Diego K. v. State, Department of Health & Social Services

         Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Superior Court No. 4SM-14-00002 CN Bethel, Dwayne W. McConnell, Judge.

          Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant

          Diego K. William T. Montgomery, Assistant Public Advocate, Bethel, and Richard K. Allen, Public Advocate, Anchorage, for Appellant

          Catharine K. Kathryn R. Vogel, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.

          Justin Facey, Assistant Public Advocate, and Richard K. Allen, Public Advocate, Anchorage, on behalf of minor.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          CARNEY, Justice.

         I. INTRODUCTION

         Parents appeal from a superior court's order that the Office of Children's Services (OCS) had satisfied the Indian Child Welfare Act's (ICWA) requirements authorizing the removal of their daughter, an Indian child, from their custody.^[1] Because the court relied on information that was not in evidence to make the required ICWA removal findings, ^[2] we vacate the order authorizing removal.

         II. FACTS AND PROCEEDINGS

         Diego K. and Catharine K. have a 16-year-old daughter, Mary, ^[3] who is an Indian child as defined by ICWA.^[4] OCS took emergency custody of Mary and her older brother Claude in March 2014. It acted following a December 2013 report that Claude had been medivaced out of the family's village due to alcohol poisoning and that his parents had been too intoxicated to accompany him, and a March 2014 report that Diego and Catharine were intoxicated and fighting in their home. OCS alleged in its emergency petition that the court should make child in need of aid (CINA) findings under a number of sections of AS 47.10.011:^[5] (6) (physical harm), (8)(B) (mental injury), (9) (neglect), and (10) (substance abuse).^[6] At the emergency custody hearing Diego and Catharine stipulated to probable cause that their children were in need of aid under AS 47.10.011, without admitting any of the facts alleged in the petition, and to temporary OCS custody pending an adjudication hearing. In August Diego and Catharine stipulated to adjudication of both children as children in need of aid under AS 47.10.011 (9) (neglect), and to continued temporary OCS custody pending disposition.

         The superior court held a disposition hearing over two days in December and January. OCS argued for an order authorizing it to remove the children from their parents' home;^[7] the parents urged the court to grant OCS only the authority to supervise the family.^[8]

         In support of its removal request, OCS called an expert as required by ICWA section 1912(e).^[9] OCS offered Dr. Valerie Warren as an expert in clinical psychology with experience treating Native patients. The court qualified Dr. Warren over the parents' objections. She testified that the parents' continued custody of Claude and Mary placed the children at a serious risk of harm, and that, in her opinion, the children could not be safely returned to their parents as long as the parents continued to drink alcohol.

         The OCS caseworker assigned to work with the family testified that the parents' drinking and domestic violence placed the children at risk, that there was a serious problem with mold on the walls throughout the family's home, and that she believed these threats still existed. In response to questioning about the efforts she had made to prevent the breakup of the family, the OCS caseworker testified that she had referred the parents to family counseling with Dr. Warren, helped the parents fill out paperwork for housing assistance to receive grants to repair their home, and referred them for substance abuse counseling and urinalysis testing in the village. She also testified to the services provided to the children, including assisting Mary with personal hygiene and enrolling her in recreational camps, as well as helping Claude join an AmeriCorps program and flying Catharine to his AmeriCorps graduation ceremony.^[10] She stated that OCS had provided calling cards so the children could call their parents and had arranged family visits in the village where the children were in foster care.

         The court found that the children continued to be children in need of aid due to their parents' substance abuse.^[11] Largely because of deficiencies in Dr. Warren's testimony, the court held that OCS had not proven by clear and convincing evidence that the children were likely to suffer harm if returned to their parents' care. The court found that OCS had not made active efforts to prevent the breakup of the family as required under 25 U.S.C. § 1912(d) because most of its efforts were "directed at enriching the lives of the children." The court therefore ordered Mary returned to her parents but placed her under OCS supervision.^[12] The court ordered the parents not to consume alcohol, and it ordered OCS to arrange urinalysis testing to verify the parents' sobriety, to assist them in obtaining new integrated assessments for both alcohol abuse and mental health and in following the assessments' recommendations, and to assist the parents in removing mold from the family home.^[13]

