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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Demetria H. v. State, Dept. of Health & Social Services, Office of Children's Services (10/5/2018) sp-7308

Demetria H. v. State, Dept. of Health & Social Services, Office of Children's Services (10/5/2018) sp-7308

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

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

DEMETRIA  H.,                                                    )  

                                                                 )     Supreme  Court  No.  S-16826  

                              Appellant,                         )  


                                                                 )     Superior Court No. 3AN-15-00679 CN  

          v.                                                     )  


                                                                 )     O P I N I O N  


STATE OF ALASKA, DEPARTMENT                                      )  


OF HEALTH & SOCIAL SERVICES,                                     )  




                                                                       No. 7308 - October 5, 2018  

                              Appellee.                          )  



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


                    Judicial District, Anchorage, Andrew Guidi, Judge.  


                    Appearances:               Olena   Kalytiak   Davis,   Anchorage,   for  


                    Appellant.   Joanne M.  Grace, Assistant Attorney  General,  


                    Anchorage, and Jahna Lindemuth, Attorney General, Juneau,  


                    for Appellee.  


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


                    and Carney, Justices.  



                    CARNEY, Justice.  



                    A mother appeals the termination of her parental rights to her son, an Indian  

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child.    She argues the trial court violated the Indian Child Welfare Act (ICWA)                                                                                                                                       by  

finding that the Office of Children's Services (OCS) made active efforts and that her                                                                                                                                   

continued custody of her son was likely to result in serious emotional or physical damage                                                                                                                    

to him.              She also argues that the trial court's latter finding was not supported by the                                                                                                                     

testimony of a qualified expert as required by ICWA.                                                                                        We affirm the trial court's order                                      

terminating her parental rights because its findings satisfy ICWA's requirements.                                                                                               

II.              FACTS AND PROCEEDINGS                  


                                   Demetria H. is the mother of seven-year-old Dion,                                                                                                                                

                                                                                                                                                                       who is an Indian child  



as defined by ICWA.                                         Demetria is a member of an Indian tribe and Dion is eligible for  



membership in the Native Village of Yakutat Tlingit.                                                                                          Demetria also has a 16-year-old  


daughter, Dasia, who is a member of Chickaloon Native Village.  Although OCS had  


custody of both children early in this case, Dasia was released from custody and returned  


to Demetria in December 2015 after refusing OCS services and running away from her  


foster home.  OCS filed a motion to release Dasia from custody in January 2017.  As a  


result, Demetria's parental rights to her were not terminated.  


                 A.                First Removal  


                                   Dion was first in OCS custody fromapproximately June2013 toJune2015.  


                                   25 U.S.C.  1901-1963 (2012).                                                          ICWA establishes "minimum Federal                                                

standards for the removal of Indian children from their families and the placement of                                                                                                                                      

such children in foster or adoptive homes which will reflect the unique values of Indian                                                                                                                        

culture."   25 U.S.C.  1902.                           

                 2                 Pseudonyms are used to protect the family's privacy.  


                 3                 See 25 U.S.C.  1903(4).  



                                  Id. (" 'Indian child' means any unmarried person who is under age eighteen  


and is either (a) a member of an Indian tribe or (b) is eligible for membership in an  


Indian tribe and is the biological child of a member of an Indian tribe.").  


                                                                                                             -2-                                                                                                   7308

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Demetria had asked OCS to take custody of Dion because she was homeless and unable  


to care for a toddler.  He was placed in three foster homes during that time.  Dasia was  


in a residential treatment program during the same period.  


                    OCS attempted to work with Demetria to develop a case plan, but she did  


not attend any scheduled meetings from July to September or respond to OCS's attempts  


to contact her.  OCS finalized her case plan in September without her input.  The case  


plan  required  Demetria  to  maintain  stable  housing,  attend  therapy,  participate  in  


parenting classes, participate in a urinalysis program, and maintain contact with Dion.  


                    FromJanuary to June 2014 Demetria had little contact with her caseworker  


despite OCS's attempts to contact her to update the case plan.  In March 2014 the OCS  


caseworker updated the case plan to include that Demetria complete a substance abuse  


assessment  and  comply  with  its  recommendations,  and  sent  a  letter  to  the  Alaska  


Housing Finance Corporation (AHFC) to assist her in getting housing.  


                    In  June  2014,  before  Dasia's  scheduled  release  from  treatment,  the  


caseworker met with her.  Dasia reported that in the past Demetria had frequently been  


intoxicated and left Dion in Dasia's care.  She said that she had once tried to suffocate  


Dion because she was jealous he got so much of their mother's attention.  


                    After Dasia was discharged from residential treatment in July 2014, OCS  


filed a non-emergency petition seeking legal custody of Dasia but allowed her to remain  


with her mother.  Demetria had not actively participated in Dasia's treatment while she  


was in the residential facility and did not follow through with outpatient services after  


Dasia was discharged.  


