Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@appellate.courts.state.ak.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

CHLOE W., 

Appellant, 

v. 

STATE OF ALASKA, DEPARTMENT

OF HEALTH & SOCIAL SERVICES, 

OFFICE OF CHILDREN’S SERVICES

Appellee. 

, 

) 

) Supreme Court No. S-15351 

Superior Court No. 1JU-10-00053 CN 

O P I N I O N 

No. 6965 – November 7, 2014
 

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Appeal from the Superior Court of the State of Alaska, First 

Judicial District, Juneau, Louis J. Menendez, Judge. 

Appearances: Olena Kalytiak Davis, Anchorage, for 

Appellant. David T. Jones, Senior Assistant Attorney 

General, Anchorage, and Michael C. Geraghty, Attorney 

General, Juneau, for Appellee. 

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and 

Bolger, Justices. 

FABE, Chief Justice. 

BOLGER, Justice, concurring. 
 

 

 

 

 

 

 

 

I. INTRODUCTION 

Chloe W.1 appeals the termination of parental rights to her three-year-old 

son Timothy, an “Indian child”2 under the Indian Child Welfare Act of 1978 (ICWA). 

She claims the trial court erred by: (1) relying too heavily on a stipulation filed after the 

close of evidence, which Chloe contends was the result of ineffective assistance of 

counsel; (2) finding that Chloe had not remedied the conduct that placed Timothy at risk; 

(3) finding that OCS made active efforts to reunify the family; and (4) finding that 

terminating Chloe’s parental rights was in Timothy’s best interests. Because the trial 

court’s findings are amply supported by the record and its legal rulings are correct, we 

affirm the trial court’s order terminating Chloe’s parental rights to Timothy.3 

II. FACTS AND PROCEEDINGS 

Chloe lives in Juneau and is a member of the Tlingit and Haida Tribes of 

Alaska. As a child she suffered physical, emotional, and sexual abuse, as well as 

abandonment. Chloe was reported to have learning disabilities at school, and she 

dropped out in the eleventh grade. She worked sporadically over the years but has been 

unemployed since 2004. At age 19 Chloe lost her first child shortly after his birth due 

to a congenital heart defect and premature lung development. She started to take Xanax 

in 2008, when she was prescribed a high dosage for anxiety, in addition to Abilify and 

Neurontin for mood stabilization. In August 2009 Chloe began treatment with 

psychiatrist Dr. Paul Topol, who diagnosed her with depression and substance abuse. 

1 We use pseudonyms to protect the family’s privacy. 

2 See 25 U.S.C. § 1903(4) (2012). 

3 Timothy’s father voluntarily relinquished his parental rights on May 30, 

2012. 

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Dr. Topol continued the Xanax prescription and, because Chloe told him she was 

addicted to “pain killers,” he prescribed Suboxone, an opiate maintenance drug. When 

Chloe became pregnant with Timothy, Dr. Topol continued her prescriptions to avoid 

serious health risks. Dr. Topol treated Chloe monthly until August 2013. 

Timothy was born prematurely on August 1, 2010, at Alaska Native 

Medical Health Center in Anchorage. Timothy tested positive at birth for 

benzodiazepines, consistent with Xanax. When health professionals noticed that Chloe 

was lethargic and drowsy, they called OCS because they were concerned that she might 

drop the baby. Chloe signed an OCS Protective Action Plan. OCS contemplated 

placement of Timothy in a relative’s home, and ultimately, Chloe and Timothy moved 

in with the Campbells, Chloe’s aunt and uncle who live in Juneau. 

On August 17 OCS filed a Petition for Adjudication of Child in Need of 

Aid and for Temporary Custody, based on reports that Chloe was uncooperative, heavily 

medicated, and unable to tend to Timothy’s basic needs. Meanwhile, Timothy was 

experiencing symptoms of withdrawal, such as elevated respiration, high temperatures, 

and a mild increase in muscle tone. The court awarded OCS temporary custody of 

Timothy and continued his placement with the Campbells. But the relationship between 

Chloe and the Campbells became strained and adversarial, so Chloe moved into public 

housing. 

On September 25 Juneau police responded to a report that Chloe was 

suicidal. Chloe’s visitation was reduced due to further reports of drowsiness and 

impairment from Timothy’s doctor, OCS workers, and Juneau police. OCS 

recommended medical detoxification, working with Dr. Topol on mental health 

alternatives to medication, and various outpatient counseling. On November 2, due to 

lack of progress, OCS changed Timothy’s permanency plan to adoption. On 

December 14 Superior Court Judge Patricia A. Collins adjudicated Timothy a child in 

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4 need of aid under AS 47.10.011(6), (9), and (10) but concluded that adoption would not

be appropriate as a permanency goal after only 90 days, so the goal was shifted to 

reunification. 

At a disposition hearing on March 30, 2011, OCS stated that it had stopped 

receiving reports of drowsiness, and Chloe’s attorney told the court that Chloe had 

weaned herself off Xanax and was following her case plan. The court continued the 

permanency goal of reunification and granted OCS continuing custody for up to two 

years. But in August and September Chloe again showed signs of being intoxicated or 

heavily medicated. OCS continued to work with Chloe to comply with her case plan. 

Concerned that Chloe’s home was unsanitary, a social worker drove Chloe to pick up a 

carpet cleaner and purchased and delivered cleaning supplies to her home. Because 

Chloe would not allow OCS to inspect her home, OCS would not supervise in-home 

visits.5 

On April 4, 2012, OCS filed a Petition for Termination of Parental Rights, 

alleging that Timothy was not safe with Chloe because of her recurrent, severe 

depression, borderline personality disorder, and pain-pill-seeking behavior. After the 

termination trial, held in August 2012, Superior Court Judge Louis J. Menendez denied 

the petition. The superior court found that Timothy remained a child in need of aid under 

4 AS 47.10.011 provides in pertinent part that the court may find a child 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: (6) substantial physical harm or risk of harm due to 

the parent’s conduct; (9) conduct by the parent has subjected the child to neglect; or (10) 

the parent’s ability to parent has been substantially impaired by the addictive or habitual 

use of an intoxicant, which has resulted in a substantial risk of harm to the child. 

