Opinion
Supreme Court No. S-12972 / S-13017.
December 3, 2008.
Appeal from the Superior Court of the State of Alaska, Second Judicial District, Barrow, Michael I. Jeffery, Judge., Superior Court No. 2BA-05-0005/11CP.
Appearances: Sharon B. Barr, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for Appellant.
J.W. James M. Hackett, Law Office of James M. Hackett, Fairbanks, for Appellant.
C.H. Mary Ann Lundquist, Assistant Attorney General, Talis J. Colberg, Attorney General, Fairbanks, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti and Winfree, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
Parents appeal a superior court judgment terminating their parental rights to their two children, arguing that certain factual findings underlying the termination are clearly erroneous. Because there is sufficient evidence in the record to support the factual findings, we affirm the termination of parental rights.
II. FACTS AND PROCEEDINGS
A. Facts
Candace H. and Jacob W. are the parents of two children: Dakota, born in 2004, and Hillary, born in 2005. Each of the children is an "Indian child" within the meaning of the Indian Child Welfare Act of 1978 (ICWA).
Pseudonyms are used to protect the privacy of the family members.
See 25 U.S.C. § 1903(4) (2000).
25 U.S.C. § 1901- 1963. ICWA establishes "minimum Federal standards for the removal of Indian children from their families and [for] the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture." 25 U.S.C. § 1902. As we recently observed:
The Act establishes a system for ensuring tribal participation in state procedures for placing Native children and provide[s] for tribal court jurisdiction over many child welfare proceedings. In addition, the Act creates a series of procedural safeguards that limit the circumstances under which Indian children may be removed from their family homes.
State, Dep't of Health Soc. Servs., Div. of Family Youth Servs. v. Native Vill. of Curyung, 151 P.3d 388, 412 (Alaska 2006).
Candace was born in 1980 and was raised in Anaktuvuk Pass. Jacob was born in 1979 and was raised in Barrow and Fairbanks. They met in 2003 when Candace was at a treatment center in Barrow. In 2007 Jacob and Candace were living together with Candace's sister in Anaktuvuk Pass, and they considered their relationship "permanent." According to Candace, Jacob was the children's primary caregiver. According to Jacob, they shared child care responsibilities. Jacob had been employed as a full-time emergency responder for two-and-a-half weeks at the time of the termination trial. Candace had worked as a clerk for two weeks in 2006 but otherwise had never held a job.
However, Jacob "tried to leave [Candace]" in 2006 after being released from jail. Candace overdosed on pills and tried to stab herself with a knife as "a cry for attention." Jacob then chose to remain with Candace.
Of particular relevance in this case are both Jacob's and Candace's substance abuse, Jacob's anger management issues, and the children's medical treatment needs. Evidence in the record on these matters is set forth below.
1. Candace
Candace started drinking when she was sixteen. An "ambulatory encounter record" from 1998 documents an incident of public drunkenness. Between 2000 and 2002 she was cited for offenses ranging from minor consumption of alcohol to disorderly conduct, and from domestic violence (including three incidents of alcohol-related assault against family members) to importation of alcohol into a dry village. She was convicted on the latter charge and sentenced to probation, but probation was revoked "because [she] was drinking" and she served time in jail.
Candace's alcohol abuse treatment was a focus of the family case plan following Dakota's removal from the home in 2005 by the State of Alaska, Department of Health and Social Services, Office of Children's Services (OCS). The initial plan, dated October 1, 2005, called for Candace to "complete a substance abuse assessment" and "follow all treatment recommendations" and stated that failure to do so by June 3, 2006, would mean Dakota "will have been in [and] out of home placement for 15 months and the state will be required to file for termination of parental rights." A follow-up plan, dated March 20, 2006, noted that Candace "ha[d] made no progress with remedying the issues that brought [Dakota] into custody and [his] permanency goal is now concurrent (reunification and adoption)."
