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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dashiell R. v. State, Dept. of Health & Social Services, Office of Children's Services (12/31/2009) sp-6447

Dashiell R. v. State, Dept. of Health & Social Services, Office of Children's Services (12/31/2009) sp-6447

     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

DASHIELL R., )
) Supreme Court No. S- 13447
Appellant, )
) Superior Court No.
v. ) 1JU-06-102/103 CP
)
STATE OF ALASKA, DEPART- )
MENT OF HEALTH AND SOCIAL )
SERVICES, OFFICE OF )
CHILDRENS SERVICES, ) O P I N I O N
)
Appellee. ) No. 6447 - December 31, 2009
)
          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Patricia A. Collins, Judge.

          Appearances:  Anthony  M.  Sholty,   Faulkner
          Banfield,   P.C.,  Juneau,   for   Appellant.
          Michael   G.  Hotchkin,  Assistant   Attorney
          General  and  Daniel  S.  Sullivan,  Attorney
          General,  Anchorage,  for  Appellee.   Dianne
          Olsen, Law Office of Dianne Olson, Anchorage,
          for Guardian ad Litem Janine Reep.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree,  and Christen, Justices.  [Eastaugh,
          Justice, not participating.]

          CARPENETI, Chief Justice.

I.   INTRODUCTION
          I.    Following trial, the superior court terminated an
incarcerated fathers parental rights.  He appeals, claiming error
in  four of the superior courts findings: that he did not  remedy
the conditions causing harm to the children; that he did not make
adequate  provisions for the children during  his  incarceration;
that  the  state made active efforts to keep the family together;
and that termination is in the childrens best interests.  Because
abundant evidence supported the superior courts findings that the
conditions  causing  harm to the children remain  unremedied  and
that  termination  of parental rights is in  the  childrens  best
interests,  we affirm those findings by the superior court.   Our
holding  that the conditions causing harm to the children  remain
unremedied makes it unnecessary to decide whether the father made
adequate  provisions for his children during  his  incarceration.
And because the superior court properly considered the efforts of
both  the  Office  of Childrens Services and  the  Department  of
Corrections,  we conclude that the court did not err  in  finding
that the state made active efforts in this case.  Accordingly, we
affirm  the  superior  courts decision  terminating  the  fathers
parental rights.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Dashiell  R. is the biological father of Jules  S.  and
Sameera  R.1  Summer S. is the biological mother of both children
and  has previously relinquished parental rights.  Summer  is  of
Tlingit  descent,  and thus the Indian Child Welfare  Act  (ICWA)
applies to this case.2
          Jules,  now  eight years old, was born  in  June  2001.
Sameera,  now  four,  was born in January  2005.   Currently  the
children  reside in Washington state with Dashiells parents,  the
Rameros.
          Dashiell  is  incarcerated, serving sentences  for  two
counts  of  perjury, one count of solicitation to tamper  with  a
witness  in  the  first  degree, and three counts  of  misconduct
involving a controlled substance in the third degree.  Because of
an   extensive   criminal  history  involving  twenty-six   prior
misdemeanor and two prior felony convictions,3 he was  sentenced,
as a worst offender,  to twelve years in jail with release at the
earliest  in  2013.   Appeals  of  his  current  convictions  are
pending.
          Dashiell also spent significant time in jail before his
current incarceration began.  Dashiells criminal history includes
several  domestic  assault charges.  Among  those,  Dashiell  was
sentenced  for domestic violence in 2001 for choking a  woman  he
was  involved with (not Summer) and again in 2003, regarding  the
same  woman.  In between those instances, he was arrested  for  a
domestic violence assault of Summer in June of 2002.  In February
of  2003  Summers caseworker reported to the police that Dashiell
had  beaten Summer.  Although it was not demonstrated  that  this
behavior  was in front of the children, the superior court  heard
expert testimony that, based on this history, the children  would
be at risk of harm if returned to Dashiell.
