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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Danielle A. v. State, Dept. of Health & Social Services, Office of Children's Services (09/11/2009) sp-6410

Danielle A. v. State, Dept. of Health & Social Services, Office of Children's Services (09/11/2009) sp-6410

     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,
     e-mail corrections@appellate.courts.state.ak.us.

            THE SUPREME COURT OF THE STATE OF ALASKA

DANIELLE A., )
) Supreme Court No. S- 13377
Appellant,)
) Superior Court No. 4FA-05- 20 CN
v. )
) O P I N I O N
STATE OF ALASKA, )
DEPARTMENT OF HEALTH )
AND SOCIAL SERVICES, OFFICE )
OF CHILDRENS SERVICES,)
) No. 6410 - September 11, 2009
Appellee.)
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Robert B. Downes, Judge.
                                                  
          Appearances: James M. Hackett, Law Office  of
          James  M.  Hackett, Fairbanks, for Appellant.
          Gayle   L.   Garrigues,  Assistant   Attorney
          General,   Fairbanks,  Richard  A.  Svobodny,
          Acting   Attorney   General,   Juneau,    for
          Appellee.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          CHRISTEN, Justice.

I.   INTRODUCTION
          A  mother  appeals  the extension of a  superior  court
order granting custody of her daughter to the Office of Childrens
Services  (OCS).   In the mothers first appeal,  we  affirmed  an
order  extending custody.  In this, her second appeal, the mother
challenges  a  subsequent extension of custody.  She  raises  two
main  arguments:   the superior court erred in extending  custody
(1)  without  making the findings necessary to remove  the  child
from  parental custody under the Indian Child Welfare Act (ICWA),
25 U.S.C.  1912(e); and (2) without making the ICWA placement and
active  efforts findings required by Alaska Child in Need of  Aid
(CINA)  Rule  10.1(b).  We conclude that: (1)  neither  ICWA  nor
Alaskas  CINA  statutes and rules require courts to make  removal
findings  before extending OCSs custody of a child; and  (2)  the
superior  court did not clearly err when it found that the  child
continued to be a child in need of aid and that extending custody
was  in her best interests.   But CINA Rule 10.1(b) requires that
courts  inquire  into and determine whether  active  efforts  are
being  made before extending custody.  Because the court did  not
make this inquiry and determination, we remand.
II.  FACTS AND PROCEEDINGS
          Roberta was born in 1997 to Danielle.1  Roberta  is  an
Indian  child under ICWA.2  Robertas father was not  involved  in
her  life  and  his parental rights were terminated.3   OCS  took
emergency  custody of Roberta on March 1, 2005, and  custody  was
later  extended for one year.4  OCS filed a petition to terminate
Danielles  parental rights in November 2006.5  Trial occurred  in
November and December 2007.6  The court found that Roberta was  a
child in need of aid,7 but it also found that OCS failed to  make
active  efforts to prevent the breakup of the Indian  family  and
did  not  provide  proof beyond a reasonable doubt  that  leaving
Roberta in Danielles custody would likely cause serious emotional
or physical damage.8  The court concluded it was in Robertas best
interests  to  be returned to Danielle.9  The court ordered  that
Roberta  remain  in  OCS  custody for up to  an  additional  year
pending reunification efforts.10
          Danielle  moved  for reconsideration  on  December  10,
2007.11   She  argued  that  CINA Rules 10.1(b)(2)  and  17(c)(2)
expressly  prohibit a final disposition order  given  the  courts
finding that OCS had not made active efforts.12  On December  12,
2007, Danielle filed a motion for an order: (1) directing OCS  to
comply with active efforts requirements under 25 U.S.C.  1912(d);
(2)  imposing  sanctions against OCS for failing to  make  active
efforts; and (3) entering a one-year supervision order in lieu of
continued OCS custody of Roberta.13  The court held a hearing  in
April 2008 but did not rule on these motions.14
          In  June  2008  the  trial  court  issued  its  written
decision  from  the  termination  trial.15   The  court   ordered
continued OCS custody, and supervised and unsupervised visitation
until  the  [reunification]  transition  is  complete,  or  until
December  4, 2008, whichever comes first.16  In October 2008  the
court  issued  written  orders  denying  Danielles  motions   for
reconsideration, to compel active efforts, and for sanctions.17
          In  Danielles  first appeal, we affirmed  the  superior
courts  December 2007 extension of OCS custody and its denial  of
Danielles motion to invalidate that extension.18  We concluded the
superior  court did not err when it found that extending  custody
was  in  Robertas best interests under AS 47.10.080(c)(1).19   We
reasoned  that  [t]he  context  of the  [December  2007]  hearing
discussion shows that the court considered a return to  Danielles