At trial, OCS established that Candace had "been to treatment" for alcohol abuse between five and ten times with varied success, including several attempts to complete a program in Fairbanks. Candace completed six weeks at Substance Abuse Treatment Services in Barrow following the 2002 importation conviction. She participated for "less than a month" at an Anchorage program when she was pregnant with Hillary in 2005. Her greatest achievement was completion of a six-week program in Sitka in 2006, but she rejected a recommendation that she follow up with a six-month program and began drinking again a few months later. Candace refused to participate in several other recommended programs to which she was admitted, despite offers of logistical and financial support from OCS and tribal organizations.
On August 17, 2007 (a month before the September termination trial), both Candace and Jacob were arrested after an incident in Anaktuvuk Pass. All parties had been drinking. According to the complaint, a police officer responded to a report that Jacob was choking another man. The officer asked Jacob to leave the residence, but Jacob refused and allegedly kicked the officer. The officer asked Candace to leave but she also refused. Candace was charged with disorderly conduct, and a condition of her release was that she take a daily portable breath test. This condition caused Candace to remain sober for the month leading up to the trial.
One OCS trial witness was an expert in the evaluation and treatment of substance abuse in rural Native communities. He conducted an initial comprehensive assessment of Candace in January 2007 and an updated assessment in August 2007. He diagnosed Candace as having a "substantial substance abuse problem," which he described as "alcohol dependence without physiological dependence." He recommended Candace undergo an inpatient treatment program for at least thirty-one days.
OCS also presented the testimony of an expert in clinical psychology, mental health evaluations, and treatment recommendations in child protection cases. He evaluated Candace and concluded "her substance abuse is a major, major problem" and she was "singularly unmotivated" to deal with it. He stated that to become a "minimally adequate parent" Candace "would have to commit to spending an extended period of time in an inpatient treatment program."
At trial Candace repeatedly denied having a problem with alcohol and stated that she could stop drinking whenever she wanted. She testified that she drinks "[j]ust rarely. . . . Once a month," but conceded that when she does drink — which she claims happens mostly during trips to Fairbanks — she drinks until she passes out. On one occasion in 2006 she had to cancel a scheduled visit with her children because she was drunk. Candace also testified, "I'm a totally different person when I'm drinking," and agreed that she does not "make good decisions" while drunk. Candace stated she was willing to undertake outpatient treatment, but would not participate in a long-term inpatient program.
2. Jacob
Jacob also has a history of alcohol-related offenses, including minor consumption of alcohol, probation violations, and assault. In February 2005 he was charged with domestic violence against Candace after they got in a fight. In December 2005 a woman accused him of assault at a hotel in Fairbanks. A trooper responded to that call and found Jacob intoxicated. The assault charge was not immediately pursued, but Jacob was arrested for "consum[ing] alcohol to excess" in violation of the terms of his existing probation. Jacob also admitted he was "pretty intoxicated" when arrested for "kick[ing] a police officer" in August 2007. Jacob has been in and out of detention.
Another expert in substance abuse evaluation and treatment diagnosed Jacob as alcohol-dependent. Jacob testified that he did not believe he needed treatment for alcohol abuse, did not see it as an important aspect of his OCS family case plan, and had better things to focus on with "the best [job he] ever had." A social worker testified that Jacob refused to attend AA meetings in Anaktuvuk Pass and did not comply with a request that he call a social worker daily to verify sobriety.
By his own account Jacob has a "short fuse." He stated at trial that he didn't think he would ever fix this problem, but that he had learned techniques that helped him "not explode on people." The family's case plan required that Jacob participate in an Alternatives to Violence program. As of July 2007 Jacob had provided no documentation that he had completed the course. OCS claimed that Jacob "refused to participate." At trial Jacob testified that additional classes would be "a waste of [his] time," but he indicated a willingness to participate; he implied he would have done what was asked of him if OCS had made its expectations and requirements clearer.
3. Dakota and Hillary
Both children were exposed to alcohol prenatally. Candace drank early in her pregnancy with Dakota, but stopped when she learned she was pregnant; she also drank when she was pregnant with Hillary, continuing to drink even after she learned she was pregnant because she and Jacob intended to abort the pregnancy. According to Jacob, Candace drank "enough to know [Hillary] was going to be messed up when she came out."
