DIEGO K. and CATHARINE K., Appellants,
STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellee.
from the Superior Court of the State of Alaska, Fourth
Judicial District, Superior Court No. 4SM-14-00002 CN Bethel,
Dwayne W. McConnell, Judge.
McFarland, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for Appellant
K. William T. Montgomery, Assistant Public Advocate, Bethel,
and Richard K. Allen, Public Advocate, Anchorage, for
Catharine K. Kathryn R. Vogel, Assistant Attorney General,
Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for
Facey, Assistant Public Advocate, and Richard K. Allen,
Public Advocate, Anchorage, on behalf of minor.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
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. Because the court relied on information
that was not in evidence to make the required ICWA removal
findings,  we vacate the order authorizing removal.
FACTS AND PROCEEDINGS
K. and Catharine K. have a 16-year-old daughter, Mary,
is an Indian child as defined by ICWA. 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: (6) (physical harm), (8)(B)
(mental injury), (9) (neglect), and (10) (substance
abuse). 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.
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; the parents urged the court to grant OCS
only the authority to supervise the family.
support of its removal request, OCS called an expert as
required by ICWA section 1912(e). 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.
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. 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.
court found that the children continued to be children in
need of aid due to their parents' substance
abuse. 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. 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.
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. 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.
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
"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.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.
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.
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.
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.
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.
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 ...