care  to  be in Robertas long-term best interests, but the  court
also  recognized  that work needed to be done  for  reunification
efforts to succeed.20  We explained: The [trial] court found that
          it was not in Robertas best interests to be immediately returned
to  Danielle, and that finding is more than adequately  supported
by the evidence in the record.21
          In  November  2008,  OCS  again  petitioned  to  extend
custody  for up to another year.  OCS stated the permanency  plan
remained   reunification  with  Danielle  and  recommended   that
reunification continue through a gradual transition,  culminating
in  permanent  placement with Danielle by March  2009.   Danielle
opposed  the motion, citing an October 2008 letter from Katharine
Furniss,  a  program manager at Resource Center for  Parents  and
Children, which stated that Danielle had successfully engaged  in
all  Family Reunification services from January to October  2008,
and  recommended  OCS  continue to increase unsupervised  in-home
visits  and overnights with the intent to reunify [Danielle]  and
her daughter within the next six months.
          The  guardian  ad  litem (GAL) submitted  a  report  in
December  2008  advising  against  an  abrupt  return  home   and
recommending  extending  custody so a six-month  transition  plan
could  be  implemented.  By this time, Roberta was  staying  with
Danielle for three consecutive overnights and four days per week.
          In  December 2008 Danielle moved to enforce the  courts
June  2008  judgment  ordering reunification between  mother  and
daughter [and] directing reunification no later than December  4,
2008.  She argued, among other things, that there were continuing
ICWA violations.  In support of her motion, Danielle submitted  a
letter  from  Elizabeth  Kraska, the  family  therapist  who  was
providing  joint  counseling  to Danielle  and  Roberta.   Kraska
wrote: Due to the lengthy separation and the positive work I  see
happening,  it  is  my  recommendation that  visits  continue  to
increase  by a day and an additional overnight each  month.   The
undated  letter  includes Kraskas estimation  that  reunification
could occur within or less than six months, barring any increased
signs   of   stress/anxiety,  or  if  a  therapist   observes   a
deterioration in their relationship.
          On  December 3 and 4, 2008, the court held a hearing on
OCSs motion to extend custody and Danielles motion to enforce the
December  4 reunification deadline. Danielle urged the  court  to
return  custody  to  her  immediately,  claiming  she  had   done
everything  required by OCS, the court, and her counselors.   She
characterized  the  issue before the court as removal.   Danielle
argued that before the court could extend OCSs custody, it had to
find, by qualified expert witness testimony, that placement  with
her  would  likely  cause serious emotional or physical  harm  to
Roberta.
          As  she  had  over a year earlier, the GAL  recommended
against  returning  Roberta to Danielles  custody  until  further
reunification efforts could occur.  The GAL told the  court  that
the  counselor and the two clinical therapists working  with  the
family,  Kraska (working jointly with Danielle and  Roberta)  and
Cathy McCarthy (working solely with Roberta), are adamant that if
you rush [reunification], this is going to be detrimental and not
be  a  success  for [Danielle] and the child. The  child  is  not
ready.   They  also  believe [Danielle] is not  ready.   The  GAL
expressed the entire clinical teams view that if the state  drops
          custody or the court does, . . . its going to harm this family.
OCS  agreed, arguing that custody should be extended for  another
year,  [and] that the childs not yet ready to go home because  of
some of the difficulties that occurred in the last year.22
          The  court  issued an oral ruling on December  4,  2008
finding that Roberta continued to be a child in need of aid based
on neglect and denying Danielles request to return Roberta to her
immediately.  The court relied on the GALs statements and Kraskas
letter.   It  also referred to the findings memorialized  in  its
June  2008  written order, stating it felt that it was  important
that  there  be  a  transition  and  based  on  [the  June  2008]
order,  .  .  . continued custody and supervisions  in  the  best
interests  of  the child.  The court found Roberta was  gradually
integrating into Danielles home, the transition was occurring but
had not been completed, more time was needed for reunification to
succeed,  and its contrary to [Robertas] welfare to  fully  place
[her]  in  [Danielles]  home at this time.   The  court  extended
custody  for six months, through June 4, 2009, ordering a  review
of  this  case every two months during the next six  months,  and
explaining  that if a review revealed that fewer than six  months
was needed, the family could be reunited earlier.23
          Danielle appeals.