         The court monitored the family's situation by holding regular status hearings. Between January 2015 and April 2016 the court held six hearings, five of which were scheduled as status hearings and one as a "potential removal hearing, " although it was then treated as a status hearing. During each hearing OCS caseworkers provided updates about the efforts they had made to comply with the court's orders, the parents' activities since the last hearing, and Mary's condition.^[14] Four of the hearings; August 11, 2015; January 14, 2016; and February 18, 2016-were informal meetings at which no evidence was admitted. Instead, OCS provided the court and parties with information relating to the status of counseling referrals, the parents' alcohol testing, Mary's school attendance and behavioral issues in school, and the social workers' visits to the family's home. At each hearing there were reports that Mary was regularly missing school. In addition, the parties discussed scheduling and other administrative matters.

         At two of the status hearings OCS caseworkers testified under oath about the family's progress. In September 2015 OCS moved for removal findings authorizing it to take Mary into temporary OCS custody. OCS called the then-assigned caseworker and a village police officer as witnesses after they had visited the family and found both parents intoxicated at home. OCS asked the court to qualify the local village's ICWA worker, Daphne Joe, as an expert, but the parents objected that they had not received notice of the proposed expert or an expert report. The court did not qualify her as an expert. It also declined to make removal findings but noted it did not want Mary to remain in her parents' home until the hearing could be held at a later date, and it asked the parties to come to an agreement allowing her to stay with relatives in the village. The court then set a "potential removal hearing" for November.

         The "potential removal hearing" was held in November 2015 as scheduled. Although the parties had agreed Mary would live with relatives, it was reported that she was living in her parents' home. The hearing had been continued because OCS planned to call Daphne Joe as an expert, but it did not and relied instead on Dr. Warren's prior testimony. The parents called Joe to testify that she had recently visited the family home, and she had found Mary and Catharine in the home with no sign of alcohol on the premises. OCS then moved to qualify Joe as an expert, but the court declined to do so.^[15]The OCS worker testified that Mary was still not attending school regularly. After the case worker's testimony OCS asked the court to authorize it to remove Mary from her parents' home. The court again declined to remove Mary but again ordered the parents not to drink and scheduled another status hearing.

         At the next status hearing, in January 2016, no one was placed under oath. The same social worker and Mary provided updates to the court about Mary's attendance and performance at school. The court scheduled another status hearing for February.

         At the February 2016 hearing OCS renewed its request that the court allow it to place Mary in a foster home. No evidence was presented, but the parties agreed that the court should schedule a removal hearing.

         The court held a removal hearing in April 2016. OCS called a number of witnesses in support of its request to remove Mary from her parents' home. The principal of Mary's school testified that Mary had an absentee rate of 75% and was failing all of her classes. She testified that Mary's parents had never called the school about her absences. The social worker who had recently assumed responsibility for the case testified that he had done nothing to address the mold in the home or to obtain an alcohol assessment for Diego. He stated that he had attempted to talk to Mary about missing school but that she had refused to speak to him. The village's administrator testified that Diego and Catharine had not been attending the sobriety checks that OCS had arranged with village police officers. However he noted that the village police office was often empty as officers had to go into the village to assist with other matters.

         OCS asked the court to find that removal was authorized based on the parents' substance abuse, domestic violence, and neglect. At the conclusion of the hearing, the court noted that the parents' behavior had not changed and that Mary's situation had deteriorated. It found by clear and convincing evidence that Mary was "being harmed by the lack of parental supervision, being harmed by the lack of what the parents should do to foster a growing, healthy child." The court ordered Mary removed from her parents' home. Catharine's attorney reminded the court that it was required to make a finding regarding active efforts. After first finding that the parents had not made active efforts, the court corrected itself and found that OCS had made the necessary active efforts to prevent the breakup of the Indian family. The court based its finding on statements by OCS social workers during the January and February 2016 status hearings. Catharine's attorney objected to the findings.

         Two days after the removal hearing the parents filed a joint motion to stay the court's order. The parents argued that the court had inappropriately relied upon unsworn statements by OCS caseworkers to make its active efforts finding. The court denied their motion to stay and issued a supplemental order stating that it had also ...