                    By late June 2014 Dion had been moved to a third foster home because the  


second one was no longer willing to care for him due to his treatment of the family's pets  


and other children.   About the same time, OCS began allowing Demetria five-hour  


unsupervised visits with Dion in her home.  

                                                               -3-                                                         7308

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                                                     The home visits went well.                                                                                   Demetria was living in an apartment she had  

obtained after OCS's referral to AHFC, and she had made progress on her case plan.                                                                                                                                                                                                                                                                        

OCS released custody of both children to Demetria on June 10, 2015.                                                                                                                                                                                                                   

                           B.                        Second Removal   

                                                     In October OCS learned that Dasia had suffered a drug overdose; Demetria                                                                                                                                                                                     

became angry and "stormed out" of an OCS meeting arranged a few days later to address                                                                                                                                                                                                                                   

Dasia's overdose and other family issues. When Dasia arrived at the hospital following                                                                                                                                                                                                                         

her overdose, she threatened to kill herself. Hospital staff reported that Demetria did not                                                                                                                                                                                                                                              

take her daughter's threat of suicide seriously and did not believe that Dasia needed                                                                                                                                                                                                                                    

mental health treatment.                                                                          The staff also reported that Demetria was aggressive toward                                                                                                                                                             

them and had to be restrained and escorted out of the hospital after assaulting security                                                                                                              


                                                     OCS   took   emergency   custody   of   both   Dasia   and   Dion,  and   filed   an  

emergency petition on October 10, 2015.                                                                                                                            OCS's petition alleged that the children were                                                                                                                  


in need of aid on a number of grounds,                                                                                                                                                                                                                                                             

                                                                                                                                                                  including that Demetria was in a relationship  


with a sex offender.  OCS placed Dion back in his most recent foster home while Dasia  


initially remained at Alaska Psychiatric Institute. She was later moved to the same foster  


home as Dion.  


                                                     A probable cause hearing was originally scheduled two days later, but it  


was  continued  to  November  because  Demetria  did  not  attend  and  was  not  yet  


represented. The court made provisional findings that placement of Dion and Dasia with  

                           5                         AS 47.10.011 sets forth 12 grounds on which a child may be determined                                                                                                                                                                               

to be in need of aid.                                                             The emergency petition alleged sections (6) (physical harm), (7)                                                                                                                                                           

(sexual abuse or risk of sexual abuse), (8) (mental injury or risk of mental injury), (9)                                                                                                                                                                                                                

(neglect), (11) (parental mental illness), and (12) (child has committed illegal act).                                                                                                                                                                                                                                                  

                                                                                                                                                                      -4-                                                                                                                                                          7308

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Demetria was contrary to the children's welfare for the reasons alleged in the emergency                                                                                                                                              

petition and granted OCS temporary custody through the next hearing.                                                                                                                                                     

                                         Following the temporary custody hearing in November the court issued a                                                                                                                                                    

second temporary custody order, finding that active efforts had been made to reunify the                                                                                                                                                                      

Indian   family   and   that   there   was   good   cause   to   deviate   from   ICWA's   placement  

preferences   because   the   removal   was   an   emergency   and   the   children   were   placed  

together.     The   court   found   the   children   were   in   need   of   aid   but   did   not   specify   a  

subsection of AS 47.10.011.                                                             

                                        Also in November Dasia ran away from her foster home. Demetria helped                                                                                                                                      

locate Dasia and OCS permitted Dasia to stay with Demetria on a trial home visit.                                                                                                                                                                     OCS  

also created a new case plan.                                                           In addition to maintaining all of the same requirements as                                                                                                              

the   earlier   case   plan,   the   new   one   required   Demetria   to   complete   a   mental   health  

evaluation and its recommendations, demonstrate impulse control, and assist Dasia in                                                                                                                                                                            

accessing substance abuse treatment.                                                                              

                                         In a March 2016 adjudication hearing Demetria stipulated that both of her                                                                                                                                           

                                                                                                                                       6  She also stipulated that active efforts had  

children were in need of aid based on neglect.                                                                                                                                                                                                              

been  made  and  that  there  was  good  cause  to  deviate  from  the  ICWA  placement  


preferences because there were no ICWA-compliant placements available when the  


children  were  removed.                                                         Finally  she  stipulated  to  temporary  OCS  custody  of  both  


children, and OCS agreed to allow Dasia to remain living with Demetria, while Dion  


remained in the foster home.  


                                         In May 2016 OCS filed a predisposition report summarizing what had  


occurred since OCS took custody.  The report outlined that Dasia was not attending  


school and that in the months leading up to the report she had been hospitalized three  




                                        See AS 47.10.011(9).  