5 OCS approved in-home visits supervised by the Tribe for three hours per 

day, three days per week from May through July 2011 but these visits were discontinued 

because the Tribe was no longer available to provide services. Chloe did have in-home 

visits supervised by OCS in 2012 and early 2013. 

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AS 47.10.011(10) and AS 47.10.011(11).6 But the superior court reasoned that 

termination was not in Timothy’s best interests: Chloe had been a consistent part of 

Timothy’s life, Timothy was a healthy child, and there was reason to believe that Chloe 

could continue to stabilize and grow as a parent and that with careful planning and 

counseling, Timothy could transition into Chloe’s home. The superior court further 

found that OCS had not presented evidence beyond a reasonable doubt that Timothy was 

likely to suffer serious emotional or physical harm, and that “renewing in-home visitation 

and parenting instruction, continuing mental health therapy for [Chloe,] and a gradual 

and specific transition plan towards reunification with [Timothy] may obviate the need 

for termination.” The superior court fashioned another plan for the parties and 

committed to conducting monthly review hearings to monitor Chloe’s progress in 

meeting the requirements of her detailed case plan. 

In May 2013 OCS social worker Carol Graham filed a Second Petition for 

Termination of Parental Rights, asserting that despite her sustained and concerted efforts 

to engage Chloe in the case plan to facilitate reunification, Chloe had not made sufficient 

progress. The petition alleged that Chloe continued to be evasive about which 

medications she was taking and to exhibit signs of drug-seeking behavior. OCS 

submitted evidence that Chloe lacked the skills necessary to parent adequately and had 

not participated in the recommended parenting classes. OCS submitted to the court a 

psychological evaluation of Chloe, prepared by clinical psychologist Dr. Elisa 

Youngblood, based on her meetings with Chloe in March 2013. Dr. Youngblood’s 

report stated that Chloe was “likely to be irresponsible and engage in antisocial behavior” 

AS 47.10.011(11) provides that a child may be found in need of aid if the 

court finds by a preponderance of the evidence that the parent has a mental illness, 

serious emotional disturbance, or mental deficiency that puts the child at substantial risk 

of injury. 

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and “to rebel against authority, have turbulent family relationships, and blame others for 

her problems.” It was Dr. Youngblood’s impression that Chloe “ha[d] relapsed on taking 

too much prescribed medication to the point that her parenting would be significantly 

impaired and the safety of her son would be jeopardized.” Dr. Youngblood 

recommended medical detoxification and then, due to the severity and complexity of 

Chloe’s substance abuse history, full participation in an inpatient or residential treatment 

program for one year. Chloe did not participate in the recommended treatment. 

The second termination trial took place in July 2013. The superior court 

incorporated the prior proceedings and heard additional testimony from a number of 

witnesses. Chloe testified about her desire to care for her son, her work with parenting 

coach Martin Tyska of Catholic Community Services, and the efforts she made to 

improve her life and make sacrifices for her son. She discussed her mental health 

treatment and medications, explaining that her speech sounds slurred when she is sleep 

deprived. Dr. Youngblood, Tyska, and OCS representatives Carol Graham and Kristina 

Weltzin testified about occasions in 2013 when Chloe was inappropriately hostile, 

appeared intoxicated, or otherwise showed signs of a dependence disorder. 

Dr. Topol testified that he had treated Chloe continuously since 2009. He 

discussed Chloe’s mental health issues, as well as her treatment and medication 

management. Dr. Topol stated that, if taken as prescribed, Chloe’s medication would not 

cause someone to be overly sleepy or lethargic or to slur her speech. Dr. Topol testified 

that while Chloe was continuing to make progress as an outpatient, she still struggled 

with impulsivity and anxiety, and more intensive therapy would help. 

In August 2013 OCS filed a motion to reopen the testimony under Alaska 

Civil Rules 59(a) and 60(b)(2), based on new evidence that Dr. Topol had discharged 

Chloe from treatment because she had been dishonest with him and was using duplicate 

prescriptions. Rather than taking live testimony from Dr. Topol, the parties entered a 

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stipulation about Dr. Topol’s new information, adding that Chloe denied any 

wrongdoing. 

In September 2013 the trial court granted the second petition to terminate 

Chloe’s parental rights to Timothy, based on its determination that Chloe was in relapse 

and thus presented a serious, substantial risk that Timothy would be exposed to danger. 

The superior court noted that multiple sources reported that Chloe continued to misuse 

her medications, missed numerous appointments, refused to attend the recommended 

treatment, and appeared to be receiving prescriptions from separate sources. The 

superior court emphasized that Chloe needed but refused inpatient treatment and that her 

personality disorder likely would interfere with her ability to meet Timothy’s needs. The 

superior court remarked that it had been a close call whether termination would be in 

Timothy’s best interests after the first trial, but it was no longer a close call. The superior 

court issued written findings and conclusions and ordered termination of Chloe’s 

parental rights and responsibilities to Timothy. It found clear and convincing evidence 

that Timothy was a child in need of aid under AS 47.10.011(10) and AS 47.10.011(11), 

that Chloe had not remedied the conduct or conditions that put Timothy at substantial 

risk of harm, and that OCS had made active efforts to provide remedial services and 

rehabilitative programs designed to prevent the breakup of the family. The superior 

court further found beyond a reasonable doubt, relying on the testimony of qualified 

experts under ICWA, that returning Timothy to Chloe likely would result in serious 

damage to Timothy. The court concluded that Timothy’s best interests would be 

promoted by terminating Chloe’s parental rights because there was severe danger in 

moving him back and forth, and he needed and deserved a permanent and stable 

placement, which could not be achieved by continuing Chloe’s parental rights. Chloe 

appeals. 

