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. Sylvia L. v. State, Dept. of Health & Social Services, Office of Children's Services (2/20/2015) sp-6984

Sylvia L. v. State, Dept. of Health & Social Services, Office of Children's Services (2/20/2015) sp-6984

        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@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



SYLVIA L.,                                        )  

                                                  )        Supreme Court No. S-15586  

                         Appellant,               )  

                                                  )        Superior Court Nos. 3AN-12-00307/  

        v.                                        )        3AN-13-00100/00229 CN  

                                                  )  

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

DEPARTMENT OF HEALTH AND                          )
  

SOCIAL SERVICES, OFFICE OF                        )        No. 6984 - February 20, 2015
  

CHILDREN'S SERVICES,                              )
  

                                                  )  

                         Appellee.                )  

                                                  )  



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

                 Judicial District, Anchorage, Patrick J. McKay, Judge.  



                 Appearances:    Gregory  M.  Heritage,  Heritage  Law  Firm,  

                 LLC, Anchorage, for Appellant.  Jennifer A. Currie, Senior  

                 Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                 Geraghty, Attorney General, Juneau, for Appellee.  



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

                                                                 

                 Bolger, Justices.  



                 MAASSEN, Justice.  



I.      INTRODUCTION  



                 A mother appeals the  termination of her parental rights to three of her  



children.  She contends that the trial court erred in (1) finding that the children were  


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

children  in  need  of  aid  because  of  the  mother's  mental  illness,  a  statutory  basis  for  

                                                 



termination not alleged in the petition; (2) finding that the Office of Children's Services  

                                                                                               



(OCS) made the necessary efforts towards reunification; and (3) allowing two witnesses  



                                                                                                    

to testify as experts.  We affirm the trial court's order.  We hold that (1) the trial court's  



finding  that  the  children  were  children  in  need  of  aid  was  supported  by  alternative  



grounds that are not challenged on appeal; (2) its finding that OCS made the required  



                                                                                                      

efforts to reunify the family was supported by the evidence; and (3) its acceptance of the  



challenged expert testimony was not an abuse of discretion.  



II.       FACTS AND PROCEEDINGS  



          A.       The Family And OCS Involvement  

                             1 has had five children, three of whom, Daniel, Laura, and Julie, are  

                    Sylvia                                                                                  



involved in this appeal.  Julie, the youngest, is an "Indian child" as defined by the Indian  

                                                                 



                                                      2  

Child Welfare Act of 1978 (ICWA).   Sylvia has a history of mental illness and drug  



                                                                                                 

abuse.   OCS's first contact with her, in 2002, concerned a child not involved in this  



                             

appeal; Sylvia was diagnosed at that time with dysthymia, major depressive disorder, and  



attention deficit hyperactivity disorder (ADHD).  



                   Daniel, the oldest of the three children, was born positive for cannabis in  



           

2008.  For his first few years he lived with Sylvia in the home of her grandmother, where  



                                                                                                  

he was raised by various family members, including Sylvia herself.  OCS's involvement  



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



          2        See 25 U.S.C.  1903(4) (2012).  Julie's tribe is the Seldovia Village Tribe,  



which intervened and supported OCS's position as to Julie.  



                                                             -2-                                                          6984  


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

with Daniel was prompted by concerns that he was malnourished and that Sylvia could  

                                                             

not properly care for him because of her mental health and substance abuse issues.3  

                                                                                                                                 



                    In March 2009 Good Samaritan Counseling Center's medical director, Dr.  



Jan E. Kiele, assessed Sylvia and diagnosed her with depressive disorder not otherwise  

                                                                    



specified and ADHD.  Dr. Kiele found that Sylvia's prognosis at the time was good if  

                



she followed through with medical treatment and individual psychotherapy.   



                                                                                                         

          When Laura was born a few months later, she tested positive for opiates.  From  



birth Laura was raised by another family and knows Sylvia as her "auntie," not her  



biological mother.   



                    In June 2010 Sylvia was assessed at Counseling Solutions of Alaska and  



                                                                                 

diagnosed with anxiety, depression, and ADHD. She followed through with a part of the  



recommendations - medication management meetings - but not with the individual  



                                          

counseling.    In  2011  and  2012  she  had  several  drug-related  arrests  and  probation  



violations.  



