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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. T.F. v. State, Dept. of Health and Social Services (07/20/2001) sp-5437

T.F. v. State, Dept. of Health and Social Services (07/20/2001) sp-5437

     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
                                 

T.F.,                         )
                              )    Supreme Court No. S-9674
             Appellant,       )
                              )    Superior Court Nos.
     v.                       )    4FA-99-213/214 CP
                              )
STATE OF ALASKA, DEPARTMENT   )    O P I N I O N
OF HEALTH & SOCIAL SERVICES,  )
DIVISION OF FAMILY & YOUTH    )    [No. 5437 - July 20, 2001]
SERVICES,                     )
                              )
             Appellee.        )
______________________________)
                              )
S.L.M.,                       )    Supreme Court No. S-9753
                              )
             Appellant,       )
                              )
     v.                       )
                              )
STATE OF ALASKA, DEPARTMENT   )
OF HEALTH & SOCIAL SERVICES,  )
DIVISION OF FAMILY & YOUTH    )
SERVICES,                     )
                              )
             Appellee.        )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
                    Ralph R. Beistline, Judge.


          Appearances:  Bethany Spalding, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant T.F.  Thomas E. Fenton, Law Office of
Thomas E. Fenton, Fairbanks, for Appellant S.L.M.  Karla Taylor-
Welch, Assistant Attorney General, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.


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


          FABE, Chief Justice.
          MATTHEWS, Justice, with whom BRYNER, Justice,
joins, dissenting.


