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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bob S. v. State, Dept. of Health & Social Services, Office of Children's Services (7/28/2017) sp-7186

Bob S. v. State, Dept. of Health & Social Services, Office of Children's Services (7/28/2017) sp-7186

          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                                   



BOB  S.,                                                     )  

                                                             )         Supreme  Court  No.  S-16504  

                    Appellant,                               )  

                                                                                                                               

                                                             )         Superior Court No. 3AN-13-00014 CN  

          v.                                                 )  

                                                             )  

                                                             )                             

STATE OF ALASKA,                                                       O P I N I O N  

                                                  

DEPARTMENT OF HEALTH &                                       )  

                                                                                                       

SOCIAL SERVICES, OFFICE OF                                   )         No. 7186 - July 28, 2017  

                         

CHILDREN'S SERVICES,                                         )  

                                                             )  

                    Appellee.                                )  

_______________________________ )  



                                 

                                                                                                        

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

                                                                                          

                    Judicial District, Anchorage, Andrew Guidi, Judge.  



                                                                                                 

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

                                                                                               

                    Aisha Tinker Bray, Assistant Attorney General, Anchorage,  

                                                                                                           

                    and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  

                                                                                                           

                    Appellee.  Anita L. Alves, Assistant Public Advocate, and  

                                                                                                            

                    RichardK. Allen, Public Advocate, Anchorage, Guardian Ad  

                    Litem.  



                                                                                                     

                    Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                         

                    and Carney, Justices.  



                                       

                    BOLGER, Justice.  



I.        INTRODUCTION  



                                                                                                                            

                    A father appeals the superior court's order terminating his parental rights  



                                                                                                                 

to a daughter with sexualized and aggressive behavior, arguing that he substantially  


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

remedied his prior misconduct by completing outpatient treatment programs and that the                                                                                                                                      



Office of Children's Services (OCS) violated its obligation to provide active efforts to   



reunify the family by discontinuing his visitation after his daughter returned from an out-                                                                                                                              



of-state   treatment   program.     But   the   superior   court   reasonably   concluded   that   the  



visitation was not in the child's best interest, that the father had failed to comply with                                                                                                                             



substance abuse testing and delayed a critical sex offender risk assessment, and that it                                                                                                                            



would cause serious emotional damage to return the child to his home.                                                                                                                          We therefore   



affirm the court's order terminating his parental rights.                                                                       



II.               FACTS AND PROCEEDINGS                  



                  A.               Background  

                                                                                                                                      1  Tonya is an Indian child as defined  

                                   Bob S. is the father of Tonya, now ten.                                                                                                                                      



by the Indian Child Welfare Act (ICWA) based on her mother's affiliation with the  

                                                                                                                                                                                                                           

Native Village of Selawik.2  

                                                

                                                                          



                                                                                                                                                                                                                        

                                   Tonya was exposed to domestic violence at a very early age. She lived with  



                                                                                                                                                                                                                                      

her parents and her mother's two young sons, and the parents' relationship was abusive.  



                                                                                                                                                                                                                        

In 2009 Bob ended the relationship and moved into his own housing after serving time  



                                                                                                                                                                                                                  

for domestic violence against the mother.  The following year, three-year-old Tonya  



                                                                                                                                                                          

moved in with Bob because her mother could no longer care for her.  



                                                                                                                                                                                                            

                                   Bob enrolled Tonya in preschool in 2011.  Her behavioral issues appeared  



                                                                                                                                            

quickly.  Tonya was hypersexualized and physically violent; she was also defiant, and  



                                                                                                                                                                                                                

she made a teacher's aide cry.  She was kicked out of preschool and moved to another  



                  1                We use pseudonyms to protect the privacy of the parties.                                                                           



                  2  

                                                                                                                                                                                                               

                                   See 25 U.S.C.  1903(4) (2012). Tonya's mother relinquished her parental  

                                                                     

rights shortly before trial.  



                                                                                                              -2-                                                                                                     7186
  


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program.  She was referred to services and given daily school monitoring and weekly  



                                                                                      

counseling.  But her sexualized and aggressive behavior continued.  



                                                                                                                           

                    Tonya later disclosed that her brothers had molested her when she lived  



                                                                                                                              

with her mother.  Tonya's sexual reactivity was further exacerbated by living with her  



                                                                                                                                

father.  Their apartment had only one room, and Bob had sexual relations with others in  



                                                                                                                            

front of Tonya.  Bob maintained that he thought Tonya was asleep, but he later took  



                                                                                                                         

responsibility and apologized when Tonya brought the issue up repeatedly during family  



                            

therapy sessions.  



                                                                     

          B.        Initial OCS Involvement And Treatment  



                                                                                                                      

                    In September 2012 OCS investigated a report of harm based on Tonya's  



                                                                                                                           

sexualized behavior at school.  OCS's involvement quickly escalated.  In January 2013  



                                                                                                                            

OCS took custody of Tonya after Bob left her with a neighbor and disappeared. He later  



                                                                                                                               

admitted that he had used crack cocaine that evening and had continued to use until he  



                                                                                                                        

resurfaced in April 2013. OCS placed Tonya at a residential treatment center in Oregon  



                                                                                                               

because in-state providers could not treat her extreme behaviorial issues.  