Candace and Jacob deny that Dakota is "delayed" in any way or that he has fetal alcohol spectrum disorder, despite a diagnosis to the contrary. They believe Dakota is perfectly normal, but in their briefs concede that Dakota requires physical and occupational therapy twice weekly because of developmental delays. They also concede Dakota may need to continue this therapy regimen for up to two years. Although someone could be trained to provide exercise therapy for Dakota in the village, he still would need to meet with his therapists in Fairbanks twice a week.
Jacob and Candace acknowledged at trial that Hillary has "serious problems." Hillary was diagnosed with fetal alcohol spectrum disorder with static encephalopathy, severe expressive and receptive language delays, and some motor dysfunction. Hillary was also diagnosed with torticollis, or "wry neck," a condition which if not treated with stretching exercises could lead to deformities of her skull. Jacob and Candace acknowledge in their briefs that Hillary has permanent brain damage and that "[p]arenting a [Fetal Alcohol Spectrum Disorder] child is difficult."
Torticollis is unrelated to prenatal alcohol consumption.
B. Procedural History
1. Dakota
The first contact OCS had with the family was in March 2005. Candace was pregnant with Hillary and eight-month-old Dakota was ill, and Candace traveled to Fairbanks to seek an abortion and to get medical treatment for Dakota. Candace could not have the abortion because she was under the influence of alcohol, and she appeared too intoxicated to care for Dakota. OCS took emergency custody of Dakota and filed a petition for temporary custody alleging Dakota was a child in need of aid because: (1) he needed medical care; (2) Candace was unable to provide adequate care due to her intoxication; and (3) he was at risk because of a domestic violence dispute between Candace and Jacob. The Anaktuvuk Pass tribal council intervened in the case. At a hearing in July 2005 the parties stipulated that Dakota was a child in need of aid and agreed to one year of OCS custody.
See AS 47.10.011(4), (8), (10).
Dakota was initially placed in a licensed foster home in Anaktuvuk Pass. This placement was unsuccessful and physical custody was transferred to Candace's father and his partner ("grandparents") in Anaktuvuk Pass on the condition that they not leave Dakota alone with Candace or Jacob. OCS later learned that the grandparents left Dakota alone with Candace in violation of the placement agreement. OCS placed Dakota in an emergency foster home in Fairbanks until placement was made in February 2006 with Dakota's great-aunt, also in Fairbanks.
The grandparents — supported by the tribal council — contested Dakota's placement with his great-aunt in Fairbanks and a series of hearings followed. The court eventually determined that placement away from the grandparents violated ICWA preferences and ordered Dakota returned to them. The scheduled transfer to the grandparents was never made because the grandfather was drinking and the grandparents missed their flight. The court stayed the order to return Dakota to his grandparents, and in July 2006 the parties stipulated to extend the placement with his great-aunt.
Dakota later returned to Anaktuvuk Pass to live with his grandparents and arrangements were made for him to travel to Fairbanks for weekly medical treatments. But in April 2007 Dakota went back to his great-aunt after OCS discovered that the grandfather had become intoxicated on one of his trips to Fairbanks with Dakota. In May 2007 the court extended Dakota's custody with his great-aunt until the conclusion of the proceedings. 2. Hillary
In October 2005 OCS filed a petition for temporary custody of Hillary, who was barely a month old. OCS alleged that Hillary was a child in need of aid because of her parents' failure to follow through with substance abuse treatment and anger management counseling. The court granted temporary legal custody to OCS in November, but the parents retained physical custody. In early December 2005 Jacob and Candace took Hillary to Fairbanks in violation of their custody conditions — conditions to which they had agreed in a telephonic hearing that very same morning. Jacob was arrested in Fairbanks for violating the terms of his probation. Candace was intoxicated and apparently unable to remember where she had left Hillary. OCS located Hillary several days later at a relative's home and placed her in foster care in Fairbanks.