I.   INTRODUCTION
          S.F. and C.F. are twin children in need of aid.  Their
mother suffers from a serious and long-term addiction to cocaine,
and she saw the twins only once between their birth and the
termination proceeding in this case.  Their father was incarcerated
at the time of their birth and absconded from custody shortly
thereafter.  In part because of his absence and in part because of
delays by the State, Department of Health & Social Services,
Division of Family & Youth Services (DFYS), the father's paternity
was not promptly determined and DFYS did not develop a case plan
for him until nearly eight months after the twins' birth.  The
superior court terminated the parental rights of both parents, and
the parents challenge that termination.  We affirm the superior
court's termination of parental rights for both parents.
II.  FACTS AND PROCEEDINGS
          S.F. and C.F. are Indian twins born prematurely on July
22, 1999.  The twins were developmentally damaged by prenatal
cocaine exposure and may also suffer from fetal alcohol syndrome. 
Within days of their birth, DFYS assumed emergency custody of them.
Since that time, they have primarily been cared for by a foster
mother.  In October a court found the twins to be children in need
of aid, and committed them to the temporary custody of the State. 
DFYS petitioned on November 15, 1999 for termination of parental
rights, and in April 2000 Superior Court Judge Ralph R. Beistline
terminated the rights of both parents.
          S.M., the mother, acknowledges a "significant history of
substance abuse and associated illegal activity"; the trial court
expressed particular concerns about the likelihood of her
overcoming her addiction to cocaine.  S.M. used cocaine and alcohol
during her pregnancy, received almost no prenatal care, and did not
know she was having twins until the second baby was born.  As of
S.F. and C.F.'s nine-month birthday, S.M. had visited the twins
once, and had missed three other scheduled visits.  According to a
social worker's account of S.M.'s sole visit with the twins, S.M.
was afraid to be alone with the children and allowed her son to cry
for ten minutes without picking him up or attempting to soothe him. 
She also failed to appear for a residential rehabilitation program
after DFYS had arranged bed dates for her in September 1999 and
again in January 2000.  Only in the month before trial -- almost
eight months after the birth of the twins -- did S.M. enter a
rehabilitation program.  S.M. may have to remain in the program for
up to two years, and her potential for successful completion of the
program is uncertain.  The court found that she has a high relapse
potential.  S.M. has other children who do not live with her and
for whom she has been unable to care.
          S.M. told DFYS that T.F. was the twins' father.  Although
T.F. initially questioned paternity, a blood test eventually proved
him to be the twins' biological father.  Like S.M., T.F. has a
long-term problem with cocaine, although the court found that his
addiction is less severe than hers.  He also has another child, an
eight-year-old daughter with whom he has lost contact.  The trial
court found that T.F. "has an extensive criminal record and has
been unable throughout his adult life to remain clean and sober for
any significant period of time," or to comply with rehabilitation
efforts.
          T.F.'s whereabouts were unknown at the time of the twins'
birth, but in early August the DFYS intake supervisor learned that
T.F. was incarcerated in the Fairbanks Correctional Center.  The
supervisor mailed T.F. a letter and preliminary case plan
indicating that the department would arrange for paternity testing. 
The supervisor then transferred the case, including a plan for
paternity testing for T.F., to a social worker.  The social worker,
Holly Byrnes, was unfamiliar with the testing process, had a family
emergency at the time, and assumed that the incarcerated T.F. would
easily be available for testing; it therefore took her somewhat
longer than usual to arrange for a paternity test.  DFYS filed a
motion for the test on August 17, and the superior court ordered
paternity testing; it distributed the order on September 9, 1999. 
The test was scheduled for October 13.
          By the time the superior court issued the test order,
however, T.F. had absconded from custody.  Because S.M. told Byrnes
that she was in contact with T.F., Byrnes gave S.M. information
about T.F.'s scheduled testing appointment and explained that T.F.
could participate in the test without risk of the authorities being
notified.  Although T.F. spoke to S.M. during this period, he did
not appear for the test and did not contact DFYS.
          T.F. returned to custody on November 7, 1999, a Sunday.
However, Byrnes was already scheduled to depart the following
morning for a month-long stint at the Nome DFYS office.  She asked
another DFYS representative in Fairbanks to set up the test, but
learned upon her return to Fairbanks that no test had been
arranged.  Byrnes arranged for the test on her first day back in
Fairbanks, on December 9, 1999.  The test took place on December
28, but results were not available until February 29, 2000.
          On January 11, 2000, while the test results were still
pending, Byrnes visited T.F. in jail.  They spoke for thirty or
forty minutes about his case, but did not develop a substantive
case plan.  T.F. expressed an interest in involvement in the case
if the children were his, but remained very doubtful that he was
the father.  Byrnes apparently next contacted T.F. in a March 1
letter, advising him that the twins were in fact his son and
daughter.  T.F. called and wrote to Byrnes to request visits with
the babies, and his attorney called Byrnes on March 17 to arrange
a meeting.  Byrnes, T.F., and T.F.'s attorney met on March 28;
apparently they would have met earlier but for the attorney's
schedule.  The three met for thirty minutes and prepared a case
plan for T.F.  They did not discuss classes and services available
to T.F. in jail, although Byrnes did later contact the jail to
learn which services T.F. had participated in, and to confirm that
he had completed a substance abuse program.  T.F. testified that,
while incarcerated, he took a six-week parenting class and extra
courses on fetal alcohol syndrome, and completed an eight to ten-
week inmate alcohol and substance abuse program.
          Byrnes also supervised three visits between T.F. and the
twins, on March 23, March 30, and April 6, 2000; a fourth visit was
canceled due to a DFYS scheduling problem.  She initially worried
about the twins' reactions to the unfamiliar environment of the
jail and the presence of a strange man, in light of their previous
difficult visit with their mother.  However, Byrnes ultimately
concluded that the visits were positive.
          The superior court held a trial on termination of
parental rights on April 17-19, 2000.  The parties stipulated to
the existence of clear and convincing evidence that the children
had been subjected to conditions sufficient to render them children
in need of aid under AS 47.10.011(2) [Fn. 1] and (10) [Fn. 2] and
that the parents, at the time of trial, had not remedied the
conduct that placed the children at substantial risk of harm.  The
superior court terminated the rights of both parents.  It found
that the twins "have no ties with either biological parent" and
expressed strong skepticism about the potential for either parent,
particularly S.M., to become a sober and mature caregiver in the
foreseeable future.  But it emphasized that, even assuming the
speediest possible recovery by the parents, the resulting delay in
permanent placement would be "too long for the twins to wait." 
Because the twins urgently needed stable family placement, the
court determined that termination of parental rights was in the
best interests of the children.  S.M. and T.F. now appeal.
III. STANDARD OF REVIEW
          In cases concerning the termination of parental rights,
we will affirm the trial court's factual findings unless the
findings are clearly erroneous. [Fn. 3]  Whether the factual
findings are sufficient to satisfy the Child In Need of Aid (CINA)
rules is a question of law, to which we apply our independent
judgment. 
          The question of whether the State has complied with the
Indian Child Welfare Act's (ICWA's) "active efforts" requirement is
a mixed question of law and fact.  The legal elements of this
question, and any other purely legal questions, are reviewed* de
novo.
IV.  DISCUSSION
          In order to terminate parental rights, a court must find
by clear and convincing evidence that the children are in need of
aid under AS 47.10.011, and that the parents have not remedied the
conduct or conditions that place the children at substantial risk
of harm.  The parties stipulated to these facts.  Under ICWA, the
court may not terminate parental rights to Indian children unless
it finds 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."  In determining
whether to terminate parental rights, "the court shall consider the
best interests of the child."
          The parental rights of both S.M. and T.F. were terminated
below, and both parents separately challenge the termination.  We
will consider their arguments in turn.
     A.   The Superior Court Did Not Err in Terminating S.M.'s
Parental Rights.

