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. Diana P. v. State, Dept. of Health & Social Services, Office of Children's Services (9/1/2015) sp-7045

Diana P. v. State, Dept. of Health & Social Services, Office of Children's Services (9/1/2015) sp-7045

         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  



DIANA P.,                                          )  

                                                   )        Supreme Court No. S-15688  

                 Appellant,                        )  

                                                   )        Superior Court Nos. 4FA-12-00096/  

         v.                                        )         97/98/99 CN  

                                                   )  

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

DEPARTMENT OF HEALTH &                             ) 

SOCIAL SERVICES, OFFICE OF                         )        No. 7045 - September 1, 2015  

CHILDREN'S SERVICES,                               )  

                                                   )  

                 Appellee.                         )  

_______________________________ )
  



                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth  Judicial  District,  Fairbanks,  Bethany  S.  Harbison,  

                 Judge.  



                 Appearances:  J. Adam Bartlett, Anchorage, for Appellant.  

                 Miranda L. Strong, Assistant Attorney General, Anchorage,  

                                                        

                 and  Craig  W.  Richards,  Attorney  General,  Juneau,  for  

                 Appellee.  



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

                                                                   

                 Bolger, Justices.  



                 STOWERS, Justice.  


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

I.        INTRODUCTION  



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



                                                                                                                1  

                                                                                                                   She argues  

daughters, all Indian children under the Indian Child Welfare Act (ICWA). 



                                                                                                 

that the trial court erred in finding that the Office of Children's Services (OCS) proved  



                                                                  

beyond a reasonable doubt that placing her children in her custody would likely put the  



children at risk of serious harm.  We affirm the trial court's decision.  



II.       FACTS AND PROCEEDINGS  



                                                                                           

                    This case involves Diana and her daughters:  Natalie was born in 2008;  



                                                                                                                         2  

                                                                                                                             The  

Selah was born in 2009; Ava was born in 2010; and Drew was born in 2011. 



                                                                                                 

children's father has relinquished his parental rights.  OCS has been involved with this  



                                                                                                        

family since 2009 because of the parents' behavior when they drink.  The children were  



adjudicated children in need of aid in March 2013.  Following a trial in the summer  



                                                                                

of 2014, the trial court terminated Diana's parental rights to the children after finding  



                                                                                                          3       4               5 

them subject to conduct or conditions described in AS 47.10.011(6),  (9),  and (10). 



          1         25  U.S.C.    1901-1963  (2012).    The  Native  Village  of  Grayling  has  



intervened on the children's behalf pursuant to 25 U.S.C.  1903(1).  



          2         Pseudonyms have been used to protect the privacy of the parties.  



          3         Alaska Statute 47.10.011(6) allows a trial court to find a child to be in need  



of aid if "the child has suffered substantial physical harm, or there is a substantial risk  

                                                                                                             

that the child will suffer substantial physical harm, as a result of conduct by or conditions  

                                                                   

created by  the child's parent, guardian, or custodian or by the failure of the parent,  

                  

guardian, or custodian to supervise the child adequately."  



          4  

                                                                                            

                    Alaska Statute 47.10.011(9) allows a trial court to find a child to be in need  

                                                                                                            

of aid if conduct or conditions created by the parent have subjected the child to neglect.  



          5  

                                             

                    Alaska Statute 47.10.011(10) allows a trial court to find a child to be in  

                                                                                                                         

need  of  aid  if  the  parent's  ability  to  parent  has  been  substantially  impaired  by  the  

                                                                                                               (continued...)  



                                                               -2-                                                         7045
  


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

Diana appeals.  



          A.       The Evidence  



                   Diana has struggled with mental illness and substance abuse since she was  



a  teenager.    When  she  was  eight  or  nine  years  old  and  living  with  her  father,  he  



                                            

committed suicide.  She went to live with her mother, who was an alcoholic.  Diana has  



                                                      

been diagnosed with and treated for bipolar disorder, and she has also been treated for  



                                                                               

substance abuse at least ten times.  Diana has shown a pattern of drinking alcohol while  



pregnant, abstaining once she learns she is pregnant, and then resuming drinking after  



                              

the  child  is  born.        She  admitted  at  trial  that  she  drank  during  three  of  her  previous  



                                                                                                

pregnancies.  Ava was born with cocaine in her system, but Diana said she did not know  



how it got there.  She speculated that someone put something in her drink one night.  



