Diana P. v. State, Dept. of Health & Social Services, Office of Children's Services , 355 P.3d 541 ( 2015 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
DIANA P., )
) Supreme Court No. S-15688
Appellant, )
) Superior Court Nos. 4FA-12-00096/
v. ) 97/98/99 CN
)
STATE OF ALASKA, ) OPINION
DEPARTMENT OF HEALTH & )
SOCIAL SERVICES, OFFICE OF ) No. 7045 – September 1, 2015
CHILDREN’S SERVICES, )
)
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Bethany S. Harbison,
Judge.
Appearances: J. Adam Bartlett, Anchorage, for Appellant.
Miranda L. Strong, Assistant Attorney General, Anchorage,
and Craig W. Richards, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
A mother appeals the termination of her parental rights to her four
daughters, all Indian children under the Indian Child Welfare Act (ICWA).1 She argues
that the trial court erred in finding that the Office of Children’s Services (OCS) proved
beyond a reasonable doubt that placing her children in her custody would likely put the
children at risk of serious harm. We affirm the trial court’s decision.
II. FACTS AND PROCEEDINGS
This case involves Diana and her daughters: Natalie was born in 2008;
Selah was born in 2009; Ava was born in 2010; and Drew was born in 2011.2 The
children’s father has relinquished his parental rights. OCS has been involved with this
family since 2009 because of the parents’ behavior when they drink. The children were
adjudicated children in need of aid in March 2013. Following a trial in the summer
of 2014, the trial court terminated Diana’s parental rights to the children after finding
them subject to conduct or conditions described in AS 47.10.011(6),3 (9),4 and (10).5
1
25 U.S.C. §§ 1901-1963 (2012). The Native Village of Grayling has
intervened on the children’s behalf pursuant to 25 U.S.C. § 1903(1).
2
Pseudonyms have been used to protect the privacy of the parties.
3
Alaska Statute 47.10.011(6) allows a trial court to find a child to be in need
of aid if “the child has suffered substantial physical harm, or there is a substantial risk
that the child will suffer substantial physical harm, as a result of conduct by or conditions
created by the child’s parent, guardian, or custodian or by the failure of the parent,
guardian, or custodian to supervise the child adequately.”
4
Alaska Statute 47.10.011(9) allows a trial court to find a child to be in need
of aid if conduct or conditions created by the parent have subjected the child to neglect.
5
Alaska Statute 47.10.011(10) allows a trial court to find a child to be in
need of aid if the parent’s ability to parent has been substantially impaired by the
(continued...)
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Diana appeals.
A. The Evidence
Diana has struggled with mental illness and substance abuse since she was
a teenager. When she was eight or nine years old and living with her father, he
committed suicide. She went to live with her mother, who was an alcoholic. Diana has
been diagnosed with and treated for bipolar disorder, and she has also been treated for
substance abuse at least ten times. Diana has shown a pattern of drinking alcohol while
pregnant, abstaining once she learns she is pregnant, and then resuming drinking after
the child is born. She admitted at trial that she drank during three of her previous
pregnancies. Ava was born with cocaine in her system, but Diana said she did not know
how it got there. She speculated that someone put something in her drink one night.
At the time of trial Diana lived with and was financially supported by her
boyfriend. She was 23 weeks pregnant with her fifth child and abstaining from
intoxicating substances. Diana was focused on healthy activities, such as fishing,
hunting, hide tanning, beading, and learning Athabascan. She testified that she had
become a totally different person over the past eight or nine months; she was much
happier, more patient, and no longer “closed off,” and did not “think [in] black and
white.” Diana testified that her boyfriend did not have a drinking problem, although he
was found to be driving under the influence in 2013 and drank with her in December
2013 when she relapsed.
Diana presented testimony from friends who described her past several
months of abstinence and the changes she had made since she moved to a new village
five months before trial. The witnesses stated that Diana had shown tremendous growth,
5
(...continued)
addictive or habitual use of an intoxicant, which has resulted in a substantial risk of harm
to the child.
