Erin I. v. State of Alaska, DFCS, OCSErin I. v. State of Alaska, DFCS, OCS
O P I N I O N
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Palmer, Kristen C. Stohler, Judge.
Appearances: Megan Rowe, Alaska Legal Drafting LLC, Anchorage, for Appellant. Abraham G. Kanter, Assistant Attorney General, Juneau, and Stephen J. Cox, Attorney General, Anchorage, for Appellee. Paul McDermott, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for Guardian Ad Litem. No appearance by Chad Holt, Alaska Native Justice Center, Anchorage, for the Tribe.
PATE, Justice.
A mother appeals the termination of her parental rights after the Office of Children’s Services (OCS) took custody of her son based on concerns of domestic violence in the home. Although OCS provided many rehabilitative services and the mother worked on her case plan for nearly four years, she failed to develop the protective capacity necessary to shield the child from the effects of domestic violence.
On appeal the mother challenges nearly every aspect of the termination order in this child in need of aid proceeding. Because there was substantial risk of mental injury to the son from exposure to domestic violence, we conclude that the superior court did not err by finding that the child was in need of aid. Likewise, we hold that the superior court did not err or clearly err by determining that OCS provided active efforts tailored toward helping the mother develop a protective capacity, finding that the mother did not remedy the conduct that placed the child in need of aid, or finding that returning the child to the mother’s custody was likely to result in serious harm. Finally, we conclude that it was not clear error for the court to find that termination was in the child’s best interests. Thus, we affirm the superior court’s ruling.
II. FACTS AND PROCEEDINGS
A. Facts
Kameron1 is an Indian child as defined by the Indian Child Welfare Act (ICWA).2 Kameron has a number of disabilities, including neurological, language, and medical disorders. He was adopted by his maternal grandparents, Erin and Simon. In addition to other family members, Kameron lived with his parents; his minor sister, Eliza; adult brother, Greg; and adult sister (and biological mother), Maddie.
When an OCS caseworker visited the home three days later, Greg had been released from jail and had returned to his parents’ home in violation of the conditions of his release. The caseworker made a report to police, who arrested Greg.
The caseworker advised Erin and Simon that Greg’s presence in the home was a safety concern for the children and referred the parents to an organization that helps adults with mental health problems. The parents did not contact the organization, but Erin told OCS she would not let Greg back into her home. OCS closed the investigation.
In the fall of 2020 OCS received a report that Kameron’s adult siblings — including Greg, who was back in the home — were intoxicated and keeping the children up at night. Kameron told a caseworker that his siblings’ fighting and drinking scared him. The caseworker emphasized to the parents that they needed to be more protective of Kameron, but OCS did not take further action at that time.
In April 2021 OCS received a report that Greg had been “jabbing” Kameron and that his parents were not intervening. Eliza confirmed that Greg had been poking and grabbing Kameron, which caused bruising and scratches that bled. She also told OCS that Greg would punch objects and scream without provocation, that he did not take his medication consistently, and that he had recently tried to strangle Maddie.
The next month, one of Kameron’s adult sisters called OCS and reported that Greg had committed another assault in the home and that she was worried about her younger siblings’ safety. Concerned that Greg’s behavior would escalate, OCS removed Kameron and Eliza from the home and placed them in state-licensed foster care.
B. Early Proceedings, Case Plan, And Visitation
In May 2021 OCS filed an emergency petition and the superior court committed the children to OCS custody. The court appointed the children a guardian ad litem (GAL) that same day. Eliza and Kameron’s Tribe intervened in the proceedings in September.4 At an adjudication hearing in March 2022, Erin stipulated that the children were in need of aid.5
1. Case plan and OCS efforts to provide services
Erin agreed to participate in family support services recommended by OCS and to work with the agency in updating her case plan. The case plan required Erin to provide for the emotional, physical, medical, and educational needs of her children. OCS referred Erin to a parenting class, and she completed a six-week parenting program.6
Erin’s case plan additionally required her to complete a domestic violence assessment and follow recommendations. OCS referred Erin to a private counselor for an assessment. She completed the assessment, which recommended a class on adverse childhood experiences and learning about healthy boundaries and her children’s diagnoses. OCS helped Erin access these services, and although she delayed engagement, by the time of the termination trial she had attended some classes on domestic violence and adverse childhood experiences.
