempted to replace counsel  

                                         



during the trial court proceedings and later on direct appeal claimed ineffective assistance  



                                                                                

of counsel, we recast the issue as an appeal of the trial court's alleged failure to recognize  



                                                         

and resolve an ineffective assistance of counsel claim and resolved it with a plain error  

analysis.42  



                                                                                                    

                    In this case, Chloe W. chose to raise her ineffective assistance claim in a  



                                                                                                        

direct appeal of the termination of her parental rights.  She has new counsel on appeal  



                                                                                                             

who had an opportunity to evaluate the ineffective assistance of counsel claim and how  



                                         

it might best be presented. She raised the claim on direct appeal but failed to substantiate  



                                                                                        

it based on the record before us.  Even if we accept Chloe's representations regarding her  



                                           

trial lawyer's shortcomings in entering the stipulation regarding Dr. Topol's testimony,  



                                                                                                               

Chloe did not "demonstrate that 'an improved . . . performance would have made a  

difference in the outcome of [the] case.' "43  



          B.	       The Trial Court Did Not Err In Finding That Chloe Failed To Remedy  

                                                                                            

                    The Conduct That Placed Timothy At Substantial Risk of Harm.  



                    Chloe argues that the trial court erred in finding that she failed to remedy  

                                                                      



the conduct that placed Timothy at risk.  She claims that the evidence does not support  



the trial court's conclusion that she had relapsed, because the accusations of her slurred  

                                                                           



speech and lethargy could be explained as a combination of dentures and accidental  



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



61 P.3d 6, 15-16 (Alaska 2002); P.M. v. State, Dep't of Health & Soc. Servs., Div. of  

                                                                

Family & Youth Servs. , 42 P.3d 1127, 1131-32 (Alaska 2002).  



          42        Grace L. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,  

                                                                       

329 P.3d 980, 988-89 (Alaska 2014).  



          43        Chloe  O.  v.  State,  Dep't  of  Health  &  Soc.  Servs.,  Office  of  Children's  



Servs., 309 P.3d 850, 859 (Alaska 2013) (quoting David S. , 270 P.3d at 786).  



                                                              -16-	                                                        6965
  


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

misuse of prescribed Ambien.  We conclude that substantial evidence supports the trial  

                                                                                                     



court's finding that Chloe failed to remedy the conditions that put Timothy at risk, based  

                                                                        



on the evidence presented of Chloe's history of misusing medication, relapse, continuing  



mental conditions, and resistance to treatment and other help.  



                      Alaska Statute 47.10.088(a)(2) requires that before terminating parental  



                                                                                                                     

rights, a trial court must find by clear and convincing evidence that a parent has not  



                                                                                                                 

remedied in a timely fashion the conduct or conditions in the home that place the child  



                                              44  

at substantial risk of harm.                       In making this determination, the court may take into  



                                                                                                45  

account any fact relating to the best interests of the child.                                       Whether a parent failed to  



remedy conduct or conditions that placed the child at substantial risk of harm is a factual  

             46   Findings of continued substance abuse and refusal to undergo treatment are  

finding.                                                                                                

                                                              47   "Conflicting evidence is generally insufficient  

sufficient to satisfy failure to remedy.  

                                                                                                          



to  overturn  the  superior  court,  and  we  will  not  reweigh  evidence  when  the  record  

provides clear support for the superior court's ruling."48  

                                                                                                



                      Based on the reports and supporting testimony, the trial court found that  

                                              



Chloe failed to remedy the conduct or conditions that endangered Timothy. She had not  

                                                                                                                                     



resolved her substance abuse or addressed her underlying mental health needs, and she  

                                                                                                                                    



           44         See also CINA Rule 18(c)(1)(A).  



           45         AS 47.10.088(b).  



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



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



           47         See, e.g., Stanley B. v. State, DFYS, 93 P.3d 403, 407 (Alaska 2004).  



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



Servs., 290 P.3d 421, 428 (Alaska 2012) (quoting Maisy W. v. State, Dep't of Health &  

                                                                                                     

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



                                                                     -17-                                                              6965
  


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

                                                                                        

was still unable to provide basic care for Timothy.  The trial court referred specifically  



                                                                                                            

to the testimony of social workers and mental health professionals who had direct contact  



                                    

with Chloe, including Dr. Youngblood, Tyska, and Dr. Sergeant, who were concerned  



                                 

about Chloe's recent slurred speech, sleepiness, and missed appointments, indicating her  



                                                              

misuse of pharmacological substances.  The trial court expressed particular concern that  



                                                                        

Chloe's inability to control her medication use remained virtually unchanged since 2010.  