                                         

                   At the time of trial Diana lived with and was financially supported by her  



boyfriend.    She  was  23  weeks  pregnant  with  her  fifth  child  and  abstaining  from  



intoxicating  substances.    Diana  was  focused  on  healthy  activities,  such  as  fishing,  



hunting, hide tanning, beading, and learning Athabascan.  She testified that she had  



                                                           

become a totally different person over the past eight or nine months; she was much  



happier, more patient, and no longer "closed off," and did not "think [in] black and  



white."  Diana testified that her boyfriend did not have a drinking problem, although he  



was found to be driving under the influence in 2013 and drank with her in December  



2013 when she relapsed.  



                                                                                                            

                   Diana presented testimony from friends who described her past several  



                 

months of abstinence and the changes she had made since she moved to a new village  



                                                                                  

five months before trial. The witnesses stated that Diana had shown tremendous growth,  



          5(...continued)  



addictive or habitual use of an intoxicant, which has resulted in a substantial risk of harm  

                                                            

to the child.  



                                                             -3-                                                      7045
  


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

was leading a productive, sober life, and was trusted with people's children.  One of  



                                                                   

Diana's witnesses testified that she did not believe Diana had a drinking problem, but  



                                      

that witness was Diana's third-party custodian following her June 2013 driving under the  



influence arrest.  



                                                                          

                    The children's paternal great-aunt, Nancy O., appears to be the children's  



                            

final placement.   Nancy has had tribal custody of the children on and off for several  



                          

years.  She has  observed the parents' repeated pattern of abstinence from substance  



                                           

abuse, followed by relapse.  According to Nancy, "there [were] no two better people on  



                                                                                                      

this earth who could take care of those kids" when they were sober.  But when they were  



                                                                                                                    

drinking, they were not good parents.  Diana became confrontational and bossy, the  



                                                                                

children went hungry, and their home was unstable. Natalie became the caregiver of her  



siblings; when she was four years old she made her younger sisters' bottles, changed  



                                                                    

their diapers, and dressed them.  This caused Natalie to be a "worry wart," and the stress  



                                                                                                        

caused her "tummy issues" and exacerbated her eczema.  The other children also have  



issues:  Selah has severe separation anxiety, Ava's speech was delayed, and Drew has  



"the shakes."  



                                              

                    Nancy  testified  that  Diana  seemed  to  be  doing  better  in  2014;  she  



                                                                                  

understood how her drinking affected her children, had become reliable, visited the  



children several times a month, and bonded with and cared for the children.  But Nancy  



                                                                

feared the impact a future relapse would have on the children and acknowledged that  



Diana's recent sobriety had lasted only five months out of many years of substance  



                                                                                                                

abuse.  Nancy said she was willing to care for the children until the day she died and  



                                                                                                              

would continue to allow Diana to be in their lives if she remained sober.  Nancy testified  



                                  

that the children told her that they would like to stay with her if they cannot live with  



their mother.  



                                                               -4-                                                         7045
  


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

                                                                                              

                    OCS social worker Rosalie Rein testified about the past harm the children  



                                                                                         

suffered under the care of their parents.  Before OCS took custody of the children, their  



                                                                             

medical needs were not being met and they were exposed to danger.  On one occasion  



                                                                                                  

Diana left Selah with her maternal grandmother, who pulled a knife on her partner in  



              

front of Selah.  On another occasion Diana and her mother wanted to go out drinking,  



but because the person they found to watch the children was unwilling, "they left the kids  



                                                                                      

there and ran away."  OCS and the Village of Grayling tried to reunify the family over  



                                                                                                          

a period of several years.  But the multiple placements beginning at a very young age  



                                                 

caused the children to lack any sense of permanency and to fear OCS would take them  



away.  Rein corroborated Nancy's testimony that Selah suffered separation anxiety.  



                                                                 

                    OCS offered the reports and testimony from two experts:  Christy Pichette  



of Pichette Counseling Services and Lisa Farrell from Hope Counseling Center.  Without  



                 

objection,  Pichette  and  Farrell  testified  as  experts  in  the  diagnosis  and  treatment  of  



substance abuse and substance-abuse-related disorders.  