Erin was also required to help Greg get into assisted living and to keep her adult children out of the home if they were violent or dangerous. But Erin’s adult children were consistently in and out of the home. In 2022, Maddie, Greg, and another adult sister still lived in or frequented the home. Erin called the police twice that year to remove an unruly Maddie from the property. In early November Greg shoved Erin to the ground, injuring her, and punched Simon in the head multiple times. Greg was arrested and charged with fourth-degree assault, and then arrested again three days later for violating his conditions of release by returning to the home.
Later that month OCS met with Erin and Simon and informed them that the most significant barrier to Kameron’s return was Greg’s presence in the home. OCS also expressed concern about Maddie’s presence. When asked what they would do if either Greg or Maddie returned home unexpectedly, the parents promised that they would call the police. But the parents did not call the police when Greg returned in February 2023; rather, they allowed him back into their home. Around that time the
Erin helped Greg apply for disability benefits for housing, but Greg’s unwillingness to participate in the process delayed matters substantially. Greg’s benefits were approved in April 2023, and he secured separate housing. But even when Greg lived elsewhere, Erin continued to allow him back into her home. Some of Erin’s other adult children also continued to live in or frequent the home while intoxicated.
By April 2024 Greg had moved back in to Erin’s home and Maddie was still coming and going. From spring through fall of 2024, Greg and the other adult children frequently caused disruptions in the household. Erin continued to deny that Greg was violent, dismissing the behavior as “power struggles” between siblings.
In September police responded to an incident where Greg got angry, punched a door, and hit his father in the head. Four days later, Greg attacked Simon again. Simon had been lying in bed with a one-month-old grandchild when Greg struck his father with fists and a cord. After he was pulled off of Simon, Greg hit his father again — this time with an axe handle. The wound to Simon’s head required seven staples. Greg was arrested, charged with first- and third-degree assault, and ordered to the Alaska Psychiatric Institute for competency restoration. The parents told OCS that Greg was off his medication and had possibly been drinking before the assault. When asked about obtaining a protective order against Greg, Erin told OCS that she felt conflicted.
2. Visitation
OCS also created a visitation plan for Kameron and his parents. Early visits were supervised by the foster parents. After Erin requested that the foster parents no longer supervise, visits took place at OCS and Alaska Family Services. When
In March 2024, at a meeting with OCS at the parents’ home, the Tribe suggested that unsupervised visitation might be appropriate. Kameron’s GAL spoke with him about this possibility and reported that he was “not reluctant” but was afraid that “particular relatives” would show up. For this reason Kameron “firmly requested” to have only his parents attend visitation. When OCS told the parents there would be no family contact in the home if Greg was present, Erin discounted the agency’s concern, describing Greg as “playful” and his scratching of Kameron as “a one-time occurrence, as siblings sometimes do.”
C. Termination Proceedings
OCS filed a petition to terminate Erin and Simon’s parental rights to Kameron and trial was held in February 2025. OCS presented testimony from three caseworkers, a child welfare expert, a cultural expert, and a state trooper. Erin testified on her own behalf.8
The first caseworker expressed concern with violence in the home arising from Greg’s unstable condition and the family’s alcohol use. She explained that she set up a family contact plan, looked for potential family members to foster the children, and made referrals for services. The second caseworker described how he had spoken with the Tribe to find potential relative placements but that he did not find any. He described Kameron’s current placement as “fantastic” and explained that Kameron’s medical and educational needs were being met and that Kameron could visit with his father’s side of the family in Nome. The caseworker explained that he did not believe
Both the child welfare and cultural experts testified about the risks associated with Kameron returning to his parents’ care. The child welfare expert opined that returning Kameron to his parents’ custody would cause him to suffer serious emotional or physical damage. The expert reasoned that Kameron’s adult siblings and Erin’s lack of protectiveness created the risk of physical and mental injury. The expert also testified that it was difficult for Kameron to express his fears due to his language disorder. She opined that the parents were aware of the safety concerns for Kameron but that they minimized, denied, and displaced blame in an attempt to keep the family together. This minimization and denial, she testified, impacted their ability to be protective of Kameron. While Erin had shown some behavioral change, the expert stated that dangerous conditions in the home had persisted and Erin had “a long way to go in understanding how deep [her] level of denial is and the impact this has upon” Kameron. Based on these circumstances, the expert concluded that Kameron’s exposure to physical violence and substance use in his parents’ home created a lack of emotional safety and that, if he returned, he could develop post-traumatic stress disorder (PTSD), anxiety, depression, or further estrangement. She also concluded that supervised visitation had been necessary throughout the case to protect Kameron from his adult siblings. The cultural expert agreed that returning Kameron to his parents’ care would place him at risk of harm. She opined that it would have been culturally appropriate for Erin to refuse to allow Greg into her home.
