Diana P. v. State, Department of Health & Social Services, Office of Children's Services
355 P.3d 541
| Alaska | 2015Background
- Mother (Diana) with long history of bipolar disorder and chronic substance abuse; multiple prior treatment attempts and repeated relapses, including drinking during pregnancies; one child born with cocaine exposure.
- Four daughters (born 2008–2011) are Indian children; father relinquished rights; Native Village of Grayling intervened; children had multiple placements and tribal custody with paternal great-aunt Nancy at times.
- OCS removed children after documented neglect: inadequate medical care, exposure to unsafe caregivers, children left unsupervised, and a four‑year‑old assuming caregiving duties.
- Two experts (substance‑abuse/mental‑health) recommended long‑term, high‑intensity treatment and opined Diana is at high risk of relapse and lacks necessary insight/skills; experts did not expressly opine the children would be harmed if returned but did opine Diana is not ready and likely to relapse.
- Lay witnesses (including tribal caregiver and OCS worker) testified to past harm to the children when Diana drank and to ongoing concerns about relapse and lack of permanency for the children.
- Trial court terminated Diana’s parental rights under AS 47.10.011(6), (9), and (10); court found by clear and convincing evidence (and beyond a reasonable doubt under ICWA) that return would likely cause serious emotional or physical damage.
Issues
| Issue | Diana's Argument | State/OCS Argument | Held | |
|---|---|---|---|---|
| Whether ICWA’s beyond‑a‑reasonable‑doubt requirement was met that continued custody would likely cause serious harm | Diana: Trial court relied improperly on lay testimony; experts did not opine directly that children would be harmed | OCS: Expert testimony need only support one prong and may be aggregated with lay evidence; experts showed high relapse risk and inability to parent | Affirmed: Court may aggregate qualified expert testimony (on at least one prong) with lay evidence; evidence satisfied ICWA standard | |
| Whether expert testimony must directly address both prongs of the two‑prong ICWA test (likelihood of harm; likelihood conduct will not change) | Diana: Experts were not qualified to opine about harm to children and did not directly do so | OCS: Experts can directly support one prong and inferentially support the other; lay testimony may supply direct support for harm | Affirmed: Not required that experts address both prongs; experts directly supported second prong and inferentially supported first; lay testimony supported first prong | |
| Whether evidence showed the parent’s conduct was likely to harm the children (first prong) | Diana: Insufficient expert proof that return would cause serious harm | Diana: Lay testimony plus experts’ inferences insufficient | Trial court: Lay testimony and expert inferences together show likely harm | Affirmed: Aggregated evidence supports finding that return would likely harm children |
| Whether parent’s conduct was unlikely to change (second prong) | Diana: Recent months of sobriety and lifestyle changes show likely change | OCS: Long history of relapses, lack of insight, repeated unsuccessful treatment predict continued risk | Trial court: Experts and lay witnesses support likely relapse and lack of sustained treatment success | Affirmed: Evidence supports finding that conduct unlikely to change |
Key Cases Cited
- Chloe W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 336 P.3d 1258 (Alaska 2014) (adopts two‑prong test and permits aggregation of expert and lay testimony)
- Marcia V. v. State, Office of Children’s Servs., 201 P.3d 496 (Alaska 2009) (expert testimony can establish likelihood of serious harm and court must make predictive finding)
- L.G. v. State, Dep’t of Health & Soc. Servs., 14 P.3d 946 (Alaska 2000) (clarifies standard of review and aggregation of evidence for future‑harm predictions)
- Jon S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 212 P.3d 756 (Alaska 2009) (past failures may predict future conduct; expert testimony required but may be combined with other evidence)
- E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986 (Alaska 2002) (treatment of mixed question of fact and law and evidentiary aggregation principle)