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III. STANDARD OF REVIEW 

Before terminating parental rights under ICWA and the Child in Need of 

Aid (CINA) statutes and rules, the superior court must find by clear and convincing 

evidence that the child has been subjected to conduct or conditions described in 

7 AS 47.10.011; 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 

8 physical or mental injury; 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. 9 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.” 10 Finally, the trial court 

must determine by a preponderance of the evidence that “termination of parental rights 

is in the best interests of the child.”11 

7 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A). 

8 AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i)-(ii). 

9 25 U.S.C. § 1912(d) (2012); CINA Rule 18(c)(2)(B). 

10 25 U.S.C. § 1912(f); see also CINA Rule 18(c)(4). 

11 CINA Rule 18(c)(3); see also AS 47.10.088(c). 

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In CINA cases, we review a trial court’s factual findings for clear error12 

and questions of law de novo. 13 Factual findings are clearly erroneous if review of the 

entire record leaves us with “a definite and firm conviction that a mistake has been 

made.”14 Whether the trial court erred in determining that OCS made active but 

unsuccessful efforts to provide remedial services and rehabilitative programs designed 

to prevent the breakup of the Indian family is a mixed question of fact and law.15 

IV.	 DISCUSSION 

A.	 The Trial Court Did Not Err In Considering The Stipulation 

Regarding Dr. Topol’s Proposed Testimony, And Entering Into The 

Stipulation Did Not Amount To Ineffective Assistance Of Counsel. 

After the evidence at the second termination trial closed, Dr. Topol 

informed OCS that he had discharged Chloe from treatment, and OCS moved to reopen 

the evidence to present Dr. Topol’s testimony. In lieu of requiring that Dr. Topol testify 

in court, the parties entered into a stipulation providing as follows: 

Between the close of evidence in the second trial in the 

above-mentioned case and August 9, 2013, Dr. Paul Topol, 

MD discharged [Chloe] as a patient and is no longer treating 

or providing prescriptions to [Chloe]. Dr. Topol sent a letter 

to the Attorney General’s office providing this information 

and indicating that this action was taken because he received 

12 Sherman B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 290 P.3d 421, 427-28 (Alaska 2012) (citing Christina J. v. State, Dep’t of Health 

& Soc. Servs., Office of Children’s Servs., 254 P.3d 1095, 1103 (Alaska 2011)). 

13	 Id. at 428 (citing Christina J., 254 P.3d at 1104). 

14 Id. at 427-28 (quoting Barbara P. v. State, Dep’t of Health & Soc. Servs., 

Office of Children’s Servs., 234 P.3d 1245, 1253 (Alaska 2010)) (internal quotation 

marks omitted).

15 Christina J., 254 P.3d at 1104 (citing Ben M. v. State, Dep’t of Health & 

Soc. Servs., Office of Children’s Servs., 204 P.3d 1013, 1018 (Alaska 2009)). 

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information that duplicate prescriptions were filled in 

Wasilla, Alaska, rather than destroyed. [Chloe] denies any 

wrongdoing. 

The trial court relied in part on this stipulation to find that Chloe had relapsed. 

Chloe now contends that the trial court gave improper weight to the parties’ 

stipulation to Dr. Topol’s proposed testimony and that her attorney’s decision to enter 

the stipulation amounted to ineffective assistance of counsel. OCS responds that the 

stipulation was properly submitted in lieu of testimony and that any error was harmless 

because the superior court clearly relied on a broad base of evidence in reaching its 

decision and not just the statements in the stipulation. 

The trial court did take note of Dr. Topol’s decision not to continue Chloe’s 

treatment, pointing out that Chloe’s “greatest champion,” Dr. Topol, had learned in 

August 2013 that Chloe was lying to him about multiple prescriptions and therefore 

discharged her. But the trial court did not rely exclusively on the parties’ stipulation 

regarding the discharge from treatment and instead considered all of the trial testimony 

to find that Chloe had relapsed in 2013. The trial court found evidence of relapse from 

observations of Chloe’s behavior, her symptoms of overmedication, a relapse in her use 

of benzodiazepines, pill-seeking behavior, and her persistent issues with addiction to 

prescription medication. The trial court even observed that “[b]eyond Dr. Topol, 

multiple professionals testified regarding their direct observations of [Chloe’s] continued 

substance use.” The trial court noted that OCS had presented evidence of Chloe’s 

overmedication, slurred speech, sleepiness, and late or missed appointments, provided 

by people who knew her, including Tyska, Weltzin, Dr. Youngblood, and Dr. Destiny 

Sergeant,16 who provided evidence of Chloe’s continued drug use and its detrimental 

Dr. Sergeant was Chloe’s treating psychologist. Dr. Sergeant did not 

(continued...) 

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16 
 

 

 

 

 

 

 

 

effect on her ability to safely parent Timothy. The trial court concluded that based on 

this evidence, Chloe could not take care of Timothy and reunification could not be 

considered. We therefore conclude that, even without the stipulated testimony, the 

record supports the trial court’s finding that Chloe relapsed, putting Timothy at risk of 

substantial harm. And in any event, the trial court properly considered the information 

provided in the stipulation because parties may stipulate to any factual or legal matter, 

even adjudication and disposition.17 

We also reject Chloe’s argument that she received ineffective assistance of 

counsel because her attorney decided to enter the stipulation rather than request a hearing 

to address the statements Dr. Topol made in his affidavit. A parent has a due process 

right to effective counsel in a termination of parental rights proceeding.18 When we 

review the question whether a litigant has raised successfully an ineffective assistance 

challenge, we apply the two-pronged test established in Risher v. State. 