                                                                                                                           

                    Tonya stayed at the center from March 2013 to December 2014.   Both  



                                                                                                      

Tonya and eventually Bob made progress in their treatment during this period.  Tonya  



                                                                                                                         

worked  with  therapist  Kiva  Michels  to  address  her  rudeness,  defiance,  "poor  



                                                                                                                            

boundaries,"  sexualized  behavior,  and  reactivity  to  child  abuse  trauma.                                     She  was  



                                                                                                                               

eventually able to demonstrate long periods of time with no sexualized behavior and no  



                   

aggression.  



                                                                                                                    

                    Bob  completed  the  Father's  Journey  parenting  course  and  intensive  



                                                                                                                         

outpatient substance abuse treatment.  He also completed urinalysis tests (UAs), moved  



                                                                                                                            

into a  two-bedroom apartment, and  sought support from his Father's Journey  case  



                               

manager outside of class.  After he relapsed on cocaine partway through his treatment  



                                                                                                                             

program, Bob completed  an additional therapy program as requested by OCS.   He  



                                                               -3-                                                        7186
  


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attended weekly family therapy sessions via Skype, flew to Oregon for quarterly visits,                                                                                                                                                                                                                                                                                       



and spoke with Tonya on the phone.                                                                                                                                      



                                                             During the family sessions, Tonya was able to openly discuss her father's                                                                                                                                                                                                                                



behaviors that made her angry or anxious, and Bob was able to openly discuss his                                                                                                                                                                                                                                                                                                         



treatment progress and relapse.                                                                                                               After observing them and establishing from Tonya that                                                                                                                                                                                    



Bob had never sexually touched her, Michels allowed unsupervised visits                                                                                                                                                                                                                                                               andovernights   



at the center. But Michels was concerned about Bob's ability to supervise Tonya outside                                                                                                                                                                                                                                                                                 



of a controlled environment.                                                                                                        In August 2014 Michels brought Tonya to Anchorage to                                                                                                                                                                                                       



visit Bob and noted several instances where Bob missed a supervision issue. Tonya was                                                                                                                                                                                                                                                                                                  



triggered into sexualized posturing by being around some of the other neighborhood                                                                                                                                                                                                                                                      



children, and twice Tonya and the other children were alone in her room with the door                                                                                                                                                                                                                                                                                              



 shut.   



                                                             Tonya also had difficulty trusting Bob.                                                                                                                                            Tonya had frightening memories                                                                              



from when her parents were together, and she seemed to worry that Bob's behavioral                                                                                                                                                                                                                                                                      



changes were not permanent or that he might abandon her again if he found a girlfriend.                                                                                                                                                                                                                                                                                                                    



OCS also became concerned that Bob had started a relationship with a woman with                                                                                                                                                                                                                                                                                                    



extreme anger issues and alcoholism who posed a high risk to children.                                                                                                                                                                                                                                                                    OCS warned   



                                                                                                                                                                                                                                                                                                                                                                               3  

Bob against having unsafe people in his home, but Bob continued to contact her.                                                                                                                                                                                                                                                                                                      



                               C.                            Return To Alaska  

                                                                                                                  



                                                             Tonya returned to Alaska in December 2014.   OCS placed her with a  

                                                                                                                                                                                                                                                                                                                                                                                                  



therapeutic foster parent and granted Bob unsupervised visitation twice a week and on  

                                                                                                                                                                                                                                                                                                                                                                                             



four holidays.  The transition went poorly.  

                                                                                                                                                               



                              3  

                                                                                                                                                                                                                                                                                                                                                                                             

                                                             Bob and the woman had a son together in November 2015.  They were no  

                                                                                                                                                

longer involved by April 2016.  



                                                                                                                                                                                               -4-                                                                                                                                                                                 7186  


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                                                          Tonya's behavior quickly escalated, and she made alarming statements                                                                                                                                                                                                         



about the visits.                                                     She engaged in sexual and aggressive behavior around other children                                                                                                                                                                                                         



and   teachers,   such   as   inappropriate   touching,   grinding,   and   sexual  remarks.     She  



"pretend[ed] to . . . pimp[] out her friends," and she was assaultive on the school bus.                                                                                                                                                                                                                                                                                                  



Tonya made excuses not to visit Bob and disclosed that Bob left her in her room with                                                                                                                                                                                                                                                                              



another child unsupervised, that "things needed to be secret and kept in the family," that                                                                                                                                                                                                                                                                            



Bob had people at the house who were not supposed to be there, and that Bob was                                                                                                                                                                                                                                                                                     



having parties.                                                   



                                                          In late January Tonya began to see Tracie Weeks for weekly cognitive                                                                                                                                                                                                              



behaviorial therapy.                                                                     Weeks also supervised two family therapy sessions with Bob and                                                                                                                                                                                                               



Tonya before reporting that the family sessions weren't going well and recommending                                                                                                                                                                                                                                  



that OCS terminate Bob's visitation.                                                                                                                             Bob's final unsupervised visit was in February.                                                                                                                                                                          



OCS   supervised  two  more   visits   and   then   cut   off   all   contact   based   on   Weeks's  



recommendation and other concerns. Based on Tonya's disclosures, OCS substantiated                                                                                                                                                                                                                                            



 sexual abuse centered around Bob exposing her to pornography.                                                                                                                                                                                                                           



                                                          OCS considered returning Tonya to the Oregon treatment center, but her                                                                                                                                                                                                                                       



behavior improved and she stayed in Alaska.                                                                                                                                                       Tonya's behaviorial issues escalated later                                                                                                                       



when the FBI began meeting with her as part of an investigation into possible human                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                       4         By summer Tonya was  

trafficking by Bob, but ceased after the investigation ended.                                                                                                                                                                                                                                                                                                       



able to attend a normal summer camp without supervision.  OCS case worker Heather  

                    



Rough spoke with Bob about completing a sex offender risk assessment, and she grew  

                                                                                                                                                                                                                                                                                                                                                                



concerned that he might have resumed using drugs when she could not contact him to  

                                                                                                                                                                                                                                                          



 schedule it.  In June 2015 OCS changed the permanency plan to adoption.  