III. STANDARD OF REVIEW
          We affirm a trial courts factual findings in CINA cases
unless  they  are  clearly erroneous.24  When  interpreting  CINA
statutes  and rules, we apply our independent judgment,  adopting
the  rule  of law that is most persuasive in light of  precedent,
reason,  and  policy.25  We independently review the question  of
[w]hether   the  superior  courts  findings  comport   with   the
requirements of ICWA or the CINA statutes and rules.26
IV.  DISCUSSION
     A.   The  Superior  Court Was Not Required To  Make  Removal
          Findings  Under  25  U.S.C.   1912(e)  To  Extend  OCSs
          Custody of Roberta.
          
          Danielle argues that to extend OCSs custody of Roberta,
the court was required to find under 25 U.S.C.  1912(e), by clear
and  convincing evidence, 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.27   OCS contends the superior court did  not
have to make this ICWA finding to extend OCSs custody because  AS
47.10.080  and CINA Rule 19.2 control, and that those authorities
require the court to find that: (1) the child is a child in  need
of  aid  and  (2)  continued OCS custody is in  the  childs  best
interests.  We agree with OCS.
          ICWA   requires  courts  to  make  subsection   1912(e)
findings to remove an Indian child from the custody of his or her
parent  or Indian custodian,28 but ICWA does not address  custody
extensions.29  Here, the issue is extending OCS custody so Roberta
and Danielle may reunify gradually, not removal.30
          Alaskas  CINA  statutes  and  rules  expressly  address
custody  extensions.31  As OCS points out, courts in Alaska  must
          make two findings before extending OCSs custody of a child: (1)
the child continues to be a child in need of aid and (2) extended
custody is in the childs best interests.32  Alaskas CINA statutes
and  rules  do  not require courts to make ICWAs section  1912(e)
removal  findings to extend custody; we have not held otherwise33
and we do not now.34
     B.   The  Superior  Court Did Not Clearly Err  in  Extending
          OCSs Custody of Roberta.
          
          1.   The  superior court did not clearly err in finding
               Roberta continued to be a child in need of aid.
               
          Danielle  argues  the  court  erroneously  found   that
Roberta  continues  to be a child in need of  aid  based  on  its
previous finding of neglect.  She claims the court must determine
a  childs  CINA status at the time of adjudication, not  at  some
earlier time. OCS disagrees, arguing that the legislature amended
former  AS  47.10.010, which required courts to  adjudicate  CINA
status  based on conditions existing at the time of adjudication,
and  that  the amended version of the statute permits  courts  to
look at past conduct or conditions.
          OCS  has  the better of these arguments.  Consideration
of  past  neglect is consistent with our statutes and  case  law.
Alaska Statute 47.10.011 provides that the court may find a child
to  be  a child in need of aid if it finds by a preponderance  of
the  evidence that the child has been subjected to any of  twelve
conditions, including neglect.35  We have interpreted this statute
as   only requir[ing] a finding that the child has been subjected
to  neglect, and we have clarified that in determining  a  childs
CINA  status, the trial court may consider  all evidence  of  the
parents  pre-termination hearing conduct, including  evidence  of
parental  conduct predating the CINA adjudication. 36  The  court
did  not  err  in  adjudicating Robertas  CINA  status  based  on
Danielles  previous  neglect;  the  record  supports  the  courts
finding that Roberta has been exposed to neglect.37
          2.   The  superior court did not clearly err in finding
               that   extending  custody  was  in  Robertas  best
               interests.
               