          The  State  of Alaska, Department of Health and  Social
Services,  Office  of  Childrens Services (OCS)  and  the  Juneau
Police  Department also received several reports of harm  to  the
children, most involving Dashiell.  In March 2002 the police were
called  because Dashiell and Summer were arguing about who  nine-
month-old Jules should be with. A week later Dashiell called  the
          police to say that Jules was placed in a closed closet in his car
seat  for  an  extended period of time while Summer was  high  on
drugs.   Another  report  that month alleged  that  Dashiell  was
intoxicated and verbally abusive to Summer.  Later in  2002,  OCS
substantiated an allegation that Dashiell and Summer  had  minors
over  for parties and drinking in their home, and OCS received  a
report  of substance abuse by both parents.  The record indicates
that Jules and Sameera were present during most of this behavior.
For  a  period  in 2003, Summer cared for Jules  under  a  safety
agreement  with OCS, stipulating that she would not  leave  Jules
in Dashiells care.
          OCS  received two more reports of harm in  2004  before
Dashiell  was incarcerated.  The first alleged that  Summer  left
Jules  with  Dashiell  in violation of a protective  order.   The
second  alleged that the parents locked Jules in a  closet  while
they used cocaine, and that Summer left Jules with Dashiell,  who
neglected  him,  as evidenced by a severe diaper rash.   Dashiell
testified  he  never used cocaine with Summer and that  he  never
locked  Jules  in a closet.  The superior court  found  that  the
report  of  cocaine use and locking the child  in  a  closet  was
unconfirmed, but that the allegation of neglect was confirmed.
            Dashiell  claimed  that  while  not  incarcerated  he
actively participated in raising Jules and that Jules spent  most
of  his  time  with him.  Jules (and eventually Sameera)  visited
Dashiell regularly in prison while Dashiell was incarcerated near
the  children,  before beginning his current sentence.   Dashiell
also stated that he checked in with Juless preschool teacher when
he  could.   Early in his incarceration Dashiell became concerned
with  the  care  Summer was providing their  children,  and  made
frequent  calls to OCS  so many that he claims he was disciplined
by the prison for the repeated contact.  In January 2006 he wrote
OCS a letter detailing his concerns and requesting that Jules  be
removed from Summers care.
          OCS received several reports of harm concerning Summers
behavior,  including allegations of neglect, lack of  supervision
of  the  children, and substance abuse. OCS removed the  children
from  Summers care in 2006.  After the removal, the children were
placed  in  at least five foster homes, then with their  maternal
grandmother, and then back with Summer.
          While attempting to keep the children with Summer,  OCS
prepared  case  plans  for  the family,  listing  Dashiell  as  a
participant, but not requiring anything of him.  However, OCS had
phone  conversations with Dashiell and he participated in reviews
of  the  plans.   Also, OCS case workers monitored  the  programs
Dashiell  received  in prison, consulted with  Dashiell  and  the
prison   officials,  and  encouraged  Dashiell  to  take  certain
programs  while  incarcerated.   Dashiell  has  participated   in
several   remedial   programs  offered  by  the   Department   of
Corrections.
          OCS  ultimately removed the children from their  mother
permanently  on October 3, 2007, and placed them in  foster  care
again.   In  November or December of 2007 Dashiell contacted  his
parents,  the Rameros, and left them a voice mail about  assuming
care  for  the children.  The Rameros contacted OCS, visited  the
children,  and eventually assumed care of the children on  August
8, 2008.
          Once   the   children  were  with  the   Rameros,   OCS
facilitated exchanges of mail between the children and  Dashiell.
According to OCS this was a partial failure because the  children
wrote Dashiell but he did not respond.
          During  Dashiells  incarceration OCS  also  facilitated
contact  between  Dashiell  and  the  children  in  the  form  of
telephone visits.  Although the notes are incomplete, it  appears
that approximately seven visits occurred, the first one occurring
in  February  2008.   Once  the children  were  placed  with  the
Romeros, OCS cancelled several of the monthly visits because  the
agency  felt it necessary to have the children focus  on  bonding
with  the  Rameros.  For the calls that did occur,  OCS  hired  a
therapist to talk with the children after the calls.  One of  the
calls  ended  with  Dashiell frustrated and  hanging  up  on  the
children.   Other  calls  similarly resulted  in  Dashiell  being
frustrated or rais[ing] his voice . . . in a demanding way.   The
childrens responses include being really scared, running  in  and
out  of  the room, wetting their pants, and in the case  of  then
seven-year-old  Jules,  sucking  his  thumb,  talking  about  not
wanting to live anymore, and hiding behind a bookcase.