                                                                                                                                                                                                                                                                                                                                    



                             4  

                                                                                                                                                                           

                                                          Charges were never filed.  



                                                                                                                                                                                     -5-                                                                                                                                                                                            7186  


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             D.            Visitation Hearing   



                           That   summer   the   court   held   a   three-day   hearing  on  OCS's   denial   of  

visitation pursuant to Child in Need of Aid (CINA) Rule 19.1(a).                                                                       5  

                                                                                                                                                                 

                                                                                                                                            The court heard  



                                                                                                                                                                   

testimony from Michels, Weeks, Rough, and two other witnesses and in October 2015  



                                                   

denied Bob's motion for visitation.  



                                                                                                                                                                      

                           Michels explained that Tonya used her behavior as her language, and her  



                                                                                                                                                                 

behavior signaled that she did not feel safe.  Although Tonya and Bob had a clear bond,  



                                                                                                                                                                  

Tonya still had trust issues with Bob, and Tonya didn't feel safe when she was left alone  



                                                                                                                                        

with Bob without anybody close by.  Michels thought that Tonya's behavior might be  



                                                                                                                                                     

related to the visits, not necessarily because anything bad was happening, but because  



                                                                                                                                                                          

Tonya had ongoing anxiety about being with her dad.  Michels thought it would be a  



                                                                                                                                                                

"devastating setback" for Tonya if she had to be hospitalized again, as Tonya would  



                                                   

think that she had failed.  



                                                                                                                                                               

                           Weekswas qualified as "a[n]expert in counseling with childrenand trauma  



                                                                                                                                                                          

victims" over Bob's objection to her credentials.   Weeks disagreed that there was a  



                                                                                                                                                                    

"strong bond" between Bob and Tonya and testified that Tonya did not express any deep  



                                                                                                                                                                

emotion about missing Bob.  Based on Tonya's statements and Bob's alleged sexual  



                                                                                                                                                                      

abuse, Weeks thought that Tonya's safety was in question until the FBI investigation was  



                                                                                                                                                                

complete.  She explained that Tonya could be triggered just by Bob's presence.  



                                                                                                                                                                      

                           Rough  explained  that  OCS's  decision  to  terminate  visitation  was  not  



                                                                                                                                                                    

necessarily permanent, but she saw the "drastic difference in [Tonya's] behaviors after  



             5             "[A] parent . . . who has been denied visitation . . . may move the court for                                                               



a review hearing at which the Department must show by clear and convincing evidence                                                                        

that visits are not in the child's best interests."                                           CINA Rule 19.1(a).       



                                                                                   -6-                                                                            7186
  


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the visitation stopped." Still, OCS was making efforts towards reunification by working  



                                                                                                

on the sex offender assessment and substance abuse concerns.  



                                                                                                                        

                    Pursuant to CINA Rule 19.1(a), the superior court found that OCS proved,  



                                                                                                                             

by  clear  and  convincing  evidence,  that  contact  with  Bob  was  not  in  Tonya's  best  



                                                                                                                  

interests.  The court explained that it "does not make this finding lightly," but it could  



                                                                                                                              

not ignore Tonya's extreme behavior and its correlation with Bob's visitation.  It was  



                                                                                                                       

"remarkabl[e]" that after six months of no contact, Tonya was able to attend summer  



                                                  

camp without supervision.  The court thought there was no doubt that Bob and Tonya  



                                                                                                               

loved each other, and "[a]t some point, contact will likely resume."  But Weeks would  



                                                                            

be the best person to make that recommendation.  



                                           

          E.        Termination Trial  



                                                                                                                           

                    Contact never resumed.  Tonya asked her treatment team what was going  



                                                                                                                             

on and why had the visits stopped, but the FBI instructed them not to discuss Bob with  



                                                                                                                             

her, and she eventually stopped asking about her father.  Meanwhile, Bob made little  



                                                                                                                       

progress on his case plan.  He was noncompliant with UAs.  He started the sex offender  



                                                                                                                                     

risk assessment paperwork in November 2015 and did not complete it until April 2016.  



                                                                                                                               

The evaluator concluded that sex offender treatment was not likely to be beneficial for  



                                                                                                                                 

Bob, as he was in denial about any problematic sexual behaviors and was unlikely to  



                                 

engage in treatment.  



                                                                                                                     

                    The court held a termination trial in the summer of 2016.  OCS presented  



                                                                                                                            

eight witnesses, including Weeks.  Bob testified on his own behalf and presented three  



                                                                                                                            

other witnesses.  Tonya's foster parent and Bob's sister both testified that they were  



                          

willing to adopt Tonya.  