The state trooper described his investigation in September 2024 following Greg’s assault on Simon. The trooper explained that there was an infant present during the attack. He also related that Maddie had been causing disturbances in the home.
The superior court terminated Erin and Simon’s parental rights, finding that Kameron was in need of aid because (1) “he previously suffered physical harm while living in his parents’ home and [was] at risk of further physical harm if he were returned to their care”; (2) his parents “allowed violent individuals to reside in their home time and time again, exposing [Kameron] to that violence”; and (3) his parents had “demonstrated that they [were] either unwilling or unable to keep [him] safe from potential physical abuse, thus neglecting him.”
The superior court also found that the parents had failed to remedy the conduct that placed Kameron in need of aid because they had “not demonstrated a behavioral change.” It observed that the parents had not remedied their conduct within a reasonable period of time because during the two years the termination petition was pending, “they continued to allow [Greg] into the home, resulting in serious physical injury to [Simon].” The court further found that returning Kameron to his parents’ care was likely to result in serious physical or mental harm. It found that OCS had made active efforts to prevent the breakup of the Indian family, but that those efforts had failed. Finally, the court concluded that it was in Kameron’s best interests to terminate parental rights.
Erin appeals.9
When reviewing a termination order, we “bear in mind at all times that terminating parental rights is a drastic measure.”10 “Whether a child is in need of aid, whether a parent has remedied the conditions that placed the child in need of aid, and whether termination is in a child’s best interests are factual determinations” that we review for clear error.11 “Whether substantial evidence supports the court’s findings that the state complied with ICWA’s ‘active efforts’ requirement and proved beyond a reasonable doubt that granting the parent custody would likely result in serious damage to the child are mixed questions of law and fact.”12 “Findings of fact are clearly erroneous if a review of the entire record in the light most favorable to the prevailing party below leaves us with a definite and firm conviction that a mistake has been made.”13 Whether the superior court’s factual findings satisfy applicable ICWA and child in need of aid statutes and rules is a question of law that we review de novo.14
IV. DISCUSSION
Before a superior court may terminate a parent’s rights it must find, by clear and convincing evidence, that (1) the child is in need of aid as defined in
Erin challenges nearly every aspect of the superior court’s termination order. She argues that the court clearly erred by finding the following: Kameron was in need of aid; she failed to remedy the conduct that placed Kameron in need of aid; and termination was in Kameron’s best interests. She also argues that the superior court erred by determining that OCS provided active efforts toward reunification and that returning Kameron to her custody would likely result in serious harm.
We conclude that the superior court did not err or clearly err in any of its findings or determinations. The evidence shows that Kameron was in need of aid due to the substantial risk of mental injury from exposure to domestic violence.20 We also hold that the superior court’s determination that OCS provided active efforts was supported by the record, which revealed efforts tailored toward helping Erin develop a protective capacity to shield Kameron from domestic violence. The record also supports the superior court’s findings that although Erin engaged in many of the
