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G. Blair McCune, Anchorage, for Appellant.
Laura C. Bottger, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Leslie N. Dickson, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, Guardian Ad Litem.
Before : FABE, Chief Justice, EASTAUGH, CARPENETI, and WINFREE, Justices.
A mother appeals the termination of parental rights to her daughter, an Indian child for purposes of the Indian Child Welfare Act (ICWA). The ICWA standard for termination is " evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."  The mother argues that the trial court erred (1) in considering the expert's qualifications as sufficient to meet the requirements of ICWA; and (2) in finding that the evidence presented at trial was sufficient to prove beyond a reasonable doubt the likelihood of serious emotional or physical damage to the child. Because the trial court's reliance on the expert witness, which was first raised on appeal, did not constitute plain error, and because the court did not err in concluding that the state met its burden of proof, we affirm.
II. FACTS AND PROCEEDINGS
This case concerns termination of the parental rights of Marcia to her daughter Alice. Alice was born in 1997. Marcia and Alice are Alaska Natives from the Native Village of Barrow. Alice is an Indian child within the meaning of ICWA.
Marcia and Alice have a history with the Alaska Department of Health and Social Services, Office of Children's Services (OCS), and with tribal child protective services dating back to a substantiated report of neglect in 1999. In 2003 the Native Village of Barrow took care of Alice while Marcia was in jail in Nome for an assault charge. In 2004 Marcia violated probation by testing positive for cocaine and being under the influence of alcohol.
Marcia and Alice later moved to Anchorage where they lived with relatives. In March 2006 OCS investigated a report that Alice was no longer attending elementary school. The school had contacted the family with whom Marcia and Alice were living and learned that Marcia had been told to leave the home due to her use of alcohol and drugs and her failure to contribute financially.
An OCS social worker found Marcia and Alice staying with Marcia's aunt, and learned that two other occupants of that home, Marcia's cousin and uncle, were convicted sex offenders. Marcia sometimes left Alice in their care to visit her boyfriend. OCS claims that Marcia did not seem to recognize the danger this posed to her daughter, and arranged for Marcia and Alice to stay at a shelter. Alice was interviewed at the shelter regarding sexual abuse, but did not report any such abuse having occurred.
During April 2006 the shelter asked Marcia and Alice to spend a night away from the shelter while repairs were done. Marcia sought additional time away from the shelter after she was told she could return, and the shelter denied this request. As a result, she was discharged from the shelter for failure to obey curfew.
OCS took custody of Alice later in April 2006 after Marcia left Alice with a friend to look after her, did not return when expected, and could not be located. Marcia said she left Alice with the friend because she needed to find a new place to live, and that the friend had a " change of heart" and took Alice to OCS after she could not get in touch with Marcia. OCS has a different version of these events, stating that Marcia told the friend she would be gone a few hours, then disappeared for days Before the friend brought Alice to OCS. OCS considered this abandonment and sought to take emergency custody of Alice on April 18, 2006.
Alice's school reported to OCS that while she was in Marcia's care, Alice had been frequently absent from school, sometimes for as long as a week, and that she had fallen significantly behind in her school work. Marcia told a social worker that these absences from school were because they had no fixed address and " moved around a lot between friends." After Alice entered foster care, her foster parent told social workers that Alice would wake up screaming if she was left alone while sleeping. The foster parent also reported to OCS that Alice was " hyper" and had trouble focusing. Anchorage Community Mental Health Services diagnosed Alice with acute post-traumatic stress disorder and she entered weekly therapy. The therapy helped her make significant progress with her school performance and anxiety.
Marcia consistently stated that she loved her daughter and wanted to have custody of her. Alice similarly told social workers that she loved her mother, and the social workers observed a noticeable bond between them. Marcia understood that she needed treatment for her substance abuse problems. OCS developed a case plan that required her to attend AA meetings, comply with a substance abuse assessment, and obtain stable employment and housing.
OCS viewed treating Marcia's alcoholism as the first priority of her OCS case plan. Marcia was drinking heavily and sometimes became violent and had memory lapses when intoxicated. She reported that she drank on weekends, but that weekends began on Thursday, and she would consume at least a twelve-pack of beer on each occasion she drank. Her June 2006 substance abuse assessment recommended intensive outpatient treatment. Her case plan called for her to complete twenty-four weeks of intensive outpatient treatment. Marcia was referred to an outpatient treatment program but missed several intake appointments and did not follow through on it. She acknowledged her need for treatment but said she was not strong enough for outpatient treatment and wanted to enter an inpatient program. She declined to enter two suggested inpatient programs because they would not allow her daughter to join her. Eventually Marcia did enter a thirty-six-day treatment program for alcohol abuse in Sitka. She attended thirty-five days of the program, and made some progress there, attending classes and meetings for alcohol abuse and anger management, and completing homework assignments. However, she was discharged in October 2007 without completing the program due to non-compliance with rules and threatening behavior toward staff and peers.
After Alice entered foster care in April 2006, Marcia's visitation with her daughter was " very sporadic," according to her OCS social worker. There were gaps of up to four weeks or more when she did not visit. She was often difficult to contact due to her lack of a permanent address. In September 2006 OCS asked her to sign a visitation contract due to her record of being late or not showing up for scheduled visitation appointments. In late 2006 she told her social worker she had just spent a month in jail on assault charges. OCS informed her that she needed to work on completing tasks in her case plan and become engaged; OCS also informed her that if Alice remained in foster care as of
April 2007, OCS would be required to petition to terminate Marcia's parental rights.
Additional factors besides alcoholism likely contributed to Marcia's lack of success in following her case plan. She has been diagnosed with severe post-traumatic stress disorder. She reported that she had been sexually abused by her father, as a result of which she herself as a child had been declared a child in need of aid. She had also witnessed her own mother commit suicide. As an adult, Marcia was a victim of domestic violence. She told OCS that she had recently escaped from a very abusive relationship with a man who beat her and would not let her leave or use the telephone. She once showed up in the OCS office visibly bruised from a beating. The OCS social worker offered to call the police or help her get into a shelter because of this abuse, but she declined. A further challenge was her lack of a stable residence. Because she moved from place to place so much, it was difficult for OCS to stay in contact with her.
Around the end of 2006, Marcia told OCS she wanted to move back to Barrow, and to have Alice moved to a foster home there. OCS eventually placed Alice in a new foster home in Barrow. Marcia moved back to Barrow where she lived with her father and began visiting her daughter. However, Marcia's substance abuse and erratic behavior also continued in Barrow. She was arrested for assaulting and injuring her father in March 2007, and in another incident in April 2007 she was medivaced from Barrow to Anchorage for medical treatment, where she tested positive for alcohol and methamphetamines. She reported ...