                                                                                                                              

                    Bob again objected to Weeks's credentials, but she was qualified as "an  



                                                                                                                            

expert in  .  .  .  clinical  .  .  .  and  psychological treatment for children  suffering  from  



                                                                                                                     

traumatic conditions." Weeks, who was the only expert witness who testified, explained  



                                                               -7-                                                         7186
  


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

that Tonya was triggered by other students who engaged in attention-getting behavior                                                                                                                                                                                                                



and by discussion including the FBI interviews of her family and the sexual abuse                                                                                                                                                                                                                              



allegations.   Weeks maintained that Tonya should not have contact with Bob "because                                                                                                                                                                                                                



every time it's happened . . . it is a trigger for her.                                                                                                                                  And . . . she's . . . in the best situation                                                                 



she could be in right now."                                                                              



                                                  Bob testified that he was willing to follow all recommendations, even                                                                                                                                                                                           



repeating services he had already completed.                                                                                                                                 He wanted to have contact with Tonya,                                                                                         



even if he had to start over with just postcards.                                                                                                                               But the court ordered the termination of                                                                                                      



his parental rights.                                                    



                                                  A court must make five findings before terminating parental rights to an                                                                                                                                                                                                   

                                                6  The court must find by clear and convincing evidence that (1) the child  

Indian child.                                                                                                                                                                                                                                                                                                      

has been subjected to the conditions in AS 47.10.011;7  (2) the parent has not remedied  

                                                                                                                                                                                                                                                                                                   

the harmful conduct;8  and (3) OCS has made active but unsuccessful efforts to prevent  

                                                                                                                                                                                                                                                                                                          

the breakup of the Indian family.9   The court must find by evidence beyond a reasonable  

                                                                                                                                                                                                                                                                                          



doubt supported by qualified expert testimony that (4) the parent's continued custody of  

                                                                                                                                                                                                                                                                                                                               



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



212 P.3d 756, 760-61 (Alaska 2009).                                                                                 



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

                                                                                                                                                                               



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

                                                                                                                                                                               



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

                                                                                                                                                                                  



                                                                                                                                                              -8-                                                                                                                                                   7186
  


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

                                                                                                                     10  

the child is likely to result in serious damage to the child.                                                             The court must find by a         



preponderance of the evidence that (5) termination of parental rights is in the child's best                                                                          

interests.11  



                           The superior court found that Tonya was subjected to the conditions in  

                                                                                                                                                                         



AS  47.10.011  under  subsections  (1)  and  (3)  (abandonment),  (7)  (sexual  abuse),  

                                                                                                                                                              



(8) (domestic violence), (9) (neglect), and (10) (substance abuse).  The court made the  

                                                                                                                                                                        



other four requisite findings and provided factual findings for support.  

                                                                                                                                               



                           Bob  appeals.                   He  does  not  dispute  that  Tonya  was  subjected  to  the  

                                                                                                                                                                       



conditions in AS 47.10.011, but he challenges each of the other findings.  

                                                                                                                                                    



III.          STANDARD OF REVIEW  

                                                    



                           Wereviewthesuperior court's decision to admitexpert testimony for abuse  

                                                                                                                                                                   

of discretion.12                                                                                                                                          13  

                                                                                                                                                               

                               We review the superior court's factual findings for clear error.                                                               Factual  



                                                                                                                                                                           

findings are clearly erroneous "when a review of the entire record leaves us 'with a  

                                                                                                                                                  14   "Thus, 'we  

                                                                                                                                                                      

definite and firm conviction that the superior court has made a mistake.' " 



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



              11  

                                                                                                

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



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



291 P.3d 957, 962 (Alaska 2013) (citing                                             Barbara P. v. State, Dep't of Health & Soc.                                      

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

                                                                                                                                   



              13           Id. at 961 (citing Lucy J. v. State, Dep't of Health & Soc. Servs., Office of  

                                                                                                                                                                          

Children's Servs., 244 P.3d 1099, 1111 (Alaska 2010)).  

                                                                                                  



              14           David S. v. State, Dep't of Health &Soc. Servs., 270 P.3d 767, 774 (Alaska  

                                                                                                                                                              

2012) (quoting S.H. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth  

                                                                                                                                                                  

Servs., 42 P.3d 1119, 1122 (Alaska 2002)).  

                                                                         



                                                                                    -9-                                                                            7186
  


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

                                                                                                                                                       15  

will ordinarily not overturn asuperior court's findings                                       basedon         conflicting evidence.' "                      



We review de novo the court's conclusions of law, such as whether the superior court's  

                                                                                                                                              

findings and the expert testimony presented at trial satisfy the requirements of ICWA.16  

                                                                                                                                           



IV.         DISCUSSION  



                                                                                                 

            A.          Whether Bob Remedied His Harmful Conduct  



                                                                                                                                                   

                        "Before a court may terminate parental rights, it must find by clear and  



                                                                                                                                                      

convincing  evidence  that  the  parent  has  failed  to  remedy  the  harmful  conduct  or  

conditions."17  



                                                                                                                                             

                        Bob argues that he remedied his harmful conduct, but he points only to  



                                                                                                                                                    

conflicting  evidence.                     Bob  argues  that  Tonya's  abandonment  stemmed  from  his  



                                                                                                                                         

substance abuse, and that he remedied both issues when he completed his treatment  



                                                                                                                                                     

program.  He argues that Tonya's sexual abuse was remedied by removing her from her  



                                                                                                                                                      

mother's home where the abuse occurred, and that he resolved other parenting issues by  



                                                                         

completing the Father's Journey course.  



