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, ) OPINION
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
Richard K. 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
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
Bob S. is the father of Tonya, now ten.1 Tonya is an Indian child as defined
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.
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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
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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 and overnights
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
Bob against having unsafe people in his home, but Bob continued to contact her.3
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.
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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
trafficking by Bob, but ceased after the investigation ended.4 By summer Tonya was
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.
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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.
Weeks was qualified as “a[n] expert in counseling with children and 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).
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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
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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
Indian child.6 The court must find by clear and convincing evidence that (1) the 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).
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the child is likely to result in serious damage to the child.10 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
We review the superior court’s decision to admit expert testimony for abuse
of discretion.12 We review the superior court’s factual findings for clear error.13 Factual
findings are clearly erroneous “when a review of the entire record leaves us ‘with a
definite and firm conviction that the superior court has made a mistake.’ ”14 “Thus, ‘we
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)).
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will ordinarily not overturn a superior court’s findings based on conflicting evidence.’ ”15
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)).
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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
by clear and convincing evidence that “active efforts have been made to provide remedial
services and rehabilitative programs designed to prevent the breakup of the Indian family
and that these efforts have proved unsuccessful.”18 Bob argues that rather than making
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.
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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
that the visits are not in the child’s best interests.20 A parent can request a hearing to
challenge OCS’s denial of visitation.21
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).
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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.
Alaska Statute 47.10.084(c) provides that a parent whose rights have not 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
comport with [Title 47’s] policy of preserving family ties.”22 The court noted the love
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)).
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between passive and active efforts.”24 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)).
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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
or physical damage to the child.”25 Bob challenges both the court’s qualification of
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
Under ICWA, the requirements for an expert’s qualifications are heightened
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
beyond the normal social worker qualifications.’ ”27
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. REP. NO. 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.
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by the 1979 BIA Guidelines.28 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. Although Weeks 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
cause serious harm to the child in the future.”29 “These elements may be proved through
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)).
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that conclusion.”31 “[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 parenting and supervision 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)).
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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
by a preponderance of the evidence that termination is in the child’s best interests.”33
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)).
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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.
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