                                                                                                                               -5-                                                                                                                                  7308  

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times due to overdosing on synthetic marijuana (spice), blacking out from alcohol, and                                                                                                                                                                                                                

attempting suicide.                                                   The report stated that Dion had an Individualized Education Plan                                                                                                                                                             

(IEP) at school due to his speech and social development delays and that he had to have                                                                                                                                                                                                           

two teeth pulled due to severe tooth decay. The disposition hearing was held in June, but                                                                                                                                                                                                               

the court was unable to make active efforts findings because Demetria was not being                                                                                                                                                                                                            

allowed to visit Dion. The court therefore did not make any disposition findings, instead                                                                                                                                                                                                  

saying that it would continue the disposition hearing as to Dion and enter disposition                                                                                                                                                                                      

findings at the next hearing.                                                                         

                                               Demetria   worked   with   OCS   throughout   2016,   attending   meetings   in  

January, February, March, April, July, August, October, and November, and making                                                                                                                                                                                                        

some progress on her case plan.                                                                                   In October 2016 the court held a permanency hearing.                                                                                                                                                 

OCS requested that the court adopt its recommended goals of guardianship for Dasia and                                                                                                                                                                                                                 

                                                                   7        OCS asked the court to find that Demetria had not substantially  

adoption for Dion.                                                                                                                                                                                                                                                    

complied with her case plan.   In December 2016 OCS filed a petition to terminate  


Demetria's parental rights to Dion.8  


                                                In January 2017 Demetria refused to complete a mental health assessment  


for an individual therapy referral or to sign a release of information so OCS could  


confirm her participation in a different individual therapy program.  OCS also filed a  


motion requesting permission to release Dasia from custody because she was unwilling  


to receive services.  OCS continued meeting with Demetria through January 2017.  


                        7                       OCSinitially consideredDion's foster hometobeapreadoptiveplacement.                                                                                                                                                                                                    

Dion was still in the same home at the time of trial, but the foster parent was no longer                                                                                                                                                                                                   

willing to adopt him.                                                       

                        8                       OCS                        alleged                             Dion                        was                     a             child                       in               need                       of                aid                  under  


AS 47.10.011(1) (abandonment), (6) (physical harm), (7) (sexual abuse or risk of sexual  


abuse), (8) (mental injury or risk of mental injury), (9) (neglect), (10) (parental substance  


abuse), and (11) (parental mental illness).  


                                                                                                                                                     -6-                                                                                                                                          7308

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                         C.                      Termination Trial   

                                                 In May and June 2017 the court held a three-day termination trial.                                                                                                                                                                                              A  

representative from Yakutat Tlingit, Dion's tribe, attended by telephone starting on the                                                                                                                                                                                                                        

second day of the trial.                                                                      Although OCS had notified Yakutat Tlingit of the case in                                                                                                                                                             

October 2015, the tribe did not move to intervene until after the termination trial.                                                                                                                                                                                                                       The  

court, however, allowed its representative to participate in the trial and to question                                                                                                                                                       


                                                 OCS   called   11   witnesses,   including   two   Anchorage   police   officers  

regarding   incidents   involving   Demetria   and   Dasia,   and   a   security   guard   from   the  

Anchorage transit center regarding incidents involving the family there.                                                                                                                                                                                                  In addition a                                

number of professionals who had worked with the family testified:                                                                                                                                                                                    Dasia's counselor,   

Dion's kindergarten teacher, Dion's former foster parent, Dion's therapist, two OCS                                                                                                                                                                                                                     

caseworkers, and an OCS visitation supervisor.                                                                                                                                        To satisfy ICWA's requirement of                                                                                             

expert testimony, OCS presented the testimony of Philip Kaufman.                                                                                                                                                                                     9  


                                                 Dion's psychologist, Dr. Courtney Horwath-Oliver, testified that she had  


diagnosed  him  with  post-traumatic  stress  disorder  (PTSD)  and  disinhibited  social  


engagement  disorder  (DSED).                                                                                                The  PTSD  diagnosis  was  based  on  Dion's  sleep  


problems,  nightmares,  hypersensitivity  to  touch  and  noise,  and  increased  negative  


emotional states, which she attributed to past traumatic experiences.  She testified that  

DSED is a form of attachment disorder characterized by the child "seeking out and  


initiating contact with unfamiliar adults" and having "experienced a pattern of extreme  


                         9                       25 U.S.C.  1912(f) (2012) (requiring termination of parental rights to be                                                                                                                                                                                        

supported by evidence beyond a reasonable doubt including testimony of a qualified                                                                                                                                                                                                    

expert that continued custody of the child by the parent is likely to lead to serious                                                                                                                                                                                                           

emotional or physical damage to the child).                                                                                            

                                                                                                                                                         -7-                                                                                                                                              7308

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insufficient caregiving."  Dr. Horwath-Oliver testified that because of his DSED, Dion  


lacks instincts of "stranger danger" which creates a high risk that he would become a  


victim unless he had proper adult supervision.  She testified that his conditions impair  


his ability to function - including being successful in school and making friends.  She  


testified that Dion should continue in therapy to address his attachment disorder and help  


him  avoid  future  problems  such  as  being  unable  to  regulate  his  emotions,  form  


meaningful  attachments  with  people,  have  peer  relationships,  or  have  intimate  


relationships as an adult.  


