COMPTON, Chief Justice.
The superior court determined that J.W. and W.W. were children in need of aid as a result of their having suffered substantial neglect because of conditions created by their parents. It terminated the rights of both parents to the children. J.P.W., the children's natural father, appeals, contending that the superior court erred in finding that (1) the children were children in need of aid on the basis of their father's conduct, (2) this parental conduct was likely to continue, and (3) the State had made active remedial efforts. We affirm.
II. FACTS AND PROCEEDINGS
J.P.W. is the father and V.F. the mother of two minor sons, J.W. and W.W. Both parents and children are Alaska Natives. After the family moved from Hoonah to Juneau in 1989, both J.P.W. and V.F. began having serious problems with alcohol. By September 1990, J.P.W. was living in the streets, while V.F. and the children were living at a shelter.
The State of Alaska, Department of Health and Social Services, Division of Family and Youth Services (State or DFYS) took the children into emergency custody in September 1990, after the Juneau Police Department (JPD) notified DFYS that the children had been abandoned at the shelter while both parents were "intoxicated walking the streets." In January 1991 the children were adjudicated children in need of aid under AS
DFYS initially contemplated the eventual reunification of the family. After efforts to rehabilitate the parents failed, however, the case plan was changed from reunification to termination of parental rights. In April 1995 the superior court again determined that the children were children in need of aid, this time on the basis of parental neglect under AS 47.10.010(a)(2)(F)
A. Standard of Review.
On appeal J.P.W. argues that the superior court erred in three of its findings. We review the findings of the superior court under the "clearly erroneous" standard; we will overturn such findings only if, after reviewing the entire record, we are left with a definite and firm conviction that a mistake has been made. E.J.S. v. State, 754 P.2d 749, 750 n. 2 (Alaska 1988). However, if a question of statutory interpretation is raised, we will apply our independent judgment and adopt the rule of law that is most persuasive in light of precedent, reason, and policy. In re J.L.F., 828 P.2d 166, 168 n. 5 (Alaska 1992), overruled on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996).
B. The Trial Court Did Not Err in Finding that the Children Were Children in Need of Aid on the Basis of Neglect as a Result of Their Father's Conduct.
A child may be adjudicated in need of aid on the basis of "the child having suffered substantial physical abuse or neglect as a result of conditions created by the child's parent, guardian, or custodian." AS 47.10.010(a)(2)(F). The superior court determined that the children were in need of aid "as a result of having suffered substantial neglect because of conditions created by the parents, i.e., their failure to provide the necessary food, care, clothing and shelter."
This determination is supported by clear and convincing evidence in the record,
Clear and convincing evidence in the record supports the superior court's determination that J.P.W. created conditions on these two occasions that resulted in the substantial neglect of the children. J.W. and W.W. were "two small children" at the time of the first incident, one five years old and the other less than two; J.P.W. exposed these children to the dangers of a downtown area at a time when he was "very intoxicated" and unable to care for them. J.P.W.'s inability to provide adequate parental care and supervision for the children at the time can be inferred from the fact that the responding police officer determined that it was necessary to leave the children in their grandmother's custody for the night. In the second incident, J.P.W. exposed the children to the hazards of an unlit area littered with broken bottles and feces and inhabited by people with tuberculosis and scabies. When a JPD officer found the family, both children were inadequately dressed and complained of being extremely hungry; they were taken to the police station to be dressed, fed, and warmed.
The superior court's finding that the children were in need of aid on the basis of substantial neglect is supported by clear and convincing evidence; it is not clearly erroneous.
C. The Trial Court Did Not Err in Finding by Clear and Convincing Evidence that the Parental Conduct Was Likely to Continue.
A termination of parental status is clearly erroneous if "[s]ufficient evidence does not exist to support the conclusion that the parental conduct which resulted in the determination that the children were in need of aid was likely to continue." In re R.K., 851 P.2d 62, 66 (Alaska 1993).
The superior court determined that the conduct of J.P.W. that led to the neglect of the children was likely to continue, and supported this determination with the following finding:
Evidence in the record supports this finding and provides clear and convincing support
"[M]ental illness alone is not conduct and may not form the basis of a termination order." K.N. v. State, 856 P.2d 468, 475 (Alaska 1993); see Nada A. v. State, 660 P.2d 436, 440 (Alaska 1983) ("impulsive personality disorder" not conduct). J.P.W. argues
The State responds by correctly observing that, while mental illness alone cannot form the basis of a termination order, when "the record links the [parent's] continuing mental illness with his past instances of extreme neglect" there may be a basis for finding that "improper parental conduct [is] likely to continue." K.N., 856 P.2d at 475. The State argues there is such a link in this case.
The State's reliance on K.N. is not necessary, however, because the superior court did not base its termination decision on "continuing mental illness." The superior court did not base its decision on J.P.W.'s alcoholism itself, but on his "severe and chronic substance abuse." Substance abuse is conduct, even if the alcoholism that may underlie it is an illness. Because the superior court based its termination order on willful parental conduct, we need not consider the issue of "continuing mental illness."
J.P.W. also argues that the two episodes of neglect that led the court to determine that the children were in need of aid were isolated episodes so limited in extent and duration as to defeat any predictive finding regarding continuing parental conduct. In R.K., where "the state's case [was] based on one episode of neglect," we held that "the evidence of ... neglect [was] too limited both as to its extent and duration to sustain a prediction by clear and convincing evidence that [the parent was] likely to continue to be unable to provide appropriate parental care for the children." 851 P.2d at 66.