          The  court  found  that returning Roberta  to  Danielle
immediately  would not be in Robertas best interests.   It  found
that  a  gradual  transition  would increase  the  likelihood  of
successful reunification and ordered review of the case every two
months  for  the  following six months to see how  everything  is
progressing.   The court stated: If things progress faster,  then
as soon as the therapists believe that the mother should have the
child, or the childs with the mother full-time, that will be  the
ultimate proof and there will be reunification.
          The  record  supports  the courts findings  and  order.
Extending custody to permit a gradual reunification and to  avoid
the  emotional  trauma that can result from immediate  transition
may be in the childs best interests.38  In another case concerning
an  Indian child, we concluded the superior court did not err  by
extending custody where the GAL stated that doing so was  in  the
childs  best  interests, and where the social  worker  explicitly
          stated in the petition for extension that returning the child to
her mother without a gradual reunification process . . . would be
likely to cause emotional damage to the child.39
          Here,  the  GAL stated in her report that  [a]n  abrupt
return  home  is seen as potentially damaging and not  clinically
sound.   She  recommended [a] gradual increase in to  [Danielles]
full  time  care . . . to provide [Danielle] with more  parenting
experience  . . . as well as providing the family with  stability
and  clinical  support.  She reported that the  familys  clinical
treatment team proposed a six-month transition plan. The GAL also
told  the court if you rush [reunification], this is going to  be
detrimental and not be a success, [t]he child is not  ready,  and
returning Roberta to Danielle immediately would harm this family.
The  OCS social worker agreed.  And although the family therapist
stated she had observed positive interaction between Danielle and
Roberta,  she  recommended that visits continue to increase,  not
that Roberta be returned to Danielle immediately.
          This  evidence, viewed in the light most  favorable  to
OCS,  more  than  adequately supports  the  courts  finding  that
extending  custody  to  permit  a gradual  reunification  was  in
Robertas best interests.
     C.   The  Superior  Court  Must Inquire into  and  Determine
          Whether  OCS Is Making Active Efforts Under  CINA  Rule
          10.1(b) Before It Extends OCSs Custody of a Child.
          
          Danielle  contends  that  Alaskas  CINA  Rule   10.1(b)
requires  the  superior court to determine whether  OCS  complied
with  ICWAs  placement and active efforts requirements  under  25
U.S.C.   1915(b) and 1912(d), respectively, before it may  extend
OCSs  custody of an Indian child.  She claims the court erred  in
issuing the December 2008 order extending custody without  making
placement or active efforts findings.  OCS concedes that if  CINA
Rule   10.1(b)  requires  superior  courts  to  make  these  ICWA
findings,  the superior court erred by extending custody  without
making  them.   But  OCS argues reversal is not required  because
CINA  Rule  10.1(b)(2) provides that a finding  that  these  ICWA
requirements  have  not been met is not in itself  a  ground  for
restoring the child to the parent.40  Alternatively, OCS urges us
to remand so the superior court can make any necessary findings.
          CINA Rule 10.1 sets forth the requirements for ordering
out-of-home   placements.   Subsection  (b)  applies   to   cases
involving Indian children.  It states:
          (1)  Findings.  At each hearing at which  the
          court is authorizing an Indian childs removal
          from the childs parent . . . or continuing  a
          previous order authorizing removal, the court
          shall inquire into and determine:
          (A)  whether the Department has complied with
          the   placement  requirements  of  25  U.S.C.
          1915(b) and
          (B) whether active efforts have been made  to
          provide  remedial services and rehabilitative
          programs    as   required   by   25    U.S.C.
          1912(d).[41]