                                                

The trial court also found that Chloe remained untreated for underlying trauma, which  



                                                                                                                   

continued to have significant impact on her mental health, and three years later she still  



                                                                 

had not progressed beyond supervised or monitored visits with Timothy.  Based on the  



                                                     

evidence presented at both trials, the trial court found that Chloe's personality disorder  



                               

was likely to affect her parenting so that she could not put Timothy's needs ahead of her  



           

own.  Because the record supports the trial court's finding that Chloe had not remedied  



the conduct or conditions that placed Timothy at risk of harm, we affirm the finding.  



                                       

          C.	        The  Trial  Court  Did  Not  Err  In  Finding  That  OCS  Made  Active  

                     Efforts To Prevent The Breakup Of The Indian Family.  



                                                                                       

                     Chloe argues that the trial court erred in finding that OCS made active  



                                                    

efforts to prevent the breakup of this Indian family because OCS did not provide Chloe  



                                                                

a parenting plan that would work for her and OCS would not allow her to have Timothy  



in her home to demonstrate her ability to parent Timothy full time.  We disagree.  



                                                                 

                     Before terminating parental rights to an Indian child, a superior court must  



                                              

find by clear and convincing evidence that OCS made active but unsuccessful efforts to  



                                                                                     

provide remedial services and rehabilitative programs designed to prevent the breakup  

                               49  Courts review OCS's reunification efforts on a case-by-case basis  

of the Indian family.                                                                               



          49  

                                                                                                                

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

v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 303 P.3d 465, 476  

                                                                                                                 (continued...)  



                                                                -18-	                                                             6965  


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

                                                                                                                              50  

                                                                                       

because "no pat formula exists for distinguishing between active and passive efforts." 



Generally, active efforts entail a social worker taking a parent through the steps of a  

                                                   



reunification case plan, rather than simply devising a plan and requiring the parent to  

                                                                                 

                                         51  In evaluating whether OCS met its active efforts burden,  

develop her own resources.  

                                              



a  court  may  consider  a  parent's  demonstrated  lack  of  willingness  to  participate  in  

treatment52 and look to the state's involvement in its entirety.53  



                    Here, the trial court found by clear and convincing evidence that OCS had  

                                                                



met  its  active  efforts  burden,  noting  "remarkable,"  "extraordinary,"  and  "amazing"  



                     

efforts on the part of OCS, the Tribe, Southeast Alaska Regional Health Consortium, and  



              

Chloe's  attorneys, to get Chloe's attention focused on reunification.  The trial court  



                                                

pointed to numerous examples, including Graham's tremendous hands-on involvement  



                        

and her special efforts to develop a working relationship with Chloe to help her succeed  



                      

in parenting.  Graham gave Chloe her personal cell phone number, took Chloe to lunch,  



and facilitated family gatherings, often on Graham's own time.  Graham dug into her  



own pocket to purchase and deliver cleaning supplies for Chloe, and she transported  



Chloe herself, provided bus passes, and arranged for other transportation.  She even took  



care of Chloe's dog while Chloe was away from home.  



          49(...continued)  



(Alaska 2013).  



          50        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).  



          51  

                                                          

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

244 P.3d 1099, 1114 (Alaska 2010) (citations omitted).  



          52        Id.  



          53        Maisy W. , 175 P.3d at 1268.  



                                                             -19-                                                        6965
  


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

                   Following  the  trial  court's  December  2012  order,  OCS  participated  in  



                                                                54  

monthly status  hearings held by the court.                         There were also weekly case-planning  



meetings, mediation, and coordination between OCS, Catholic Community Services, and  



the Tribe to remove all obstacles to Chloe's reunification with Timothy, and regular  



                                                                                               

communication  with  Chloe  regarding  her  case  plan.                          Graham  also  requested  active  



assistance from OCS mental health clinician Weltzin, to be sure OCS was providing  



                                                             

adequate resources for Chloe.  Additional examples of OCS's efforts include counseling,  



                                                                           

other therapy, and financial assistance. OCS social workers met regularly to brainstorm  



different approaches that might work with Chloe, but Chloe chose not to attend these  



meetings.  OCS placed Timothy with Chloe's immediate family, transported him to and  



                        

from visits, and arranged assessments of his development.  Martin Tyska from Catholic  



                    

Community  Services  spent  almost  70  hours  working  with  Chloe  on  parenting  and  



                            

cooking, and they even went together to buy diapers.  Timothy's Guardian Ad Litem,  



           

Debra Schorr, testified that OCS made "tremendous efforts" toward progress, despite  



Chloe's limited cooperation.  