                    The trial court allowed Philip Kaufman to testify as OCS's ICWA expert  


over Demetria's objection. Kaufman is a licensed social worker who previously worked  


for  OCS  and  is  a  former  police  officer;  he  has  a  bachelor's  degree  in  elementary  


education and psychology, a master's degree in social work, and a master's degree in  


public administration. He testified that he has completed training in substance abuse and  


its impact on Alaska Natives and American Indians, domestic violence, and ICWA.  He  


had previously been qualified as an expert in child welfare cases.  The Yakutat Tlingit  


representative approved of his testifying as an ICWA expert.  


                    Kaufman reviewed the family's records provided by OCS and prepared an  


expert report to the court.   He identified several safety threats for the children.   He  


testified  that  Demetria  did  not  control  her  alcohol  use;  exposed  the  children  to  


individuals who present risks to them; and struggled to provide stability, food, clothing,  


and shelter.  He also testified that Demetria had not appropriately addressed Dasia's  


medical needs.   And he testified that based on   Demetria's failure to help Dasia get  


mental health treatment or to participate in Dasia's therapy, she was unlikely to follow  


through with Dion's therapy.  Kaufman concluded that, in light of Dion's special needs,  

                                                                -8-                                                         7308

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Demetria's continued custody of Dion was likely to result in serious and substantial                                                                 

physical or emotional harm to Dion.                                      

                          At the close of trial OCS urged the court to terminate Demetria's parental                                                      

                                                                                                                                              10     OCS filed  

rights to Dion due to her abandonment, neglect, and substance abuse.                                                                                             

proposed  findings of fact; Demetria did  not object to  any of them or  file her  own  


proposed findings.  In September 2017 the trial court issued a written order terminating  


Demetria's parental rights to Dion and largely adopting OCS's proposed findings.  


                          The court found by clear and convincing evidence that Dion was a child in  


need of aid under AS 47.10.011(9) (neglect) and (10) (parental substance abuse) and that  


Demetria had not remedied the conduct or conditions that put him at substantial risk of  


harm.  It also found clear and convincing evidence that active efforts had been made to  


prevent the breakup of the family.  It based this finding on OCS's multiple case plans;  


its attempts to assist Demetria to get into individual therapy; and its referrals to parenting  


classes, substanceabuseassessments, housing assistance, drug testing, and mental health  


assessments. The court foundthat Demetriahad refused to participate in substance abuse  


treatment, to address her own mental health needs, and to take the necessary steps to  


secure housing for herself and her children.  


                          Finally, in part based on Kaufman's testimony, the court found evidence  


beyond a reasonable doubt that Demetria's continued custody of Dion was likely to  


result  in  serious  emotional  or  physical  damage  to  Dion.                                                           It  relied  on  Kaufman's  


testimony that Demetria lacked protective capacity and refused to address risks to her  


children.  It found by a preponderance of the evidence that Dion's best interests would  


be promoted by terminating Demetria's parental rights.  




                          AS 47.10.011(1) (abandonment), (9) (neglect), (10) (substance abuse).  


OCS did not ask the court to rule on any of the other grounds alleged in the petition.  

                                                                                  -9-                                                                                 7308  

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                         Demetria appeals.   

III.         STANDARD OF REVIEW                  

                          "We   review   de   novo   whether   a   superior   court's   findings  satisfy   the  


requirements of the CINA and ICWA statutes and rules."                                            



                          "We review a superior court's findings of fact for clear error."                                                            "A trial  


court's determination that a parent's continued custody of a child will likely result in the  


child suffering serious emotional or physical damage is a factual finding that we review  



for clear error." 


                          "A trial court's decision to admit expert testimony is reviewed for an abuse  



of  discretion."                     But  "[w]hether  expert  testimony  presented  at  trial  satisfies  the  



requirements of ICWA is a legal question that we review de novo." 


                          "Whether  OCS  made  active  efforts  as  required  by  ICWA  is  a  mixed  



question of law and fact."                             "Whether 'the trial court's active efforts finding failed to  



comport with ICWA's requirements' is a question of law reviewed de novo." 


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

Servs., 249 P.3d 264, 270 (Alaska 2011) (quoting                                                 Dale H. v. State, Dep't of Health &                              

Soc. Servs., Office of Children's Servs.                                  , 235 P.3d 203, 210 (Alaska 2010)).                     


                         Id. at 269 (quoting Dale H., 235 P.3d at 209).  