A. The Superior Court Did Not Clearly Err By Finding That Kameron Was A Child In Need Of Aid.
Erin challenges the superior court’s finding that Kameron was in need of aid due to substantial risk of physical harm,21 substantial risk of mental injury from exposure to domestic violence,22 and neglect.23 We conclude that the superior court did not clearly err by finding that Kameron was in need of aid due to substantial risk of mental injury from exposure to domestic violence.24
A child is in need of aid under
Although Erin argues that the court erred by finding Kameron was at a substantial risk of mental injury, it is abundantly clear to us that this finding was not in error. Erin’s conduct exposed Kameron to domestic violence committed by his adult siblings, particularly Greg. Greg was convicted of misdemeanor fourth-degree assault under
Erin argues that the violence stemmed from Greg’s untreated mental illness, and was therefore not a “conduct” or “condition” that she created. But it was
The record supports the conclusion that Kameron was not only at substantial risk of mental injury due to this exposure to domestic violence, but that he actually suffered such harm.32 In an interview after Greg assaulted Eliza, Kameron stated that he was “scared” of his siblings’ fighting and drinking. When interviewed the following year, Kameron repeated that he was afraid of Greg and felt unsafe around him; when asked about Greg he clenched his hands, looked away from the interviewer, and started crying. Although Kameron’s disabilities made it difficult for him to express himself, the child welfare expert testified that Kameron’s exposure to domestic violence caused him fear and a desire to estrange himself from his family. The expert explained that the threat to Kameron’s physical safety impacted his sense of emotional safety and put him at risk of developing PTSD and other mental health disorders. The expert further explained that Kameron’s exposure to domestic violence in the home constituted
The record shows clear and convincing evidence that, by failing to act in a protective capacity, Erin exposed Kameron to domestic violence and created a substantial risk of mental injury. The superior court did not clearly err by determining that Kameron was in need of aid under subsection 8(B)(ii).
B. The Superior Court Did Not Err Or Clearly Err By Determining That OCS Made Active Efforts.
Erin argues that the superior court erred by determining there was clear and convincing evidence that OCS made active efforts to reunite her with Kameron. She criticizes the lack of assistance OCS provided in helping her find a home for Greg. Erin next alleges that OCS failed to work with the Tribe or provide culturally appropriate services and objects to the agency’s “refusal to pursue expanded or unsupervised visitation” with Kameron.
To justify terminating parental rights to an Indian child, ICWA requires OCS to prove, by clear and convincing evidence, that the agency made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful.33 We use a case-by-case approach for determining whether the agency satisfied ICWA’s active efforts standard and have recognized that “no pat formula exists for distinguishing between active and
“Our starting point for evaluating OCS’s reunification efforts is the identification of the problems that caused the child or children to be in need of aid.”36 As we explained above, Kameron was in need of aid because Erin failed to shield him from domestic violence. The superior court found that OCS “regularly worked with the parents in an effort to ensure their engagement in recommended services.” These findings are supported by the record, which documents OCS’s active efforts to provide Erin with the services she needed to develop a protective capacity. For example, the agency referred Erin for a substance abuse assessment, drug tests, parenting classes, and counseling. OCS worked to track Erin’s progress, followed up with her, and held meetings to encourage her to work toward those goals. The agency also helped Erin obtain a domestic violence assessment; when Erin did not follow up on referrals from the assessment, OCS prompted her to do so. All of these efforts were tailored toward helping Erin become a protective parent and remedying the conduct and conditions that placed Kameron in need of aid.37
Erin’s argument that OCS ran afoul of ICWA by failing to work with the Tribe is unconvincing. While ICWA’s regulations identify tribal collaboration as an example of active efforts;39 the regulations also afford child welfare agencies discretion to tailor active efforts “to the facts and circumstances of the case.”40 The record shows that OCS did in fact involve the Tribe in its case planning and efforts to provide services by collaborating on potential foster placements, visiting Erin’s home together, and considering the Tribe’s suggestion of unsupervised visits. The Department’s collaboration with the Tribe supports the superior court’s finding that OCS made active efforts to reunify Kameron with his parents.
Finally, Erin argues that OCS’s efforts were less than active because the agency did not provide unsupervised visitation. “Supporting regular visits with the parents . . . in the most natural setting possible” is one example of “active efforts”
Taken in its entirety,43 the record shows that OCS made active efforts to provide Erin with the rehabilitative services necessary for her to develop a protective capacity. We affirm the superior court’s ruling.
C. The Superior Court Did Not Clearly Err By Finding That Erin Failed To Remedy Her Conduct.
Before terminating parental rights, the superior court must find by clear and convincing evidence that a parent has either failed to remedy the conduct or conditions that placed her child in need of aid44 or failed to do so within a reasonable time.45 When considering whether a parent has failed to remedy conduct or conditions,
The superior court found by clear and convincing evidence that Erin had not remedied the conduct that put Kameron at risk of harm because she had failed to demonstrate a behavioral change. Erin protests that the court “failed to properly account for the substantial progress [she] made in addressing her case plan requirements.”