                                                                                                    

                    Julie was born cocaine-positive in September 2012.  OCS took custody of  



                                                          

her shortly after her birth and placed her in foster care as soon as she was discharged  



from the hospital.  



                                                                            

                    The primary case worker at OCS for Sylvia's family was Jessica Mulhern.  



                                                                                          

She  testified  that  when  she  and  Sylvia  met  after  Julie's  birth,  Sylvia  had  difficulty  



                                                                                                       

tracking a conversation, and Mulhern suspected she was under the influence of drugs,  



                                                                                                  

although Sylvia denied it.  Mulhern testified that she was unable to develop an in-home  



                                                                

safety plan for Sylvia because there were no identified participants for such a plan, but  



                                        

she did develop a family contact plan for supervised visitation at the home of Julie's  



                                                                                 

foster family.  She also offered Sylvia a bus pass, but Sylvia declined it and only visited  



          3         OCS eventually took custody of Daniel in March 2013.  



                                                               -3-                                                             6984  


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

                                            

Julie "maybe once or twice."  Mulhern testified that she had "only very minimal contact"  



with Sylvia throughout the case.  



                                                                                                             

                    Mulhern  also  made  a  number  of  referrals.                       One  was  to  Dr.  Cherry,  a  



                                                                

psychiatrist who does neuropsychological evaluations, but Sylvia never returned to OCS  



                                

to sign the required referral form.  Mulhern also referred Sylvia to parenting classes,  



                            

which Sylvia did not complete, and to ongoing urinalysis (UA) tests; she explained to  



Sylvia that missed UA tests would be considered positive.  



                                                                    

                    Sylvia did receive a psychiatric assessment at Good Samaritan Counseling  



Center in November 2012, after having missed several appointments.  She was diagnosed  



                                                       

with post-traumatic stress disorder, generalized anxiety disorder, and major depressive  



disorder.  OCS also referred her to Akeela Assessment Center for an integrated substance  



abuse  and  mental  health  assessment,  which  was  conducted  by  Dorothy  Pickles  in  



December 2012.  Sylvia sporadically attended medication management meetings at Good  



                                                                                                                       

Samaritan but was eventually discharged for non-attendance.  OCS lost contact with her  



                                           

entirely sometime in March 2013.  Mulhern testified at trial that she tried to reach Sylvia  



through her probation officer but Sylvia was listed as "abscond."  In other attempts to  



                                                                                                       

find her, Mulhern made unannounced visits to Sylvia's family home, called her attorney,  



                                                                                        

sent letters to her grandmother's address, left messages on her cell phone, checked with  



a previous counseling service, and made regular checks of a prison database.  In the  



                                                

meantime,  Mulhern  arranged  family  contact  for  Daniel  with  his  father  and  aunt,  



                                               

approving supervised visits at the foster home.  She developed a written case plan and  



                    

reviewed  it  with  Daniel's  father  (though  he  refused  to  sign  it).    She  made  various  



referrals for Daniel's father, but with little success.  



                    Around the same time, OCS representative Deb LeFebvre responded to  



                                                                                                                 

calls about Laura's living situation, involving allegations of domestic abuse in the family  



                                                               -4-                                                        6984
  


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

with which Laura was living.  Unable to locate Sylvia, LeFebvre filed a child in need of  

                                                                                 



aid petition for Laura, and OCS took custody of the child in June 2013.  



                                                     

                    In August 2013, OCS petitioned to terminate the parental rights of Sylvia  



to  the three children - Daniel, Laura, and Julie - and the rights of the children's  



           4  

fathers.   The petition alleged that Sylvia was not in a position to parent her children  



                                                                                               

because she had never engaged in her case plan in any real sense; had been out of contact  



                                                                  

with OCS since March 2013; struggled with ongoing substance abuse and mental health  



                                                                                      

issues but was not addressing the issues through treatment; and lacked stable housing and  



                                                    

employment.  The petition sought an order based upon clear and convincing evidence  



that  the  children  were  children  in  need  of  aid  because  they  had  been  subjected  to  



conditions  or  conduct  described  in  a  number  of  subsections  of  AS  47.10.011:  



                                                                              

(1) (abandonment), (2) (incarceration), (3) (child left with a custodian unable to provide  



                                                                                    

adequate care), (8) (parental conduct resulting in mental injury or risk of mental injury  



to the child), (9) (neglect), and (10) (substance abuse).  