19 Under the first 

prong, the litigant must show that her attorney’s performance was below a level that any 

reasonably competent attorney would provide, bearing in mind that “reasonable tactical 

16(...continued) 

testify, but her May 31, 2013 report stated that when Chloe arrived for her bi-monthly 

appointment, she appeared very drowsy and her speech was slurred. Dr. Sergeant 

attributed this behavior to Chloe’s statement that she took Ambien at 3:00 a.m. and then 

only slept about 30 minutes, despite warnings not to take Ambien that late and without 

having a full night of sleep. 

17 See CINA Rule 14. 

18 S.B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth Servs., 

61 P.3d 6, 10 (Alaska 2002) (citing V.F. v. State, 666 P.2d 42, 47-48 (Alaska 1983)). 

19 David S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

270 P.3d 767, 784-86 (Alaska 2012) (quoting Risher v. State, 523 P.2d 421, 425 (Alaska 

1974)). 

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decisions are virtually immune from subsequent challenge even if, in hindsight, better 

approaches could have been taken.”20 Under the second prong, the litigant must 

demonstrate that counsel’s improved performance would have affected the outcome of 

the case.21 It is not necessary to address the first prong of the test when the litigant has 

not satisfied the second prong.22 

It is hard to fathom how the decision to enter into the stipulation rather than 

allow Dr. Topol to present live testimony would not have been a reasonable tactic to 

minimize the impact of the testimony, particularly where the stipulation set out Chloe’s 

denial of any wrongdoing.23 But we need not address whether Chloe’s attorney’s 

decision to stipulate to Dr. Topol’s testimony was tactical, because Chloe has failed to 

demonstrate that an improved performance by her attorney would have made a difference 

in the outcome of the case. Here, the superior court expressly relied on the other 

substantial live testimony and evidence presented to demonstrate that Chloe had 

relapsed. 

20 Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 309 P.3d 850, 858-59 (Alaska 2013) (citation and internal quotation marks 

omitted). 

21 David S., 270 P.3d at 784; see also Chloe O., 309 P.3d at 859. 

22 See Stanley B. v. State, DFYS, 93 P.3d 403, 408-09 (Alaska 2004) (stating 

that where a parent argued that his attorney’s various failures amounted to a denial of his 

due process right to effective assistance of counsel at the termination trial, it was not 

necessary to address the first prong because the parent had not demonstrated how any 

of the attorney’s alleged errors in performance actually harmed him). 

23 Similarly, in Chloe O., we determined that “it [was] probable that [a 

mother’s] attorney made a reasonable tactical choice in deciding not to call [an expert 

witness] to testify on remand.” 309 P.3d at 859. 

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Finally, we turn to the concurring opinion’s concern about our decision to 

review Chloe’s ineffective assistance claim without first providing her with “a fair 

opportunity to develop a record” for her challenge in the superior court.24 Effective 

assistance of counsel in parental rights termination proceedings is a constitutional right.25 

But when ineffective assistance of counsel is alleged, “[t]he knottiest issue presented is 

the practical application of a post-trial remedy, given the time constraints that apply in 

a parental termination case because of a child’s need for permanency.”26 The two most 

common approaches to the issue are direct appeal and post-judgment motion to the trial 

court.27 As the Hawaii Supreme Court noted not long ago: “A majority of jurisdictions 

has concluded that direct appeal is the most appropriate method for raising ineffective 

assistance of counsel in termination proceedings, due to the particular need for 

expeditious resolution and finality in child custody disputes.”28 

The argument in favor of the direct appeal approach is that it generally is 

faster and minimizes delay. Delaying custody resolution adversely affects the parties’ 

rights, extends uncertainty in the child’s life by leaving the child in the limbo of 

24 Concurrence at 26. 

25 David S., 270 P.3d at 784 (citing In re K.L.J., 813 P.2d 276, 283 n.6 

(Alaska 1991) (right to counsel); V.F. v. State, 666 P.2d 42, 45 (Alaska 1983) (right to 

effective assistance of counsel)). 

26 N.J. Div. of Youth & Family Servs. v. B.R., 929 A.2d 1034, 1039 (N.J. 

2007); see also In re RGB, 229 P.3d 1066, 1085 (Haw. 2010) (noting “state courts have 

struggled to determine the proper procedural vehicle for raising ineffective assistance of 

counsel in termination of parental rights proceedings”). 

27 See Susan Calkins, Ineffective Assistance of Counsel in Parental-Rights 

Termination Cases: The Challenge for Appellate Courts, 6 J. APP. PRAC. & PROCESS 

179, 199-205 (2004). 

28 In re RGB, 229 P.3d at 1085 (citations omitted). 

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impermanent foster care, and increases the possibility of the child suffering permanent 

harm.29 The arguments against the direct appeal approach are that the appellate court 

may not be able to determine the claim’s merits from the record and trial counsel still 

may be representing the parent.30 

Although it may be preferable to establish a court rule setting out how to 

raise an ineffective assistance of counsel claim in this context,31 we have not done so; we 

instead have resolved claims as presented to us. And we have decided claims on direct 

appeal when the issue was not raised in the trial court, despite the parent asking for a 

remand for the trial court to consider the matter, implicitly recognizing that we would 

remand for an evidentiary hearing if it were appropriate.32 For example, we recently 

concluded in Chloe O. v. State, Department of Health & Social Services, Office of 

Children’s Services that it was unnecessary to remand the case to the trial court for 

consideration of a parent’s ineffective-assistance allegations.33 We recognized that such 

29 Calkins, supra note 27, at 207, 235. 

30 Id. at 209-10. 

31 See id. at 212 (suggesting court rule so parties know appropriate procedure 

in advance). 