          This  rule  applies when a court continues  a  previous
order  authorizing  removal; therefore,  it  applies  to  custody
extensions.  The rule requires the superior court to inquire into
and  determine whether OCS has complied with ICWAs placement  and
active efforts requirements each time the court addresses custody
extensions.
          It  is uncontested that the superior court extended OCS
custody in this case without addressing ICWAs placement or active
efforts  requirements.   Because the  court  did  not  make  this
inquiry or determination, we must remand.42
          In  Danielle  A., we concluded that the courts  finding
that  active efforts had not been made did not require  reversing
the  order extending OCSs custody of Roberta.43  In reaching that
result,  we  relied on CINA Rule 10.1(b)(2), which make[s]  clear
that  a finding that the [active efforts] requirements . . . have
not been met is not in itself a ground for restoring the child to
the  parent . . . or dismissing the petition. 44  In this appeal,
the court made no active efforts findings.  It is the absence  of
any  inquiry  into  whether OCS was making  active  efforts  that
requires remand.
          Robertas case illustrates the importance of making this
inquiry:  she  has  been in OCSs custody for over  four  years.45
Since the court denied the petition to terminate parental rights,
OCS has presented the court with evidence of the difficulties  it
has  encountered  in  trying  to reunify  Roberta  and  Danielle,
difficulties that have required it to seek custody extensions and
that have delayed achieving permanency.  The inquiry required  by
CINA Rule 10.1(b)(2) gives the court an important opportunity  to
discover  why reunification has not been achieved.  When  OCS  is
making active efforts and reunification is significantly delayed,
the permanency goal may need to be revisited.  When reunification
is  not  occurring because OCS is not making active efforts,  the
court  may  direct  an appropriate response.    Either  way,  the
findings  required by CINA Rule 10.1(b)(2) provide  an  important
check  on the reunification process to insure that permanency  is
achieved as soon as possible.
          Although  we  emphasize the importance of  making  this
inquiry  and  determination, our holding  does  not  require  the
immediate return of Roberta to Danielles custody.  On remand, the
superior  court must make the inquiry and determination  required
by CINA Rule 10.1(b)(2) on an expedited basis.46
 V.  CONCLUSION
          The  superior  court was not required to  make  removal
findings  to  extend OCS custody.  We AFFIRM the  courts  finding
that  Roberta remains a child in need of aid.  We REMAND  to  the
superior  court for the active efforts finding required  by  CINA
Rule 10.1(b).

     
_______________________________
     1     Danielle  A. v. State, Dept of Health &  Soc.  Servs.,
Office  of  Childrens Servs., Mem. Op. & J.  No.  1339,  2009  WL
1140442,  at  *1  (Alaska,  Apr.  29,  2009).   A  more  complete
discussion  of the facts pertaining to Danielles case appears  in
Danielle  A.,  2009  WL  1140442, at *1.  We  use  pseudonyms  to
protect the parties privacy.

     2    Id.

     3    Id.

     4    Id.

     5    Id.

     6    Id.

     7     Under AS 47.10.011, the court may find a child to be a
child  in  need  of  aid  if it finds by a preponderance  of  the
evidence   that   any  of  twelve  conditions  exist,   including
abandonment,  per  subsection (1); substantial physical  harm  or
substantial  risk  of substantial physical harm,  per  subsection
(6); and neglect, per subsection (9).

     8    Danielle A., 2009 WL 1140442, at *1.

     9    Id.

     10    Id.

     11    Id.

     12    Id. (internal quotation marks omitted).

          CINA   Rule   10.1(b)(2),  dealing   with   out-of-home
placements of Indian children, provides:

          Effect  of  a Finding that Requirements  Have
          Not Been Met. A finding that the requirements
          of  25  U.S.C.  1912(d) [active  efforts]  or
          1915(b)  [placement  requirements]  have  not
          been  met  is  not  in itself  a  ground  for
          restoring the child to the parent .  .  .  or
          dismissing a petition and does not affect the
          courts  ability  to proceed to  adjudication.
          However, the court cannot enter a disposition
          order   if   the   court   finds   that   the
          requirements of 25 U.S.C.  1912(d)  have  not
          been  met.  In those circumstances, the court
          must  postpone  disposition until  the  court
          finds that active efforts have been made.  On
          motion  of a party . . . the court may  order
          the  Department  to  comply  with  25  U.S.C.
          1912(d) or 1915(b) within a reasonable  time.
          If  the Department fails to comply with  this
          order,   the  court  may  impose  appropriate
          sanctions.
          
