D.H. v. State, Department of Health & Social Services

FABE, Justice,

dissenting.

I dissent from the court’s conclusion that the superior court did not satisfy the requirements of Alaska Child in Need of Aid Rule 17(c)(2) and the Indian Child Welfare Act (ICWA). The record is replete with evidence of D.H.’s serious drug addiction and the detrimental effects that this addiction has had on her relationship with T.H.

When D.H. visited the emergency room during her pregnancy, she had needle tracks on both arms and admitted using cocaine and maryuana. The treating physician was so concerned for the safety of D.H. and the fetus that he arranged to hold D.H. in the hospital for seventy-two hours.

After T.H.’s birth, the State placed T.H. in the paternal grandparents’ home so that D.H. could maintain contact with the child. However, the record demonstrates that D.H. visited only sporadically and that when she did so, she was not particularly attentive to the baby. By the time of trial, D.H. had departed for Barrow, without providing the paternal grandparents with any means of contacting her.

The record also reveals that D.H. repeatedly failed to follow through with drug rehabilitation, even though doing so could have allowed her to be reunited with T.H. Indeed, D.H. left three residential treatment programs against staff advice within a five-month period, without making any significant progress toward recovery.

At trial, ICWA expert Kaye Wallis, who was acting as a consultant for T.H.’s tribe, was asked whether T.H. would be at risk of serious physical or emotional damage if she were left in the care of D.H. Wallis responded that the tribe “would have concerns ... because of [D.H.’s] chemical dependency.” Thus, she concluded that D.H. “cannot at this time care for her child without seeking treatment.” In particular, Wallis was troubled by the fact that because of D.H.’s drug addiction and the priority that drugs were taking in her life, T.H. would lack “consistency in ... care,” leading to “dysfunction[al]” emotional health.

The superior court recognized all of this evidence when it drafted its written findings. It noted that D.H. had more concern for drugs and alcohol than for T.H., and it concluded that due to her drug addiction, D.H. had repeatedly demonstrated that she “is not motivated to care for or nurture” T.H.

I cannot agree that these findings are inadequate. In a recent child custody ease, we recognized that a trial court’s findings are important because they permit us to review the factual and legal steps in the trial court’s decision. Bird v. Starkey, 914 P.2d 1246, 1249 (Alaska 1996). Consistent with this conclusion, we stated that findings “need not be extensive” if they allow us to glean from the record the considerations underlying the trial court’s decision. Id. at 1249 n. 4. For example, in Julsen v. Julsen, 741 P.2d 642, 649 n. 10 (Alaska 1987), we noted that the trial court did not make express findings on all statutorily mandated factors. Nevertheless, we affirmed its decision because “the record reflected] that [the trial court] ... considered those factors pertinent to the case” and had reached “a sound decision.” Id. We concluded that a custody determination need not be overturned “merely because a judge fails to tally the statutory factors like runs, hits and errors in a box score.” Id.

Although Judge Beistline may not have made an express finding that return of T.H. to her mother at this time would be “likely to result in serious emotional or physical damage” to T.H., he gave careful consideration to the record, which established that D.H. was placing her need for drugs above the needs of her baby. Judge Beistline recognized that D.H. made drugs her highest priority and that she was not taking the steps to recover from her addiction so that she might care for her child. He also determined that D.H. had “neglected” T.H. since her birth, noting that “[t]here has been no real bonding effor[t] on [D.H.’s] part and no significant nurturing has taken place.” His findings on these issues *658were tantamount to a determination that T.H. would likely suffer serious emotional or physical damage if returned to her mother. Indeed, given the trial court’s findings, it would be hard to imagine how T.H.’s emotional and physical well-being would not be at serious risk if she were placed in the care of D.H. These findings are consistent with the evidence in the record, which establishes that D.H.’s chemical dependency substantially interferes with her motivation and ability to care for T.H. Therefore, I would affirm the superior court’s decision.