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was leading a productive, sober life, and was trusted with people’s children. One of
Diana’s witnesses testified that she did not believe Diana had a drinking problem, but
that witness was Diana’s third-party custodian following her June 2013 driving under the
influence arrest.
The children’s paternal great-aunt, Nancy O., appears to be the children’s
final placement. Nancy has had tribal custody of the children on and off for several
years. She has observed the parents’ repeated pattern of abstinence from substance
abuse, followed by relapse. According to Nancy, “there [were] no two better people on
this earth who could take care of those kids” when they were sober. But when they were
drinking, they were not good parents. Diana became confrontational and bossy, the
children went hungry, and their home was unstable. Natalie became the caregiver of her
siblings; when she was four years old she made her younger sisters’ bottles, changed
their diapers, and dressed them. This caused Natalie to be a “worry wart,” and the stress
caused her “tummy issues” and exacerbated her eczema. The other children also have
issues: Selah has severe separation anxiety, Ava’s speech was delayed, and Drew has
“the shakes.”
Nancy testified that Diana seemed to be doing better in 2014; she
understood how her drinking affected her children, had become reliable, visited the
children several times a month, and bonded with and cared for the children. But Nancy
feared the impact a future relapse would have on the children and acknowledged that
Diana’s recent sobriety had lasted only five months out of many years of substance
abuse. Nancy said she was willing to care for the children until the day she died and
would continue to allow Diana to be in their lives if she remained sober. Nancy testified
that the children told her that they would like to stay with her if they cannot live with
their mother.
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OCS social worker Rosalie Rein testified about the past harm the children
suffered under the care of their parents. Before OCS took custody of the children, their
medical needs were not being met and they were exposed to danger. On one occasion
Diana left Selah with her maternal grandmother, who pulled a knife on her partner in
front of Selah. On another occasion Diana and her mother wanted to go out drinking,
but because the person they found to watch the children was unwilling, “they left the kids
there and ran away.” OCS and the Village of Grayling tried to reunify the family over
a period of several years. But the multiple placements beginning at a very young age
caused the children to lack any sense of permanency and to fear OCS would take them
away. Rein corroborated Nancy’s testimony that Selah suffered separation anxiety.
OCS offered the reports and testimony from two experts: Christy Pichette
of Pichette Counseling Services and Lisa Farrell from Hope Counseling Center. Without
objection, Pichette and Farrell testified as experts in the diagnosis and treatment of
substance abuse and substance-abuse-related disorders.
Pichette’s written report was based on two evaluations of Diana, one in
2012 and a second one in 2013. Pichette diagnosed Diana with alcohol dependence and
other substance dependence in full sustained remission. She noted that Diana self-
reported being diagnosed with bipolar disorder when she was a child, and that there was
also evidence within the assessment suggesting post-traumatic stress disorder. Pichette’s
report included collateral information provided by OCS detailing the parents’ alcohol
abuse and how it caused the children to be neglected and in danger of physical abuse:
people drank in excess and used drugs in the home; there was no food in the refrigerator;
the children were dirty and had rashes on their bottoms due to lack of cleanliness; and
at least one of the children had been exposed to domestic violence. The collateral
information in the report described several other occasions of neglect due to substance
abuse and concluded that the children were extremely vulnerable due to their young ages,
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inability to self-protect, and their prenatal exposure to alcohol and/or drugs. Pichette
recommended a “Level III.3 Medium Intensity Treatment Program (preferably no less
than six months and also dual diagnosis) followed by a long-term Aftercare Program”
for Diana.
Pichette testified that Diana seemed very open, honest, and willing to
engage in treatment. But Pichette recognized that someone who has had “too much
treatment” may become “therapized,” which makes it difficult to get an accurate
assessment. In Pichette’s opinion, a person cannot solve a substance abuse problem by
moving to another town; the problem continues to exist unless the substance abuser takes
the necessary relapse-prevention steps, finds support groups, and addresses the mental
health component through therapy.