                                      

                   Because  of  the  undeniably  excellent  efforts  OCS  made  to  prevent  the  



breakup of this family, we affirm the trial court's finding.  



                                    

          D.	       The Trial Court Did Not Err In Finding That Returning Timothy To  

                    Chloe Likely Would Result In Serious Harm.  



                                                                                                               

                    Chloe argues that the trial court erred in finding that returning Timothy to  



her  likely  would  result  in  serious  harm  to  Timothy.    She  claims  that  the  trial  court  



                                                     

improperly based its decision upon the testimony of witnesses who paid no attention to  



          54       We also commend the trial court on its thoughtful approach to this case and  



its own efforts, scheduling frequent hearings to monitor Chloe's progress, providing  

encouragement to Chloe, and giving her every opportunity to succeed.  



                                                            -20-	                                                         6965  


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

Chloe's Tlingit heritage.  Chloe maintains that she has demonstrated an ability to care  



for Timothy and has never hurt him.  Chloe's arguments lack merit.  



                                                                                     

                    Before terminating parental rights, ICWA requires that the trial court find  



"beyond a reasonable doubt, based on evidence that includes testimony of qualified  



                                                        

expert witnesses, that the continued custody of the child by the parent . . . is likely to  



                                                                                             55  

result in serious emotional or physical damage to the child."                                    This finding requires  



                                                                                                 

proof that "the parent's conduct is likely to harm the child, and proof that it is unlikely  



                                                       56  

the parent will change her conduct."                       These two elements can be proved through the  



                                                                                                                                57  

                                                                 

testimony of a single expert witness or by a combination of expert and lay witnesses. 



                                                                 

Whether expert testimony in a CINA case satisfies ICWA requirements is a pure legal  



                                          58  

                                                                                                        

question reviewed de novo.                    Serious harm "can be proved through the testimony of a  



                                                                                                       

single  expert  witness,  by  aggregating  the  testimony  of  expert  witnesses,  or  by  

aggregating the testimony of expert and lay witnesses."59  



                                               

                    Finding  beyond  a  reasonable  doubt  that  Timothy  was  likely  to  suffer  



emotional  or  physical  damage  if  Chloe's  rights  were  not  terminated,  the  trial  court  



focused on the three-year relationship (since birth) developed between Timothy and his  



                                                                      

foster parents and the harm that would come if custody were moved to Chloe.  The court  



          55        Lucy J. , 244 P.3d at 1117 (quoting                 Marcia V. v. State, Office of Children's  



Servs., 201 P.3d 496, 503 (Alaska 2009)).  



          56        Id. (citation and internal quotation marks omitted).  



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



2000) (citations omitted).  



          58  

                                                      

                    E.A.  v. State, Div. of Family & Youth Servs., 46 P.3d 986, 989 (Alaska  

2002).  



          59        L.G. , 14 P.3d at 950 (citations omitted).  



                                                              -21-                                                         6965
  


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

                                                           

predicted that based upon the evidence presented at trial, if termination were not granted,  



                                                                                                                   

Timothy would continue in foster care for several years without resolution and would  



                                                                                                

experience harm stemming from lack of permanence in his life. The trial court's finding  



                                                                                                               

was based on the testimony of numerous witnesses, including Graham and qualified  



                                                 60                                  61 

ICWA experts Dr. Youngblood     and Jeannie Arledge.                                      Dr. Youngblood's reports  



stated that when intoxicated, Chloe was unable to put Timothy's basic needs ahead of her  

                                                                                                



own, even his basic needs for food and safety.  Arledge testified that Chloe's mental  

                                                              



health issues would make her emotionally unavailable to Timothy, and her substance  



abuse issues would put him at risk of harm.  