          Indeed,  the childrens mental states have been  heavily
documented in this proceeding.  As of now, the children have been
in  seven different foster placements. They were both exposed  to
prenatal  alcohol  or drug use, and Sameera tested  positive  for
cocaine   at   sixteen   months.   Both   children   are   behind
developmental   guidelines,  have  significant  difficulty   with
self-regulation  and conflict resolution and are  hyper-vigilant.
Jules has been known to hit himself in the head while complaining
Im stupid or I don't do anything right.   Both are statements his
mother   reportedly  made to him.  Psychological  evaluations  in
January  2008 diagnosed Jules with disruptive behavior  disorder;
acute  adjustment disorder; enuresis; academic problems; clinical
levels   of   anxiety,   depression,  and  aggression;   elevated
hyperactivity;  and somatization.  During the  evaluation,  Jules
frequently  reverted to sucking his thumb.  At these evaluations,
Juless  care giver (the foster parent)  reported that  Jules  has
extreme  mood  swings, frustrates easily,  is  very  anxious  and
sometimes hits himself.  The care giver also reported that  Jules
sometimes  states he wishes he were dead.  Juless meltdowns  were
described  thus:   [H]ell  be hitting himself,  hell  be  yelling
things  like,  go ahead and kill me . . . .  Nonetheless,  Juless
intellectual  and academic functioning are in the  average  range
and  he  performed well in language comprehension.   Indeed,  the
care  giver reported that Jules is creative and for the most part
gets along with his other siblings.
          A  more recent psychological evaluation in January 2009
of  then  seven-year-old Jules concluded that he  functions  more
like  a  toddler  in  his  self-regulation  and  social-emotional
skills.    The   evaluation   also  noted   aggressive/disruptive
behaviors  and  poor anger control, disruption  in  basic  bodily
functions, decreased ability to be aware of social and  emotional
cues, and delay in social-emotional skills, among other issues.
          Sameera, the younger child, was also evaluated in 2008.
She   was   diagnosed  with  static  encephalopathy,4  depressive
disorder, severe receptive language disorder, mild gross and fine
motor  delays, and significant sensory processing and  modulation
challenges.   According to the report, her  intellectual  ability
appears  normal,  but  she  has  difficulties  in  verbally-based
learning and in expressive/receptive language use. . . . [S]he is
easily  overwhelmed,  confused,  and  frustrated.   Her  problem-
solving  and  coping  skills are lagging .  .  .  and  she  often
responds . . . with irritability, withdrawal, [and] aggression  .
.  . .  A separate psychologist found her emotionally volatileand
prone  to frequent tantrums. The psychologist found Sameera quite
delayed  in  social-emotional  and  self-regulation  skills   and
asserted  that  four-year-old Sameera appears to  be  functioning
more  like  a  18-24-month-old toddler.  The  psychologist  noted
behavior consistent with traumatic experiences in the early  very
critical  years of development and possible prenatal exposure  to
alcohol.
          Mr. Ramero, Dashiells father, testified  extensively at
trial.  The  Rameros  currently care for the children  and  favor
having  permanent  custody in order to retain responsibility  for
the  children  in the event Dashiell is released.   However,  Mr.
Ramero  conceded he would care for the children even if  he  were
not  granted permanent custody. Mr. Rameros testimony  repeatedly
reflected on the emotional state and progress of the children.  A
psychologist evaluating the children described the placement with
the  Rameros as a stable . . . positive, nurturing and supportive
home  for the children.  The children relate to the Rameros in  a
very  positive,  affectionate, loving way.   The  superior  court
found  the  Rameros to have significant experience  working  with
children with special needs and found the placement to have  real
promise  of  a  stable home meeting the childrens  special  needs
while still allowing a relationship with the biological parents.
     B.   Proceedings
          On   November  22,  2006,  OCS  filed  a  Petition  for
Adjudication  of  Children  in Need  of  Aid  and  for  Temporary
Custody.   Following  the  adjudication hearing,  Superior  Court
Judge Patricia A. Collins granted  the petition on April 5, 2007.
          In  January  2008  Dashiell petitioned  the  court  for
telephone and mail communication with the children.  Finding that
he  had  made  a  prima facie case that the State has  failed  to
provide  reasonable,  let  alone active,  efforts  at  reasonable
visitation  or parent-child contact, Judge Collins  directed  the
state  to create a case plan.  OCS created a plan dated September
2008.   Although  prior  case  plans had  not  involved  Dashiell
specifically,  the September 8 plan concluded  he  had  not  made
progress on his plan.
