Appeal
from the Superior Court Nos. 4FA-16-00120/ 4FA-16-00121 CN of
the State of Alaska, Fourth Judicial District, Fairbanks,
Michael A. MacDonald, Judge.
Emily
L. Jura, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for Appellant
Dena
M. J. Adam Bartlett, Anchorage, for Appellant
Dustin
V. Rebecca Hattan and Laura E. Wolff, Assistant Attorneys
General, Anchorage, and Kevin G. Clarkson, Attorney General,
Juneau, for Appellee.
Lisa
Wilson, Assistant Public Advocate, and Richard Allen, Public
Advocate, Anchorage, for Guardian Ad Litem.
Before: Bolger, Chief Justice, Winfree, Stowers, and Maassen,
Justices. [Carney, Justice, not participating.]
OPINION
WINFREE, JUSTICE.
I.
INTRODUCTION
After a
mother's and father's lengthy involvement with the
Office of Children's Services (OCS), based primarily on
alcohol abuse, their parental rights to their two minor
children were terminated. Both parents appeal, challenging
the superior court's admission of telephonic testimony
and its perceived failure to consider guardianship as an
alternative to termination. Because the parents were not
prejudiced by the telephonic testimony and because there was
no error in the court's consideration of a possible
guardianship, we affirm the parental rights termination.
II.
FACTS AND PROCEEDINGS
A.
Early OCS Involvement
Dena M.
and Dustin V. are the biological parents of Kelly, Shannon,
Molly, and Kelton, who, at the time of the termination order,
were 20, 18, 12, and 4, respectively.[1] Shannon was 17 at the
beginning of the termination trial but turned 18 and aged-out
of OCS custody before the termination decision. Only the
minor children, Molly and Kelton, are the subjects of this
appeal. The family members are affiliated with Native Village
of Eagle (the tribe), and Molly and Kelton are Indian
children within the meaning of the Indian Child Welfare Act
(ICWA).[2]
OCS
became actively involved with the family in 2006 after
receiving a report about the parents' alcohol abuse. OCS
received 15 reports of harm concerning alcohol abuse,
domestic violence, and neglect prior to removing Kelly,
Shannon, and Molly in 2008, before Kelton was born. A child
in need of aid (CINA) adjudication was made based on risk of
mental injury, neglect, and parental substance
abuse.[3] Although Dena and Dustin
"minimized" the severity of their issues with
alcohol, they eventually completed the substance abuse
component of their case plans and Dena completed an anger
management course; based on this limited success, the couple
regained custody of their children in mid-2011.
About a
year later, in May and June 2012, Alaska State Troopers twice
were called to help Dena recover from excessive alcohol
intake. Later that year the three older children again were
removed from their parents' home and placed in OCS
custody. And in December 2013 Kelton was placed in OCS
custody after having alcohol in his system at birth.
After
this second removal Dena and Dustin moved frequently between
Eagle and Fairbanks and were difficult to contact. Although
they participated in substance abuse assessments, the OCS
caseworker said that Dustin "laugh[ed] and sa[id] that
he wouldn't pass a [urinalysis]." They eventually
participated in a risk assessment with a licensed clinical
social worker. Dena and Dustin acknowledged their
"extensive history and use of alcohol and illegal
substances" and history of being "mutually
physically combative." About two years into this second
removal, Dena began to engage in counseling. Following a
trial home visit and Dena's limited engagement in
treatment, the parents regained custody of the children in
April 2016.
B.
Current Case Proceedings
Just
two months after Dena and Dustin regained custody, OCS
learned that they had been drinking and that Dustin and
Shannon had been in a physical altercation. When an OCS
caseworker went to Eagle to assess the situation, Dena and
Dustin admitted they had been drinking; OCS thereafter
implemented a new care and safety plan. The plan anticipated
Dena and Dustin traveling and the children staying in Eagle.
But the children's placements proved unsafe, and,
although OCS attempted to work with the tribe to create a new
safety plan while Dena and Dustin were away, "the tribe
felt that the parents' behaviors were out of control and
they could not come up with a plan to keep the children
safe." OCS again took emergency custody of the children.
About a
month later the tribe banished Dustin. The Eagle Village
Council wrote in its banishment letter that Dustin had
"broken trust and [his] word" by failing to be
"on [his] best behavior and not involv[ing] [him]self in
any activities that would cause [him] to lose custody of
[his] children." Because OCS had removed the children
"from [his] care twice in the past month and a
half," the Council banished him "to ensure the
health and safety of not only [his] children but Tribal
members, Eagle Village Council members and Native Village of
Eagle employees."
Dena
and Dustin moved to Northway and infrequently communicated
with OCS and their children. An OCS caseworker developed case
plans for each parent in September 2016, although the plans
were difficult to implement due to sporadic contact. The case
plans required the parents to obtain substance abuse and
psychological assessments, attend Alcoholics Anonymous
meetings, and provide OCS basic contact information.
Dena
and Dustin briefly returned to Eagle for the winter holiday
season, but otherwise lived in Northway through summer 2017.
They did not meaningfully engage in treatment during this
time, but they did participate in visitation OCS arranged.
After OCS filed a petition to terminate parental rights in
June 2017, the parents returned to Eagle and began regularly
attending counseling and treatment programs. The
children's foster parent later testified that the parents
attended informal visitation "[a]t least three to four
times a week, some weeks more," and that they never
visited while intoxicated. The foster parent testified to the
"strong bond" between the children and parents.
Although
Dena and Dustin were sober during visitation, they continued
to abuse substances leading up to the January 2018
termination trial. In December 2017 Dustin physically
assaulted Shannon; Dena attempted to intervene, and Dustin
kicked her. OCS then suspended visitation with Molly and
Kelton. Visitation resumed in January 2018, twice-weekly and
regulated to ensure the parents were "sober and
appropriate."
C.
Termination Trial And Order
The
termination trial took place over six days in January and
March 2018. Over the parents' objection, the superior
court permitted four Eagle witnesses to testify
telephonically: the tribe's designated ICWA expert; a
safety plan participant and former foster parent; a former
Eagle public safety officer; and Molly and Kelton's
then-foster parent. The court initially overruled the
objection because "no objection was made at the pretrial
conference." Dena's attorney observed that OCS had
not filed a motion for telephonic testimony and that there
had been no prior opportunity to object. The court then
stated that Dena could call the witnesses in person "in
[her] case if [she] so choose[s]." The court broadly
ruled that the "distances here make it implicit that the
Eagle witnesses are beyond... what's contemplated by the
rule."[4] The court ruled that the Eagle witnesses
could testify telephonically and stated: "If the parties
want to subpoena witnesses ...