          CINA  Rule  17(c), governing disposition  hearings  and
orders, states, in relevant part:

          If  the  child  has been placed  outside  the
          home,  the  court cannot enter a  disposition
          order  if the court finds . . . (2) in  cases
          involving   an   Indian   child,   that   the
          requirements  of  25 U.S.C.  1912(d)  (active
          efforts)  have not been met.   If  the  court
          finds that the Department has failed to  make
          required  reasonable  efforts  or  that   the
          requirements of 25 U.S.C.  1912(d)  have  not
          been met, the court must postpone entering  a
          disposition order until the court finds  that
          reasonable  efforts  or active  efforts  have
          been  made.   The  child  should  remain   in
          temporary custody pending disposition.
          
     13    Id. at *2.

     14    Id.

     15    Id.

     16    Id. (internal quotation marks omitted).

     17    Id. at *2, *5.

     18    Danielle A., 2009 WL 1140442, at *1, *4-*5.

     19    Id. at *3.

          Under AS 47.10.080(c):

          If  the court finds that the child is a child
          in need of aid, the court shall (1) order the
          child   committed  to  the   department   for
          placement . . . for a period of time  not  to
          exceed  two  years  . .  .  except  that  the
          department  or the childs guardian  ad  litem
          may petition for and the court may grant in a
          hearing    (A)    one-year   extensions    of
          commitment . . . if the extension is  in  the
          best interests of the child.
          
     20    Danielle A., 2009 WL 1140442, at *3.

     21    Id.

     22     In  its  petition  to extend custody,  OCS  described
Danielle   as   being  inconsistent  in  helping   Roberta   with
schoolwork;  failing  to  attend  more  than  one  parent-teacher
conference  in  a  year; denying that Roberta has  fetal  alcohol
syndrome, educational and social delays, and mental health needs;
and  belittling  Roberta.  Additionally,  family  counseling  was
delayed  because  Roberta  initially refused  to  participate  in
counseling  with  [Danielle], and because when counseling  began,
Danielle was very defensive.

     23    On December 26, 2008, the court issued a written order,
effective  December  4,  extending custody  for  six  months  and
providing  written  findings;  it issued  a  corrected  order  on
January  22, 2009 that did not change the dispositive rulings  or
effective date.

     24     Brynna B. v. State, Dept of Health & Soc. Servs.,  88
P.3d 527, 529 (Alaska 2004) (citing A.B. v. State, Dept of Health
& Soc. Servs., 7 P.3d 946, 950 (Alaska 2000)).

     25     Id.  (citing S.S.M. v. State, Dept of Health  &  Soc.
Servs., 3 P.3d 342, 344 (Alaska 2000)).

     26     Carl  N. v. State, Dept of Health & Soc. Servs.,  102
P.3d  932, 935 (Alaska 2004) (citing Sherry R. v. State, Dept  of
Health  &  Soc.  Servs.,  74 P.3d 896, 901  (Alaska  2003)  (CINA
statutes and rules); J.J. v. State, Dept of Health & Soc. Servs.,
38 P.3d 7, 8 (Alaska 2001) (ICWA)).

     27     25  U.S.C.  1912(e) (2006).  In Danielle A., we  said
Danielle  waived  this argument by failing to  raise  it  in  her
opening  brief. See Danielle A. v. State, Dept of Health  &  Soc.
Servs., Office of Childrens Servs., Mem. Op. & J. No. 1339,  2009
WL 1140442, at *4 n.27 (Alaska, Apr. 29, 2009).