          S.M. argues that DFYS and the trial court did not allow
her sufficient time before the trial to prove her fitness as a
parent.  The legal foundation of her argument is unclear.
          But as the State correctly argues, the AS 47.10.088
factors for termination of parental rights govern and refute S.M.'s
claim.  Under the statute, a court may terminate parental rights if
it finds by clear and convincing evidence that a parent "has
failed, within a reasonable time, to remedy the conduct or
conditions in the home that place the child in substantial risk so
that returning the child to the parent would place the child at
substantial risk of physical or mental injury."  For purposes of
this determination, courts may consider any fact relating to 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 made by the parent
to remedy the conduct . . . ;

               . . . .

          (4)  the likelihood that the harmful conduct
will continue; and

          (5)  the history of conduct by or conditions
               created by the parent.[]
     
          The superior court's decision is legally supported under
all of these factors.  Termination of S.M.'s rights under factor
(1) is supported by the court's finding that "to put off
[termination of rights] or to provide [S.M. with] more time to deal
with [her] personal issues would be detrimental to the welfare and
best interest[s] of the children," because "[t]he children need a
permanent placement as soon as reasonably possible."  Given this
finding, it appears not only unlikely but impossible that the
children could be "return[ed] . . . to the parent within a
reasonable time based on [their] age or needs."
          Following the superior court's findings, termination is
also appropriate under AS 47.10.088(b) factors (5), (4), and (2).
The court noted S.M.'s serious history of conduct that could be
damaging to a child -- factor (5) -- and the high likelihood that
this conduct would continue in the future -- factor (4).  It also
found that "Ms. [M.] made little effort to visit the twins since
their birth," but instead was "difficult for the social workers to
locate" and "continued to abuse drugs and pursue her nomadic and
chaotic lifestyle."  Despite S.M.'s seemingly sincere efforts
toward recovery in the weeks before trial, in light of her forgone
opportunities to remedy her conduct in the preceding seven months,
the superior court did not err in concluding that the "amount of
effort made by the parent to remedy the conduct" was insufficient
under AS 47.10.088(b)(2).  We therefore affirm termination of
S.M.'s parental rights.
     B.   The Superior Court Did Not Err in Terminating T.F.'s
Parental Rights.