          Even  before the September 8, 2008 plan, OCS filed  the
petition for termination of parental rights on June 3, 2008.  The
superior  court held a trial January 27-28, 2009, and issued  its
order  terminating Dashiells parental rights on February 2, 2009.
The  court  found the children in need of aid as  defined  in  AS
47.10.011   subsections   (2),   (6),   (8),   (9),   and   (10).
Independently,  the  court  also found  termination  of  parental
          rights to be justified based on Dashiells incarceration, per AS
47.10.080(o).   The  superior court  then  found  that  continued
custody  by Dashiell  would likely cause the children harm;  that
the  state had made active efforts to prevent the breakup of  the
family, in accord with the federal Indian Child Welfare Act;  and
that  termination  of parental rights is in  the  childrens  best
interests.
           Dashiell appeals.
III. STANDARD OF REVIEW
          We  apply the clearly erroneous standard when reviewing
the  factual  findings supporting the termination  of  a  parents
right  to  raise  his  or her children.5  A  finding  is  clearly
erroneous  when a review of the entire record leaves  this  court
with  a definite and firm conviction that the superior court  has
made  a  mistake. 6 In determining whether a finding  is  clearly
erroneous, we have stated that we view the evidence in the  light
most favorable to the party prevailing below.7
          The  question  of whether the state has  complied  with
ICWAs  active efforts requirement is a mixed question of law  and
fact.8   Accordingly, we review the legal issues de  novo,  while
reviewing the factual determinations for clear error.9
IV.  DISCUSSION
          I.   The procedures for terminating parental rights are set out
in  Alaska  Child in Need of Aid Rule 18.  Those  procedures  are
primarily governed by Alaska statutes but also, in the case of an
Indian  child, include federal requirements under ICWA.10   There
are four main procedural steps.
          The  first step has two alternative tracks, the  latter
applicable when a parent is incarcerated.11 In the typical  case,
the  state must prove by clear and convincing evidence  that  the
child  has  been  subjected to conduct  or  conditions  described
in  AS  47.10.011.12   That  statute  enumerates  twelve  grounds
relevant to the childs welfare, including the incarceration of  a
parent,13 on which a court may find a child to be in need of aid.
The  state  also must show that the parent has failed  to  remedy
those  conditions  or conduct.14  However,  in  the  case  of  an
incarcerated  parent, the state may instead  show  (1)  that  the
period of incarceration during the childs minority is significant
given  the  childs  age and needs, (2) that no  other  parent  is
willing  and  able  to  care for the  child,  and  (3)  that  the
incarcerated  parent failed to make adequate provisions  for  the
childs care.15
          The  second step is also bifurcated, here according  to
whether the child is Indian.16  Generally, the state must prove by
clear and convincing evidence that it made reasonable efforts  to
provide  family support services designed to keep the child  with
his  or  her parents.17  However, in the case of an Indian child,
ICWA  requires  the  state to make active  efforts  at  providing
remedial and rehabilitative programs to keep the family together.18
Although  Alaska statutes make an exception in some  cases  where
the  parent is incarcerated (in which case reasonable efforts are
not  required),19  ICWA has no exception for  incarceration,  and
requires active efforts even when a parent is incarcerated.20
          Third,  the state must show by a preponderance  of  the
          evidence that termination of parental rights is in the best
interests of the child.21
          Fourth and finally, in the case of an Indian child, the
state must prove by evidence beyond a reasonable doubt, including
by  expert testimony, that continued custody of the child by  the
parent  or  Indian  custodian  is likely  to  result  in  serious
emotional or physical damage to the child.22
          Dashiell  appeals four of the superior courts findings.
He claims that the superior court erred (1) in finding unremedied
the conditions that caused harm to the children (step one above),
(2)  in  finding  he  had not made adequate  provisions  for  the
childrens  care  during  his incarceration  (alternate  step  one
above), (3) in finding that the state made reasonable efforts  to
reunify   the  family  (step  two  above),  and  (4)  in  finding
termination  of Dashiells parental rights to be in the  childrens
best interests (step three above).