                                                                                    

                    In February 2014 Sylvia was arrested and imprisoned for driving with a  



revoked license, and Mulhern visited her twice at the jail.  At trial Mulhern testified that  



                                           

other than a single visit with Daniel a few weeks before, Sylvia had had no contact with  



any of her children since "well before" OCS lost contact with her in early 2013.  



          B.        The Termination Trial And The Trial Court's Decision  



                    The termination trial was held in March 2014.  Sylvia was still incarcerated  



                                                                                                            

at the time; Daniel had just moved into the potential adoptive home of his paternal aunt;  



Laura lived in a licensed foster home; and Julie remained with the foster family she had  



been a part of since shortly after her birth.  



          4         At  the  time  of  trial,  Daniel's  father  was  on  probation  and  living  in  



Anchorage,  Laura's  father's  whereabouts  were  unknown,  and  Julie's  father  was  

incarcerated in Anchorage.  Only Daniel's father testified at the termination trial.  



                                                             -5-                                                           6984  


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

                                                                                                            

                    Julie's foster mother testified at trial.  She testified that she was open to  



contact from Sylvia but had not heard from her in over six months.  She testified that the  



other  children  in  her  home  had  bonded  with  Julie  and  that  she  hoped  to  adopt  her.  



                                               

                    OCS supervisor Jaime Muhr testified as an expert in child development,  



                                                                                          

safety threats, and mental health.  She testified that, based on her review of the exhibits  



                                                                                               

and the testimony, she believed Sylvia had a serious substance abuse problem secondary  



                                                                 

to her significant, untreated mental health issues, and that if left untreated Sylvia would  



                                                                                                         

continue to lead a life that was chaotic and unsafe for her children.  Muhr testified that  



                                                                                              

Sylvia's  mental  illness  would  not  resolve  itself  and  that  she  needed  professional  



                                                   

assistance and a healthy support system to help with daily living.  According to Muhr,  



                              

Sylvia's substance abuse affected her parenting because she was preoccupied with her  



own need for drugs to the detriment of the needs of her children.  Muhr concluded that  



                                                                      

the risk of harm Sylvia posed to Julie - both physical and emotional - was extremely  



high.  



                                                                                                            

                    The trial court found Dorothy Pickles, the counselor who evaluated Sylvia  



                                                                

at Akeela, to be qualified as an expert in substance abuse and mental health.  Sylvia's  



                                                                                                    

attorney objected to Pickles's qualifications and also objected on grounds that OCS had  



                                             

not given notice that Pickles would testify as an expert.  OCS conceded that its decision  



to present Pickles as an expert witness had been made at the last minute.  The court  



                                                                                                            

recognized the potential for prejudice but stated that "[t]he remedy for this, of course, is  



                                                                                                                  

not to exclude the testimony I've already heard, but . . . if you decide that . . . you wish  



to have an expert testify [in response], let me know and we'll resolve that."  Sylvia's  



                                                                     

attorney proceeded to question Pickles about her assessment of Sylvia; he did not request  



a  continuance  or  the  opportunity  to  present  expert  testimony  that  would  respond  to  



Pickles's opinions.  



                                                                -6-                                                         6984
  


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

                   Pickles testified that she conducted an integrated assessment of Sylvia's  



mental health and substance abuse issues in December 2012.  It was Pickles's opinion  



                                                      

that Sylvia was unlikely to curtail her substance abuse without professional intervention.  



                                                                                      

She recommended that Sylvia participate in an outpatient treatment program until she  



          

could enter a residential program and that she engage in behavior therapy, develop a  



sober support system with sober leisure time activities, participate in random UA testing,  



and comply with all Department of Corrections and OCS requirements.  