          T.F. argues that the superior court wrongly terminated
his parental rights because it erred both in finding that DFYS had
made an active effort to prevent family break-up and in finding
that T.F.'s continued custody was likely to damage the children. 
We are sympathetic to T.F.'s position, given the short period of
time in which his paternity was certain and he was able to work on
a case plan with DFYS.
          We in no way condone DFYS's contribution to the delay in
paternity testing.  However, we note that T.F. himself bears
substantial responsibility for the delay.  DFYS filed a motion for
paternity testing within thirty days of the twins' birth; T.F. did
not respond to that motion.  Instead, he absconded from state
custody before the test could be scheduled -- an action which,
despite the dissent's reference to being "away without leave,"
probably constituted criminal escape or unlawful evasion under AS
11.56.300-.340.  When T.F. did return to custody, the DFYS worker
assigned to his case only learned of his return by reading the
police blotter; there is no indication that he sought to contact
DFYS.
          If T.F. had not absconded from custody, or if he had
contacted DFYS during his almost three months of unauthorized
absence, testing could have been completed at a far earlier date
and DFYS's active efforts to reunify T.F. with his children could
have commenced further in advance of the scheduled termination
proceedings.  As a result of T.F.'s untimely disappearance,
however, T.F.'s paternity was ascertained -- and DFYS's active
efforts obligation triggered -- only six weeks before termination
proceedings.
          One can imagine situations in which it would be unfair to
deny a biological father a longer period of time to demonstrate his
fitness as a parent.  The dissent argues that this is the case on
the facts now before us, and that given the short period of
reunification efforts DFYS cannot be considered to have made
unsuccessful active efforts to reunite T.F. and the twins.  But the
rule apparently supported by the dissent would allow putative
fathers to avoid both testing and engagement with their children
until the eve of trial, then trigger a new and potentially lengthy
round of DFYS active efforts obligations by confirming paternity. 
The resulting delay would not be in the best interests of young
children who need permanent placement.  On the facts of this case,
given T.F.'s role in postponing paternity testing, his
incarceration and resulting unavailability to care for the twins in
their formative early years, and the likelihood that he would not
be able to provide a stable home life to these special needs
children even when he is released from incarceration, such a delay
would not be justified.  Given the particular facts of this case,
we find that the totality of the circumstances supports the
superior court's decision to terminate T.F.'s rights.  We
considered very similar questions in A.A. v. State; our decision
today in large part draws on our decision in that case.
          1.   DFYS made active efforts to prevent the family's
breakup.

          Under ICWA, a court may only terminate parental rights if
it finds 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."  T.F. argues that the
superior court erred in finding that DFYS met the active efforts
requirement.
          The degree of active efforts required of DFYS is reduced
by two factors:  the initial uncertainty of T.F.'s paternity and
T.F.'s incarceration.  The superior court recognized these factors,
finding that "given Mr. [F.]'s incarceration and his initial
concern about his paternity, there was little more the Department
could have reasonably provided Mr. [F.] beyond that which was
available in the jail."
               a.   Uncertain paternity
          Under ICWA rules and our decision in A.A. v. State, the
State did not owe T.F. active efforts until paternity was
established.  In A.A., we affirmed the termination of a biological
father's parental rights.  In that case, the father had denied
paternity and requested a blood test.  DFYS initiated termination
proceedings before the test was completed, and never developed a
case plan for the father.  Our decision drew on the statutory
language of ICWA, which explicitly defines the parents protected by
the statute as "not includ[ing] the unwed father where paternity
has not been acknowledged or established."  We concluded that
"because A.A. did not acknowledge paternity before the blood test,
ICWA did not obligate the State to provide [active] efforts until
A.A.'s paternity had been established."
          Like A.A., T.F. did not acknowledge paternity prior to
his blood test.  Following A.A., DFYS therefore had no duty to
undertake active efforts during the time between the birth of the
twins and the February 28 determination of paternity.
          The dissent argues that T.F.'s failure to appear for
paternity testing cannot have "discharged the State from its duty
to take further active family unification efforts."  But until
paternity was established, the State had no active efforts duty. 
In A.A., we answered in the negative the question "whether DFYS's
delay in determining paternity can violate the 'active efforts'
requirement"; the dissent offers no grounds for departing from this
precedent.  Moreover, T.F. was passive at best, and resistant at
worst, in the face of DFYS's attempt to determine paternity.  His
actions were a major cause of delay in completing the tests.  As
the superior court noted:
          It is true that paternity testing could have
been expedited once Mr. [F.] was back in custody and Mr. [F.]'s
case plan and visitation at the jail [could have] started earlier.
However, had Mr. [F.] not been on abscond status, the entire issue
could have been resolved earlier.

          The dissent further suggests that DFYS's and the superior
court's choice to proceed with termination proceedings in the face
of T.F.'s non-cooperation was a "'one strike and you're out'
approach to reunification services."  The analogy to criminal law
is misplaced; adherence to A.A.'s rule regarding paternity testing
is not a punitive measure against T.F.  Rather, it is driven by the
policy of protecting children in need of aid.  The superior court
appropriately determined that "custody by either [parent] is likely
to result in serious emotional or physical damage to the children"
and that further instability and delay in finding a permanent home
would be "detrimental to the welfare and best interest[s] of the
children."
               b.   T.F.'s incarceration and subsequent absconding
status