See AS 47.10.011(9) — (10).
In March 2006 the parents stipulated that Hillary was a child in need of aid and that OCS should be granted custody for two years. In March 2007 the Naqsragmiut Tribal Council filed a notice of intervention.
3. Petition to terminate parental rights
OCS petitioned to terminate Candace's and Jacob's parental rights to both children on January 2, 2007, alleging that Dakota and Hillary were children in need of aid pursuant to subsections 4, 8, and 10 of AS 47.10.011. Trial was scheduled for May 10, 2007. On May 7 Candace and Jacob voluntarily signed documents relinquishing their parental rights to Dakota and Hillary and the termination trial was canceled. But both parents subsequently exercised their right to withdraw their relinquishment. Trial was rescheduled and held over a period of twelve days in September and October 2007.
AS 47.10.011 provides in relevant part as follows:
Subject to AS 47.10.019, the court may find a child to be a child in need of aid if it finds by a preponderance of the evidence that the child has been subjected to any of the following:
. . . .
(4) the child is in need of medical treatment to cure, alleviate, or prevent substantial physical harm or is in need of treatment for mental injury and the child's parent, guardian, or custodian has knowingly failed to provide the treatment;
(8) conduct by or conditions created by the parent, guardian, or custodian have
(A) resulted in mental injury to the child; or
(B) placed the child at substantial risk of mental injury as a result of
(i) a pattern of rejecting, terrorizing, ignoring, isolating, or corrupting behavior that would, if continued, result in mental injury; or
(ii) exposure to [domestic violence]. . . .
. . . .
(10) the parent, guardian, or custodian's ability to parent has been substantially impaired by the addictive or habitual use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child; if a court has previously found that a child is a child in need of aid under this paragraph, the resumption of use of an intoxicant by a parent, guardian, or custodian within one year after rehabilitation is prima facie evidence that the ability to parent is substantially impaired and the addictive or habitual use of the intoxicant has resulted in a substantial risk of harm to the child as described in this paragraph. . . .
The trial court issued its decision terminating Candace's and Jacob's parental rights on December 31, 2007. In its lengthy and comprehensive memorandum decision, the court discussed Candace's and Jacob's backgrounds and treatment histories and the medical treatment needs of the children. The decision also described the "strong efforts made by OCS" to support the parents in addressing their substance abuse and anger management issues, and noted the children's guardian ad litem's recommendation that parental rights be terminated.
The court found, as matters of fact, that: (1) the children had been subjected to the conditions listed in AS 47.10.011(4), (8) and (10); (2) the children continued to be subjected to those conditions; (3) OCS had made reasonable and active efforts to reunite the family but these efforts had not been successful; (4) it was in the children's best interests to terminate Candace's and Jacob's parental rights; and (5) serious emotional or physical harm to the children was likely to result if Candace and Jacob continued their custody. Based on these findings of fact, the court terminated Candace's and Jacob's parental rights to Dakota and Hillary.
III. DISCUSSION
A. Required Factual Findings for Termination of Parental Rights
The termination of parental rights is "a drastic measure. The private interest of a parent whose rights may be terminated is of the highest order." Child in Need of Aid (CINA) Rule 18 summarizes the requirements that must be met. A trial court generally must make five specific findings of fact, by various evidentiary standards, to terminate parental rights to an Indian child. The court must find by clear and convincing evidence that: (1) the child is in need of aid under AS 47.10.011; (2) "the parent has not remedied the conduct or conditions in the home that place the child at substantial risk of harm" or has failed to make enough progress within a reasonable time so that there is a "substantial risk of physical or mental injury" to the child if returned to the parent; and (3) active but unsuccessful efforts have been made "to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family." The court also must find "by a preponderance of the evidence that termination of parental rights is in the best interests of the child." Finally, the court must find by evidence beyond a reasonable doubt, supported by expert testimony, that the child would likely suffer "serious emotional or physical damage" if returned to the parent's custody. B. Findings at Issue on Appeal
In re J.L.F. K.W.F., 828 P.2d 166, 170 (Alaska 1992), overruled on other grounds by In re S.A., 912 P.2d 1235 (Alaska 1996).