                                                                                                   

                    The record also contains evidence that the trial court invited input from the  



                                                                                                

Tribe to address any issues that might be particular to Chloe's Alaska Native heritage,  



                                                                                                  

and the Tribe expressed concerns about Chloe's failure to take the opportunity to provide  



OCS with proof of sobriety by urinalysis or the substance abuse assessment done at  



                                                                                                                    

Rainforest Recovery Center.  The Tribe considered tradition and culture and noted that  



it was in Timothy's best interests to continue living in his current home with the only  



family  he  has  ever  known.    Despite  its  noted  grief  and  sadness  at  recommending  



                                                                             

termination of Chloe's parental rights to Timothy, the Tribe recognized that there is "a  



          60        Dr. Youngblood testified that at the time of trial, she had been practicing  



for  seven  years  in  Ketchikan  and  had  previously  been  qualified  as  an  expert  in  

                 

psychological  evaluations.    The  trial  court  qualified  her  as  an  expert  in  clinical  

psychology.  



          61  

                                                                                                               

                    Arledge is regional staff manager for OCS for the southeast region, with a  

                                                           

bachelor's degree in psychology and a master's degree in social work, and 14 years  

experience with OCS.  Arledge testified that she had previously been qualified as an  

expert in the areas of child protection and permanency.  She started receiving ICWA  

                                                                                                         

training in 1999 and approximately 80 percent of her cases involve ICWA.  



                                                              -22-                                                         6965
  


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

loving, supportive extended family member that is available and eager to be [Timothy's]   



life long placement."    



                                                                                            

                   We  conclude  that,  based  on  Chloe's  untreated  substance  abuse  and  



                                                                                 

underlying emotional issues, as well as Timothy's option for permanency with the family  



                                                                                   

he has lived with since birth, the trial court did not err in finding beyond a reasonable  



                                                                                               

doubt that allowing Chloe custody of Timothy likely would result in serious emotional  



or physical damage to Timothy.  We therefore affirm the trial court's findings.  



          E.	      The Trial Court Did Not Err In Finding That Termination Of Chloe's  

                   Parental Rights Was In Timothy's Best Interests.  



                   Chloe argues that the trial court erred in finding that termination of her  



                                                                                                 

parental rights was in Timothy's best interests because the trial court did not consider the  



existing bond between her and Timothy or her consistent demonstration of desire to care  



for her son.  We disagree.  



                                                                                                      

                   Before terminating parental rights to a child, the superior court must find  

                                                                                                                  62  The  

by a preponderance of the evidence that termination is in the child's best interests. 



court may consider the statutory factors listed in AS 47.10.088(b) in determining whether  



termination of parental rights is in the best interests of the child, including:   



                                                                             

                   (1)  the likelihood of returning the child to the parent within  

                   a reasonable time based on the child's age or needs;  

                   (2)  the amount of effort by the parent to remedy the conduct  

                   or the conditions in the home;  

                   (3)  the harm caused to the child;  

                   (4)  the likelihood that the harmful conduct will continue; and  

                                                         

                   (5)  the history of conduct by or conditions created by the  

                                                                    

                             [63] 

                   parent.         



          62       CINA Rule 18(c)(3); see also AS 47.10.088(c).  



          63       AS 47.10.088(b).  



                                                           -23-                                                        6965  


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

                      

The superior court may also consider any other facts relating to the best interests of the  



                                                                                                    64  

                                                                                                        The superior court  

child and need not accord a particular weight to any given factor. 

may consider the bonding that has occurred between the child and his foster parents,65  



                                       66                                                                    67 

                                                                                     

the need for permanency,                  and the offending parent's lack of progress.                            The superior  



                                                                                       

court is not required to consider or give particular weight to any specific factor, including  

a parent's desire to parent or her love for the child.68  



                     Recognizing the importance of permanency and considering Timothy's  



healthy relationship with the Campbells, the trial court found that OCS had established  



by  a  preponderance  of  evidence  "quite  convincingly"  that  termination  of  Chloe's  



                                                                                                        

parental rights to Timothy was in his best interests.  Despite OCS's and the trial court's  



                                                                 

clear expectations and regular monitoring of the situation, Chloe showed little change in  



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



Servs., 289 P.3d 924, 932 (Alaska 2012) (citations omitted).  