                   The  trial  court  also  heard  testimony  from  police  officers  who  had  



encountered  Sylvia  or  the  children's  fathers,  from  Sylvia's  probation  officers,  her  



                                                                                           

grandmother, Daniel's father, and Sylvia herself. At the end of trial OCS asked the court  



                                                              

to find by clear and convincing evidence that all three children had been subjected to  



                                                                     

conduct as described in AS 47.10.011 and were children in need of aid under subsections  



                                                                                                              

(1), (2), (3), (6), (8), (9), (10), and (11).  Sylvia's counsel pointed out that the petition did  



                                                                                                          

not list subsection (6) (parent's conduct causes physical harm or risk of physical harm  



to the child) or subsection (11) (parent's mental illness) as grounds for termination;  



OCS's counsel responded that Sylvia had raised the issue of mental health throughout  



                           

trial and that  the  court could read the petition liberally to allege mental illness as a  



separate ground for a Child In Need of Aid (CINA) finding.  



                   The trial court found that all three children were children in need of aid  



under  the  statutory  subsections  (1)  (abandonment),  (10)  (substance  abuse),  and  



(11) (parent's mental illness) and terminated Sylvia's parental rights.  The court found  



                                                       

that OCS had made reasonable efforts to reunify Sylvia with Daniel and Laura and active  



                                                                                                        

efforts to reunify Sylvia with Julie.  Relying in part on expert testimony from Dr. Kiele,  



Muhr,  and  Pickles,  the  court  found  beyond  a  reasonable  doubt  that  Sylvia's  mental  



illness would likely not resolve without professional intervention, and that returning Julie  



to Sylvia's custody would likely cause Julie serious emotional or physical harm.  The  



                                                             -7-                                                      6984
  


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

court found that terminating Sylvia's parental rights to all the children was in their best  

                                                                                                 



interests because they were doing well in foster care and could achieve permanency once  

                                                                                      



they were freed for adoption.  Sylvia appeals.  



III.       STANDARDS OF REVIEW  



                      In a CINA case, "we review the trial court's factual findings for clear error  

                                                                                                                                

and its legal determinations de novo."5 We review for abuse of discretion the trial court's  

                                                                                   



                                                                                           6  

determination that a witness may testify as an expert.   The trial court has abused its  

                                                                           



discretion when "the reasons for the exercise of discretion are clearly untenable and  

                                                                                                                         

unreasonable."7  



IV.        DISCUSSION  



                      Before terminating parental rights under ICWA and the CINA statutes and  

                                                                                                                              



rules, a trial court must find by clear and convincing evidence that the child is in need  

                                                      



of  aid  because  the  child  has  been  subjected  to  conduct  or  conditions  described  in  

                                                                                                        

AS 47.10.011;8 that the parent has not timely remedied the conduct or conditions that  



place the child at substantial risk of harm;9 and that OCS has made reasonable efforts  

                               



towards reunification or, in the case of an Indian child, active efforts to provide remedial  

                                                                                           



services  and  rehabilitative  programs  designed  to  prevent  the  breakup  of  the  Indian  

                                                                                                                         



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



Servs., 322 P.3d 842, 849 (Alaska 2014) (quoting                                    Chloe O. v. State, Dep't of Health &   

Soc. Servs., Office of Children's Servs., 309 P.3d 850, 855 (Alaska 2013)) (internal  

quotation marks omitted).   



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



2000) (citing Jordan v. Jordan , 983 P.2d 1258, 1261 n.5 (Alaska 1999)).  



           7          Id. (citing Bailey v. Lenord , 625 P.2d 849, 854 (Alaska 1981)).  



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



           9          AS 47.10.088(a)(2)(A); CINA Rule 18(c)(1)(A)(i).  



                                                                      -8-                                                              6984
  


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

           10  

                                                                             

family.        ICWA also requires that the 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 result in serious emotional or physical damage to  

               11  Finally, in both ICWA and non-ICWA cases, the trial court must determine  

                                                      

the child." 



by a preponderance of the evidence that "termination of parental rights is in the best  

interests of the child."12  



          A.	       Any Error In Allowing OCS's Tardy Amendment Of Its Petition Is  

                    Harmless In The Absence Of A Challenge To The Court's Alternative  

                                                                                       

                    Grounds For A CINA Finding.  