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


291 P.3d 957, 962 (Alaska 2013).  




             15          Id.  

             16          Pravat P., 249 P.3d at 270 (quoting Dale H., 235 P.3d at 210).  


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


Servs., 365 P.3d 345, 348-49 (Alaska 2016) (quoting Sandy B. v. State, Dep't of Health  



                                                                               -10-                                                                         7308

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                     Demetria  argues  that  the  trial  court's  order  did  not  comply  with  the  


requirements of ICWA, that the court erred in finding OCS made active efforts to prevent  


the breakup of her family, that the evidence did not support the trial court's finding that  


her ongoing custody of her son would result in a substantial risk of harm to him, and that  


the trial court's order was not supported by the testimony of a qualified expert.  We  


disagree:  the court's order complied with ICWA's requirements.  


                     Because OCS filed its petition to terminate parental rights on December 19,  


2016, this case is governed by the new ICWA regulations issued by the Bureau of Indian  


Affairs  (BIA)  in  2016.18                  BIA  has  also  issued  interpretative  guidelines  for  these  


regulations.19  The guidelines are not binding but in the past we have turned to them for  


guidance in interpreting ICWA.20  


          A.	        The  Trial  Court  Did  Not  Err  In  Finding  OCS  Made  Active  But  


                     Unsuccessful Efforts To Prevent The Breakup Of This Indian Family.  


                     To terminate parental rights to an Indian child, the trial court must find by  


           17        (...continued)  


& Soc. Servs., Office of Children's Servs., 216 P.3d 1180, 1186 (Alaska 2009)).  

           18        ICWA Regulations, 25 C.F.R.  23.143 (2016).  "[T]he provisions of this  


subpart  apply  to  any  subsequent  proceeding  in  the  same  matter  or  subsequent  


proceedings  affecting  the  custody  or  placement  of  the  same  child  [initiated  after  


December 12, 2016]."   Id.                    The changes made by the regulations do not affect the  


outcome of this case, but because Demetria refers to the regulations and guidelines in her  


briefing, they are discussed when relevant to her arguments.  



                     BUREAU OF          INDIAN  AFFAIRS, G           UIDELINES FOR           IMPLEMENTING THE                INDIAN  

CHILD WELFARE ACT 4 (Dec. 2016),       



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


Servs., 270 P.3d 767, 781-82 (Alaska 2012).  


                                                                 -11-	                                                          7308

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clear and convincing evidence that OCS has made active efforts "to provide remedial                                                                               

services and rehabilitative                           programs designed to                         prevent thebreakup                       ofthe Indian family         


and that these efforts have proved unsuccessful."                       


                            Demetria  argues OCS did  not make active efforts because it failed  to  


involve Dion's tribe in his case, address her need for housing, or permit her to participate  


in Dion's therapy, and was merely passive in its efforts to assist her.  She claims that  


under the recently amended ICWA regulations such failures preclude a finding of active  




                            Under  the  now-applicable  2016  ICWA  regulations  "active  efforts"  is  


defined  as  "affirmative,  active,  thorough,  and  timely  efforts  intended  primarily  to  


                                                                                                                                 One regulation provides  

maintain or reunite an Indian child with his or her family."                                                                                                      

examples of what constitutes active efforts:  


                            Wherean agency isinvolved in thechild-custody proceeding,  


                            active efforts must involve assisting the parent or parents or  


                            Indian custodian through the steps of a case plan and with  


                            accessing or developing the resources necessary to satisfy the  


                            case plan.  To the maximum extent possible, active efforts  


                            should be provided in a manner consistent with the prevailing  


                            social and cultural conditions and way of life of the Indian  


                            child's Tribe and should be conducted in partnership with  


                            the . . . Tribe.[23]  


OCS properly notified Yakutat Tlingit of the proceedings; the tribe did not participate  

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

212 P.3d 756, 760-61 (Alaska 2009) (quoting 25 U.S.C.  1912(d) (2012); CINA Rule                                                                                          




                            25 C.F.R.  23.2.  

              23            Id.  

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


until the termination trial.                                                        Contrary to Demetria's argument, the tribe's decision not   

to participate until trial does not mean that OCS failed to comply with the regulation's                                                                                                                                     

exhortation to work in partnership with Dion's tribe or to make active efforts.                                                                                                                                   

                                        Demetria next focuses on her lack of housing to argue that OCS failed to                               

provide active efforts. After                                                      first taking custody of the children, OCS released themback   

to Demetria when she obtained an apartment with its help.                                                                                                                              OCS was never able to                                              

determine how or why Demetria had lost her apartment. Throughout the period leading                                                                                                                                                        

up to the termination trial OCS continued to identify possible housing options and offer                                                                                                                                                           

to assist Demetria to apply for them.                                                                        The trial court therefore appropriately considered                                                                 

OCS's efforts to help Demetria obtain housing as part of its active efforts finding.                                                                                                                                                               25  