32 Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 309 P.3d 850, 852, 858-59 (Alaska 2013) (rejecting remand request because (1) it 

would contravene child in need of aid statutes’ emphasis on expeditious resolution and 

(2) parent’s proposed claim clearly had no merit under test for ineffective assistance of 

counsel); see also Julia D. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., Mem. Op. & J. No. 1467, 2013 WL 5314609, at *4-5 (Alaska Sept. 18, 2013) 

(holding parent’s ineffective assistance claim had no merit); Stanley B. v. State, DFYS, 

93 P.3d 403, 408-09 (Alaska 2004) (same). 

33 309 P.3d at 858. 

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a remand “would result in a significant additional delay in . . . attaining permanency.”34 

Through its statutory scheme for child protection, the legislature has “ma[d]e clear that 

children’s proceedings are to be expeditiously resolved.”35 And “[a] remand for 

potentially lengthy litigation of a claim of ineffective assistance of counsel would 

contravene the language and spirit of these statutes.”36 Thus in Chloe O., we directly 

examined the claim of ineffective assistance of counsel and determined that the parent’s 

challenge did not pass either prong of the Risher test. 37 We adopted the same approach 

38 39 when we reviewed the ineffective assistance claims raised in Stanley B. and Julia D. 

We have also consolidated a parent’s concurrent appeals of both a 

termination judgment and a later decision denying a post-judgment claim for ineffective 

assistance under Alaska Civil Rule 60(b)(6), issuing a single decision. 40 And we have 

decided claims on direct appeal when the parent unsuccessfully attempted to replace 

counsel during the trial court proceedings on the ground of ineffective assistance of 

34 Id. 

35 Id. 

36 Id. 

37 See id. at 858-59. 

38 93 P.3d 403, 408-09 (Alaska 2004). 

39 Mem. Op. & J. No. 1467, 2013 WL 5314609, at *4-5 (Alaska Sept. 18, 

2013). 

40 David S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

270 P.3d 767, 774, 784-86 (Alaska 2012); see also Dan A. v. State, Dep’t of Health & 

Human Servs., Office of Children’s Servs., Mem. Op. & J. No. 1404, 2012 WL 104482, 

at *6-7 (Alaska Jan. 13, 2012) (resolving both merits appeal and ineffective assistance 

of counsel claim after staying case at trial court’s request for limited remand on parent’s 

Alaska R. Civ. P. Rule 60(b)(6) motion). 

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counsel.41 In a recent case where the parent unsuccessfully attempted to replace counsel 

during the trial court proceedings and later on direct appeal claimed ineffective assistance 

of counsel, we recast the issue as an appeal of the trial court’s alleged failure to recognize 

and resolve an ineffective assistance of counsel claim and resolved it with a plain error 

analysis.42 

In this case, Chloe W. chose to raise her ineffective assistance claim in a 

direct appeal of the termination of her parental rights. She has new counsel on appeal 

who had an opportunity to evaluate the ineffective assistance of counsel claim and how 

it might best be presented. She raised the claim on direct appeal but failed to substantiate 

it based on the record before us. Even if we accept Chloe’s representations regarding her 

trial lawyer’s shortcomings in entering the stipulation regarding Dr. Topol’s testimony, 

Chloe did not “demonstrate that ‘an improved . . . performance would have made a 

difference in the outcome of [the] case.’ ”43 

B.	 The Trial Court Did Not Err In Finding That Chloe Failed To Remedy 

The Conduct That Placed Timothy At Substantial Risk of Harm. 

Chloe argues that the trial court erred in finding that she failed to remedy 

the conduct that placed Timothy at risk. She claims that the evidence does not support 

the trial court’s conclusion that she had relapsed, because the accusations of her slurred 

speech and lethargy could be explained as a combination of dentures and accidental 

41 S.B. v. State, Dep’t of Health & Soc. Servs., Div. of Family & Youth Servs., 

61 P.3d 6, 15-16 (Alaska 2002); P.M. v. State, Dep’t of Health & Soc. Servs., Div. of 

Family & Youth Servs., 42 P.3d 1127, 1131-32 (Alaska 2002). 

42 Grace L. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

329 P.3d 980, 988-89 (Alaska 2014). 

43 Chloe O. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 309 P.3d 850, 859 (Alaska 2013) (quoting David S., 270 P.3d at 786). 

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misuse of prescribed Ambien. We conclude that substantial evidence supports the trial 

court’s finding that Chloe failed to remedy the conditions that put Timothy at risk, based 

on the evidence presented of Chloe’s history of misusing medication, relapse, continuing 

mental conditions, and resistance to treatment and other help. 

Alaska Statute 47.10.088(a)(2) requires that before terminating parental 

rights, a trial court must find by clear and convincing evidence that a parent has not 

remedied in a timely fashion the conduct or conditions in the home that place the child 

at substantial risk of harm.44 In making this determination, the court may take into 

account any fact relating to the best interests of the child.45 Whether a parent failed to 

remedy conduct or conditions that placed the child at substantial risk of harm is a factual 

finding. 46 Findings of continued substance abuse and refusal to undergo treatment are 

sufficient to satisfy failure to remedy. 47 “Conflicting evidence is generally insufficient 

to overturn the superior court, and we will not reweigh evidence when the record 

provides clear support for the superior court’s ruling.”48 

Based on the reports and supporting testimony, the trial court found that 

Chloe failed to remedy the conduct or conditions that endangered Timothy. She had not 

resolved her substance abuse or addressed her underlying mental health needs, and she 

44 See also CINA Rule 18(c)(1)(A). 

45 AS 47.10.088(b). 

46 Pravat P. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 249 P.3d 264, 270 (Alaska 2011) (citation omitted). 

47 See, e.g., Stanley B. v. State, DFYS, 93 P.3d 403, 407 (Alaska 2004). 

48 Sherman B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 290 P.3d 421, 428 (Alaska 2012) (quoting Maisy W. v. State, Dep’t of Health & 

Soc. Servs., Office of Children’s Servs., 175 P.3d 1263, 1267 (Alaska 2008)). 