Lisa Farrell’s written report, based on her early 2014 assessment of Diana,
described Diana’s substance abuse history, OCS’s involvement in her childhood, her
children’s experience of being in OCS and tribal custody, and her current lifestyle. The
report also described Diana’s pattern of sobriety during pregnancy followed by relapse
after each child’s birth. Farrell’s report did not address the children’s welfare, other than
to include essentially the same collateral information OCS had given to Pichette,
describing Diana’s history of passive-aggressive behavior, yelling, irritation, and stress
caused by having multiple children. Farrell recommended “a Long Term (6 months
to 2 years) Residential Clinically Managed High Intensity Treatment program for women
with Children.” Farrell also firmly recommended that Diana “immerse herself in a strong
parenting program, a substance abuse program, and [dialectical behavioral therapy] skills
development program,” and engage in parent and child interaction therapy.
At trial Farrell explained that she based her recommendation on Diana’s
inability to refrain from substance abuse, her emotional struggles, and the skills she
needed to learn to provide a safe environment for her children. Farrell noted that people
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who abstain from drinking without processing unresolved childhood trauma have a
higher risk of relapse than individuals who have processed their negative childhood
experiences. She felt that Diana lacked insight about her drinking; Diana told Farrell she
would not have time to drink if her children were in her care, but in fact her children had
been removed from her custody due to drinking. Farrell was concerned that the children
needed supervision and protection around Diana because she had a history of passive-
aggressive behavior, yelling, and a generally irritable temperament when she was
stressed. She advised that if the children were to be reunited with Diana they would have
to be reintroduced into Diana’s care one child at a time, with supervision.
B. The Trial Court’s Findings
In a thoughtful and detailed decision, the trial court found that OCS had
“proved by clear and convincing evidence that there [was] a substantial risk that the children
will suffer substantial physical harm as a result of conduct by or conditions created by
[Diana],” pursuant to AS 47.10.011(6). The court cited Diana’s behavior of leaving the
children in unsafe homes or failing to arrange for supervision, and requiring four-year-old
Natalie to care for her siblings. The court noted that when Diana drank, her children went
hungry and their medical needs were not met. The court also addressed Diana’s alcohol
abuse pattern during and after pregnancy, and another pattern of attending substance abuse
programs without completing them or completing them and then relapsing soon after. The
court found: “Because [Diana] has not received needed treatment, she is almost certain to
relapse. If she does, there is a substantial risk that the children will suffer substantial
physical harm — from lack of food, lack of supervision, or exposure to unsafe care
providers.” The trial court made the remaining required statutory findings under the child-
in-need-of-aid (CINA) Rules and ICWA.
Acknowledging that ICWA requires a finding beyond a reasonable doubt that
continued custody by the parent is likely to cause the children serious harm, the trial court
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applied our two-pronged approach requiring OCS to prove that (1) the parent’s conduct is
likely to harm the children, and (2) it is unlikely that the parent will change her conduct.6
Noting that OCS “typically has an expert testify about the potential harm to the child,” the
trial court commented that there was “very little case law about the subject matter of an
expert’s testimony in determining the likelihood that the child will experience harm.” The
court cited Marcia V. v. State, Office of Children’s Services7 as holding that expert testimony
is sufficient to meet ICWA’s requirements even when the expert is only qualified to provide
an opinion on the first prong and allowing OCS to prove the second prong through lay
testimony and other evidence. The trial court stated that there are no published Alaska cases
on point and instead cited two unpublished cases,8 where we upheld termination of parental
rights even though expert testimony proved only one prong of the test. Based on its analysis
of these cases, the trial court concluded that, when the basis for termination is culturally
neutral, the substantial-harm requirement may be met by a combination of lay testimony and
other evidence that the parent’s conduct is harmful to the child, as well as expert testimony
that the conduct is likely to continue.
The trial court noted that in the present case, the experts did not focus on the
harm alcoholic parents cause their children, but they did testify that if Diana received
custody of all of her children it would be harmful to her sobriety. The court observed that
the lay testimony established that Diana’s drinking was harmful to the children. And the
6
See Chloe W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 336 P.3d 1258, 1269-70 (Alaska 2014).