                                        Demetria also argues that refusing to allow her to participate in Dion's  


therapy demonstrates that OCS failed to make active efforts. But Dion's therapist stated  


that it would not be in Dion's best interest to include anyone in his therapy who would  


not consistently participate.  And although she testified that it would help Dion to have  


his caregiver involved in his therapy, it would only be beneficial to involve a consistent  


primary caregiver.  She testified that until there was a specific plan for Dion to return to  


his mother's custody it would not have been appropriate to involve Demetria in his  



                                        We note that Dasia's tribe, Native Village of Chickaloon, was involved                                                                                                                        

throughout the time that Dasia was in OCS custody.                                                                                                           

                    25                  Demetria also argues that OCS's efforts were insufficient because they did  


not address her poverty, homelessness, or unemployment.  But OCS has discretion to  


prioritize which services should be provided to a parent based upon the issues identified  


in her case.  See Denny M. v. State, Dep't of Health & Soc. Servs., Office of Children's  


Servs., 365 P.3d 345, 351 n.22 (Alaska 2016).  And Demetria's parental rights were  


terminated because of her neglect of Dion and her substance abuse.  OCS's efforts were  


targeted at addressing these issues.  


                                                                                                                          -13-                                                                                                                    7308

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

therapy.  Furthermore Demetria had refused to participate in her own substance abuse   

and mental health treatment, and had demonstrated in the past that she was unwilling to                                                                                                                                                          

help her children obtain mental health services. It was not inappropriate for OCS to rely                                                                                                                                                  

on Dion's therapist's recommendation to involve only a consistent caregiver.                                                                                                                   

                                      Although   Demetria argues that OCS's efforts were more passive                                                                                                                                    than  

active, our previous cases have affirmed findings that OCS made active efforts in similar                                                                                                                                          

circumstances.    For example, in                                                              Pravat P. v. State, Department of Health & Social                                                                                   

Services, Office of Children's Services                                                                       we held that a similarly long list of referrals and                                                                           

                                                                                                                                                     26  During the four years that OCS  

encouragement supported a finding of active efforts.                                                                                                                                                                                    

worked with Demetria's family, it created numerous case plans and tried to engage  


Demetria in following them. It provided referrals for parenting classes, substance abuse  


and mental health assessments and services, and housing. Demetria elected not to attend  


meetings and not to follow through on the referrals.  


                                      Demetria urges us to use the opportunity presented by the new regulations  


to examinemore closely OCS's duty to makeactiveefforts because"an uncompromising  


standard holds true in every Alaska [CINA] case:   even if the outlook is bleak and  


likelihood of success is low."27  

                                                                                          OCS responds that the court should consider "a parent's  


demonstrated lack of willingness to participate in treatment"28 when making its active  


                   26                 See  249 P.3d 264, 271-72 (Alaska 2011);                                                                              see also Thea G. v. State, Dep't                                          

of Health & Soc. Servs., Office of Children's Servs.                                                                                               , 291 P.3d 957, 962 (Alaska 2013)   

(describing OCS'sprovision ofmultiplecaseplans,                                                                                                multiplereferrals, andregular family                                                 

contact as abundant support for an active efforts finding).                                                                                

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


407 P.3d 442, 452-53 (Alaska 2017) (examining the effort required from OCS under the  


less stringent "reasonable efforts" standard applied in non-ICWA cases).  


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



                                                                                                                     -14-                                                                                                               7308

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

efforts finding.  In  A.M. v. State we noted that we had "never suggested that the scope  

of the State's duty to make active remedial efforts should be affected by a parent's                                                                   

                                                                                                                                 29  But we have also  

motivation or prognosis before remedial efforts have commenced."                                                                                                

affirmed trial courts' findings of active efforts when it has become clear that further  


efforts by OCS would be futile.30  Both parties take positions consistent with our holding  


in previous cases:  in each case the trial court must make its determination based upon  


the evidence presented.   "What constitutes sufficient 'active efforts' will vary from  


case-to-case, and courts have the discretion to consider the facts and circumstances of  


the particular case before it when determining whether the definition of 'active efforts'  


is met."31  


                          Thetrial court's finding ofactiveefforts, underboth thepreviousguidelines  


and the current regulations, turns on OCS's efforts.32                                                        In this case, OCS repeatedly  


referred Demetria to substance abuse assessments that she did not take advantage of; as  


             28           (...continued)  


400 P.3d 99, 107 (Alaska 2017) (quoting Maisy W. v. State, Dep't of Health & Soc.  


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

             29           891 P.2d 815, 827 (Alaska 1995).  


             30           See, e.g., Wilson W. v. State,  Dep't of Health & Soc. Servs., Office of  


Children's Servs., 185 P.3d 94, 101 (Alaska 2008) (approving trial court's conclusion  


that OCS did not need to make further active efforts following father's detailed threats  


to kill any social worker that set foot on his property).  


             31           BUREAU OF              INDIAN  AFFAIRS,  supra  note 19, at 55;                                see also Jude M. v. State,           

Dep't of Health &Soc. Servs., Office of Children's Servs.                                                    , 394 P.3d 543, 554-55 (Alaska              


             32           25 C.F.R.  23.2 (2016).  