          Once DFYS determined that T.F. was the father, its active
efforts duties were triggered.  Even then, however, the scope of
the State's duties was reduced by T.F.'s incarceration.  Because of
this reduction, DFYS's efforts in the weeks after the confirmation
of T.F.'s paternity met the active efforts requirement.
          We held in A.A. that "[a] parent's incarceration
significantly affects the scope of the active efforts that the
State must make."  While incarceration does not relieve the State
of its duties, the practical circumstances of incarceration may
reduce the possible options available to the State.  Moreover,
because ICWA requires the State, rather than a particular agency,
to make "active efforts . . . to provide remedial services and
rehabilitative programs," we have held that the Department of
Corrections, rather than DFYS, may fulfill this obligation by
enrolling the parent in classes and treatment programs -- as the
Department of Corrections did in this case.  Given this standard,
the State's efforts were sufficient.
          2.   Under the totality of circumstances in this case,
the superior court did not err in determining that custody in the
father would be likely to damage the twins.

          T.F. argues that the superior court erred in finding that
continued custody by T.F. is likely to cause serious emotional or
physical damage to the children.  Because of the delay in
placement, T.F.'s incarceration, and other factors, we conclude
that the superior court did not err in finding that continued
custody by T.F. is likely to cause the children serious emotional
harm or physical damage.
          The superior court's decision to terminate depended in
part on its finding that delay in permanent placement would harm
the twins.  Although T.F. challenges the evidentiary sufficiency of
this finding, it was supported by expert testimony before the
superior court.
          Alaska Statute 47.10.080(o) provides that a parent's
incarceration may support termination of parental rights if the
court finds, based on clear and convincing evidence, that
          (1)  the period of incarceration that the
parent is scheduled to serve during the child's minority is
significant considering the child's age and the child's need for an
adult's care and supervision;

          (2)  there is not another parent willing and
able to care for the child; and

          (3)  the incarcerated parent has failed to
make adequate provisions for care of the child during the period of
incarceration that will be during the child's minority. 

The superior court found each of the statutory factors: It found
that the delay caused by T.F.'s incarceration was significant
"considering the children's age and their current needs"; it found
that the children's mother was currently unable to care for them;
and it found that "Mr. [F.] has not taken steps to have alternative
care provided for the children during his period of unavailability
. . . ."  T.F. does not discuss the statute or dispute its
applicability in his appeal to this court.
          In this case, numerous factors combine with the concern
about parental incarceration and placement delay to convince us
that termination was appropriate.  First, the superior court found
that T.F. had a high relapse potential; such potential diminishes
the likelihood that T.F. could be a stable custodian for his
children after his release from incarceration.  Second, the twins
are children with special needs, with a particularly great need for
attentive and capable parenting.  Third, T.F. already has another
child but has been unable to care for her "due to [his] addiction[]
and lifestyle[]."  Finally, T.F.'s interest in the twins was
contingent on confirmation that he was the father, but this
interest was weak enough that T.F. chose to abscond from custody
rather than participating in paternity testing.  T.F.'s own actions
prevented him from determining paternity and assuming any active
interest in the twins until they were over seven months old.  Given
these facts, in conjunction with the instability which T.F.'s
incarceration would bring to these young children, we conclude that
the superior court did not err in terminating T.F.'s parental
rights.
V.   CONCLUSION
          Because termination of S.M.'s parental rights is squarely
supported by the governing statute, we AFFIRM the termination of
her rights.  In light of the totality of the circumstances, we also
AFFIRM the termination of T.F.'s rights.  Our ruling is narrowly
based on the facts of this case.