                    Pichette's written report was based on two evaluations of Diana, one in  



                                                                                                             

2012 and a second one in 2013.  Pichette diagnosed Diana with alcohol dependence and  



other  substance  dependence  in  full  sustained  remission.    She  noted  that  Diana  self- 



                                                                                                          

reported being diagnosed with bipolar disorder when she was a child, and that there was  



also evidence within the assessment suggesting post-traumatic stress disorder.  Pichette's  



report included collateral information provided by OCS detailing the parents' alcohol  



                                             

abuse and how it caused the children to be neglected and in danger of physical abuse:  



                                    

people drank in excess and used drugs in the home; there was no food in the refrigerator;  



                                                                 

the children were dirty and had rashes on their bottoms due to lack of cleanliness; and  



     

at  least  one  of  the  children  had  been  exposed  to  domestic  violence.    The  collateral  



                                                                                                            

information in the report described several other occasions of neglect due to substance  



                                                                                 

abuse and concluded that the children were extremely vulnerable due to their young ages,  



                                                                -5-                                                         7045
  


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

inability to self-protect, and their prenatal exposure to alcohol and/or drugs.  Pichette   



recommended a "Level III.3 Medium Intensity Treatment Program (preferably no less       



than six months and also dual diagnosis) followed by a long-term Aftercare Program"   



for Diana.  



                     Pichette  testified  that  Diana  seemed  very  open,  honest,  and  willing  to  



                                                                                                               

engage in treatment.  But Pichette recognized that someone who has had "too much  



treatment"  may  become  "therapized,"  which  makes  it  difficult  to  get  an  accurate  



                                                                                                            

assessment.  In Pichette's opinion, a person cannot solve a substance abuse problem by  



                                                                          

moving to another town; the problem continues to exist unless the substance abuser takes  



                                                     

the necessary relapse-prevention steps, finds support groups, and addresses the mental  



health component through therapy.  



                                                                  

                     Lisa Farrell's written report, based on her early 2014 assessment of Diana,  



described Diana's substance abuse history, OCS's involvement in her childhood, her  



children's experience of being in OCS and tribal custody, and her current lifestyle.  The  



                                                                            

report also described Diana's pattern of sobriety during pregnancy followed by relapse  



                                                                                                           

after each child's birth. Farrell's report did not address the children's welfare, other than  



to  include  essentially  the  same  collateral  information  OCS  had  given  to  Pichette,  



                                                                                                                        

describing Diana's history of passive-aggressive behavior, yelling, irritation, and stress  



             

caused by having multiple children.  Farrell recommended "a Long Term (6 months  



to 2 years) Residential Clinically Managed High Intensity Treatment program for women  



                                                                                                             

with Children."  Farrell also firmly recommended that Diana "immerse herself in a strong  



parenting program, a substance abuse program, and [dialectical behavioral therapy] skills  



development program," and engage in parent and child interaction therapy.  



                     At trial Farrell explained that she based her recommendation on Diana's  



                                                                                                           

inability to refrain from substance abuse, her emotional struggles, and the skills she  



                                                                                   

needed to learn to provide a safe environment for her children.  Farrell noted that people  



                                                                 -6-                                                          7045
  


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

who  abstain  from  drinking  without  processing  unresolved  childhood  trauma  have  a  



                       

higher risk of relapse than individuals who have processed their negative childhood  



experiences.  She felt that Diana lacked insight about her drinking; Diana told Farrell she  



would not have time to drink if her children were in her care, but in fact her children had  



                                                                                          

been removed from her custody due to drinking. Farrell was concerned that the children  



                                                                                                      

needed supervision and protection around Diana because she had a history of passive- 



aggressive  behavior,  yelling,  and  a  generally  irritable  temperament  when  she  was  



                                                                                                          

stressed. She advised that if the children were to be reunited with Diana they would have  



to be reintroduced into Diana's care one child at a time, with supervision.  