                                                                                -15-                                                                          7308

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


a result OCS did not continue to make the same referrals again and again.                                                                                                                                                                                                   The trial   

court appropriately considered these facts in reaching its conclusion that OCS had made                                                                                                                                                                                                   

active efforts to reunite Demetria's family and that the services and referrals it provided                                                                                                                                                                               

met its burden to provide active efforts.                                                                                                   Thus, the trial court did not err in finding that                                                                                                   

active efforts were made.                                          

                       B.	                     The Trial Court Did Not Err In Finding That Demetria's Continued                                                       

                                               Custody Would Likely Result In Dion Suffering Serious Emotional Or                                                                                                                                                                                  

                                               Physical Harm.   

                                              Demetria argues that the termination of her parental rights is not supported                                                                                                                                                 

by evidence beyond a reasonable doubt that her continued custody of Dion would likely                                                                                                                                                                                                    

result in a substantial risk of harm to him.                                                                                                          To terminate parental rights the trial court                                                                                        

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

expert witnesses, that the continued custody of the child by the parent . . . [was] likely                                                                                                                                                                     


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

                                                                                                                                                                                                                                    Demetria argues that  


there was no causal relationship between her conduct and the alleged risks to Dion. She  


also argues that Dion's removal was based on her poverty and homelessness.   But  


evidence at trial showed that Dion was removed and Demetria's parental rights were  


terminated because of her neglect of Dion and her substance abuse.  


                                               The evidence at the termination trial demonstrated that Dion's DSED was  


linked  to  Demetria's  neglect  and  substance  abuse.                                                                                                                                                     The  American  Psychiatric  


Association's Diagnostic and Statistical Manual of Mental Disorders specifies criteria  

                       33                     Had Demetria later demonstrated an interest in obtaining a substance abuse                                                                                                                                                                  

assessment OCS could have again been required to make referrals on her behalf.                                                                                                                                                                                  

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


343 P.3d 425, 431 (Alaska 2015) (omission in original) (quoting 25 U.S.C.  1912(f)  


(2012); CINA Rule 18(c)(4)).  


                                                                                                                                                -16-	                                                                                                                                       7308

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


for a clinician to diagnose a child with DSED.                                         The first criterion is "[a] pattern of                      


behavior in which a child actively approaches and interacts with unfamiliar adults."                                                                    

The diagnosis also requires the mental health professional to find that the child has  


"experienced a pattern of extremes of insufficient care" as evidenced by at least one of  


a list of several criteria.37  The first two examples in the list are:  "1.  Social neglect or  


deprivation in the form of persistent lack of having basic emotional needs for comfort,  


stimulation, and affection met by caregiving adults," and "2.   Repeated changes of  


primary caregivers that limit opportunities to form stable attachments (e.g., frequent  


changes in foster care)."38  Dion's therapist testified that children meet these diagnostic  


criteria when their "basic emotional or physical needs [are] not being met continuously"  


and  when  they  have  "frequent  change[s]  in  primary  caregivers."                                                       The  evidence  


demonstrated that Dion had experienced both of these listed situations.   In addition  


Dion's therapist testified that his PTSD was the result ofhistraumaticexperiences during  


his infancy and early childhood.  She suggested Dion's diagnoses could be related to  


neglect,  witnessing  his  mother  being  arrested,  times  when  he  and  Demetria  were  


homeless, periods when Demetria was suffering from substance abuse problems, and  


when he was often left with strangers.  Finally Dr. Horwath-Oliver testified that Dion  


would need stability in order to benefit from treatment for his PTSD and DSED.  


                       In  addition  Kaufman  offered  his  expert  opinion  that  Demetria's  own  


substance abuse and possible mental illness were linked to her lack of protective capacity  



                       AM.    PSYCHIATRIC    ASS'N,    DIAGNOSTIC    &    STATISTICAL    MANUAL    OF  

MENTAL  DISORDERS  268  (5th  ed.  2013).  

            36         Id.  

            37         Id.  

            38         Id.  

                                                                       -17-                                                                  7308

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

and neglect of Dion, and contributed to his mental health problems. And Kaufman noted                                                                                                                                                                                                                                                                                                                       

that   Dion   had   spent   two-thirds   of   his   life   in   OCS   custody.     Significant  evidence  

demonstrated that Dion's DSED put him at risk of being victimized, of further delays in                                                                                                                                                                                                                                                                                                                                      

 school, of an inability to make friends, and of being unable to regulate his emotions or                                                                                                                                                                                                                                                                                                                                  

form meaningful attachments with others.                                                                                                                                                                        