          Dashiells  first  two points attack, respectively,  the
two  alternate  paths of CINA Rule 18s first step.   As  detailed
above,  before a court may terminate parental rights,  the  state
must prove either that unremedied conditions harmful to the child
exist  or  that an incarcerated parent made inadequate provisions
for  the child during the parents incarceration.  Because we find
no  merit  in  Dashiells first claim, and  therefore  affirm  the
superior  courts  finding  that  the  harmful  conditions  remain
unremedied,  we  do  not reach his second  claim,  that  he  made
adequate provisions for the children.  Accordingly, the following
discussion addresses in turn Dashiells three remaining claims  on
appeal.
     A.   The Superior Court Did Not Err in Finding that Dashiell Had
          Not Remedied the Conditions Causing Harm to the Children.
          A.   Dashiell contends the superior court erred in finding that
the  conditions  harmful  to his children  were  unremedied.   He
claims  that the majority of the harmful conditions were  due  to
the  childrens mother and that, for his part, he has enrolled  in
many  remedial programs while in prison.  We review the  superior
courts findings of fact for clear error.23
          As  Dashiell points out, the record indicates that  the
childrens  mother was responsible for many conditions harmful  to
the  children.  The record also indicates that Dashiell  actively
urged  OCS  to  remove one child, Jules, from the  mothers  care.
Similarly,  the  record shows that Dashiell enrolled  in  several
programs while incarcerated.
          However, these facts alone do not clearly show that the
superior court erred.  The superior court must consider the whole
picture  when deciding whether a parent has remedied the  conduct
or conditions posing harm to the children:
          (b)  In making a determination . . . the
          court 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 childs
               age or needs;
               (2)  the  amount of effort  by  the
               parent to remedy the conduct or the
               conditions in the home;
               (3) the harm caused to the child;
               (4) the likelihood that the harmful
               conduct will continue; and
               (5)  the history of conduct  by  or
               conditions    created    by     the
               parent.[24]
In  the present case, Judge Collins looked at all of the relevant
factors  under  these rules and concluded that  the  conduct  and
conditions had not been remedied.  Dashiells contentions, even if
fully  credited,  do not establish clear error  by  the  superior
court.
          First,  Judge  Collins  was  aware  that  many  of  the
conditions  were  due to the mother, but nonetheless  found  many
important  conditions were attributable to Dashiell and  remained
unremedied.  Indeed, as a result of Dashiells conduct,  the court
found  the  children  to be in need of aid  under  five  separate
statutory  subsections.   The court also  detailed  his  domestic
violence    history,   his   criminal   history,   his    current
incarceration, and the reports (both confirmed and unconfirmed  )
of  his  neglect  of  his children.  The court  then  found  that
Dashiell had not remedied the conditions that caused so much harm
to  these  children and places them at such great risk of  future
serious  physical  and mental injury.  This was  consistent  with
expert  testimony that the children would be at risk of  harm  if
returned  to Dashiell.  Accordingly, the superior court was  well
aware  that  some  conditions were the result  of  the  childrens
mother,  but  nonetheless found Dashiells conduct  sufficient  to
support termination.
          Second,  Dashiell  is simply wrong in  asserting  that,
because he attended programs in prison, the state could not prove
by clear and convincing evidence that the conditions arising from
his behavior are unremedied. The court credited Dashiell with the
many  programs he has availed himself of while incarcerated,  but
stated that given the depth and breadth of his problems, they can
not  be  expected  to be immediately cured upon  release.  Alaska
Statute  47.10.088(b)  allows the court to consider  the  parents
history of conduct and the likelihood that it will continue.25  In
making  its findings, the court relied upon expert testimony  and
several  empirical indicators.  For example, the outcome  of  the
phone visits between Dashiell and the children was not favorable.
The  childrens  responses  to  the  conversations  with  Dashiell
include  being  really scared, running in and out  of  the  room,
wetting  their  pants,  and in the case  of  then  seven-year-old
Jules,  sucking  his  thumb, talking about not  wanting  to  live
anymore,  and  hiding  behind a bookcase.   The  superior  courts
decision is fully supported by the evidence.           Third, and
finally,  it was not error for the court to base its decision  in
part  on  the  fact  that it was unlikely the children  could  be
returned  to Dashiell in a reasonable time.  The court noted  its
finding is inherent in the fact that [Dashiell] will most  likely
be  in  jail for years to come and unable to parent his children.