          B.        The Trial Court's Findings  



                                                    

                    In  a  thoughtful  and  detailed  decision,  the  trial  court  found  that  OCS  had  



                                                                                                                      

"proved by clear and convincing evidence that there [was] a substantial risk that the children  



        

will suffer substantial physical harm as a result of conduct by or conditions created by  



[Diana]," pursuant to AS 47.10.011(6).  The court cited Diana's behavior of leaving the  



                                           

children in unsafe homes or failing to arrange for supervision, and requiring four-year-old  



                                                                

Natalie to care for her siblings.  The court noted that when Diana drank, her children went  



                                        

hungry and their medical needs were not met.  The court also addressed Diana's alcohol  



                                      

abuse pattern during and after pregnancy, and another pattern of attending substance abuse  



                                                          

programs without completing them or completing them and then relapsing soon after.  The  



court found: "Because [Diana] has not received needed treatment, she is almost certain to  



relapse.    If  she  does,  there  is  a  substantial  risk  that  the  children  will  suffer  substantial  



physical  harm  -  from  lack  of  food,  lack  of  supervision,  or  exposure  to  unsafe  care  



                                                                                                                         

providers."  The trial court made the remaining required statutory findings under the child- 



in-need-of-aid (CINA) Rules and ICWA.  



                                                                                                     

                    Acknowledging that ICWA requires a finding beyond a reasonable doubt that  



                                                                           

continued custody by the parent is likely to cause the children serious harm, the trial court  



                                                              -7-                                                        7045
  


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

                                                                                                                

applied our two-pronged approach requiring OCS to prove that (1) the parent's conduct is  



                                                                                                                                            6  

                         

likely to harm the children, and (2) it is unlikely that the parent will change her conduct. 



                                                                                            

Noting that OCS "typically has an expert testify about the potential harm to the child," the  



trial court commented that there was "very little case law about the subject matter of an  



expert's testimony in determining the likelihood that the child will experience harm."  The  



                                                                                          7 

                                                                                            as holding that expert testimony  

court cited Marcia V. v. State, Office of Children's Services 



                                                                                                        

is sufficient to meet ICWA's requirements even when the expert is only qualified to provide  



an opinion on the first prong and allowing OCS to prove the second prong through lay  



testimony and other evidence.  The trial court stated that there are no published Alaska cases  



                                                                            8 

               

on point and instead cited two unpublished cases,  where we upheld termination of parental 



                                                                                                                             

rights even though expert testimony proved only one prong of the test. Based on its analysis  



               

of these cases, the trial court concluded that, when the basis for termination is culturally  



                                                                                           

neutral, the substantial-harm requirement may be met by a combination of lay testimony and  



                                                                                                                    

other evidence that the parent's conduct is harmful to the child, as well as expert testimony  



that the conduct is likely to continue.  



                                                                                    

                     The trial court noted that in the present case, the experts did not focus on the  



harm  alcoholic  parents  cause  their  children,  but  they  did  testify  that  if  Diana  received  



                                                  

custody of all of her children it would be harmful to her sobriety.  The court observed that  



             

the lay testimony established that Diana's drinking was harmful to the children.  And the  



           6         See  Chloe W. v. State, Dep't of Health & Soc. Servs., Office of Children's           



Servs., 336 P.3d 1258, 1269-70 (Alaska 2014).  



           7         201 P.3d 496, 501-02, 504-05, 508 (Alaska 2009).  



           8  

                                                                                                          

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

                                                                                                       

Servs., Mem. Op. & J. No. 1419, 2012 WL 1649167 (Alaska May 10, 2012); Stephen H.  

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

No. 1400, 2011 WL 6004352 (Alaska Nov. 30, 2011).  



                                                                  -8-                                                           7045
  


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

  court came to what it called a "common-sense" conclusion that if the children were removed                    



  from their bonded placement and placed in the care of a mother who, because of alcohol, is             



  not emotionally or physically stable enough to care for her own needs, the children would                         



 be at substantial risk of harm.  Because of Diana's unresolved alcoholism and mental health  



                                                                                                                              

 problems, her inability to care for herself, and her history of drinking and neglect, the trial  



                                                             

  court found beyond a reasonable doubt that placing the children in her custody would likely  



 put them at substantial risk of harm.  