                                                                                                                                                 

                        But the court noted Bob's long history of drug use, his relapse, the OCS  



                                                                                                                                    

case  plans  requiring  him  to  comply  with  substance  abuse  testing  and  demonstrate  



                                                                                                                                                  

sobriety even after he completed treatment, his testimony that he stopped working with  



                                                                                                                                              

OCS after visitation was denied, his documented noncompliance with UAs, and OCS's  



                                                                                                                                                   

notice that no-shows were considered positive results.  Based on his history, OCS was  



                                                                                                                                

concerned that he had resumed using drugs when he fell out of contact.  



            15         Marcia V. v. State, Office of Children's Servs.                                   , 201 P.3d 496, 502 (Alaska           



2009) (quoting             Brynna B. v. State, Dep't of Health &Soc. Servs., Div. of Family &Youth                                              

Servs., 88 P.3d 527, 529 (Alaska 2004)).                    



            16          Thea G., 291 P.3d at 961-62.  

                                                              



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

                                                                                                                           

212 P.3d 756, 762 (Alaska 2009) (citing AS 47.10.088(a)(2)).  

                                                                                 



                                                                         -10-                                                                    7186
  


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

                                                  The court noted Tonya's reports about the visits, her negative reaction to                                                                                                                                                                                                



the   visits,   and   her   escalating   sexualized   behavior,   as   well   as   Bob's  long  delay   in  



completing   the   sex   offender   risk   assessment   and   the   conclusion   that   sex   offender  



treatment was not likely to be beneficial due to Bob's denial about his problematic sexual                                                                                                                                                                                                                  



behaviors. The court cited testimony from Michels that she was concerned about Bob's                                                                                                                                                                                                                         



ability to supervise Tonya due to the lapses she observed during the August 2014 trip,                                                                                                                                                                                                                              



which occurred after Bob completed his parenting classes.                                                                                                                                                                   The court also noted Bob's                                                       



poor decision to stay in a relationship with a dangerous woman despite OCS's warning                                                                                                                                                                                                                 



that the relationship was not in Tonya's best interests.                                                                                                                                                    



                                                  These findings were all supported by the record, and we conclude that the                                                                                                                                                                                             



court did not err in finding that Bob had not remedied his harmful conduct.                                                                                                                                                                              



                         B.	                      Whether OCS Made Active But Unsuccessful Efforts To Reunify The                                                                                                                                                                                                   

                                                  Indian Family   



                                                  Before terminating a parent's rights to an Indian child, the court must find                                                                                                                                                                                       



byclear and                                  convincing evidencethat "active efforts have                                                                                                                          been made to                                     provideremedial   



 services and rehabilitative                                                                     programs designed to prevent thebreakupoftheIndian                                                                                                                                                        family  

                                                                                                                                                                                       18   Bob argues that rather than making  

and that these efforts have proved unsuccessful."                                                                                                                                                                                                                                                       



active efforts, OCS actively frustrated efforts by ending all contact between Bob and  

                                                                                                                                                                                                                                                                



Tonya, frustrating his engagement in services and severing their parent-child bond.  He  

                                                                                                                                                                                                                                                                                                                        



challenges OCS's justification that Tonya was triggered by his contact, arguing that her  

                                                                                                                                                                                                                                                                                                                        



escalating behavior was "caused by a complex set of factors" and pointing out that OCS  

                                                                                                                                                                                                                                                                                                                 



made efforts to minimize the harm from the FBI interviews even though Tonya was also  

                                                                                                                                                                                                                                                                                                                     



triggered by them.  He also challenges OCS's deference to the FBI's instruction not to  

                                                                                                                                                                                                                                                                                                                            



discuss Bob with her.  

                                                                                   



                         18  

                                                                                                                                                                                                           

                                                  25 U.S.C.  1912(d); Jon S., 212 P.3d at 760-61.  



                                                                                                                                                           -11-                                                                                                                                                                   7186  


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

                         1.         Denial of visitation     



                        The superior court upheld OCS's denial of visitation in 2015.                                                           OCS is   



normally required to provide "reasonable visitation" if a child is removed from the                                                                     

parental home.             19  

                                                                                                                                              

                                But OCS can deny visitation based on clear and convincing evidence  



                                                                                           20  

                                                                                                                                                          

that the visits are not in the child's best interests.                                          A parent can request a hearing to  



                                                                   21  

                                                  

challenge OCS's denial of visitation. 



                                                                                                                                                 

                        After a three-day hearing, the superior court found that OCS had proven  



                                                                                                                                                       

that the visits were not in Tonya's best interests.  Bob does not directly challenge that  



                                                                                                                                                           

finding in this appeal, but his active efforts argument turns largely on OCS's decision to  



                                                                                                                                                     

end visitation.  We therefore explain why the record supports the superior court's 2015  



                                                                                                  

determination that visitation was not in Tonya's best interests.  



                                                                                                                                                       

                        Tonya was born into a violent household, molested by her brothers, and  



                                                                                              

exposed to her father's sexual activity.  At age six, Tonya's sexualized and aggressive  



                                                                                                                                                         

behaviorial issues were so severe that she was sent to an out-of-state treatment center for  



                                                                                                                                               

nearly two years because in-state providers could not help her. Upon her return, Tonya's  



                                                                                                        

behaviorial issues resumed with such severity that OCS considered sending her out of  



                                                                                                                                                    

state again for treatment.  Michels, who testified that Tonya would think she had failed  



                                                                                                                            

if she were to be hospitalized again, thought that Tonya's behavior could be related to  



                                                                                                                                                 

her anxiety about being with her father. Weeks, who testified that Tonya did not express  



                                                                                                                                                    

any deep emotion about missing her father, explained that Tonya was triggered by Bob's  



                                                                                   

presence.  After OCS terminated her contact with Bob, Tonya's behavior improved to  



                                                                                                                                                           

the point that she could attend a normal summer camp unsupervised.  And at the time of  



            19          AS 47.10.080(p).   



            20          Id .   CINA Rule 19.1(a).     



            21  

                                               

                        CINA Rule 19.1(a).  