                    The trial court found that Daniel, Laura, and Julie were children in need of  

                                                                                              



aid under AS 47.10.011(1) (abandonment), (10) (substance abuse), and (11) (parent's  

                      



mental illness).  Sylvia argues that she was prejudiced when OCS added two grounds for  

                                                                



termination to the petition following  the close of evidence, one of which - mental  

                                                         



illness  -  the  court  relied  on.    Sylvia  contends  that  she  had  no  opportunity  to  seek  



discovery  related  to  these  allegations,  to  cross-examine  witnesses  about  them,  or  to  



                                                   13  

prepare  an  appropriate  argument.                      But  Sylvia  does  not  challenge  the  trial  court's  



findings that the children were in need of aid under subsections (1) and (10), which the  

                                                                                               



          10	       25 U.S.C.  1912(d) (2012); AS 47.10.086(a); CINA Rule 18(c)(2).  



          11	       25 U.S.C.  1912(f); CINA Rule 18(c)(4).  



          12        CINA Rule 18(c)(3); see also AS 47.10.088(c) (requiring consideration of  



child's best interests).  



          13        Sylvia asserts that she would have pursued a different trial strategy had she  



known that OCS intended to assert mental illness as a basis for termination, but she gives  

                                                               

no specifics.  In fact, Sylvia's mental illness was a significant issue at trial, and her need  

      

for well-directed treatment of it is the focus of her "active efforts" argument on this  

                                                           

appeal, as addressed later in this opinion.    



                                                              -9-	                                                       6984
  


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

                                      14  

                                                                                                            

petition  did  allege.                      Although  the  tardy  amendment  certainly  had  the  potential  to  



prejudice  Sylvia's  case,  under  these  circumstances  any  error  in  allowing  it  was  



                   15  

harmless.               



             B.	          The  Trial  Court  Did  Not  Err  When  It  Found  That  OCS  Made  

                          Reasonable Efforts To Reunify Sylvia With Daniel And Laura And  

                          Active Efforts To Prevent The Breakup Of Julie's Indian Family.  



                                                                                                                                                               

                          Sylvia argues that OCS failed to make reasonable efforts to reunify her with  



                                         

Daniel and Laura or - for ICWA purposes - active efforts to prevent the breakup of  



Julie's Indian family.  Sylvia claims that OCS failed to develop a case plan or provide  



                                                              

resources to effectively address her diagnosed mental illness and that beyond the initial  



                                                                               

assessment there was neither a plan nor resources to assist her with getting treatment.  



                                                                                                

She maintains that it was only through her own efforts that she received any mental  



                                                                      

health care at all but that her illness limited her ability to determine precisely what help  



she needed or how to obtain it.  



                                                                

                          Before terminating parental rights to a non-Indian child, the trial court must  



                                                                               

find  by  clear  and  convincing  evidence  that  OCS  made  timely,  reasonable  efforts  to  



provide family support services designed to prevent out-of-home placement or enable  



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



Children's Servs., 290 P.3d 421, 431 (Alaska 2012) ("Because we affirm the superior  

court's finding of abandonment, we do not reach the State's alternative argument for  

termination based on neglect.").  



             15           See Alderman v. Iditarod Props., Inc., 32 P.3d 373, 395-96 (Alaska 2001)   



(holding that the superior court abused its discretion in allowing an amendment alleging     

a new claim at the close of evidence, where the prejudice to the opposing parties due to                       

their inability to present evidence on the claim outweighed the hardship to the amending                                

party).  



                                                                               -10-	                                                                        6984
  


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

                                                              16  

                                                                                                  

the child's safe return to the family home.                       Whether OCS made these reasonable efforts  



                                                         17  

                                                                                

is a mixed question of fact and law.                         By statute, OCS's duties include the duty to:  



                                                                                                                  

(1) identify family support services that will assist the parent in remedying her conduct;  



(2)  actively  offer  those  services  to  the  parent  and  refer  the  parent  to  them;  and  



                                                           18  

                                                                                          

(3) document the department's actions.                         The requirement that OCS offer reunification  



services "is fulfilled by setting out the types of services that a parent should avail . . .  