          65        See Emma D. v. State, Dep't of Health & Soc. Servs., Office of Children's         



Servs., 322 P.3d 842, 853 (Alaska 2014);                      Amy M. v. State, Dep't of Health & Soc. Servs.,  

Office of Children's Servs., 320 P.3d 253, 261 (Alaska 2013).  



          66  

                                                                           

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

291 P.3d 957, 968 (Alaska 2013).  



          67  

                                                                                             

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

Services, Mem. Op. & J. No. 1495, 2014 WL 1691614, at *7 (Alaska Apr. 23, 2014).  



          68        See, e.g., Barbara P. v. State, Dep't of Health & Soc. Servs., Office of  



                                                     

Children's Servs., 234 P.3d 1245, 1263-64 (Alaska 2010) (despite testimony that mother  

                                                                                            

and children bonded during their regular and positive visits, and that termination of bond  

                                                                                       

would be traumatic to the children, trial court did not err in determining that termination  

of parental rights was in children's best interests based on their need for permanency,  

stability they enjoyed in their foster home, and the fact that neither biological parent  

would be ready to care for the children on a full-time basis within a reasonable period  

of time).  



                                                               -24-                                                          6965
  


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

her life, particularly          between   the first termination              trial in   2012   and   the second trial,  



almost one year later.  Several witnesses with direct knowledge of Timothy's current  



                                                                                                              

placement and Chloe's abilities, including Graham, Schorr, and Arledge, testified that  



Timothy needed permanency and that, because of Chloe's history and the option for  



                                                                                          

Timothy to continue living with the Campbells, reunification would not be in Timothy's  



best interests.  In light of the trial court's discretion in determining which factors to  



                        

consider in  its  best interests analysis, we conclude that the court properly took into  



                                                            

account factors such as Timothy's need for permanency, his bond with the Campbells,  



                                                            

and the likelihood that Chloe would not be ready to provide full-time care for Timothy  



                                                                                                             

within a reasonable period of time.  We therefore affirm the trial court's best interests  



finding.  



V.        CONCLUSION  



                    We AFFIRM the trial court's decision in all respects.  



                                                             -25-                                                       6965
  


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

BOLGER, Justice, concurring.  



                                                                 

                     I agree with the majority of the court's opinion.  But I disagree with the  



                                                                                                          

decision to review Chloe's claim of ineffective assistance of counsel. Chloe did not raise  



                                                             

this claim in the trial court, so we have no superior court order to review directly.  And  



the  record  contains  no  explanation  of  her  attorney's  decision  that  would  assist  our  



            1  

review.   We generally decline to consider a claim that is raised for the first time on  

appeal.2  



                     The court's opinion notes there is no record support for Chloe's claim of  



                                                                                                         

ineffective  assistance  and  apparently  concludes  that  the  record  shows,  beyond  a  



                                                         

reasonable doubt, that her counsel's incompetence did not contribute to the outcome of  



              3  

                                                                                                               

this case.   However, it is unlikely the trial court record will contain the evidence of the  



                      

impact of her attorney's decisions when Chloe was represented in the trial court by the  



same counsel whose conduct she challenges on appeal.  In my opinion, we should avoid  



                                          

direct review of this issue unless the appellant has had a fair opportunity to develop a  



record.  



          1          See  Nelson  v.  State,  273  P.3d  608,  612  (Alaska  2012)  (requiring  a  



challenging party to present "some evidence ruling out the possibility of a tactical reason  

                                                                     

explaining" an attorney's conduct).  



          2          See Grace L. v. State, Dep't of Health & Soc. Servs ., 329 P.3d 980, 989  

                                                                                                         

(Alaska 2014) (citing Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska  

                                                                                              

2007)) (declining to review an ineffective assistance of counsel claim that was not raised  

                                                                                                                       

in the superior court).  



          3  

                                                                 

                     See David S. v. State, Dep't of Health & Social Servs., 270 P.3d 767, 784  

                                             

(Alaska 2012) (adopting the two-pronged test for ineffective assistance of counsel from  

Risher v. State ,  523 P.2d 421, 425 (Alaska 1974)).  



                                                               -26-                                                          6965
  


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

                                        

                     Many state courts simply decline to address an ineffective assistance of  



                                                                                                                               4  

                                                                                                                                  In  

counsel claim in termination cases unless the claim has been raised in the trial court. 