MATTHEWS, Justice, with whom BRYNER, Justice, joins, dissenting.
          The trial court did not find that active efforts to
preserve T.F.'s family relationship with the children had proved to
be unsuccessful.  Further, if such a finding had been made, it
would not have been supported by the record.  Because subsection
1912(d) of ICWA requires a showing that active efforts "have proved
unsuccessful," and as to T.F. such a showing was neither found nor
made, I dissent.
                                I.
          The State's ICWA-imposed duty to provide active family-
saving efforts to T.F. was not triggered until February 29, 2000. 
At that point a paternity test demonstrated that he was the father
of the children.  When the test results were received the
termination trial was scheduled to take place in six weeks.  That
schedule was never altered.  What active efforts did the State make
with respect to T.F.?  
          What DFYS did was to formulate a case plan and arrange
three visits between T.F. and the children.  The case plan itself
does not qualify as a family uniting effort because the stated
objective of the plan was adoption.  The three visits were
initiated by T.F.  When he called the DFYS social worker to request
the visits she attempted to dissuade him.  Ultimately, however, she
relented and the visits took place.  T.F. also availed himself of
a number of prison-operated programs.  These included a parenting
class, a class on fetal alcohol consequences, substance abuse
treatment, and group therapy sessions.  These programs can be
considered active efforts that might satisfy ICWA. [Fn. 1]
          The prison programs and the three visits arranged by DFYS
were a good start toward compliance with ICWA's active efforts
requirement.  But they had no real chance of success at uniting
T.F. with his children because they were cut short by the
termination decree.
          As noted, ICWA requires that before there can be a
termination of parental rights the active efforts that have been
made must prove to be unsuccessful. [Fn. 2]  The trial court made
no finding as to T.F. that the efforts had proved unsuccessful. 
The closest the court came was to find that "the department . . .
did not receive cooperation from the parties."  The lack of
cooperation finding was directed only at T.F.'s failure to take the
paternity test scheduled for October 13.  The court did not find
that T.F. was uncooperative with respect to any of the efforts that
were taken after the test established his paternity.  More to the
point, for ICWA purposes, the court did not find that any of these
efforts had proved unsuccessful.  If these efforts are to be
counted as meeting the "active efforts" requirement of subsection
1912(d) of ICWA, they must ultimately be unsuccessful.
          My reading of the record indicates that once T.F.'s
paternity was established he showed no lack of willingness to
participate in the prison rehabilitation programs and took the
initiative to arrange visits with his children.  The record does
not show either that the visits or T.F.'s participation in the
prisoner programs were unsuccessful.
          In K.N. v. State, we addressed the burden of proof
required under subsection 1912(d), holding that the State was
required to show by a preponderance of the evidence that it had
made active efforts to prevent the breakup of the family and that
those efforts had been unsuccessful. [Fn. 3]  In that case, we
approved as active and unsuccessful the State's efforts to provide
services to the father, finding that his refusal to work with DFYS,
his denial of his mental problems, and his recalcitrant attitude
toward treatment demonstrated that the State's efforts had been
unsuccessful. [Fn. 4]  The present case does not present analogous
facts, as there was no showing regarding the failure of the State's
efforts with regard to T.F.  Other states interpreting ICWA have
required an affirmative showing by the state that its efforts have
been unsuccessful. [Fn. 5]
          In 1998 the legislature mandated strict and short time
schedules for filing termination petitions and holding termination
trials. [Fn. 6]  Acting in response to this new mandate, DFYS and
the trial court put this termination proceeding on a fast track. 
After T.F. was determined to be the father of the children, the
active efforts to unite him with his children were unsuccessful
because they were necessarily ended by the termination decree.  But
under ICWA lack of success is a precondition to termination. 
Termination cannot serve as the reason why active efforts fail to
succeed.  It should go without saying based on the supremacy clause
of the federal constitution [Fn. 7] that the requirements of ICWA
must be observed even if that means some slippage in the state
statutory scheduling requirements.
                               II.
          The main point of this dissent is that since subsection
1912(d) of ICWA imposes a duty to take active reuniting efforts and
provides that those active efforts that satisfy this duty must have
proved unsuccessful, this means that time must be allowed for
active reuniting efforts to either fail or succeed.  Reuniting
efforts, such as the Department of Corrections programs in this
case, that have not been given sufficient time to fail or succeed
do not satisfy subsection 1912(d).  In this case the only active
reuniting effort that failed was distinctly preliminary in
character; it was the effort to set up a paternity test for T.F.
that was scheduled to take place on October 13, 1999.  As of that
date T.F. was away without leave from the halfway house where he
was incarcerated and thus missed the test.  Since this is the only
active effort that proved unsuccessful, the real issue in this case
is whether T.F.'s failure to show up for the October 13 test
discharged the State from any further duty to take active efforts
to unite T.F. with his children.
          My view on this question is that under the circumstances
of this case T.F.'s failure to take the test on October 13 did not
discharge the State from its duty to take further active efforts
under subsection 1912(d).  The time frame of the events in this
case is very compressed.  The children were born on July 22, 1999,
and within nine months thereafter the parental rights of both
parents were terminated.  The State delayed in arranging paternity
tests before the October 13 date.  Further, although T.F. was AWOL
on October 13, he was back in custody as of November 7, 1999, [Fn.
8] yet the State delayed for another seven weeks in taking a saliva
sample from him for DNA testing purposes.  Overall, it appears that
T.F.'s AWOL directly caused a three-week delay, whereas the State
bears the responsibility for failing to take a saliva sample
earlier, and a heavy share of the responsibility for the delay
after November 7 until December 28, when T.F.'s saliva was finally
taken.
          The underlying idea of subsection 1912(d) is that
troubled and situationally unfit parents should receive
rehabilitative services so that they may be able to fulfill
traditional parental roles.  In the process of receiving
rehabilitative services some false starts and setbacks are to be
expected.  Treating one missed appointment for testing as a
discharge of subsection 1912(d)'s active efforts duty seems
inconsistent with the remedial purposes of subsection 1912(d).  I
do not believe that a "one strike and you're out" approach to
reunification services is what Congress had in mind in enacting
ICWA.  Thus I do not believe that the missed October appointment
can be said to have discharged the State from its duty to take
further active family unification efforts.  And since, as noted
above, those further efforts that were taken did not prove
unsuccessful, the requirements of subsection 1912(d) of ICWA, in my
view, have not been satisfied.
          For the above reasons I would reverse the termination
decree as to T.F. and remand for further proceedings so that the
requirements of subsection 1912(d) of ICWA can be satisfied. 