CINA Rule 18(c)(1)(A).
CINA Rule 18(c)(1)(A).
CINA Rule 18(c)(2)(B).
CINA Rule 18(c)(3).
CINA Rule 18(c)(4).
Candace and Jacob each appealed the trial court's decision and their separate appeals were consolidated. Candace and Jacob both argue that the trial court erred in finding: (1) by proof beyond a reasonable doubt that returning the children to their parents would likely result in serious emotional or physical damage; and (2) by a preponderance of the evidence that termination of parental rights was in the children's best interest. Jacob also asserts that the court erred in finding by clear and convincing evidence that he had failed within a reasonable time to remedy the conduct that placed the children at substantial risk of harm. C. Standard of Review
We apply the clear error standard when reviewing a trial court's factual findings, reversing only where we have "a definite and firm conviction that a mistake has been made." "When reviewing factual findings . . . we ordinarily will not overturn a trial court's finding based on conflicting evidence," but will look for evidence in the record to support the finding. "We will not reweigh the evidence when the record provides clear support for the trial court's ruling"; "it is the function of the trial court, not of this court, to judge witnesses' credibility and to weigh conflicting evidence." Whether a trial court's findings are consistent with and sufficient for CINA statutes and ICWA is a question of law we review de novo. D. The Trial Court Did Not Err in Finding by Clear and Convincing Evidence that the Parents Failed To Remedy the Conduct that Put the Children at Substantial Risk.
Brynna B. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (citing A.B. v. State, Dep't of Health Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).
A.B., 7 P.3d at 950 (quoting R.J.M. v. State, Dep't of Health Soc. Servs., 973 P.2d 79, 84 (Alaska 1999)).
Martin N. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 79 P.3d 50, 53 (Alaska 2003) (citing In re Friedman, 23 P.3d 620, 625 (Alaska 2001)).
D.M. v. State, Div. of Family Youth Servs., 995 P.2d 205, 214 (Alaska 2000).
In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001) (quoting Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska 1999)).
E.g., Brynna B., 88 P.3d at 529 (CINA); J.S. v. State, 50 P.3d 388, 391 (Alaska 2002) (ICWA).
Involuntary termination of parental rights for a child in need of aid requires clear and convincing evidence that the parent "has failed, within a reasonable time, to remedy the conduct or conditions in the home that place the child in substantial risk so that returning the child to the parent would place the child at substantial risk of physical or mental injury." In determining "whether a parent has remedied or will, within a reasonable time, remedy the conditions in the home that place the child at substantial risk, the court may consider any fact relating to the best interests of the child."
AS 47.10.088(a)(2)(B).
See Sherry R. v. State, Dep't of Health Soc. Servs., Div. of Family Youth Servs., 74 P.3d 896, 902 (Alaska 2003) (citing AS 47.10.088). Under AS 47.10.088(b) factors relating to the best interest of the child include, but are not limited to,
(1) the likelihood of returning the child to the parent within a reasonable time based on the child's age or needs;
(2) the amount of effort by the parent to remedy the conduct or the conditions in the home;
(3) the harm caused to the child;
(4) the likelihood that the harmful conduct will continue; and
(5) the history of conduct by or conditions created by the parent.
The court found that the children were in need of aid because: (1) the parents had been "unable or unwilling" to meet Dakota's demonstrated need for pediatric occupational and physical therapy and had failed to seek treatment for Hillary's visible torticollis condition; (2) the children had been at risk of injury in the parents' custody because of "violence in their relationship"; and (3) the parents' use of alcohol — particularly Candace's — substantially impaired their ability to parent the children.
See AS 47.10.011(4).
See AS 47.10.011(8).
The court further found that the parents failed to remedy these conditions at the time of trial. The court found "not credible" Jacob's testimony that he would make sure the children received needed treatment even though he personally found it unnecessary. The court also noted that Candace's and Jacob's alcohol and anger issues were "barely-treated" and that Jacob believed the children were too young to be affected by the violence between Candace and himself.