7
201 P.3d 496, 501-02, 504-05, 508 (Alaska 2009).
8
See Camille H. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., Mem. Op. & J. No. 1419, 2012 WL 1649167 (Alaska May 10, 2012); Stephen H.
v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., Mem. Op. & J.
No. 1400, 2011 WL 6004352 (Alaska Nov. 30, 2011).
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court came to what it called a “common-sense” conclusion that if the children were removed
from their bonded placement and placed in the care of a mother who, because of alcohol, is
not emotionally or physically stable enough to care for her own needs, the children would
be at substantial risk of harm. Because of Diana’s unresolved alcoholism and mental health
problems, her inability to care for herself, and her history of drinking and neglect, the trial
court found beyond a reasonable doubt that placing the children in her custody would likely
put them at substantial risk of harm.
III. STANDARD OF REVIEW
Before terminating parental rights under ICWA and the CINA statutes and rules,
the trial court must find by clear and convincing evidence that the child has been subjected
to conduct or conditions described in AS 47.10.011;9 that the parent has not remedied, or has
not remedied within a reasonable time, the conduct or conditions in the home that place the
child at substantial risk of physical or mental injury;10 and in the case of an Indian child, that
active but unsuccessful efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family.11 ICWA also requires that
the trial court find, “by evidence beyond a reasonable doubt, including testimony of qualified
expert witnesses, that the continued custody of the child by the parent . . . is likely to result
in serious emotional or physical damage to the child.”12 Finally, the trial court must
9
AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A).
10
AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i)-(ii).
11
25 U.S.C. § 1912(d) (2012); CINA Rule 18(c)(2)(B).
12
25 U.S.C. § 1912(f); see also CINA Rule 18(c)(4).
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determine by a preponderance of the evidence that “termination of parental rights is in the
best interests of the child.”13
The only issue Diana raises in her appeal is whether the trial court erred in
finding that OCS proved beyond a reasonable doubt that placing her children in her custody
likely would put the children at risk of serious emotional or physical harm. “[W]hether
substantial evidence supports the court’s conclusion that an Indian child is likely to be
seriously harmed if returned to his parent is a mixed question of fact and law.”14 The court’s
factual findings are reviewed under the clearly erroneous standard, and its legal conclusions
are reviewed de novo.15 “Clear error arises only when our review of the entire record leaves
us with a definite and firm conviction that the superior court has made a mistake.”16
IV. DISCUSSION
The Trial Court Did Not Err In Finding That The Evidence Presented Proved
Beyond A Reasonable Doubt That The Children Would Likely Be Seriously
Harmed If Returned To Diana.
ICWA requires that the trial court find “by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of the child by
the parent . . . is likely to result in serious emotional or physical damage to the child.”17 We
13
CINA Rule 18(c)(3); see also AS 47.10.088(c).
14
E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 989
(Alaska 2002) (citing L.G. v. State, Dep’t of Health & Soc. Servs., 14 P.3d 946, 949-50
(Alaska 2000)) (holding that factual findings in termination proceedings are reviewed
under the clearly erroneous standard, but whether those findings comport with ICWA
requirements presents questions of law).
15
L.G., 14 P.3d at 949-50.
