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A.A. v. State of Alaska, Dept. of Family & Youth Services (6/25/99) sp-5137


     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

A.A.,                         )
                              )    Supreme Court No. S-8663
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-95-96 CP
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF FAMILY & YOUTH SERVICES,   )
                              )    [No. 5137 - June 25, 1999]
             Appellee.        )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                        John Reese, Judge.


          Appearances: Stuart G. Ross, Law Office of
Stuart G. Ross, Anchorage, for Appellant.  Lisa B. Nelson,
Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney
General, Juneau, and James H. Parker, Assistant Public Advocate,
Brant McGee, Public Advocate, Anchorage, for Appellee.


          Before:  Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  


          FABE, Justice.


I.   INTRODUCTION
          Upon reversal of his murder conviction, A.A. moved to
postpone the hearing on the Department of Family & Youth Services's
petition to terminate his parental rights with respect to his son,
I.K.  The superior court denied A.A.'s request out of concern that
a lengthy delay of the termination proceedings would negatively
affect I.K.'s best interests.  A.A. appeals the superior court's
decision to terminate his parental rights, arguing that he had a
right to a continuance and that the State failed to make "active
efforts"as required by the Indian Child Welfare Act.  Because we
conclude that the superior court acted within its discretion in
refusing to delay the termination trial and correctly found that
the State made "active efforts,"we affirm.
II.  FACTS AND PROCEEDINGS
          M.K., an Alaska Native, gave birth to I.K. on November 4,
1994.  I.K.'s biological father, A.A., was arrested on murder
charges during M.K.'s pregnancy and has been incarcerated since
June 1994.  A.A. was convicted of first-degree murder and sentenced
to a sixty-six-year prison term in July 1995.  Perhaps due to his
incarceration, A.A. did not have knowledge of M.K.'s pregnancy or
the birth of I.K. until the early spring of 1995.
          In March 1995 the Department of Family & Youth Services
(DFYS) filed a child in need of aid petition to assume legal
custody of I.K., alleging (1) M.K.'s noncompliance with a drug and
alcohol treatment program and a case plan for reunification of the
family, (2) an extensive child protective services history
reflecting M.K.'s narcotic use and neglect of her two oldest
children, and (3) M.K.'s residence with her developmentally
disabled sister who may have sexually abused M.K.'s oldest child. 
The petition listed both R.C., M.K.'s boyfriend, and A.A. as
potential putative fathers.
          On March 14, 1995, the superior court held a probable
cause hearing to determine whether I.K. was a child in need of aid. 
At this hearing, both M.K. and R.C. represented that R.C. was the
father of I.K.  But on March 29, 1995, M.K. filed a paternity
affidavit with the Child Support Enforcement Division (CSED)
listing A.A. as the named defendant.  Even so, other information in
the affidavit reflected M.K.'s belief that R.C. was the father. 
The paternity information "locate sheet"also named R.C. as the
"alleged"or "most likely"father.
          DFYS took emergency physical custody of I.K. on April 7
because of M.K's failure to comply with her case plan.  At a
probable cause hearing on the emergency petition, DFYS raised the
issue of the biological father's identity and suggested paternity
testing. [Fn. 1]
          While M.K. and R.C. were involved in these proceedings,
CSED served A.A. with a complaint at Spring Creek Correctional
Center in May 1995, alleging his potential paternity of I.K.  A.A.
denied paternity and requested blood testing.
          The superior court held a review hearing of I.K.'s case
in June 1995.  DFYS reported that I.K. was still in foster care and
that neither M.K. nor R.C. was progressing with their case plans. 
DFYS again mentioned that "[R.C.] was to get paternity testing
because there is a question as to whether he is the biological
father."  At two subsequent review hearings in December 1995 and
February 1996, DFYS still had not determined paternity but
announced its intent to terminate any parental rights by including
both possible fathers in its termination petition.  DFYS
subsequently petitioned to terminate the parental rights of M.K. as
well as R.C. and A.A., without a conclusive determination of
paternity.
          Meanwhile, CSED took a blood sample from A.A. for testing
in July 1995.  Because M.K. did not make her scheduled appointments
in August or November of 1995 to submit her sample, CSED contacted
I.K.'s foster parent and drew I.K.'s blood to conduct a
"motherless"test. [Fn. 2]  At the same time, R.C. informally
denied paternity but would not sign an official denial.  The
"motherless"test later revealed that A.A. was the biological
father of I.K.  The court entered a judgment declaring A.A.'s
paternity in August 1996.  At that time, A.A. requested contact
with his son and asked that DFYS consider A.A.'s mother for
placement of I.K.
          While incarcerated following conviction on the murder
charge, A.A. has been placed on maximum security status because of
extensive assaultive behavior including a recent assault on a
prison staff member in April 1997.  Yet A.A. has not taken any
anger management or substance abuse classes offered at Spring Creek
Correctional Center, claiming that those classes do not address his
real problem with "fear."
          In September 1997 the court of appeals reversed A.A.'s
murder conviction.  As a result, A.A. moved to continue the
termination trial date from December 15, 1997 until after his new
murder trial.  The superior court denied this request.
          The trial court terminated A.A.'s parental rights on
April 19, 1998. [Fn. 3]  The court determined that A.A.'s
"unresolved problems with violence and impulse control . . . placed
the child at imminent and substantial risk of physical harm."  The
superior court specified that it did not consider A.A.'s murder
conviction and instead focused on several previous instances of
violence, including
          his conviction of Assault in the First Degree
in 1987 -- the shotgun incident; the sword or machete incident with
[M.A.]; the violent lunchroom and telephone incidents that he has
engaged in while he has been incarcerated[;] his own acknowledgment
of domestic violence; and his own explanation and associated
demeanor of the incidents above.  In addition, it is important to
note that the majority of the above-mentioned incidents occurred
after his completion of an Anger Management course in 1987. 
     