Jacob disputed the finding that he failed to remedy his conduct, arguing that he had substantially complied with his case plan requirements that he: (1) complete an anger management program; (2) get substance abuse treatment; (3) maintain employment; and (4) read the parenting materials provided by OCS. Jacob maintained that: (1) he "honestly believed he had completed" the anger management program; (2) substance abuse treatment "was not the important aspect of his case plan" and he did not need further substance abuse treatment; (3) he had a full-time job; and (4) although he did not read the parenting materials sent by their OCS caseworker, he had demonstrated an interest in learning how to parent his children.
Jacob failed to show that the trial court clearly erred in finding he had not remedied the conduct that put his children at risk. Jacob failed to achieve the goals of his case plan, but instead of offering specific evidence of how he has met or intends to meet the requirements of the plan, he offered explanations why he did not believe he needed to meet them. For example, he admitted that his drinking "still gets [him] in trouble," but he stated he did not intend to seek further alcohol abuse treatment because it wasn't important. We defer to the trial court's credibility determination and conclude there is sufficient evidence in the record to support the finding by clear and convincing evidence that Jacob had not remedied the conduct that placed his children in harm's way.
E. The Trial Court Did Not Err in Finding Beyond a Reasonable Doubt that Continued Custody of the Children by the Parents Is Likely To Result in Serious Emotional or Physical Damage to the Children.
Under ICWA a court may not terminate parental rights to Indian children unless OCS has shown — beyond a reasonable doubt — that the children are likely to suffer serious emotional or physical harm in the parents' custody. The trial court found that the children were bonded to their foster parents and "would suffer serious emotional damage" if removed from their current placement and returned to a home "at great risk of involvement with renewed alcohol abuse, domestic violence, lack of stability and lack of sufficient attention to the children's treatment needs." The court already had found Jacob not credible on the issue of ensuring the children received necessary treatment. The court determined that recent improvements were "insufficient under the circumstances of this case to show that the parents have actually removed the problems that cause both children to be children in need of aid."
25 U.S.C. § 1912(f) ("No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."); CINA Rule 18(c)(4).
Jacob and Candace argue that OCS has not "[met] its heavy burden on this issue." Jacob refutes the court's factual findings by submitting that: (1) he is "conscious" of his children's special needs and willing to meet those needs; (2) alcohol abuse is not an issue because he does not have an alcohol problem and would be the primary caregiver; (3) there is no evidence of domestic violence against the children; (4) he is "realistic and mature" in his approach to his anger management problem; and,
(5) the home is "stable."
Candace echoes these arguments. She states that by the time of trial she had been sober for a "month or more," had become aware of the impact her drinking had on her children, and was willing to do long-term outpatient treatment.
Candace was inconsistent in her testimony, once agreeing she needed "something . . . but not long term" (emphasis added), but later saying she "could do long term but not in-patient" treatment.
The trial court's finding is supported by evidence beyond a reasonable doubt, especially taking into account the court's credibility determination. Even if the trial court had limited its inquiry into Jacob's and Candace's capacity to be parents to only the six months before trial as Jacob requested, the evidence shows that Jacob and Candace do not fully appreciate the impact of their behavior on their children or the gravity of the children's needs, nor do they appear to have gained more than tenuous control over their drinking and anger management problems. Although Jacob expressed a clear desire to be reunited with his children, Candace was more ambivalent. She expressed a willingness to learn how to be a parent, but did not seem to understand the connection between resolving her substance abuse issues and being able to parent her children. She testified that she will not participate in long-term or inpatient treatment, which an expert cited as fundamental to her becoming "a minimally adequate parent." F. The Trial Court Did Not Err in Finding by a Preponderance of the Evidence that Termination of Parental Rights Was in the Best Interests of the Children.
Jacob testified that, although Dakota and Hillary were present when he and Candace fought, the children were too young to have been "affected . . . in any way" by "that stuff."
