NOTICE

Memorandum decisions of this court do not create legal precedent. A party wishing to cite a memorandum decision in a brief or at oral argument should review Appellate Rule 214(d).

MEMORANDUM OPINION AND JUDGMENT*

1. Iris and Ryan are the parents of Drake.1 Iris is the mother of Jules.2 Jules and Drake are Indian children within the meaning of the Indian Child Welfare Act (ICWA).3

2. The Office of Children's Services (OCS) removed Jules from Iris after he was exposed to domestic violence, and placed him with his maternal aunt, LeAnn, and her husband. An OCS social worker met with Iris and developed a case plan, identified reunification services and service providers, and arranged visitation. The social worker created a schedule of parenting classes for Iris, who went to only four of 12 classes.

3. Iris was then arrested for violating probation by moving without notifying her probation officer.4 Upon release, she moved into the Juneau Aiding Women in Abuse and Rape Emergencies (AWARE) shelter. In response to Iris's comments that prior counseling was not adequately addressing her anger management issues, an OCS social worker had Iris do an intake interview at SouthEast Alaska Regional Health Consortium (SEARHC), where Iris was wait-listed for counseling. In response to Iris's indication that she would undergo a psychological assessment, the social worker arranged an assessment and funding for that assessment. Iris was given a bus pass for transportation, but did not attend her psychological assessment appointments. Iris later admitted that she had never intended to go.

4. On October 31, 2009, Juneau police responded to a domestic violence report between Iris and Ryan, who were then married. Ryan had extinguished his cigarette on Iris's head and hit her after he and Iris got into a verbal altercation. On January 14, 2010, Iris and Ryan began arguing and Ryan grabbed Iris, who was eight months pregnant with Drake, and pushed her; Iris fell and began having contractions.

5. After Drake was born an OCS social worker arranged for Iris and Drake to go to the Juneau AWARE shelter. Iris then moved into an apartment, so the social worker established a safety plan that included hours during which Ryan could not be in the home, and that prohibited Ryan from being alone with Drake because Ryan had been convicted of physically abusing another infant son.

6. An OCS social worker assumed custody of Drake based on concerns for Drake's welfare because of a safety plan violation — Ryan was found in Iris's apartment during prohibited hours. Drake was placed in LeAnn's home, the same home as Jules.

7. OCS referred Iris to Catholic Community Services' parenting classes, a mental health assessment program located at and funded by SEARHC, and AWARE for classes about violence in relationships. OCS also referred Iris for individual counseling. OCS set up twice weekly visits with Jules and Drake; OCS also arranged visits at LeAnn's home but this did not last long because Iris began making allegations of alcohol abuse by LeAnn in addition to calling the police to do child welfare checks on LeAnn.5

8. Juneau police went to Iris and Ryan's apartment after they were told that Iris had threatened to have her brother shoot everyone. Iris was four months pregnant with her third son and intoxicated. Because Iris had violated her parole, she was ordered to serve the remainder of her criminal sentence, with an expected release date of October 18, 2011.

9. While incarcerated, Iris wrote a threatening letter to a woman with whom Ryan was having an affair, stating: "So I said that I was going to have my brother come and [shoot] you in the head. . . . I didn't need my brother's help the night I [stabbed Dezeree W.]."

10. Iris entered Hiland Mountain Correctional Center's Residential Substance Abuse Treatment (RSAT) program. To create a plan for the baby that Iris was carrying, Iris's counselor worked with Iris's lawyer, her sons' guardian ad litem, and OCS, with whom the counselor also coordinated Iris's case plan requirements. After giving birth to her third son, Jack,6 Iris returned to the RSAT program. However, she asked to be discharged from the program against treatment advice after being disrespectful to RSAT staff. Iris then asked to re-enter RSAT and signed a behavioral contract that put her on notice that her aggressive behavior would not be tolerated. Iris was late to classes, lashed out at other program participants, threw a dustpan at another inmate, and used inappropriate language. When RSAT staff discussed the dustpan incident with her, Iris became so upset that an officer handcuffed her and took her to segregation. Iris was formally discharged from RSAT because of her conduct.

11. OCS petitioned for a termination of parental rights. The superior court found that both children were in need of aid under AS 47.10.080,7 AS 47.10.011(1), (2), (6), (8), (10), and (11),8 and AS 47.10.013.9 The superior court terminated parental rights to both children after finding by clear and convincing evidence that: (1) Iris and Ryan failed to timely remedy the conduct or conditions in the home that put the children at substantial risk of harm;10 (2) OCS made reasonable and active, though unsuccessful, efforts to provide remedial services and rehabilitative programs designed to prevent the break up of the Indian family;11 and (3) it was contrary to the welfare of the children to return home.12 The superior court also found there was evidence beyond a reasonable doubt, including expert testimony pursuant to ICWA, that returning the children to either Iris or Ryan was likely to result in serious emotional and physical damage to the children.13 The superior court found that terminating Iris and Ryan's parental rights was in the best interests of the children.14

12. Specifically, the superior court based its finding in part on Iris's long history of treatment prior to OCS taking custody of the children; this treatment aimed at her serious mental issues and violent behavior, including treatment as a juvenile in residential programs and secure treatment facilities. The court also considered her history as an adult in RSAT and correctional facilities. The superior court relied on OCS developing and updating case plans, offering parenting classes, providing supervised visits, providing transportation to services, referring Iris to domestic violence classes, referring Iris to therapy for her anger and domestic violence issues, scheduling and paying for Iris to attend a psychological assessment, and referring Iris to the Preserving Native Families program for support services. The superior court also based its conclusion on the Department of Corrections's (DOC) provision of case management services while Iris was on probation, and the DOC's provision of the RSAT program through which Iris would have had the opportunity to receive intensive substance abuse treatment and classes on parenting, grief, and loss.