                                                                                                           19  

herself of in a manner that allows the parent to utilize the services."                                        Reunification  



efforts  need  not  be  perfect;  they  need  only  be  reasonable  under  the  circumstances,  



depending  on  the  parent's  substance  abuse  history,  willingness  to  participate  in  



               20                                                                      21 

treatment,          the  history  of  services  provided  by  OCS,                          and  the  parent's  level  of  



                   22  

cooperation.           The reasonableness of OCS's efforts may also depend on the parent's  



          16        AS 47.10.086(a); AS 47.10.088(a)(3).  



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



Servs., 322 P.3d 842, 849 (Alaska 2014).  



          18        AS 47.10.086(a).  



          19  

                                                                                                                   

                    Audrey H. v. State, Office of Children's Servs. , 188 P.3d 668, 679 (Alaska  

2008) (quoting Frank E. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  

Servs., 77 P.3d 715, 720 (Alaska 2003)) (internal quotation marks omitted).  



          20  

                                                                                                          

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

320 P.3d 253, 259 (Alaska 2013).  



          21        Audrey H. , 188 P.3d at 679 n.35 ("[T]he determination of whether OCS  



                                                                                                         

made reasonable efforts may involve consideration of all interactions between the parent  

and OCS."); Erica A. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  

Servs., 66 P.3d 1, 7 (Alaska 2003) ("[T]he reasonableness of the division's efforts . . .  

                                                                                                     

must be viewed in light of the entire history of services.").   



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



                                                                                                                (continued...)  



                                                               -11-                                                         6984
  


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

expressed  interest  in  parenting,  with  OCS's  responsibility  lessening  as  the  parent's  

interest wanes.23  



                    Before terminating parental rights to an Indian child, the trial 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  

                                            



                               24  

of the Indian family.              "OCS makes active efforts to reunite a family when it helps the  

                                                                                                                      



parents develop the resources necessary to satisfy their case plans, but its efforts are  

                                                                    

passive  when  it  requires  the  parents  to  perform  these  tasks  on  their  own."25                                        In  



determining whether OCS made active efforts, the trial court may consider all services  

                                                                                              



provided during the family's involvement with OCS; it need not focus on a distinct  



                       26  

                           Also, the trial court may properly consider all of OCS's efforts from  

period of time. 



                                                                                                                       27  

the  time  it  first  became  involved  with  the  family  until  the  termination  trial.                                   "[A]  

                                       



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

                                                                 



          22(...continued)  



Servs., 310 P.3d 943, 953 (Alaska 2013).  



          23        Audrey H. , 188 P.3d at 679.  



          24        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  

(Alaska 2013).  



          25  

                                                                                            

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

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



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



Servs., 175 P.3d 1263, 1268-69 (Alaska 2008).  



          27        Sandy B., 216 P.3d at 1189.  



                                                              -12-                                                         6984
  


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

                                                                                        28  

in determining whether the state has taken active efforts."                                 Failed attempts to contact  



the parent or obtain information from her may qualify as active efforts if the parent's  



                                                                                                                                 29  

                                  

evasive or combative conduct "rendered provision of services practically impossible." 



And  "[i]f  a  parent  has  a  long  history  of  refusing  treatment  and  continues  to  refuse  



                                                                                                                     

treatment, OCS is not required to keep up its active efforts once it is clear that these  



                                    30  

efforts would be futile."                



                                                                                                          

                    In this case, the trial court stated in its oral findings that OCS made active  



                                                                                                       

efforts as to Julie and reasonable efforts as to all the children  by  referring Sylvia to  



                                                                   

substance abuse assessments, mental health counseling, parenting classes, and domestic  



                                                           

violence counseling; and by providing transportation assistance, arranging family visits,  



requesting random UA testing, developing case plans, and attempting to locate Sylvia  



                                                                                                                

once OCS lost contact.  The trial court added more history in its written findings:  (1)  



                                                       

after taking custody of Sylvia's first child in 2002, OCS referred her to parenting classes  



                                                                                                                         

at the Alaska Women's Resource Center and to a psychological evaluation; (2) in 2008  



                                                                                             

OCS referred her to UA testing to demonstrate her sobriety; (3) in 2009 OCS referred  



                                                                                       

her to a psychological assessment, arranged a substance abuse assessment, offered her  



transportation  for  getting  to  and  from  these  services,  referred  her  to  mental  health  



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



2002) (quoting N.A. v. State, Div. Of Family & Youth Servs. , 19 P.3d 597, 603 (Alaska  

                                                                                                                  

2001)) (internal quotation marks omitted).  