As to how Dakota and Hillary would manage a transition back to their parents, Jacob testified, "[t]hat transition stuff does not work. . . . I wouldn't want a transition thing because . . . they're going to be living at home one day, they might as well just jump right in there. . . . [W]e'll just have to deal with it until they get used to it." Additionally, both children require extensive physical and occupational therapy that is not available in Anaktuvuk Pass, making a placement there less workable.
Based on findings that "neither [Jacob] nor [Candace] have taken the steps necessary to provide a safe home for [Dakota] and [Hillary], especially given the treatment needs of the two children," the trial court concluded by a preponderance of the evidence that it was in Dakota's and Hillary's best interest to terminate Jacob's and Candace's parental rights. Jacob and Candace assert that this conclusion was erroneous because: (1) there are no permanent placement plans for the children; and (2) the children are not currently with Native families, contrary to ICWA's goal to promote the integrity of Indian tribes. For the following reasons, we conclude these arguments are without merit.
1. Lack of permanent placement not dispositive
The parties agree that the lack of an alternative permanent placement "is not necessarily a decisive factor" in determining whether to terminate parental rights, but that it can be a consideration. Jacob argues that the court should have given this factor greater weight, and that the children's lives would not necessarily be less stable with Jacob and Candace than they are in the foster system. Jacob points out that while Hillary's placement has been relatively stable, Dakota was moved six times during the pendency of this case. Jacob also asserts that he and Candace have improved the stability of their home, noting that there is no evidence of recent domestic violence, that Candace is sober, that Jacob is not drinking, that Jacob had completed an anger management program and is aware of his problem, and that Jacob has a full-time job.
Other evidence undermines these assertions. At the time of trial, Jacob had held a job for just two-and-a-half weeks and had quit drinking only because he was afraid of losing his job. Jacob conceded at trial that drinking still "gets [him] in trouble," as with the incident a month before trial when he allegedly assaulted a police officer. Likewise, it had been only one month since Candace had her last drink, and she stated that was only because the release conditions on her criminal charge required that she take a portable breath test every day and she did not want to go back to jail. The trial court noted that because Candace does not believe she has an alcohol abuse problem and has rejected treatment opportunities, the likelihood that she will relapse is high. Furthermore, it is not clear that Jacob completed his anger management program; he can say only that "he had gained an understanding of his anger management problem," and that he has tools to help manage it, but he acknowledges that he may never be able to fix that problem.
Jacob and Candace cannot clearly provide a more stable home than what the children already have or will have in the foster parent and adoption system. Even if it were clear, this conclusion alone would be insufficient to overcome the great weight of the evidence that it was in the best interests of the children to terminate Candace's and Jacob's parental rights.
2. ICWA "preference" not at issue
Jacob asserts that there is "no evidence that either child's foster family [is] Native," and that the clear purpose of ICWA to "promote the stability and security of Indian tribes and families" weighs against a finding that terminating parental rights is in the children's best interest. Jacob does not argue that this factor is dispositive, only that it should be considered. OCS, in turn, notes that efforts were made to place the children with family and tribal members in Anaktuvuk Pass, but that these placements were unsuccessful for a variety of reasons. OCS also points out that Dakota is currently with his paternal great-aunt.
At least one of these placements may have failed in part because Jacob repeatedly placed hostile phone calls to the foster mother.
In placing an Indian child in foster care or an adoptive home, ICWA requires that preference be given — in the absence of good cause to the contrary — to members of the child's extended family or to someone otherwise affiliated with the child's Indian tribe. But this specifically applies to placement of an Indian child; nothing in ICWA requires consideration of placement options in determining whether to terminate parental rights. The relevant issue was whether Candace's and Jacob's parental rights should be terminated in the best interests of the children, not what would happen to the children after termination of those parental rights. The trial court did not err in finding by a preponderance of the evidence that it was in the best interests of the children to terminate Candace's and Jacob's parental rights.
25 U.S.C. § 1915.
IV. CONCLUSION
We AFFIRM the superior court's termination of Candace's and Jacob's parental rights to Dakota and Hillary.