                                                                           -12-                                                                     7186
  


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

the hearing, OCS had substantiated sexual abuse, the FBI was investigating Bob for                                                                                                                                      



possible human trafficking, and Bob had not followed through with a sex offender risk                                                                                                                                  



assessment.   



                                   The superior court understood that this finding was not to be made lightly.                                                                                                                     



AlaskaStatute 47.10.084(c) provides that aparent                                                                               whoserightshavenot                                      been terminated  



retains the residual "right and responsibility of reasonable visitation," and we have                                                                                                                              



observed that a substantial impairment amounting to termination of this right "does not                                                                                                                                 

                                                                                                                                                         22     The court noted the love  

comport with [Title 47's] policy of preserving family ties."                                                                                                                                                         



between Bob and Tonya and felt that "[a]t some point, contact will likely resume."  But  

                                                                                                                                                                                                                       



"[g]iven her extreme needs and fragility, that judgment call should be made cautiously  

                                                                                                                                                                                                      



and with therapeutic oversight."  Based on the record then before the court - including  

                                                                                                                                                                                                        



Tonya's age, history of abuse, the nature and severity of her behaviorial issues, her  

                                                                                                                                                                                                                        



disclosures, her improvement after the visits were terminated, Michels's testimony about  

                                                                                                                                                                                                                   



Tonya's anxieties, and the safety concerns about Bob - the superior court did not err  

                       



in finding that denial of visitation was in Tonya's best interests.  

                                                                                                                                              



                                   2.               Active efforts  

                                                                       



                                   When determining whether OCS made active but unsuccessful efforts,  

                                                                                                                                                                                                             



courts may look to "the [S]tate's involvement in its entirety" and may consider "a  

                                                                                                                                                                                                                          

parent's demonstrated lack of willingness to participate in treatment."23 

                                                                                                                                                                                           "Our concern  



is not with whether the State's efforts were ideal, but whether they crossed the threshold  

                                                                                                                                                                                                        



                 22               D.H.  v. State,                     723 P.2d 1274, 1277 (Alaska 1986) (citing                                                                       In re Rhine                   , 456   



A.2d 608, 613 (Pa. 1983)).                         



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

                                                                                                                                                                                                    

Servs., 175 P.3d 1263, 1268 (Alaska 2008) (quoting N.A. v. State, DFYS, 19 P.3d 597,  

                                                                                                                                                                                                                     

603 (Alaska 2001)).  

                                  



                                                                                                           -13-                                                                                                    7186
  


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

                                                                                                                                                                                                                                                 24  

between passive and active efforts."                                                                                                                                                                                                                        We conclude that the superior court did not err in                                                                                                                                                                                                                                                                            



 finding that OCS discharged its active efforts duty under ICWA.                                                                                                                                                                                                                                                                                                                                  



                                                                                          Because in-state providers could not help her, OCS provided out-of-state                                                                                                                                                                                                                                                                                                                                                      



residential treatment to Tonya for nearly two years, then weekly cognitive behavioral                                                                                                                                                                                                                                                                                                                                                                                                                                         



therapy after she returned to Anchorage.                                                                                                                                                                                                                                              OCS developed multiple case plans for Bob                                                                                                                                                                                                                                           



 and referred him to parenting classes, substance abuse treatment, and UAs, adding an                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



 additional therapy program after he relapsed.                                                                                                                                                                                                                                                                 Bob was provided weekly family therapy                                                                                                                                                                                               



by Skype, quarterly visits, and phone calls while Tonya was in Oregon, then twice-                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



weekly unsupervised visits and holidays in Anchorage until these visits were terminated.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



 OCS proved to the court that this denial of visitation was in Tonya's best interests. Even                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



then, OCS kept trying to work with Bob, but he stopped working with OCS because, by                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



his own admission, he was "fed up."                                                                                                                                                                                                                            He did not comply with UAs, and even though                                                                                                                                                                                                                                             



 OCS tried numerous times to contact him to set up a sex offender risk assessment over                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



the summer, he did not begin the paperwork until November 2015 or complete it until  



April 2016.                                                                      



                                                                                           OCS's efforts may not have been ideal, but the record supports that they                                                                                                                                                                                                                                                                                                                                                                                                      



were active. Tonya's sexualized behavior was triggered not only by Bob's visits and the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            



FBI interviews, but also by other students engaging in attention-getting behavior.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       Her  



behaviorial issues could become so extreme that in-state providers could not treat her.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 Given the "devastating setback" it would be to Tonya if she were to be hospitalized even                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



 locally, we cannot fault OCS for trying to minimize the triggers within its control and                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 develop Tonya's stability in the real world outside of a specialized residential treatment                                                                                                                                                                                                                                                                                                                                                                                                                                            



 center. Bob's frustration with the situation is understandable, but as he himself admitted,                                                                                                                                                                                                                                                                                                                                                                                                                                             