     28    See 25 U.S.C.  1912(e) (2006); CINA R. 10(c)(3).

     29    See 25 U.S.C.  1901-1922.

     30     See  Danielle A., 2009 WL 1440442, at *4  (explaining
[t]he  trial  and related [placement] decision [in December  2007
and  June  2008] did not involve Robertas removal from  Danielles
home, as she had long since been removed).

     31     See  AS  47.10.080(c)(1)(A); AS 47.10.083; CINA  Rule
19.2.

     32     See  AS  47.10.080(c)(1)(A); AS 47.10.083; CINA  Rule
19.2.

     33     See  AS  47.10.080(c)(1)(A); AS 47.10.083; CINA  Rule
19.2;   A.H.  v.  State, 779 P.2d 1229, 1233 & n.4 (Alaska  1989)
(concluding  superior  court  did  not  clearly  err  in  finding
returning  children to parents home would result in serious  harm
under  section  1912(e) without explicitly holding  that  section
applied  to the extension of custody); In re A.S., 740 P.2d  432,
433  n.1  (Alaska  1987) (concluding appellant  had  waived  this
argument  by  failing to properly brief or preserve  it);  In  re
D.C.,  715 P.2d 1, 1 (Alaska 1986) (vacating and remanding  order
of  foster care placement of Indian child because court  had  not
issued  written factual findings and expert witness did not  give
the  predictive  testimony required by section 1912(e),  but  not
clarifying  whether  the  issue  was  extension  of  custody   or
removal);  Danielle  A., 2009 WL 1140442,  at  *4  nn.  22  &  27
(concluding mother waived this argument for failure to  raise  it
in her opening brief).

     34    Because we conclude the court was not required to make
section  1912(e)  removal  findings to  extend  OCSs  custody  of
Roberta, we do not reach the parties arguments about whether  the
court made such findings.

     35    AS 47.10.011(9).

     36     A.H. v. State, Dept of Health & Soc. Servs., 10  P.3d
1156, 1161 (Alaska 2000) (quoting D.M. v. State, Div. of Family &
Youth  Servs.,  995 P.2d 205, 209 (Alaska 2000));  see  also  id.
(holding  Indian  child was a child in need of  aid  based  on  a
history  of  neglect and emphasizing AS 47.10.011 uses  the  past
tense, has been subjected to (quoting AS 47.10.011) (emphasis  in
A.H.) (internal quotation marks omitted)).

     37     The  cases  Danielle cites to  support  her  argument
otherwise   are   unpersuasive  because  they  deal   with   CINA
adjudications under the former statute, AS 47.10.010,  which  did
not  use  the  past  tense has been subjected to  and  which  was
amended to include this language in 1998.  See D.M., 995 P.2d  at
207,  208  n.7; V.D. v. State, Dept of Health & Soc. Servs.,  991
P.2d 214, 216 (Alaska 1999); former AS 47.10.010 (1997); ch.  99,
18, SLA 1998.

     38    In re A.S., 740 P.2d 432, 436 (Alaska 1987).

     39    Id.

     40     See  supra  note 12 for the full text  of  CINA  Rule
10.1(b)(2).

     41    CINA Rule 10.1(b)(1).

     42     Because  we  remand, we do not  address  the  parties
arguments as to whether OCS made active efforts.

     43     Danielle  A. v. State, Dept of Health & Soc.  Servs.,
Office  of  Childrens Servs., Mem. Op. & J.  No.  1339,  2009  WL
1140442, at *5 (Alaska, Apr. 29, 2009).

     44    Id.  (quoting CINA Rule 10.1(b)(2)) (second alteration
in Danielle A.).

     45    Danielle A., 2009 WL 1140442, at *1.

     46     The courts June 2008 order includes the finding  that
OCS  complied with ICWAs placement requirements, and  the  record
does  not  indicate  that   Robertas  foster  home  has  changed.
Therefore,  we  do not remand for a determination  of  compliance
with ICWAs placement requirements.

          Danielle failed to brief the other arguments she  lists
in her supplemental points on appeal, so we consider those points
waived.  Washington Ins. Guar. Assn v. Ramsey, 922 P.2d 237,  247
n.29 (Alaska 1996).

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