The court also found that in accordance with the Indian Child
Welfare Act (ICWA) "[a]ctive efforts have been made to provide
remedial services, which efforts have been unsuccessful."  A.A.
appeals both the trial court's denial of his motion to continue and
its finding that the State met its "active efforts"requirement.
III. DISCUSSION
     A.   Standard of Review
          We review a trial court's denial of a motion to continue
for an abuse of discretion. [Fn. 4]   We will consider "the
particular facts and circumstances of each individual case to
determine whether the denial was so unreasonable or so prejudicial
as to amount to an abuse of discretion."[Fn. 5]
          When reviewing issues of termination, we will affirm a
trial court's factual findings unless those findings are clearly
erroneous. [Fn. 6]  The question of whether the State has complied
with the "active efforts"requirement of ICWA, however, presents a
mixed question of law and fact. [Fn. 7]  While we defer to the
trial court's factual findings under the "clearly erroneous"
standard, we review de novo any questions of law. [Fn. 8]
     B.   The Trial Court Did Not Err in Denying A.A.'s Motion to
Continue.   
          Because the reversal of A.A.'s conviction presented the
possibility, either through an acquittal or plea bargain, that he
might be released, A.A. maintains that the trial court "seriously
prejudiced"him by denying his motion to continue.  The State
responds that continuing the termination trial for a period of time
sufficient to allow retrial and, in the case of acquittal, to allow
for A.A.'s rehabilitation upon release, would seriously jeopardize
I.K.'s best interests by hindering his timely placement in a stable
and permanent home.
          We have previously addressed whether the trial court
should await a final determination of a parent's criminal appeal
before proceeding with a termination trial.  In R.F. v. S.S., [Fn.
9] the father's conviction for murder had been affirmed, but the
appeal of the denial of his motion for a new trial was still
pending. [Fn. 10]  He argued that the trial court should not have
terminated his parental rights before resolution of his appeal.
[Fn. 11]  In affirming the trial court's decision, we emphasized
that "[t]o leave a child in limbo during his formative years based
upon the slim chance that R.F. may prevail on one of his many
possible post-conviction relief measures contravenes the primary
purpose of Alaska's adoption statute: to advance the best interests
of the child."[Fn. 12]  Accordingly, in a termination trial, the
best interests of the child, not those of the parents, are
paramount. [Fn. 13]  Thus, while there are "dangers of relying on
a conviction that is not yet final,"[Fn. 14] a trial court should
have the discretion to proceed to a termination trial without a
final ruling on a parent's criminal appeal.
          This case differs from R.F. in one significant respect,
however.  A.A. was not awaiting a decision on his appeal at the
time of his termination proceeding; because the court of appeals
had already overturned his conviction, A.A. was awaiting a new
criminal trial.  The Arizona Court of Appeals faced a similar
situation in In re Pima County Juvenile Severance Action. [Fn. 15] 
In that case, the juvenile court terminated a father's parental
rights based in part on his conviction for the murder of the
mother. [Fn. 16]  Because the Arizona Supreme Court reversed his
criminal conviction, the father contended that the termination
proceedings should be continued until after his new trial. [Fn. 17] 
The court of appeals affirmed the juvenile court's termination of
parental rights, basing its decision on the "grounds for severance
[that did] not hinge upon the criminal conviction."[Fn. 18]  We
agree with the Arizona Court of Appeals's conclusion that, even
when a court has overturned a parent's conviction, that reversal
does not prevent termination of parental rights as long as the
termination rests on other grounds.
          While DFYS presented evidence of A.A.'s current murder
conviction in support of its termination petition, the superior
court explicitly noted that its decision to terminate rested not on
A.A.'s criminal conviction but rather on his extensive history of
assaultive behavior after completion of an anger management course
in 1987.  The court also correctly focused on I.K.'s best
interests:
          As for [A.A.] specifically, it is likely that
he will be convicted once again of Murder in the First Degree once
he is retried.  And it is likely that he will receive a sentence
even longer tha[n] his previous sentence of 66 years because of his
subsequent assaultive conduct while in jail.  However, in the
unlikely event that he is acquitted, the passage of time to that
point, plus the time needed subsequent to the verdict to get him
ready to be a safe parent, if that can be done, [I.K.] would be too
damaged by that process to wait for that period of time -- a year
and a half from now at the very least. 
 