Here, Kameron was in need of aid because Erin lacked the capacity to protect him from exposure to domestic violence, which created the risk of mental injury. Erin participated in parenting and substance abuse programs, submitted to random drug tests, and followed some recommendations from her domestic violence assessment. But by continuously allowing her adult children into her home, she failed to demonstrate that she had developed the capacity to protect Kameron from his adult siblings’ dangerous behavior. Significantly, Erin allowed Greg back into her home only months before the termination trial, resulting in Greg’s violent attack on his father with an infant in the home.
We acknowledge that Erin engaged in many of the services recommended by OCS. But completing the steps of a case plan “does not guarantee a finding that [a parent] has remedied her conduct.”48 Instead, the focus is whether a parent has remedied the problem that placed the child at risk and gained the skills necessary so
Erin also argues that the superior court should have credited her statements that Greg was unwelcome in the home and that these statements demonstrated a behavioral change. But the court explicitly found that Erin’s promise to put Kameron’s needs first was simply “not credible.” We afford particular deference to the court’s credibility assessments that are based on oral testimony50 and observe that the record supports this finding — Erin continued to allow Greg and other dangerous family members into the home throughout the case.
The superior court did not clearly err by finding that Erin failed to remedy the conduct that placed Kameron in need of aid.
D. The Superior Court Did Not Err Or Clearly Err By Determining That Returning Custody to Erin Would Likely Result In Serious Harm.
ICWA requires OCS to present evidence beyond a reasonable doubt, including qualified expert testimony, that continued parental custody is likely to result in serious emotional or physical harm to the child.51 “Proof that a parent having custody is likely to cause a child serious harm requires evidence that (1) the parent’s conduct is likely to harm the child and (2) the parent’s conduct is unlikely to change.”52
Erin argues that the superior court’s findings are clearly erroneous because, given Greg’s incarceration at the time of the termination trial, he was no longer in the home and would not return. Erin’s argument overlooks the fact that it was her failure to act in a protective capacity that placed Kameron at risk of harm — regardless of Greg’s presence. And the record supports such a finding: The child-welfare expert opined that the parents “minimiz[ed], den[ied], or displac[ed] blame” whenever Kameron was exposed to “dangerous, chaotic, or unsafe circumstances.” At trial, the expert explained the risk of mental harm from witnessing violence between family members; because Kameron was not developmentally at the level where he could protect himself, Erin’s lack of protectiveness increased this risk. Because Erin was unable to consistently be “self-aware and demonstrate protectiveness” from the harm caused by Kameron’s adult siblings, the child-welfare expert concluded that returning home would not be safe for Kameron. The cultural expert agreed.
Although Greg was incarcerated at the time of the termination trial, Erin’s past behavior indicated that she would allow Greg or Kameron’s other adult siblings who engaged in dangerous behaviors to return to her home in the future.53 And while Erin asserts that the child-welfare expert’s opinion was too speculative, we disagree.
We hold that the superior court did not clearly err in its factual findings or err in its determination that OCS had presented evidence beyond a reasonable doubt that placing Kameron in Erin’s custody would result in serious emotional or physical harm.
E. The Superior Court Did Not Clearly Err By Finding That Termination Was In Kameron’s Best Interests.
The superior court may order termination only if OCS proves “by a preponderance of the evidence that termination of parental rights is in the best interests of the child.”55 In determining whether termination of parental rights is in a child’s best interests the court may consider the statutory factors in
The court’s other findings were also supported by the record, including that Kameron was doing “extremely well” with his foster family; his medical and educational needs were met; he could “enjoy connections with his father’s family members” in Nome; and he was participating in community, cultural, and religious activities.61 And the court appropriately weighed the fact that the foster family was committed to keeping Kameron connected to his parents and certain family members.
Erin argues that the superior court clearly erred because it did not “account for the undisputed testimony that Kameron loves his parents and desires to maintain a relationship with them.” We have repeatedly rejected similar arguments,62 given that
Under these circumstances we hold that the superior court did not clearly err by finding that termination of parental rights was in Kameron’s best interests.64
V. CONCLUSION
We AFFIRM all aspects of the superior court’s order.