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was still unable to provide basic care for Timothy. The trial court referred specifically 

to the testimony of social workers and mental health professionals who had direct contact 

with Chloe, including Dr. Youngblood, Tyska, and Dr. Sergeant, who were concerned 

about Chloe’s recent slurred speech, sleepiness, and missed appointments, indicating her 

misuse of pharmacological substances. The trial court expressed particular concern that 

Chloe’s inability to control her medication use remained virtually unchanged since 2010. 

The trial court also found that Chloe remained untreated for underlying trauma, which 

continued to have significant impact on her mental health, and three years later she still 

had not progressed beyond supervised or monitored visits with Timothy. Based on the 

evidence presented at both trials, the trial court found that Chloe’s personality disorder 

was likely to affect her parenting so that she could not put Timothy’s needs ahead of her 

own. Because the record supports the trial court’s finding that Chloe had not remedied 

the conduct or conditions that placed Timothy at risk of harm, we affirm the finding. 

C.	 The Trial Court Did Not Err In Finding That OCS Made Active 

Efforts To Prevent The Breakup Of The Indian Family. 

Chloe argues that the trial court erred in finding that OCS made active 

efforts to prevent the breakup of this Indian family because OCS did not provide Chloe 

a parenting plan that would work for her and OCS would not allow her to have Timothy 

in her home to demonstrate her ability to parent Timothy full time. We disagree. 

Before terminating parental rights to an Indian child, a superior court must 

find by clear and convincing evidence that OCS made active but unsuccessful efforts to 

provide remedial services and rehabilitative programs designed to prevent the breakup 

of the Indian family.49 Courts review OCS’s reunification efforts on a case-by-case basis 

25 U.S.C. § 1912(d) (2012); CINA Rule 18(c)(2); see also Christopher C. 

v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 303 P.3d 465, 476 

(continued...) 

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49 
 

 

 

 

 

 

 

 

 

 

 

because “no pat formula exists for distinguishing between active and passive efforts.”50 

Generally, active efforts entail a social worker taking a parent through the steps of a 

reunification case plan, rather than simply devising a plan and requiring the parent to 

develop her own resources. 51 In evaluating whether OCS met its active efforts burden, 

a court may consider a parent’s demonstrated lack of willingness to participate in 

treatment52 and look to the state’s involvement in its entirety.53 

Here, the trial court found by clear and convincing evidence that OCS had 

met its active efforts burden, noting “remarkable,” “extraordinary,” and “amazing” 

efforts on the part of OCS, the Tribe, Southeast Alaska Regional Health Consortium, and 

Chloe’s attorneys, to get Chloe’s attention focused on reunification. The trial court 

pointed to numerous examples, including Graham’s tremendous hands-on involvement 

and her special efforts to develop a working relationship with Chloe to help her succeed 

in parenting. Graham gave Chloe her personal cell phone number, took Chloe to lunch, 

and facilitated family gatherings, often on Graham’s own time. Graham dug into her 

own pocket to purchase and deliver cleaning supplies for Chloe, and she transported 

Chloe herself, provided bus passes, and arranged for other transportation. She even took 

care of Chloe’s dog while Chloe was away from home. 

49(...continued) 

(Alaska 2013). 

50 A.A. v. State, Dep’t of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 

1999) (quoting A.M. v. State, 945 P.2d 296, 306 (Alaska 1997)) (internal quotation 

marks omitted). 

51 Lucy J. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

244 P.3d 1099, 1114 (Alaska 2010) (citations omitted). 

52 Id. 

53 Maisy W., 175 P.3d at 1268. 

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Following the trial court’s December 2012 order, OCS participated in 

monthly status hearings held by the court.54 There were also weekly case-planning 

meetings, mediation, and coordination between OCS, Catholic Community Services, and 

the Tribe to remove all obstacles to Chloe’s reunification with Timothy, and regular 

communication with Chloe regarding her case plan. Graham also requested active 

assistance from OCS mental health clinician Weltzin, to be sure OCS was providing 

adequate resources for Chloe. Additional examples of OCS’s efforts include counseling, 

other therapy, and financial assistance. OCS social workers met regularly to brainstorm 

different approaches that might work with Chloe, but Chloe chose not to attend these 

meetings. OCS placed Timothy with Chloe’s immediate family, transported him to and 

from visits, and arranged assessments of his development. Martin Tyska from Catholic 

Community Services spent almost 70 hours working with Chloe on parenting and 

cooking, and they even went together to buy diapers. Timothy’s Guardian Ad Litem, 

Debra Schorr, testified that OCS made “tremendous efforts” toward progress, despite 

Chloe’s limited cooperation. 

Because of the undeniably excellent efforts OCS made to prevent the 

breakup of this family, we affirm the trial court’s finding. 

D.	 The Trial Court Did Not Err In Finding That Returning Timothy To 

Chloe Likely Would Result In Serious Harm. 

Chloe argues that the trial court erred in finding that returning Timothy to 

her likely would result in serious harm to Timothy. She claims that the trial court 

improperly based its decision upon the testimony of witnesses who paid no attention to 

We also commend the trial court on its thoughtful approach to this case and 

its own efforts, scheduling frequent hearings to monitor Chloe’s progress, providing 

encouragement to Chloe, and giving her every opportunity to succeed. 

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54 
 

 

 

 

 

Chloe’s Tlingit heritage. Chloe maintains that she has demonstrated an ability to care 

for Timothy and has never hurt him. Chloe’s arguments lack merit. 