          29        Id. at 990.  



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



2008); see also Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's  

                                 

Servs ., 204 P.3d 1013, 1021 (Alaska 2009) ("Where services have been provided and a  

                                                                                                      

parent has demonstrated a lack of willingness to participate or take any steps to improve,  

this court has excused minor failures by the state and rejected arguments that the state  

                                                                                                

could possibly have done more.").  



                                                              -13-                                                         6984
  


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

counseling, set up case plan meetings, referred her to random UA testing, referred her  

                                   



to domestic violence counseling services, and arranged for family contact; and (4) when  

                                                             



Sylvia fell out of touch with OCS, her caseworker made numerous and varied attempts  

                                                                                                  



to find her.  Having finally located Sylvia, her caseworker discussed the case plan with  

     



her and arranged for visitation with all three children.  



                                                                                                                    

                   We observe that there is little evidence of OCS efforts in late 2012 to help  



Sylvia follow through with the specific treatment options that Pickles recommended.  But  



                                                                                                                

Sylvia disappeared just a few months after Pickles's assessment and could not be located  



until she was arrested in late 2013.  And OCS provided ample evidence that its social  



                                                  

workers had attempted for many years to help Sylvia develop the necessary skills to  



                                                                                            

parent her children and get treatment for her mental health and substance abuse issues,  



       

and that her recovery was stymied by her own evasiveness and apparent lack of interest.  



In the context of OCS's history with Sylvia, we must affirm the trial court's finding that  



                                              

OCS made the required efforts to reunify the children with their mother and to prevent  



the breakup of the Indian family.  



          C.	      The Trial Court Did Not Abuse Its Discretion When It Allowed OCS's  

                   Witnesses To Testify As Experts.  



                   Before terminating parental rights to an Indian child, the trial court must  



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 result in  

                                                                         31  Support for this finding may come  

serious emotional or physical damage to the child." 



from the testimony of one or more expert witnesses or from aggregating the testimony  

                                                                            

of lay and expert witnesses.32  



          31	      25 U.S.C.  1912(f) (2012); CINA Rule 18(c)(4).  



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



                                                                                                         (continued...)  



                                                           -14-                                                          6984  


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

                         Sylvia argues first that the trial court erred in allowing OCS to call Dorothy  



                                                                                             

Pickles as an expert witness when it had failed to identify her as an expert before trial.  



Sylvia  asserts  that  she  suffered  prejudice;  she  contends  that  had  she  known  Pickles  



                                                                      

would be testifying as an expert, she would have requested additional discovery about  



                                                     

her qualifications, been able to mount a more effective cross-examination, and may have  



obtained her own expert to assist in her preparation.  



                                                                               

                         OCS did identify Pickles as a trial witness, just not as an expert.  CINA  



Rule 8(d)(2) provides that for an expert like Pickles who "has had involvement with the  



family and" who "has not been retained solely for the purpose of providing an expert  



                                                                                                                 

opinion," the party who intends to call her must disclose her identity and "provide any  



                                                                                                                                           

existing reports or written statements of these experts."  OCS asserts that it did provide  



                                                        

Sylvia with Pickles's existing reports and that Sylvia suffered no prejudice from the lack  



of  a  formal  expert  designation.    Regardless  of  whether  OCS's  expert  notice  was  



                                                                                                                                                             33  

                                                                                                                                      

deficient, we see no abuse of discretion in the trial court's resolution  of the issue. 



                                                                                                                                      

Sylvia had the opportunity to challenge Pickles's qualifications and did so extensively  



                                                                                                                                 

on  cross-examination;  more  importantly,  Sylvia  did  not  take  up  the  trial  court's  



suggestion that she request a rebuttal expert if she thought she needed one.  



                                               

                         Sylvia also argues that the opinion of another ICWA-qualified expert -  



OCS's own employee, Muhr - was necessarily biased because of her employment.  



            32(...continued)  



2000).  



            33           See D.M. v. State, Div. of Family & Youth Servs.                                           , 995 P.2d 205, 210-12  



(Alaska 2000) (noting that although the court did not condone the timing of the State's             

actions, there was no due process violation where the parent failed to show prejudice   

from the State's failure to give notice that it would request that CINA findings be made     

under  a  clear  and  convincing  standard  rather  than  a  preponderance  of  the  evidence  

standard).  