Thus, we conclude that the trial court did not abuse its discretion
in denying A.A.'s motion to continue.
     C.   The Trial Court Did Not Err in Finding That the State Had
Met ICWA's "Active Efforts"Requirement.
          In a termination proceeding involving an Indian child,
the State must prove by a preponderance of the evidence that
"active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful."
[Fn. 19]  Although ICWA does not define "active efforts,"this
court has cited approvingly one commentator's distinction between
active and passive efforts:
          Passive efforts are where a plan is drawn up
and the client must develop his or her own resources towards
bringing it to fruition.  Active efforts, the intent of the
drafters of the Act, is where the state caseworker takes the client
through the steps of the plan rather than requiring that the plan
be performed on its own.  For instance, rather than requiring that
a client find a job, acquire new housing, and terminate a
relationship with what is perceived to be a boyfriend who is a bad
influence, the Indian Child Welfare Act would require that the
caseworker help the client develop job and parenting skills
necessary to retain custody of her child.[ [Fn. 20]]

In accordance with other jurisdictions' case-by-case approach, [Fn.
21] we have held that "no pat formula"exists for distinguishing
between active and passive efforts. [Fn. 22]
          A parent's incarceration significantly affects the scope
of the active efforts that the State must make to satisfy the
statutory requirement.  While "[n]either incarceration nor doubtful
prospects for rehabilitation will relieve the State of its duty
under ICWA to make active remedial efforts,"[Fn. 23] the practical
circumstances surrounding a parent's incarceration -- the
difficulty of providing resources to inmates generally, the
unavailability of specific resources, and the length of
incarceration -- may have a direct bearing on what active remedial
efforts are possible. [Fn. 24]  Thus, while the State cannot ignore
its ICWA duties merely because of A.A.'s incarceration, his
incarceration is a significant factor in our evaluation of the
adequacy of the State's efforts in this case.
          A.A. argues that DFYS failed to make active efforts to
provide remedial services designed to prevent the breakup of the
Indian family as required by ICWA. [Fn. 25]  In particular, A.A.
maintains that DFYS "needed to accurately identify the father at
the earliest time in order to formulate a case plan to provide the
remedial programs to the parents that would be necessary for
reunification with them."  A.A.'s presentation of this argument
conflates two separate issues: (1) DFYS's delay in determining
paternity and (2) DFYS's failure to work out a case plan.  We
address each in turn.
          A.A.'s argument first raises the issue of whether DFYS's
delay in determining paternity can violate the "active efforts"
requirement.  ICWA defines a parent as "any biological parent or
parents of an Indian child or any Indian person who has lawfully
adopted an Indian child, including adoptions under tribal law or
custom.  It does not include the unwed father where paternity has
not been acknowledged or established."[Fn. 26]  Thus, because A.A.
did not acknowledge paternity before the blood test, ICWA did not
obligate the State to provide such efforts until A.A.'s paternity
had been established. [Fn. 27]
          The second part of A.A.'s argument contends that DFYS
failed to meet ICWA's active efforts requirement because it never
fashioned an individualized case plan for him.  The State responds
that its efforts met the requirement given A.A.'s lack of
commitment to treatment and lengthy sentence.
          Although we do not condone the State's failure to work
out a case plan for A.A., we nevertheless believe that the State
fulfilled its active efforts duty in this case. [Fn. 28]   In
affirming the trial court's finding on remand in A.M. v. State 
(A.M. II) [Fn. 29] that the State had made active efforts, we
explained the relevance of the parent's willingness to cooperate: 
          Our chief concern in remanding the ICWA issue
for reconsideration was that the trial court might have determined
the scope of the State's duty to make active remedial efforts, not
by consideration of A.M.'s "demonstrated lack of willingness to
participate in treatment"but rather by reference to "subjective,
pre-intervention criteria"relating to A.M.'s "motivation or
treatment prognosis."[ [Fn. 30]]