17
25 U.S.C. § 1912(f); see also CINA Rule 18(c)(4).
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have adopted a two-prong test to determine whether continued custody by the parent is likely
to cause serious harm to the child. 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.18 We have explained that “[s]erious harm
can be proved through the testimony of a single expert witness, by aggregating the testimony
of expert witnesses, or by aggregating the testimony of expert and lay witnesses.”19 “The
findings of a likelihood of serious emotional or physical damage are findings that must be
made by the trial judge, not the expert witness.”20 Alcohol relapses may be considered in
establishing the likelihood that a child would suffer harm.21
While ICWA requires that the evidence supporting this finding include expert
testimony, it does not clarify the scope of the expert testimony required,22 nor does it require
that the expert testimony provide the sole basis for the court’s conclusion.23 “[N]o one
individual qualified expert witness must possess all the knowledge necessary to support both
18
Chloe W. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 336 P.3d 1258, 1269-70 (Alaska 2014); see also Jon S. v. State, Dep’t of Health
& Soc. Servs., Office of Children’s Servs., 212 P.3d 756, 767 (Alaska 2009) (“Proof of
the likelihood of future harm must include qualified expert testimony based upon the
particular facts and issues of the case, but the trial court may aggregate this with other
evidence as a basis for its finding.” (quoting E.A., 46 P.3d at 991) (internal quotation
marks omitted)).
19
Chloe W., 336 P.3d at 1270 (quoting L.G., 14 P.3d at 950) (internal
quotation marks omitted).
20
Marcia V. v. State, Office of Children’s Servs., 201 P.3d 496, 508
(Alaska 2009).
21
See L.G., 14 P.3d at 950.
22
See 25 U.S.C. § 1912.
23
See E.A., 46 P.3d at 992.
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prongs of the question posed by the statute.”24 We have not yet established whether expert
testimony on its own must directly answer both prongs of the test.
Although it may be best practice for expert testimony to address both prongs
of the “serious emotional or physical damage to the child” test, we conclude that it is not
required when the basis for termination of parental rights is culturally neutral: so long as
qualified expert testimony directly supports one prong of the substantial harm requirement
and inferentially supports the other prong, the statutory requirements will be satisfied. It
therefore was not legal error under ICWA for the trial court to make a common-sense finding
based on lay testimony that reuniting Diana with her children would likely result in serious
emotional or physical damage to the children.
1. The first prong: conduct would likely harm the children
Diana argues that the trial court’s risk-of-harm finding contravened ICWA
because it was based on lay testimony and not expert testimony. She also contends that the
trial court should not have considered expert testimony in finding that her conduct would
likely harm the children because neither expert was qualified to testify about the children.
We conclude that the trial court had appropriate support for its finding that the
first prong of the test was satisfied. The finding that the children would likely suffer harm
if returned to Diana is inferentially supported by the experts’ opinions that Diana was unable
to cope with caring for multiple children and would likely relapse after having her fifth child.
It is also directly supported by lay testimony that substance abuse had caused her to abandon
and neglect her children in the past.
24
In re Parental Rights of T.O., 759 P.2d 1308, 1311 (Alaska 1988).
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We recently addressed this issue in Sadie D. v. State, Department of Health &
Social Services, Office of Children’s Services.25 There, one of the experts was qualified as
an expert in substance abuse and treatment. The other expert was a mental health clinician
and qualified as an expert in psychological assessments. Both experts testified about the
mother’s mental health and substance abuse issues, although neither spoke directly to the
harm the children would likely suffer as a result of the mother’s problems.26 However, a
number of lay witnesses testified about the negative impact the mother’s problems had on her
child’s needs.27 The psychologist’s report addressed the mother’s apparent inability to care
for her child, her “lack of psychiatric stability,” the role substance abuse played in her ability
to respond to her child, and the risk her housing situation presented to herself and her child.28
We stated: “In the aggregate, including the testimony of qualified experts, the record
supports the superior court’s predictive finding that [the child] faced a likelihood of physical
or emotional harm if he was returned to his mother’s care. The superior court did not clearly
err in making that finding.”29
Our holding in Camille H. v. State, Department of Health & Social Services,
Office of Children’s Services30 similarly supports the trial court’s finding of substantial risk
of harm even though the expert testimony did not directly address the harm alcoholic parents
cause their children. There, we relied upon the “common-sense notion” that intoxicated
25
Mem. Op. & J. No. 1516, 2014 W L 4536352, at *4 (Alaska Sept. 10, 2014).
26
Id. at *4-5.
27
Id. at *5.
28
Id.
29
Id.
30
Mem. Op. & J. No. 1419, 2012 WL 1649167, at *10 (Alaska
May 10, 2012).