                                                                            -15-                                                                      6984
  


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

Sylvia asserts that in light of the significance of a parent's rights and the nature of OCS's  



                                                                              

role, expert testimony by OCS employees should be viewed with skepticism, and OCS  



                                                                      

should bear some burden to demonstrate that its employee has formed an expert opinion  



independent of the position of the agency.  Sylvia emphasizes that Muhr's testimony was  



                                                                             

based primarily on her review of the files and other information OCS provided her for  



litigation  purposes,  and  that  she  never  personally  met  or  interviewed  Sylvia  or  the  



children.  



                   But  regardless  of  where  Muhr  got  her  information,  her  testimony  was  



                                                                                                                    34  

"sufficiently  grounded  in  the  facts  and  issues  of  the  case"  to  be  admissible.                                 Her  



                                                                                                              

testimony, based on OCS's records, took into account Sylvia's history of trauma as a  



                             

child and an adult, her substance abuse, her underlying untreated mental health issues,  



                       

the  likelihood  that  her  mental  health  issues  would  not  resolve  without  professional  



intervention, the number of years she had been dealing with substance abuse, and the  



                                                                                                               

length of time Julie had been in OCS custody.  Nothing precludes the trial court from  



accepting such testimony from an OCS employee, so long as a sufficient foundation has  



been  laid  regarding  the  expert's  education,  experience,  employment  history,  and  



            35  

training.         As  for  Sylvia's  fundamental  claim  that  an  OCS  employee  cannot  testify  



          34       See Marcia V. v. State, Office of Children's Servs.                          , 201 P.3d 496, 507  



(Alaska 2009) (quoting J.A. v. State, Div. of Family & Youth Servs. , 50 P.3d 395, 400  

(Alaska 2002)) (internal quotation marks omitted) (holding that the trial court may rely  

on the testimony of an expert, even if the expert did not interview the mother, daughter,  

or non-OCS service providers).  



          35  

                                               

                   See id. at 504-05; In re Candace A ., 332 P.3d 578, 585-86 (Alaska 2014)  

(reversing superior court decision that OCS supervisor did not qualify as an ICWA  

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

270 P.3d 767, 782 n.48 (Alaska 2012) (noting in dictum that "it seems most unlikely that  

                                                                                            

[an  OCS  supervisor]  would  not  qualify"  as  an  expert  "given  [her]  high  degree  of  

                                                                                                           (continued...)  



                                                            -16-                                                       6984
  


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

                        

without bias, it is well settled that an allegation of bias goes to testimony's weight, not  



                        36  

its admissibility.           Sylvia's arguments must therefore be rejected.  



V.        CONCLUSION  



                                                         

                    For the reasons set forth above, we AFFIRM the decision of the trial court.  



          35(...continued)  



experience and previous qualification as an expert"); Lucy J. v. State, Dep't of Health &  

                                                                                          

Soc. Servs., Office of Children's Servs., 244 P.3d 1099, 1119 (Alaska 2010) (upholding  

                                                                                   

termination  based in part on OCS supervisor's testimony as ICWA expert).  



          36  

                                                                                        

                    DiCarlo v. Keller Ladders, Inc. , 211 F.3d 465, 468 (8th Cir. 2000) (quoting  

4 W                                                   

      EINSTEIN 'S FEDERAL EVIDENCE   702.06[8] at 702-59 (Joseph M. McLaughlin ed.,  

                                                                                                

2d ed. 2000) for the proposition that "[a]n expert witness's bias goes to the weight, not  

                                                           

the admissibility of the testimony, and should be brought out on cross-examination");  

                                                                                                          

see also Mitchell v. State, 813 N.E.2d 422, 431 (Ind. App. 2004) ("Rule 702(a) does not  

require  that  the  [expert]  witness  be  unbiased.");  Khan  v.  State  Dep't  of  Health ,  

794 N.Y.S.2d 145, 147 (App. Div. 2005) ("The expert's alleged bias goes to the weight  

                                                                                                      

of his testimony, not its admissibility.").  



                                                             -17-                                                           6984  

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