  III.        STANDARD OF REVIEW  



                        Before terminating parental rights under ICWA and the CINA statutes and rules,  



                

the trial court must find by clear and convincing evidence that the child has been subjected  



                                                                                           9 

to conduct or conditions described in 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 physical or mental injury;10 and in the case of an Indian child, that  

                                                                                



active but unsuccessful efforts have been made to provide remedial services and rehabilitative  

                                                                                                                 11  ICWA also requires that  

programs designed to prevent the breakup of the Indian family.  

                                                                                                                                   



the trial 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  

                                                                                                                 

                                                                                                       12    Finally,  the  trial  court  must  

in  serious  emotional  or  physical  damage  to  the  child."  

                                                                                                                                             



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



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



             11          25 U.S.C.  1912(d) (2012); CINA Rule 18(c)(2)(B).  



             12          25 U.S.C.  1912(f); see also CINA Rule 18(c)(4).  



                                                                            -9-                                                                   7045
  


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

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

                                                                                                                          

best interests of the child."13  



                                                                                                       

                   The only issue Diana raises in her appeal is whether the trial court erred in  



finding that OCS proved beyond a reasonable doubt that placing her children in her custody  



likely would put the children at risk of serious emotional or physical harm.  "[W]hether  



substantial  evidence  supports  the  court's  conclusion  that  an  Indian  child  is  likely  to  be  

seriously harmed if returned to his parent is a mixed question of fact and law."14  The court's  



                                                         

factual findings are reviewed under the clearly erroneous standard, and its legal conclusions  



                               15  

are reviewed de novo.              "Clear error arises only when our review of the entire record leaves  

us with a definite and firm conviction that the superior court has made a mistake."16  



IV.       DISCUSSION  



                                                                         

          The Trial Court Did Not Err In Finding That The Evidence Presented Proved  

                                                                         

          Beyond  A  Reasonable  Doubt  That  The  Children  Would  Likely  Be  Seriously  

          Harmed If Returned To Diana.  



                                                                                                         

                   ICWA requires that the trial 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 the child."  We  



                                                                                                              

have adopted a two-prong test to determine whether continued custody by the parent is likely  



to cause serious harm to the child.  Proof that a parent having custody is likely to cause a  



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



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



 (Alaska 2002) (citing L.G. v. State, Dep't of Health & Soc. Servs. , 14 P.3d 946, 949-50  

                                                                                                

 (Alaska 2000)) (holding that factual findings in termination proceedings are reviewed  

 under the clearly erroneous standard, but whether those findings comport with ICWA  

 requirements presents questions of law).  



           15       L.G. , 14 P.3d at 949-50.  

                             



           16       25 U.S.C.  1912(f); see also CINA Rule 18(c)(4).  



                                                            -10-                                                     7045
  


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

child serious harm requires evidence that (1) the parent's conduct is likely to harm the child  

                                                                        



and (2) the parent's conduct is unlikely to change.  We have explained that "[s]erious harm  



                                       

can be proved through the testimony of a single expert witness, by aggregating the testimony  



                                                                                                                         17  

of expert witnesses, or by aggregating the testimony of expert and lay witnesses."                                           "The  



findings of a likelihood of serious emotional or physical damage are findings that must be  



                                                                       18  

made by the trial judge, not the expert witness."                          Alcohol relapses may be considered in  

establishing the likelihood that a child would suffer harm.19  



                                                            

                   While ICWA requires that the evidence supporting this finding include expert  



                                                                                                       20  

testimony, it does not clarify the scope of the expert testimony required,                                nor does it require  



                                                                                                                21  

that the expert testimony provide the sole basis for the court's conclusion.                                        "[N]o one  



individual qualified expert witness must possess all the knowledge necessary to support both  



                                                                 22  

                                                                                         

prongs of the question posed by the statute."                        We have not yet established whether expert  



testimony on its own must directly answer both prongs of the test.  



                                                                                    

                   Although it may be best practice for expert testimony to address both prongs  



of the "serious emotional or physical damage to the child" test, we conclude that it is not  



required when the basis for termination of parental rights is culturally neutral: so long as  



                                                                        

qualified expert testimony directly supports one prong of the substantial harm requirement  



           17        Chloe  W.,  336  P.3d   at  1270  (quoting  L.G. ,  14  P.3d  at  950)  (internal  



 quotation marks omitted).  