                            FOOTNOTES


Footnote 1:

     Under AS 47.10.011(2), the court may find a child to be in
need of aid if 

          a parent, guardian, or custodian is
incarcerated, the other parent is absent or has committed conduct
or created conditions that cause the child to be a child in need of
aid under this chapter, and the incarcerated parent has not made
adequate arrangements for the child.


Footnote 2:

     Under AS 47.10.011(10), the court may find a child to be in
need of aid if 

          the parent, guardian, or custodian's ability
          to parent has been substantially impaired by
the addictive or habitual use of an intoxicant, and the addictive
or habitual use of the intoxicant has resulted in a substantial
risk of harm to the child; if a court has previously found that a
child is a child in need of aid under this paragraph, the
resumption of use of an intoxicant by a parent, guardian, or
custodian within one year after rehabilitation is prima facie
evidence that the ability to parent is substantially impaired and
the addictive or habitual use of the intoxicant has resulted in a
substantial risk of harm to the child as described in this
paragraph.


Footnote 3:

     See A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d
256, 259 (Alaska 1999).


Footnote 4:

     See D.H. v. State, 929 P.2d 650, 654 n.11 (Alaska 1996).
 [Fn. 4]



                       FOOTNOTES (Dissent)


Footnote 1:

     See A.M. v. State, 945 P.2d 296, 305 (Alaska 1997).


Footnote 2:

     See 25 U.S.C. sec. 1912(d) (1983):

               Any party seeking to effect a foster care
placement of, or termination of parental rights to, an Indian child
under State law shall satisfy the court 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.


Footnote 3:

     856 P.2d 468, 476 (Alaska 1993).


Footnote 4:

     Id.


Footnote 5:

     See, e.g., State ex rel. Juvenile Dep't of Multomah County v.
Charles, 688 P.2d 1354, 1359 (Or. App. 1984) ("the state must show
that the efforts have been made but have not worked"); In re
Dependency of A.M., 22 P.3d 828, 834 (Wa. App. 2001) ("failure [of
state efforts] must be shown before parental rights to an Indian
child may be terminated"); M.S. v. S.H & C.S., 624 N.W.2d 678, 684
(N.D. 2001) (affirming termination order where active efforts to
provide remedial services and rehabilitative programs were
undertaken and proved unsuccessful); In re E.M, A.M., and J.M., 466
N.W.2d 168, 173-74 (S.D. 1991) (finding sec. 1912(d) satisfied
where
court made detailed findings regarding provision of services and
failure by parent).


Footnote 6:

     See AS 47.10.088.


Footnote 7:

     See U.S. Const. art. VI. 


Footnote 8:

     Far from being the "eve of trial," see Slip Op. at 12, the
Petition for Termination of Parental Rights was not even filed at
this point.