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parents put their children at risk, particularly in light of the affected children’s special needs
and the treatment providers’ testimony that the parents’ profound alcoholism remained
unresolved.31
Neither expert in the present case expressly stated that the children would likely
be harmed if returned to Diana, nor was either expert specifically qualified to do so. But the
experts were qualified to render opinions on the second prong of the test and they did so, as
we discuss in the next section. Furthermore, support for the first prong could reasonably be
gleaned from the experts’ observations that Diana would likely relapse and not be a safe
mother.
Furthermore, the lay witnesses’ testimony clearly supported the trial court’s
finding that Diana’s conduct would likely seriously harm the children. For example, OCS
worker Rein testified that before OCS took custody of the children, their medical needs were
not met and they were exposed to danger. For several years OCS and the Village of Grayling
tried to reunify the family but were met with continued adversity caused by the parents’
alcohol and substance abuse, which diminished the children’s sense of permanency. Nancy
testified that she was concerned Diana would relapse and cause harm to the children, after
seven years of back and forth and multiple placements. Nancy also testified about Diana’s
difficulty parenting when she drank, her numerous attempts at sobriety, and the impact her
behavior had on the children, including stress, anxiety, and developmental delays. We
conclude that reasonable inferences from the expert testimony, coupled with lay witness
testimony and documentary evidence from the record, are sufficient to support the trial
court’s finding that returning the children to Diana’s care was likely to endanger them. We
therefore affirm the trial court’s serious harm finding.
31
Id. at *10-11.
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2. The second prong: conduct was not likely to change
Diana argues that OCS’s expert testimony was insufficient to satisfy the second
prong. We conclude that the evidence amply supports the trial court’s finding that Diana’s
conduct was not likely to change. Pichette testified that with a dual diagnosis, substance
abuse will remain an issue until the underlying mental-health issues triggering the abuse are
treated. Farrell’s opinion that Diana lacked insight into her drinking behavior also supports
a finding that her behavior will not improve in the near future.32
The lay testimony also supports the trial court’s finding that Diana will likely
relapse. Nancy stated that Diana had a long history of drinking in excess and had abstained
from drinking for only five months. Diana herself testified that she had struggled with mental
illness and alcohol and substance abuse since she was young, had been in treatment at least
ten times, and had a pattern of relapsing after each pregnancy. Because the aggregated
testimony of expert and lay witnesses supports the trial court’s finding that Diana likely will
continue to relapse until she resolves her underlying mental health issues, the trial court’s
conduct-not-likely-to-change finding is not clearly erroneous.33
32
See Jon S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s
Servs., 212 P.3d 756, 767 (Alaska 2009) (“Although the court must focus on risk of
future harm rather than past injury, past failures may predict future conduct.”).
33
Though Diana did not appeal the trial court’s active efforts finding, we take
the opportunity to commend the efforts OCS made in attempting, unsuccessfully, to
reunite the children with their mother. OCS and the Native Village of Grayling
alternately tried to reunify the family and protect the children during a five-year span.
They provided in-home services; substance abuse assessments; and opportunities for
treatment, including a urinalysis program and airplane travel. They also assisted with
transitions when the children were removed from their parents’ care, maintained contact
among the children when they were apart, provided assessments and evaluations for the
children, and ensured visitation with the children.
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3. Summary
To summarize, expert witnesses testified that Diana lacked insight into her
drinking; needed long-term residential treatment; had a history of passive-aggressive
behavior, yelling, irritation, and stress caused by multiple children; and was at high risk of
relapse. An expert testified that the children needed supervision and protection when around
Diana because of these problems. Lay witnesses testified that Diana’s drinking was harmful
to her children. Considering all of this evidence, we agree with the trial court: if the children
were removed from their bonded placement and placed in Diana’s care, they would be at
substantial risk of harm. The trial court did not err in making this finding beyond a
reasonable doubt.
V. CONCLUSION
We AFFIRM the trial court’s order terminating Diana’s parental rights.
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