Before terminating parental rights, ICWA requires that the trial court find 

“beyond a reasonable doubt, based on evidence that includes 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.”55 This finding requires 

proof that “the parent’s conduct is likely to harm the child, and proof that it is unlikely 

the parent will change her conduct.”56 These two elements can be proved through the 

testimony of a single expert witness or by a combination of expert and lay witnesses.57 

Whether expert testimony in a CINA case satisfies ICWA requirements is a pure legal 

question reviewed de novo. 58 Serious 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.”59 

Finding beyond a reasonable doubt that Timothy was likely to suffer 

emotional or physical damage if Chloe’s rights were not terminated, the trial court 

focused on the three-year relationship (since birth) developed between Timothy and his 

foster parents and the harm that would come if custody were moved to Chloe. The court 

55 Lucy J., 244 P.3d at 1117 (quoting Marcia V. v. State, Office of Children’s 

Servs., 201 P.3d 496, 503 (Alaska 2009)). 

56 Id. (citation and internal quotation marks omitted). 

57 L.G. v. State, Dep’t of Health & Soc. Servs., 14 P.3d 946, 950 (Alaska 

2000) (citations omitted). 

58 E.A. v. State, Div. of Family & Youth Servs., 46 P.3d 986, 989 (Alaska 

2002). 

59 L.G., 14 P.3d at 950 (citations omitted). 

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predicted that based upon the evidence presented at trial, if termination were not granted, 

Timothy would continue in foster care for several years without resolution and would 

experience harm stemming from lack of permanence in his life. The trial court’s finding 

was based on the testimony of numerous witnesses, including Graham and qualified 

60 61 ICWA experts Dr. Youngblood and Jeannie Arledge. Dr. Youngblood’s reports 

stated that when intoxicated, Chloe was unable to put Timothy’s basic needs ahead of her 

own, even his basic needs for food and safety. Arledge testified that Chloe’s mental 

health issues would make her emotionally unavailable to Timothy, and her substance 

abuse issues would put him at risk of harm. 

The record also contains evidence that the trial court invited input from the 

Tribe to address any issues that might be particular to Chloe’s Alaska Native heritage, 

and the Tribe expressed concerns about Chloe’s failure to take the opportunity to provide 

OCS with proof of sobriety by urinalysis or the substance abuse assessment done at 

Rainforest Recovery Center. The Tribe considered tradition and culture and noted that 

it was in Timothy’s best interests to continue living in his current home with the only 

family he has ever known. Despite its noted grief and sadness at recommending 

termination of Chloe’s parental rights to Timothy, the Tribe recognized that there is “a 

60 Dr. Youngblood testified that at the time of trial, she had been practicing 

for seven years in Ketchikan and had previously been qualified as an expert in 

psychological evaluations. The trial court qualified her as an expert in clinical 

psychology. 

61 Arledge is regional staff manager for OCS for the southeast region, with a 

bachelor’s degree in psychology and a master’s degree in social work, and 14 years 

experience with OCS. Arledge testified that she had previously been qualified as an 

expert in the areas of child protection and permanency. She started receiving ICWA 

training in 1999 and approximately 80 percent of her cases involve ICWA. 

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loving, supportive extended family member that is available and eager to be [Timothy’s] 

life long placement.” 

We conclude that, based on Chloe’s untreated substance abuse and 

underlying emotional issues, as well as Timothy’s option for permanency with the family 

he has lived with since birth, the trial court did not err in finding beyond a reasonable 

doubt that allowing Chloe custody of Timothy likely would result in serious emotional 

or physical damage to Timothy. We therefore affirm the trial court’s findings. 

E.	 The Trial Court Did Not Err In Finding That Termination Of Chloe’s 

Parental Rights Was In Timothy’s Best Interests. 

Chloe argues that the trial court erred in finding that termination of her 

parental rights was in Timothy’s best interests because the trial court did not consider the 

existing bond between her and Timothy or her consistent demonstration of desire to care 

for her son. We disagree. 

Before terminating parental rights to a child, the superior court must find 

by a preponderance of the evidence that termination is in the child’s best interests.62 The 

court may consider the statutory factors listed in AS 47.10.088(b) in determining whether 

termination of parental rights is in the best interests of the child, including: 

(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. 63

62 CINA Rule 18(c)(3); see also AS 47.10.088(c). 

63 AS 47.10.088(b). 

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The superior court may also consider any other facts relating to the best interests of the 

child and need not accord a particular weight to any given factor.64 The superior court 

may consider the bonding that has occurred between the child and his foster parents,65 

66 67 the need for permanency, and the offending parent’s lack of progress. The superior 

court is not required to consider or give particular weight to any specific factor, including 

a parent’s desire to parent or her love for the child.68 

Recognizing the importance of permanency and considering Timothy’s 

healthy relationship with the Campbells, the trial court found that OCS had established 

by a preponderance of evidence “quite convincingly” that termination of Chloe’s 

parental rights to Timothy was in his best interests. Despite OCS’s and the trial court’s 

clear expectations and regular monitoring of the situation, Chloe showed little change in 

64 Hannah B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 289 P.3d 924, 932 (Alaska 2012) (citations omitted). 

65 See Emma D. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Servs., 322 P.3d 842, 853 (Alaska 2014); Amy M. v. State, Dep’t of Health & Soc. Servs., 

Office of Children’s Servs., 320 P.3d 253, 261 (Alaska 2013). 

66 Thea G. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 

291 P.3d 957, 968 (Alaska 2013). 

67 See Phoebe S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s 

Services, Mem. Op. & J. No. 1495, 2014 WL 1691614, at *7 (Alaska Apr. 23, 2014). 

68 See, e.g., Barbara P. v. State, Dep’t of Health & Soc. Servs., Office of 

Children’s Servs., 234 P.3d 1245, 1263-64 (Alaska 2010) (despite testimony that mother 

and children bonded during their regular and positive visits, and that termination of bond 

would be traumatic to the children, trial court did not err in determining that termination 

of parental rights was in children’s best interests based on their need for permanency, 

stability they enjoyed in their foster home, and the fact that neither biological parent 

would be ready to care for the children on a full-time basis within a reasonable period 

of time). 