           18       Marcia   V.  v.  State,  Office  of  Children's  Servs.,  201  P.3d  496,  508  

                                                                                                                 

 (Alaska 2009).  



           19        See L.G., 14 P.3d at 950.  



           20        See 25 U.S.C.  1912.  



           21        See E.A., 46 P.3d at 992.  



           22       In re Parental Rights of T.O. , 759 P.2d 1308, 1311 (Alaska 1988).  



                                                             -11-                                                       7045
  


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

and inferentially supports the other prong, the statutory requirements will be satisfied.  It  



                                                                                             

therefore was not legal error under ICWA for the trial court to make a common-sense finding  



                                                                                    

based on lay testimony that reuniting Diana with her children would likely result in serious  



emotional or physical damage to the children.  



                     1.         The first prong:  conduct would likely harm the children  



                     Diana argues that the trial court's risk-of-harm finding contravened ICWA  



                                                                                                                                    

because it was based on lay testimony and not expert testimony.  She also contends that the  



                                                                                                                        

trial court should not have considered expert testimony in finding that her conduct would  



likely harm the children because neither expert was qualified to testify about the children.  



                                                                                                                        

                     We conclude that the trial court had appropriate support for its finding that the  



                                                                                     

first prong of the test was satisfied.  The finding that the children would likely suffer harm  



                                                                                                              

if returned to Diana is inferentially supported by the experts' opinions that Diana was unable  



                                                   

to cope with caring for multiple children and would likely relapse after having her fifth child.  



It is also directly supported by lay testimony that substance abuse had caused her to abandon  



and neglect her children in the past.  



                                                                                            

                     We recently addressed this issue in Sadie D. v. State, Department of Health &  

                                                                         23  There, one of the experts was qualified as  

Social Services, Office of Children's Services .                                                    



an expert in substance abuse and treatment.  The other expert was a mental health clinician  

                                                                       



and qualified as an expert in psychological assessments.  Both experts testified about the  



                                                                                                                         

mother's mental health and substance abuse issues, although neither spoke directly to the  



                                                                                                                        24  

                                                                                                                            However, a  

harm the children would likely suffer as a result of the mother's problems. 



number of lay witnesses testified about the negative impact the mother's problems had on her  



            23        Mem. Op. & J. No. 1516, 2014 WL 4536352, at *4 (Alaska Sept. 10, 2014).                   



            24        Id. at *4-5.  



                                                                  -12-                                                            7045  


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

                        25  

child's needs.    The psychologist's report addressed the mother's apparent inability to care     



for her child, her "lack of psychiatric stability," the role substance abuse played in her ability                             

to respond to her child, and the risk her housing situation presented to herself and her child.                                                               26  



We  stated:    "In  the  aggregate,  including  the  testimony  of  qualified  experts,  the  record  

                                                                             



supports the superior court's predictive finding that [the child] faced a likelihood of physical  

                                                                                                                                              



or emotional harm if he was returned to his mother's care.  The superior court did not clearly  

                                                                                                               

err in making that finding."27  



                        Our holding in Camille H. v. State, Department of Health & Social Services,  

Office of Children's Services28  similarly supports the trial court's finding of substantial risk  

                                                                                                       



of harm even though the expert testimony did not directly address the harm alcoholic parents  



cause their children.  There, we relied upon the "common-sense notion" that intoxicated  

                                                                                  



parents put their children at risk, particularly in light of the affected children's special needs  

                               



and  the  treatment  providers'  testimony  that  the  parents'  profound  alcoholism  remained  

unresolved.29  



                        Neither expert in the present case expressly stated that the children would likely  

                                                             



be harmed if returned to Diana, nor was either expert specifically qualified to do so.  But the  



experts were qualified to render opinions on the second prong of the test and they did so, as  



                                                                                                           

we discuss in the next section.  Furthermore, support for the first prong could reasonably be  



             25          Id. at *5.
  



             26          Id.
  



             27          Id.
  



             28          Mem.   Op.   &   J.   No.   1419,   2012   WL   1649167,   at   *10   (Alaska  



  May 10, 2012).  



             29          Id. at *10-11.  



                                                                           -13-                                                                   7045
  


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

gleaned from the experts' observations that Diana would likely relapse and not be a safe   



mother.  