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



Servs., 249 P.3d 264, 272 (Alaska 2011) (citing                                                                                                                                                                                                                                                                              Dale H. v. State, Dep't of Health &Soc.                                                                                                                                                                                                       

Servs., Office of Children's Servs.                                                                                                                                                                                                    , 235 P.3d 203, 213 (Alaska 2010)).                                                                                                                                                            



                                                                                                                                                                                                                                                                                       -14-                                                                                                                                                                                                                                                                             7186
  


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

he was the one who chose to "take a selfish negative stand towards not doing what I                                                                                                                                                                                    



should be doing," disengage from OCS, and stall the progress that he could have made                                                                                                                                                                      



over the last year of this case.                                                            The superior court did not err by finding that OCS made                                                                                                       



active but unsuccessful efforts.                                          



                     C.                  Whether Returning Tonya To Bob's Custody Would Result In Harm                                                                                                                                                 



                                         In a termination proceeding under ICWA, the 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 serious emotional                                                                                      

                                                                                                         25        Bob challenges both the court's qualification of  

or physical damage to the child."                                                                                                                                                                                                                                  



Weeks as the expert in this case and the court's ultimate finding that returning Tonya to  

                                                                                                                                                                                                                                                                     



Bob would put her at risk of serious harm.  

                                                                                                                                     



                                          1.                  Expert witness qualification  

                                                                                                                



                                         UnderICWA,therequirementsforanexpert'squalifications areheightened  

                                                                                                                                                                                                                                          

beyond those normally required.26  

                                                                                                                                                                                                                                        

                                                                                                             When an expert is qualified who has no knowledge  



                                                                                                                                                                                                                                           

of  tribal  customs,  the  expert's  education  and  training  "should  constitute  'expertise  



                                                                                                                                                           27  

                                                                                                                                                        

beyond the normal social worker qualifications.' " 



                                                                                                                                                                                                                                    

                                         Bob argues that based on her credentials, Weeks was not "a professional  



                                                                                                                                                                                                                               

person having substantial education in the area of his or her specialty" as recommended  



                     25                  25 U.S.C.  1912(f).               



                     26  

                                                                                                                                                                                                                                                   

                                         Marcia V. v. State, Office of Children's Servs., 201 P.3d 496, 504 (Alaska  

2009).  



                     27                  Id.  (quoting H.R. R                                          EP. N           O. 95-1386, at 22 (1978),                                                        as reprinted in                                   1978  

                                                                                

U.S.C.C.A.N.  7530, 7545).                                                            Bob concedes that cultural knowledge was not required in                                                                                                                      

this case.   



                                                                                                                               -15-                                                                                                                        7186
  


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

                                                                                                                28  

by the 1979 BIA Guidelines.                                                                                             But Weeks is a clinical therapist and case manager                                                                                                                     



supervisor at AK Child and Family. At the time of trial, she had "substantial education"                                                                                                                                                                                                



in the area of her specialty, including a bachelor's degree in psychology, a master's                                                                                                                                                                                                           



degree   in   psychology   and   counseling,   continuing   education   hours   in   trauma,   and  



progress towards her doctorate in integrated mental healthcare. AlthoughWeeks                                                                                                                                                                                                                       was not  



yet licensed as a clinical therapist, she testified that she met all the licensure requirements                                                                                                                                                                                  



and was in the process of preparing to take the exam.                                                                                                                                                       She had at least eight years of                                                                             



experience   working   as   a   clinical   therapist   in   outpatient   and   hospital   settings.     We  



conclude   that   the   superior  court   did   not   err   in   qualifying   Weeks   as   "an   expert   in  



 . . . clinical . . . and psychological treatment                                                                                                                                 for  children suffering from traumatic                                                                    



conditions" and relying on her testimony to support its ICWA finding.                                                                                                                                                                   



                                                  2.                      Continued custody finding                                                    



                                                  The finding that continued custody is likely to result in serious damage to                                                                                                                                                                                            



the child "requires proof that the parent's conduct is unlikely to change and will likely                                                                                                                                                                                                                  

                                                                                                                                                                    29   "These elements may be proved through  

cause serious harm to the child in the future."                                                                                                                                                                                                                                                    



the testimony of one or more expert witnesses, or by aggregating the testimony of lay  

                                                                                                                                                                                                                                                                                                                    

and expert witnesses."30  "ICWA does not require that the experts' testimony provide the  

                                                                                                                                                                                                                                                                                                                      



sole basis for the court's conclusion; ICWA simply requires that the testimony support  

                                                                                                                                                                                                                                                                                                    



                         28                      Id.  (citing Guidelines for State Courts; Indian Child Custody Proceedings,                                                                                                                                                     



44 Fed. Reg. 67,584, 67,593 (1979)).                                                                        



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

                                                                                                                                                                                                                                                                                                        

291 P.3d 957, 964 (Alaska 2013) (citing Marcia V., 201 P.3d at 503).  

                                                                                                                                                                                                                                               



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

                                                                                                                                                                                                                                                                                               

(Alaska 2000)).  