13. Based on the expert testimony of Shelly Gomez, an OCS family services supervisor and ICWA-qualified expert, and Julie Peters, an expert in speech and language pathology and Jules's speech pathologist, the superior court found beyond a reasonable doubt that returning the children to Iris was likely to cause them serious emotional and physical damage. The superior court based its conclusion on Iris's destructive patterns of behavior, the lack of change over time, and Jules's 50% delay in communication, which requires him to have a stable home to provide the structure, routine, and consistency necessary for a decrease in his developmental delays.

14. The question whether OCS used active remedial efforts to reunify the Indian family is a mixed question of law and fact.15 Whether substantial evidence supports the trial court's conclusion that a child is likely to be seriously harmed if returned to a parent is a mixed question of law and fact.16 When reviewing mixed questions of law and fact, we review legal questions using our independent judgment and factual questions under the clearly erroneous standard.17

15. Regarding parental willingness to participate in treatment recommended in the case plan, we have stated: "The court should look to OCS's involvement in its entirety, and may consider a parent's demonstrated unwillingness to participate in treatment as a factor in determining whether OCS met its active efforts burden."18 Regarding parental incarceration, we have stated: "the practical circumstances of incarceration may reduce the possible options available."19 Finally, "because ICWA requires the State, rather than a particular agency, to make active efforts. . . to provide remedial services and rehabilitative programs, we have held that the [DOC] . . . may fulfill this obligation by enrolling the parent in classes and treatment programs."20

16. Iris appeals the superior court's order; Ryan does not.21 On appeal, Iris makes two arguments: (1) that the superior court erred in finding that OCS made reasonable and active efforts to prevent the break up of the Indian family; and (2) that the superior court erred in finding beyond a reasonable doubt that the return of the children to Iris's care would likely result in serious damage to the children.

17. There is ample evidence in the record to support the superior court's finding by clear and convincing evidence that OCS made reasonable and active efforts to prevent the break up of the Indian family. After Jules's removal, OCS's active efforts included developing a case plan identifying services addressing domestic violence, anger management, mental health issues, parenting issues, and medical needs, in addition to identifying service providers and recommending that Iris contact her tribe for further assistance. OCS also developed a schedule of parenting classes for Iris and Ryan, and arranged visitation.

After Iris's release from incarceration, OCS's efforts included updating her case plan, providing a mental health assessment and bus pass, agreeing to fund another mental health evaluation if the evaluator was approved in advance, scheduling visitation with a supervisor who modeled appropriate parental behavior, and giving Iris information on proper infant nutrition.

After Drake's birth, OCS developed a safety plan, Iris's and Ryan's violation of which resulted in OCS assuming custody of Drake. After Drake's removal, OCS provided referrals to parenting classes, a mental health assessment, and classes about violence in relationships. OCS also provided a referral for individual counseling, a referral to Iris's tribe's Preserving Native Families program, coordination with the tribe so that the children could participate in cultural activities, and visitation.

When Iris was incarcerated for a probation violation, the DOC assumed reunification efforts, and Iris was able to join the DOC's RSAT program. The RSAT social worker helped Iris place the child born while she was incarcerated, and set up in-person and telephonic visitation.22

18. There is also ample evidence in the record to support the superior court's finding beyond a reasonable doubt that return of the children to Iris's care would likely result in serious damage to the children. Iris had been involved in numerous domestic violence situations. She was charged with assaulting her pregnant sister. She was convicted for stabbing another woman multiple times. She was involved in a domestic dispute with Ryan in which he pushed and hit her, and she threw things at him, bit him, and broke a mirror over his head. Iris reported that Ryan had pushed her down a set of stairs. An officer testified that Ryan extinguished his cigarette on Iris's head and hit her. Ryan also pushed Iris, causing her to fall and begin having contractions because she was eight months pregnant with Drake.

Iris's issues with anger and violence are not confined to the home. Iris's probation officer testified that Iris "battles anger. That's her immediate response to everything." The officer also testified about Iris's history of entering treatment, then being discharged for assaultive behavior. While incarcerated, Iris wrote a threatening letter to a woman whom Ryan was having an affair with, stating: "So I said that I was going to have my brother come and [shoot] you in the head. . . . I didn't need my brother's help the night I [stabbed Dezeree W.]." While in RSAT, Iris threw a dustpan at another inmate and used inappropriate language. When RSAT staff discussed the incident with her, Iris became so upset that an officer handcuffed her and took her to segregation. These examples of Iris's continuing pattern of violence, some of which occurred in the children's presence, and her failure to successfully complete any of her case plan designed to remedy her anger and assaultive behavior, strongly suggest that the children would be seriously harmed if returned to her care.

The superior court also relied on the expert testimony of Shelly Gomez, OCS family services supervisor, who testified that Iris does not acknowledge any understanding of how domestic violence incidents may have affected her children. The court also relied on the expert testimony of Julie Peters, Jules's speech and language pathologist, who testified that because Jules has a 50% delay in communication, he requires a stable home to provide structure, routine, and consistency to decrease in his developmental delays.

19. Accordingly, we AFFIRM the superior court's finding that OCS made reasonable and active efforts to prevent the break up of the Indian family. We also AFFIRM the superior court's finding that, beyond a reasonable doubt, the return of the children to Iris's care would likely result in serious damage to the children.