We noted that "DFYS maintained contact with A.M. while he was in
treatment, generally encouraged his treatment efforts, and assisted
him in arranging visitation with his children"[Fn. 31] but that
A.M. had been discharged from the state-provided rehabilitative
programs for failure to comply with treatment requirements. [Fn.
32]  Thus, although we "remain[ed] troubled by the relative
passivity of DFYS's remedial efforts at the early stages of this
case,"we nonetheless affirmed the trial court's ruling, in part
because of A.M.'s failure to participate meaningfully in treatment.
[Fn. 33]
          Here, although the State's efforts in relation to A.A.
may have been relatively passive, A.A. demonstrated a lack of
willingness to participate in treatment. [Fn. 34]  A.A.'s three
recent assaults on prison staff and inmates, which led to his
placement on maximum security status, occurred after the reversal
of his conviction and the State's filing of the termination
petition.  Thus, A.A.'s demonstrated failure to participate in
treatment continued even after he recognized that his parental
rights were at stake.
          As we noted in A.M. II, "[i]t is of no particular
consequence that the Department of Corrections (DOC), rather than
DFYS, made these active remedial efforts."[Fn. 35]  Here, although
the Department of Corrections has offered anger management classes
throughout the period of A.A.'s incarceration, A.A. has not
participated because he claims that his problem is "fear", not
anger.
          Finally, we agree with the State that A.A.'s lengthy
sentence justified the level of remedial services the State
provided. [Fn. 36]  The length of a sentence is an appropriate
factor to consider in evaluating the State's efforts. [Fn. 37] 
          For these reasons, we conclude that the State fulfilled
its duty under ICWA to make active remedial efforts.  Thus, we
affirm the trial court's decision to terminate A.A.'s parental
rights.
IV.  CONCLUSION
          Because the trial court did not err in denying the motion
to continue the termination proceedings and because the State

fulfilled its duty under ICWA with respect to A.A., we AFFIRM the
superior court's granting of DFYS's petition for termination.


                            FOOTNOTES


Footnote 1:

     The parties ultimately stipulated that DFYS had probable cause
to believe that I.K. was a child in need of aid.


Footnote 2:

     The standard procedure is to obtain DNA from the father, the
mother, and the child.


Footnote 3:

     The court also terminated M.K.'s parental rights.  She has not
appealed the order.


Footnote 4:

     See Alaska Marine Pilots v. Hendsch, 950 P.2d 98, 104 (Alaska
1997).


Footnote 5:

     Id. (citation omitted).


Footnote 6:

     See A.M. v. State (A.M. I), 891 P.2d 815, 820 (Alaska 1995),
overruled in part on other grounds by Matter of S.A., 912 P.2d 1235
(Alaska 1996).


Footnote 7:

     See A.M. v. State (A.M. II), 945 P.2d 296, 304 n.10 (Alaska
1997).


Footnote 8:

     See id.


Footnote 9:

     928 P.2d 1194 (Alaska 1996).


Footnote 10:

     See id. at 1195.


Footnote 11:

     See id.


Footnote 12:

     Id. at 1197.


Footnote 13:

     See id. 


Footnote 14:

     Id. (quoting In re Abdullah, 423 N.E.2d 915, 919 (Ill. 1981)).


Footnote 15:

     785 P.2d 56 (Ariz. App. 1989).


Footnote 16:

     See id. at 58.


Footnote 17:

     See id.


Footnote 18:

     Id.


Footnote 19:

     25 U.S.C. sec. 1912(d) (1983); see also Child in Need of Aid
Rule
18(c)(2).


Footnote 20:

     Craig J. Dorsay, The Indian Child Welfare Act and Laws
Affecting Indian Juveniles Manual 157-58 (1984) (citation omitted),
quoted with approval in A.M. I, 891 P.2d 815, 826 (Alaska 1995),
overruled in part on other grounds by In re S.A., 912 P.2d 1235,
1241 (Alaska 1996); see also A.M. II, 945 P.2d 296, 306 (Alaska
1997).


Footnote 21:

     See A.M. II, 945 P.2d at 306 n.12.


Footnote 22:

     Id. at 306.


Footnote 23:

     A.M. I, 891 P.2d at 827.