                                                                 The court found that Demetria's substance abuse and mental health issues                                                                                                                                                                                                                                                                

were linked to her neglect of Dion.                                                                                                                                          And the court specifically connected its finding of                                                                                                                                                                                           

neglect to Demetria's exposing Dion to sex offenders, failing to adequately supervise                                                                                                                                                                                                                                                                                                  

him, and failing to take parental responsibility for him, including not feeding or bathing                                                                                                                                                                                                                                                                                                       


                                                                 Demetriafurtherargues that releasing Dasiafromcustody                                                                                                                                                                                                                              and returning                                                     her  

to Demetria demonstrates that she should have also been considered a safe placement for                                                                                                                                                                                                                                                                                                                                 

Dion.     But   this  argument ignores the fact that Dasia,                                                                                                                                                                                                                       who   is nearly                                                            17,   refused   to  

cooperate with OCS and ran away fromfoster care, and Dion, who is 7, has special needs                                                                                                                                                                                                                                                                                                                     

and   remains   in   a   foster   home.     OCS's   decision   not   to   petition   for   termination   of  

Demetria's rights to Dasia, or even to seek continued custody of Dasia, has no bearing                                                                                                                                                                                                                                                                                                           

on the risks of harm to Dion.                                                                                    

                                                                 The trial court did not err in finding that there was evidence beyond a                                                                                                                                                                                                                                                                                       

reasonable doubt that Demetria's continued custody of Dion was likely to result in                                                                                                                                                                                                                                                                                                                                         

 serious harm to Dion.                                                        

                                 C.                              The Trial Court Did Not Err By Qualifying The ICWA Expert.                                                                                                                                                                                                                                         

                                                                 Demetria argues that Kaufman did not satisfy ICWA's requirements for an                                                                                                                                                                                                                                                                                   

                                                                           39                She argues that he had insufficient specific knowledge of Yakutat  

expert witness.                                                                                                                                                                                                                                                                                                                                                                               

Tlingit culture and was unqualified because he had not met her or Dion.  




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

                                                                                                                                                                                                          -18-                                                                                                                                                                                                 7308  

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

                         ICWA   requires   that   a   court's   finding  of   substantial   risk   of   harm   be  


supported by qualified expert testimony.                                                                                                  

                                                                                  This finding "may be proved through the  


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

                                  41   And "ICWA does not require that the experts' testimony provide  



expert witnesses." 

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



support that conclusion." 


                         According to the ICWA regulations:  


                         A  qualified  expert  witness  must  be  qualified  to  testify  


                         regardingwhether thechild'scontinued custody by theparent  


                         or Indian custodian is likely to result in serious emotional or  


                        physical damage to the child and should be qualified to testify  


                         as to the prevailing social and cultural standards of the Indian  


                         child's Tribe.   A person may be designated by the Indian  


                         child's Tribe as being qualified to testify to the prevailing  


                         social and cultural standards of the Indian child's Tribe.[43]  


The  Yakutat  Tlingit  tribal  representative  who  participated  in  the  termination  trial  


explicitly accepted Kaufman as an appropriate expert witness.  Thus, the trial court did  


not err in qualifying Kaufman as an ICWA expert.  


                         The guidelines do recommend that the qualified expert witness be familiar  



with the particular child.                            However, neither ICWA itself nor the new regulations  


            40          Id.  


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

400 P.3d 99, 108 (Alaska 2017) (quoting                                    Thea G. v. State, Dep't of Health &Soc. Servs.,                          

Office of Children's Servs.                      , 291 P.3d 957, 964 (Alaska 2013)).                   


                        Id. (quoting Thea G., 291 P.3d at 966).  


            43           25 C.F.R. 23.122(a) (2016).  



                         BUREAU OF  INDIAN  AFFAIRS,  supra  note   19,  at  55.  

                                                                            -19-                                                                      7308

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

require such familiarity. We have previously held that a qualified ICWA expert does not                                                                                         

need to have met with the family so long as the court has sufficient information with                                                                                       

                                                                                                                  45      The court may obtain such  

regard to the particular circumstances of the family.                                                                                                                       

information from the evidence presented, including the testimony of both the expert  


witnesses and lay witnesses familiar with the family.46  Although Kaufman did not meet  


with Demetria or Dion, he had reviewed OCS's records.  


                            In addition to Kaufman's expert testimony, the court had before it the  


testimony   of   other  witnesses,  including  mental  health  professionals  and  other  


professionals who had worked closely with both Demetria and Dion. The trial court was  


permitted to aggregate Kaufman's testimony with the evidence received from other  



                            The trial court did not err in qualifying Kaufman as an expert witness or  


using his testimony to support its substantial risk of harm finding.48  


V.            CONCLUSION  

                            We AFFIRM the trial court's order terminating Demetria's parental rights,  


as it complies with the requirements of ICWA.  


              45            Thea G.          , 291 P.3d at 965.          

              46            See Bob S.             , 400 P.3d at 108-09.         



                            See id.  



                            See 25 U.S.C.  1912(f); Thea G., 291 P.3d at 964.  

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