                    Furthermore, the lay witnesses' testimony clearly supported the trial court's  



finding that Diana's conduct would likely seriously harm the children.  For example, OCS  



                                                         

worker Rein testified that before OCS took custody of the children, their medical needs were  



                                                                                        

not met and they were exposed to danger. For several years OCS and the Village of Grayling  



             

tried to reunify the family but were met with continued adversity caused by the parents'  



                                                                                             

alcohol and substance abuse, which diminished the children's sense of permanency.  Nancy  



testified that she was concerned Diana would relapse and cause harm to the children, after  



                                                                                     

seven years of back and forth and multiple placements.  Nancy also testified about Diana's  



                                                        

difficulty parenting when she drank, her numerous attempts at sobriety, and the impact her  



behavior  had  on  the  children,  including  stress,  anxiety,  and  developmental  delays.    We  



conclude that reasonable inferences from the expert testimony, coupled with lay witness  



                                                                    

testimony  and  documentary  evidence  from  the  record,  are  sufficient  to  support  the  trial  



                                                                                                       

court's finding that returning the children to Diana's care was likely to endanger them.  We  



therefore affirm the trial court's serious harm finding.  



                    2.        The second prong:  conduct was not likely to change  



                                                                    

                    Diana argues that OCS's expert testimony was insufficient to satisfy the second  



                                                                                                                      

prong.  We conclude that the evidence amply supports the trial court's finding that Diana's  



                                                                                

conduct was not likely to change.  Pichette testified that with a dual diagnosis, substance  



abuse will remain an issue until the underlying mental-health issues triggering the abuse are  



                                                                                         

treated.  Farrell's opinion that Diana lacked insight into her drinking behavior also supports  

a finding that her behavior will not improve in the near future.30  



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



 Servs., 212 P.3d 756, 767 (Alaska 2009) ("Although the court must focus on risk of  

                                                                                                                   (continued...)  



                                                               -14-                                                        7045  


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

                                                                                               

                    The lay testimony also supports the trial court's finding that Diana will likely  



                                                                                    

relapse.  Nancy stated that Diana had a long history of drinking in excess and had abstained  



                                                                            

from drinking for only five months. Diana herself testified that she had struggled with mental  



illness and alcohol and substance abuse since she was young, had been in treatment at least  



ten times, and had a pattern of relapsing after each pregnancy.  Because the aggregated  



                                                                                                            

testimony of expert and lay witnesses supports the trial court's finding that Diana likely will  



                                                                                   

continue to relapse until she resolves her underlying mental health issues, the trial court's  

conduct-not-likely-to-change finding is not clearly erroneous.31  



                    3.         Summary  



                    To summarize, expert witnesses testified that Diana lacked insight into her  



drinking;  needed  long-term  residential  treatment;  had  a  history  of  passive-aggressive  



                                                                                          

behavior, yelling, irritation, and stress caused by multiple children; and was at high risk of  



                                                      

relapse.  An expert testified that the children needed supervision and protection when around  



                                                                                                           

Diana because of these problems.  Lay witnesses testified that Diana's drinking was harmful  



                                                                           

to her children.  Considering all of this evidence, we agree with the trial court:  if the children  



                        

were removed from their bonded placement and placed in Diana's care, they would be at  



          30(...continued)  



 future harm rather than past injury, past failures may predict future conduct.").  



           31         Though Diana did not appeal the trial court's active efforts finding, we take       



 the opportunity to commend the efforts OCS made in attempting, unsuccessfully, to   

 reunite  the  children  with  their  mother.    OCS  and  the  Native  Village  of  Grayling  

 alternately tried to reunify the family and protect the children during a five-year span.  

 They provided in-home services; substance abuse assessments; and opportunities for  

 treatment, including a urinalysis program and airplane travel.  They also assisted with  

 transitions when the children were removed from their parents' care, maintained contact  

 among the children when they were apart, provided assessments and evaluations for the  

                                                                  

 children, and ensured visitation with the children.  



                                                                -15-                                                         7045
  


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

substantial  risk  of  harm.    The  trial  court  did  not  err  in  making  this  finding  beyond  a  



reasonable doubt.  



V.      CONCLUSION  



               We AFFIRM the trial court's order terminating Diana's parental rights.  



                                                -16-                                         7045
  

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