Footnote 24:

     See id.  Cf. In re Dependency of J.W., 953 P.2d 104, 108
(Wash. App. 1998), review denied, 969 P.2d 1063 (Wash. 1998)
(noting that under the Washington statute, the state can terminate
parental rights without offering any services when aggravating
circumstances, such as a conviction of rape, assault, sexual abuse,
or murder, exist).


Footnote 25:

     The State briefly argues, citing Justice Compton's concurrence
in In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989), that
ICWA's active efforts requirement should not apply to non-Indian
parents like A.A.:  "Congress gave no indication that it
envisioned, when it required that active efforts be made to prevent
the breakup of the Indian family, litigation concerning the
obligation to provide remedial services to non-Indian incarcerated
felons."  In T.N.F., Justice Compton agreed with the court's result
but disagreed with the court's application of ICWA to the non-
Indian mother's action because such application allowed a non-
Indian "to further purposes which have nothing to do with
furtherance of Indian welfare, so emphatically determined by
Congress to be in need of protection."  Id. at 982 (Compton, J.,
concurring).  But because the State does not ask us to overrule or
reconsider our prior position, we do not reach this issue here. 


Footnote 26:

     25 U.S.C. sec. 1903(9) (emphasis added).


Footnote 27:

     Moreover, Alaska's general statutory scheme does not require
a determination of paternity to proceed with termination of
parental rights.  The State may initiate termination proceedings
against an unknown father under AS 47.10.080(c)(3).  The version of
sec. .080(c)(3) in effect at the time that DFYS petitioned to
terminate A.A.'s rights provides in relevant part:

          (c)  If the court finds that the minor is a
child in need of aid, it shall

          . . . .

          (3)  by order, upon a showing in the
adjudication by clear and convincing evidence that there is a child
in need of aid under AS 47.10.010(a) as a result of parental
conduct and upon a showing . . . by clear and convincing evidence
that the parental conduct is likely to continue to exist if there
is no termination of parental rights, terminate parental rights and
responsibilities of one or both parents and commit the child to the
department . . . . 

Similarly, a California court recently held that completion of
paternity testing is not necessary to proceed with termination of
parental rights in California.  See In re Ninfa S., 73 Cal. Rptr.
2d 209, 211-12 (App. 1998) (denying a father's motion to continue
based on incomplete paternity testing after granting two previous
continuances because "genetics is irrelevant to [] the likelihood
of [the child's] adoption"and "[b]ecause further delay of the
hearing would have interfered with [the child's] need for prompt
resolution of her custody status and her right to a permanent
placement").


Footnote 28:

      [Fn. 38]See, e.g., Deck v. State, DCFS, 930 P.2d 760, 764-66
(Nev. 1997) (holding that because the mother expressed uncertainty
as to paternity and the putative father inquired about how to
determine paternity but failed to pursue the matter, the state's
failure to work out a case plan before terminating his parental
rights did not deny his procedural due process rights). 


Footnote 29:

     945 P.2d 296 (Alaska 1997).


Footnote 30:

     Id. at 306 (quoting A.M. v. State (A.M. I), 891 P.2d 815, 827
(Alaska 1995), overruled in part on other grounds by Matter of
S.A., 912 P.2d 1235 (Alaska 1996)).


Footnote 31:

     Id. 


Footnote 32:

     See id. at 305.


Footnote 33:

     Id. at 306.


Footnote 34:

     To support its claim that it met the active efforts
requirement, the State points to the fact that the Department of
Corrections had offered and A.A. had completed rehabilitative
services and programs in the past, resulting in no improvement in
his violent tendencies.  But this evidence is exactly the type of
"subjective, pre-intervention criteria"that we have rejected as a
justification for failing to make active efforts.  See A.M. II, 945
P.2d at 306 (quoting A.M. I, 891 P.2d at 827).  Thus, we do not
base our holding on this evidence.


Footnote 35:

     See A.M. II, 945 P.2d at 305.


Footnote 36:

     We also note that A.A. has been retried since this appeal.  He
was found guilty of murder in the second degree on March 10, 1999
and is scheduled to be sentenced on July 9, 1999.  See State v.
[A.], No. 3AN-S94-4614 CR.


Footnote 37:

     See A.M. I, 891 P.2d at 827.


Footnote 38:

     Cf. Deck v. State, DFYS, 930 P.2d 760, 764-66 (Nev. 1997)
(because mother expressed uncertainty as to paternity and father
inquired about how to establish paternity but failed to pursue
matter, state's failure to work out a case plan before terminating
his parental rights did not violate his procedural due process
rights).