                                                             



                                                                                                                                                         -16-                                                                                                                                                 7186
  


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

                                 31  

that conclusion."                     "[T]he issues are whether the expert disregarded or was unaware of                                                              



contrary evidence, and whether the testimony was so vague and generalized that the trial                                                                          

court clearly erred in according weight to it."                                          32  



                          Bob argues that the superior court erred by relying on Weeks's testimony  

                                                                                                                                                       



because "she explicitly testified that at the time of the termination trial she was unable  

                                                                                                                                                    



to offer an opinion on whether returning Tonya to Bob put her at risk of harm."  But as  

                                                                                                                                                                      



Bob himself acknowledges, Weeks also testified that she stood by her recommendation  

                                                                                                                                         



at the 2015 visitation hearing that it was not in Tonya's interest to have contact with her  

                                                                                                                                                                    



father because he was a trigger for her.  Bob does not point to any "contrary evidence"  

                                                                                                                                                      



that Weeks "disregarded or was unaware of" between the July 2015 visitation hearing  

                                                                                                                                       



and the July 2016 termination trial, and the superior court could have concluded that  

                                                                                                                                                                  



little had changed in Bob's situation over the course of the year that would change  

                                                                                                                                                           



Weeks's opinion. Bob was noncompliant with UAs; the court could have concluded that  

                                                                                                                                                                   



his substance abuse situation had not changed.  Bob did not take any parenting classes  

                                                                                                                                                            



other than Father's Journey, and later incidents called his parentingandsupervision skills  

                                                                                                                                                                



into question.  

                             



                          There  was  new  information  about  Tonya's  sexual  abuse  disclosures  

                                                                                                                                                   



between 2015 and 2016, but Weeks was aware of it.  At the 2015 visitation hearing,  

                                                                                                                                                         



Weeks testified that she was concerned about Tonya's safety in part because the FBI  

                                                                                                                                                                  



investigation had not yet been completed.   But at the 2016 termination trial, Weeks  

                                                                                                                                                            



testified that the investigation was now closed and that Tonya had not made any new  

                                                                                                                                                                 



             31           Id.  at 966 (quoting  E.A. v. State, Div. of Family & Youth Servs.                                                            , 46 P.3d     



986, 992 (Alaska 2002)).            



             32           Id.  (quoting Ben M. v. State, Dep't of Health & Soc.  Servs., Office of  

                                                                                                                                                                     

Children's Servs., 204 P.3d 1013, 1020 (Alaska 2009)).  

                                                                                                



                                                                                 -17-                                                                           7186
  


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

sexual abuse disclosures during the investigation.                                                                                                                          The court could have reasonably                                              



concluded that Weeks took this information into account in affirming her earlier opinion.                                                                                                                                                                                                        



And the court could aggregate Weeks's expert opinion with other evidence, such as the                                                                                                                                                                                               



sex offender risk assessment concluding that Bob was not an appropriate parent for                                                                                                                                                                                                 



Tonya and lay testimony about Tonya's escalating sexualized behavior, to support its                                                                                                                                                                                                  



finding that Tonya would be harmed by returning to her father's custody.                                                                                                                                                                         We conclude   



that the superior court did not err.                                                                



                      D.                    Whether It Was In Tonya's Best Interest To Terminate Bob's Rights                                                                                                                                                          



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



                                                                                                                                                                                                                                                                                         33  

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

The court may consider the factors in AS 47.10.088(b)34   as well as "any other facts  

                                                                                                                                                                                                                                                                              



relating to the best interests of the child" such as "the bonding that has occurred between  

                                                                                                                                                                                                                                                                   



the child and [her] foster parents, the need for permanency, and the offending parent's  

                                                                                                                                                          

lack of progress."35                                                  "The superior court is not required to consider or give particular  

                                                                                                                                                                                                                                                              



weight to any specific factor, including a parent's desire to parent or [his] love for the  

                                                                                                                                                                                                                             

child."36  



                                            Bob argues that the superior court erred because it should have granted him  

                                                                                                                                                                                                                                                                                  



additional time to reestablish the parent-child bond with Tonya.  But the superior court  

                                                                                                                                                                                                                                                                             



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



336 P.3d 1258, 1270-71 (Alaska 2014) (citing CINA Rule 18(c)(3)).                                                                                                                                   



                      34                    These factors include the likelihood that the child will be returned to the  

                                                                                                                                                                                                                                                                                    

parent within a reasonable time, the harm caused to the child, and the likelihood that  

                                                                                                                                                                                                                                                                                 

harmful conduct will continue.  AS 47.10.088(b).  

                                                                                                                       



                      35                     Chloe W., 336 P.3d at 1271.  

                                                                                                                      



                      36                    Id.  (citing Barbara P. v. State, Dep't of Health & Soc. Servs., Office of  

                                                                                                                                                                                                                                                                                       

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

                                                                                                                                                                            



                                                                                                                                         -18-                                                                                                                                 7186
  


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

                                                                                                                                                      

was entitled to consider other factors in making its finding.   The court noted Bob's  



                                                                                                                                                            

failure to engage in services, Michels's concern about Bob's ability to supervise his  



                                                                                                                                                            

daughter, and other testimony about Tonya's behavior, reactions, and reports from her  



                                                                                                                                                    

visits with her father.   The court also noted Bob's poor decision-making in getting  



                                                                                 

involved with a woman who posed a high risk to children despite OCS's warning that  



                                                                                                                                                            

the relationship was not in Tonya's best interests.  And Tonya's foster parent and her  



                                                                                                                                                   

aunt both testified that they were available to adopt her.  We conclude that the superior  



                                                                                                                          

court did not err by finding that termination was in Tonya's best interests.  



V.           CONCLUSION  



                         For the reasons explained above, we AFFIRM the superior court's order                                                          

terminating the father's parental rights.                     



                                                                             -19-                                                                       7186
  

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