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her life, particularly between the first termination trial in 2010 and the second trial, three 

years later. Several witnesses with direct knowledge of Timothy’s current placement and 

Chloe’s abilities, including Graham, Schorr, and Arledge, testified that Timothy needed 

permanency and that, because of Chloe’s history and the option for Timothy to continue 

living with the Campbells, reunification would not be in Timothy’s best interests. In 

light of the trial court’s discretion in determining which factors to consider in its best 

interests analysis, we conclude that the court properly took into account factors such as 

Timothy’s need for permanency, his bond with the Campbells, and the likelihood that 

Chloe would not be ready to provide full-time care for Timothy within a reasonable 

period of time. We therefore affirm the trial court’s best interests finding. 

V. CONCLUSION 

We AFFIRM the trial court’s decision in all respects. 

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BOLGER, Justice, concurring. 

I agree with the majority of the court’s opinion. But I disagree with the 

decision to review Chloe’s claim of ineffective assistance of counsel. Chloe did not raise 

this claim in the trial court, so we have no superior court order to review directly. And 

the record contains no explanation of her attorney's decision that would assist our 

review.1 We generally decline to consider a claim that is raised for the first time on 

appeal.2 

The court’s opinion notes there is no record support for Chloe’s claim of 

ineffective assistance and apparently concludes that the record shows, beyond a 

reasonable doubt, that her counsel’s incompetence did not contribute to the outcome of 

this case.3 However, it is unlikely the trial court record will contain the evidence of the 

impact of her attorney’s decisions when Chloe was represented in the trial court by the 

same counsel whose conduct she challenges on appeal. In my opinion, we should avoid 

direct review of this issue unless the appellant has had a fair opportunity to develop a 

record. 

1 See Nelson v. State, 273 P.3d 608, 612 (Alaska 2012) (requiring a 

challenging party to present “some evidence ruling out the possibility of a tactical reason 

explaining” an attorney’s conduct). 

2 See Grace L. v. State, Dep’t of Health & Soc. Servs., 329 P.3d 980, 989 

(Alaska 2014) (citing Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 384 (Alaska 

2007)) (declining to review an ineffective assistance of counsel claim that was not raised 

in the superior court). 

3 See David S. v. State, Dep’t of Health & Social Servs., 270 P.3d 767, 784 

(Alaska 2012) (adopting the two-pronged test for ineffective assistance of counsel from 

Risher v. State, 523 P.2d 421, 425 (Alaska 1974)). 

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Many state courts simply decline to address an ineffective assistance of 

counsel claim in termination cases unless the claim has been raised in the trial court.4 In 

Wetherhorn v. Alaska Psychiatric Institute, in the context of a civil commitment 

proceeding, we discussed the reasons for declining direct review under these 

circumstances: 

[I]t is difficult for an appellate court to review a claim of 

ineffective assistance of counsel unless a record has been 

developed that includes findings of facts and conclusions of 

law regarding the claim. Therefore, in Barry v. State, the 

court of appeals “require[d] that the question of ineffective 

assistance of counsel be argued first to the trial judge either 

in a motion for a new trial or an application for 

post-conviction relief.” In this case, we cannot review a 

claim for ineffective assistance of counsel without an 

explanation in the record for counsel’s actions; otherwise we 

become engaged “in the perilous process of 

second-guessing.” Because in this case no record has been 

developed, we do not review the issues. We therefore require 

respondents to establish a record concerning counsel’s 

challenged acts or omissions by applying to the trial court to 

seek a new commitment and medication hearing by a motion 

for relief under Alaska Civil Rule 60(b) or by a Civil Rule 86 

[ ] habeas corpus petition. 5

4 See, e.g., K.H. v. Jefferson Cnty. Dep’t of Human Res., 106 So. 3d 420, 423 

(Ala. Civ. App. 2012) ; Porta v. Arkansas Dep’t of Human Servs., 431 S.W.3d 383, 387 

(Ark. App. 2014); In re Marriage of Stephen P., 153 Cal. Rptr. 3d 154, 161 (Cal. App. 

2013); L.H. v. Dep’t of Children & Families, 995 So. 2d 583, 584-85 (Fla. Dist. App. 

2008); In re S.D., 671 N.W.2d 522, 530 (Iowa App. 2003); In re S.P., 76 A.3d 390, 394 

n.4 (Me. 2013); In re Oleg, 776 N.E.2d 1039 (Mass. App. 2002); Matter of the Welfare 

of J.M.K.A., Child, No. Co-97-1156, 1997 WL 770399, at *3 (Minn. App. Dec. 16, 

1997); Matter of C.C., 907 P.2d 241, 244-45 (Okla. Civ. App. 1995); Interest of 

M.D.(S)., 485 N.W.2d 52, 55-56 (Wis. 1992). 

5 Wetherhorn, 156 P.3d at 384 (footnotes and citations omitted). 

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I believe we should continue to follow this reasoning unless there is a compelling reason 

not to do so. 

As the Wetherhorn court noted, the Alaska Court of Appeals addressed this 

issue many years ago in Barry v. State.

6 In Barry, the court noticed “an increasing 

number of direct appeals raising the issue of ineffective assistance of counsel on 

inadequate records.”7 The court noted that in these cases “[t]he issue was not presented 

to the trial court, and findings of fact and conclusions of law were not adopted” regarding 

the defendants’ claims.8 The court concluded that such claims could not “be effectively 

reviewed for the first time on appeal.”9 

We are facing the same situation. As the court’s opinion notes, we have 

reviewed numerous appeals in parental rights termination cases where the record is 

simply inadequate to make out a case of ineffective assistance of counsel. There is no 

reason to believe a litigant would be able to make an adequate record when represented 

by the same counsel whose effectiveness is at issue. I believe we should simply decline 

direct review of these claims. 

6 675 P.2d 1292, 1295 (Alaska App. 1984). 

7 Id. 

8 Id. 

9 Id. 

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