While the episodes of neglect that led to the child in need of aid determination in this case were also limited in extent and duration, R.K. is distinguishable. The key difference is that the predictive finding in R.K. was based solely on the single episode of neglect itself; the trial court did not support its predictive finding with any further evidence, but merely relied on its own assessment of the parent's level of "insight" into his problems. Id. at 65-66. In contrast, there is considerable evidence supporting the superior court's predictive finding that J.P.W.'s conduct would likely continue. The court did not base its predictive finding solely on the two isolated incidents of neglect that formed the basis for the determination that the children were in need of aid.
Clear and convincing evidence supports the superior court's prediction that J.P.W.'s substance abuse is likely to continue. In R.K., the father claimed that he no longer used the illegal drugs and alcohol that led to the isolated incident of neglect; this claim was not contradicted by the state, and its truthfulness was left to possible future monitoring to determine. Id. at 66-67. In contrast, J.P.W. makes no such claim on appeal; instead, it is his continued inability "to maintain sobriety for any demonstrated length of time" that is uncontradicted on the record. While the father in R.K. had "never been given a chance to demonstrate his conduct after the night in question," id. at 66, J.P.W.'s ongoing conduct is well-documented in the record.
As the superior court observed, J.P.W. "has a history of doing well when institutionalized and then returning to his previous behavior when released." J.P.W. was incarcerated two days after DFYS first took custody of the children; he was released from a halfway house in April 1991 and was drinking again by July, when he was found under the parking garage with the children. After another period of incarceration, J.P.W. was released from the halfway house in January 1992. Within days he returned to drinking and was incarcerated in January and March on twelve hour protective custody holds. After another stay in the halfway house, J.P.W. went to Anchorage and entered an inpatient alcohol treatment program in mid-1993, which he failed to complete. After leaving this program, he continued to drink.
A January 1995 psychological evaluation of J.P.W. concluded that "[u]ntil [J.P.W.] accepts that it is his responsibility to stay sober and establish the foundation for a stable life, [he] will stay stuck in a Catch-22 largely of his own making." It found that the prognosis
This evidence provides clear and convincing support for the superior court's predictive finding that J.P.W. is likely to continue engaging in severe substance abuse, the conduct that resulted in the neglect of the children.
D. The Trial Court Did Not Err in Finding that the State Had Made Active Remedial Efforts.
Because J.W. and W.W. are Alaska Native children, the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., prohibits the termination of J.P.W.'s parental rights to these children unless the State can show that "active efforts have been made to provide remedial services and rehabilitative programs" to preserve the family that have proven unsuccessful.
"[F]or purposes of determining the sufficiency of the State's remedial efforts, the superior court may properly consider a parent's demonstrated lack of willingness to participate in treatment." A.M. v. State, 891 P.2d 815, 827 (Alaska 1995), overruled on other grounds by In re S.A., 912 P.2d 1235, 1241 (Alaska 1996). However, this lack of willingness cannot be assumed until after the State has already made active efforts to provide remedial or rehabilitative services:
A.M., 891 P.2d at 827. The State made sufficiently active remedial efforts initially, when J.P.W. was in Juneau. While its efforts after J.P.W. came to Anchorage were less active, these less active efforts were justifiable in light of J.P.W.'s continuing unwillingness to participate in treatment in any meaningful or ongoing way.
The State did make active remedial efforts to rehabilitate J.P.W. initially. DFYS took active steps to supplement the treatment J.P.W. received while incarcerated and facilitate treatment after he was released. DFYS provided him with transportation assistance so he could attend AA meetings. DFYS tried to steer him towards a Native sobriety group when it concluded that this group would provide a more effective support group for him. In preparation for J.P.W.'s release from the halfway house, DFYS contacted and met with a substance abuse officer for the City and Borough of Juneau who was assigned to the apartments where J.P.W. was to have lived. Finally, after J.P.W.'s postrelease relapse, a DFYS social worker tried on a number of occasions to reinitiate contact with J.P.W. when J.P.W. was encountered in the streets. These efforts were sufficiently active to meet the requirements of the ICWA.
J.P.W.'s continued unwillingness to participate in treatment in any meaningful way must be considered in determining the sufficiency of the State's remedial efforts after he came to Anchorage, however. By the time J.P.W. came to Anchorage, he had already demonstrated to DFYS that he was unwilling to meaningfully participate in treatment. He had been assigned to counseling, but had refused to attend. A 1991 alcohol assessment had recommended that he receive inpatient treatment, but he had been unwilling to enter such a treatment program. After his relapse within days of his January 1992 release from the halfway house, J.P.W. had avoided contact with DFYS, despite the efforts of DFYS to reinitiate contact. J.P.W. told a social worker at DFYS that he did not want to attend the Anchorage inpatient treatment program, and the social worker told him he did not have a choice. By the time J.P.W. came to Anchorage, he had demonstrated his unequivocal unwillingness to participate in treatment on a number of occasions. DFYS had made active rehabilitative efforts in the past. J.P.W.'s ongoing unwillingness to participate in treatment justified the State's failure to pursue aggressive remedial efforts once he came to Anchorage.
A preponderance of the evidence supports the finding that the State made active remedial and rehabilitative efforts, thereby satisfying ICWA requirements.
The judgment of the superior court is AFFIRMED.
(2) to be a child in need of aid as a result of
(A) the child ... having no parent, guardian, custodian or relative caring or willing to provide care, including physical abandonment by
(i) both parents....