                                     

 Wetherhorn  v.  Alaska  Psychiatric  Institute,  in  the  context  of  a  civil  commitment  



proceeding,   we   discussed   the   reasons   for   declining   direct   review   under   these  



circumstances:  



                     [I]t  is  difficult  for  an  appellate  court  to  review  a  claim  of  

                                                        

                     ineffective  assistance  of  counsel  unless  a  record  has  been  

                                                                                     

                     developed that includes findings of facts and conclusions of  

                     law regarding the claim.  Therefore, in Barry v. State , the  

                     court of appeals "require[d] that the question of ineffective  

                     assistance of counsel be argued first to the trial judge either  

                     in    a   motion        for    a    new      trial    or     an    application         for  

                                                                          

                     post-conviction  relief."    In  this  case,  we  cannot  review  a  

                     claim   for   ineffective   assistance   of   counsel   without   an  

                     explanation in the record for counsel's actions; otherwise we  

                                                                                              

                     become           engaged           "in      the      perilous          process          of  

                                                                                          

                     second-guessing."  Because in this case no record has been  

                                                    

                     developed, we do not review the issues. We therefore require  

                                                                                   

                     respondents  to  establish  a  record  concerning  counsel's  

                     challenged acts or omissions by applying to the trial court to  

                                                                                     

                     seek a new commitment and medication hearing by a motion  

                                                           

                     for relief under Alaska Civil Rule 60(b) or by a Civil Rule 86  

                                                                 

                                                        [5] 

                     habeas corpus petition.  



          4          See, e.g., K.H. v. Jefferson Cnty. Dep't of Human Res                           ., 106 So. 3d 420, 423  



(Ala. Civ. App. 2012) ; Porta v. Arkansas Dep't of Human Servs ., 431 S.W.3d 383, 387   

(Ark. App. 2014); In re Marriage of Stephen P ., 153 Cal. Rptr. 3d 154, 161 (Cal. App.     

2013); L.H. v. Dep't of Children & Families , 995 So. 2d 583, 584-85 (Fla. Dist. App.  

2008); In re S.D. , 671 N.W.2d 522, 530 (Iowa App. 2003); In re S.P. , 76 A.3d 390, 394  

                                                                                                            

n.4 (Me. 2013); In re Oleg , 776 N.E.2d 1039 (Mass. App. 2002); Matter of the Welfare  

of J.M.K.A., Child, No. Co-97-1156, 1997 WL 770399, at *3 (Minn. App. Dec. 16,  

                                                                                                               

 1997); Matter  of  C.C. ,  907  P.2d  241,  244-45  (Okla.  Civ.  App.  1995);  Interest  of  

                                                                                       

M.D.(S) ., 485 N.W.2d 52, 55-56 (Wis. 1992).  



          5          Wetherhorn, 156 P.3d at 384 (footnotes and citations omitted).  



                                                               -27-                                                          6965
  


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

I believe we should continue to follow this reasoning unless there is a compelling reason                



not to do so.  



                                                                                                                   

                     As the Wetherhorn court noted, the Alaska Court of Appeals addressed this  



                                                                6  

issue many years ago in Barry v. State .   In  Barry , the court noticed "an increasing  



number  of  direct  appeals  raising  the  issue  of  ineffective  assistance  of  counsel  on  



                                7  

                                                                                 

inadequate records."   The court noted that in these cases "[t]he issue was not presented  



to the trial court, and findings of fact and conclusions of law were not adopted" regarding  



                                    8  

the defendants' claims.   The court concluded that such claims could not "be effectively  

reviewed for the first time on appeal."9  



                     We are facing the same situation.  As the court's opinion notes, we have  



reviewed  numerous  appeals  in  parental  rights  termination  cases  where  the  record  is  



simply inadequate to make out a case of ineffective assistance of counsel.  There is no  



                                           

reason to believe a litigant would be able to make an adequate record when represented  



                                                                                                      

by the same counsel whose effectiveness is at issue.  I believe we should simply decline  



direct review of these claims.  



          6          675 P.2d 1292, 1295 (Alaska App. 1984).  



          7          Id.  



          8          Id.  



          9          Id.  



                                                                -28-                                                               6965  

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