          That is a proper consideration under AS 47.10.088(b)(1)26 and goes
unaddressed by Dashiells argument concerning his prison programs.
Indeed,  the  court pointed out that stability and permanency  is
crucial  to  the  childrens  health.  The  uncertainty  regarding
Dashiells  release  and  theoretical  ability  to  parent  is   a
component of the ongoing harm facing the children.  Regardless of
the prison programs he enrolled in, the court found that Dashiell
will  most likely be incarcerated for the next four to nine years
a  crucial  period  in  the childrens minority.   The  court  was
concerned  that  the  threat of impermanency  and  the  potential
return  to  Dashiell  are themselves harmful conditions  for  the
childrens mental state.  In light of these concerns noted by  the
superior court, its finding is not clearly erroneous.
          In  conclusion, the issues raised by Dashiell on appeal
were  explicitly addressed by the superior court.  Relying  on  a
comprehensive record, the court nonetheless found unremedied  the
conduct  and conditions posing harm to the children.  The  courts
finding under AS 47.10.088 is well supported by the evidence  and
Dashiell has not shown clear error.
     B.   The Superior Court Did Not Err in Finding that OCS Met Its
          Duty of Making Active Efforts To Reunify the Family.
          A.   Dashiell contends the superior courts finding of active
efforts is clear error.27  He points to several problems with the
states  efforts.   First, despite Dashiells requests,  the  state
allegedly failed to facilitate communication between him and  the
children for the majority of his incarceration, at which time the
state was only targeting
its  efforts  at  the  childrens mother.  Second,  OCS  allegedly
failed to create a case plan for Dashiell until almost two  years
after  OCS  assumed custody of the children.  He further  alleges
that  plan  is a sham because it was created after OCS  initiated
proceedings to terminate parental rights.  Third, Dashiell argues
that  the  efforts OCS ultimately took were insufficient  because
they were not comprehensively aimed at reuniting the family,  and
were only undertaken half-heartedly.
          The  superior courts discussion of active  efforts  was
comprised  of a brief analysis and did not parse the  meaning  of
active  efforts.   The opinion noted, however,  that  the  states
efforts  were heavily oriented towards the mother, that Dashiells
incarceration impacted the efforts the state could make, and that
the  state  made efforts at visitation and written communication,
albeit  imperfectly.  Elsewhere in the opinion, the  court  noted
the  programs that were made available to Dashiell while  he  was
incarcerated and in which he enrolled.
          As discussed above, we review active efforts under ICWA
as  a  mixed  question  of fact and law, reviewing  the  superior
courts factual findings for clear error, and the legal issues  de
novo.28
          Pursuant  to ICWA and the second step of CINA Rule  18,
the  state must make  active efforts at family reunification when
Indian  children are involved.29  ICWAs precise language requires
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.30 As opposed to passive efforts such as simply
developing  a  plan  for  the parent to  follow,  active  efforts
require  that  the  state actually help the  parent  develop  the
skills  required  to  keep  custody of the  children.31  This  is
required  even  if  the  parent is incarcerated,  although  [t]he
circumstances  surrounding  a parens  incarceration  may  have  a
direct  bearing  on what active remedial efforts are  possible.32
These   circumstances  include  the  duration  of   the   parents
incarceration and the services possible for incarcerated parents.33
Moreover, an analysis of the states active efforts is not limited
to  efforts  by  OCS;  programs  offered  by  the  Department  of
Corrections are also considered part of the states efforts.34
          Dashiell  has not demonstrated that the superior  court
erred  in  finding that the state made active efforts.  Dashiells
argument,  that his plan did not come about until too  late,  and
therefore  was  a  sham, is unconvincing  because  it  views  the
September  8,  2008, plan without considering  the  states  other
efforts.   Indeed,  the  superior  courts  discussion  of  active
efforts  never  mentioned the September 2008  plan.   The  record
before the court was replete with other state efforts, including:
$    the  state made undisputedly extensive efforts to  keep  the
     children with their mother during Dashiells incarceration;
$    the Department of Corrections offered several programs,
including classes in parenting, anger management, domestic
violence, and therapeutic counseling  and Dashiell indeed
enrolled in them;
$    OCS staff communicated with Dashiell during his
incarceration regarding the childrens status, and communicated
with him and prison staff regarding prison  programs for
Dashiell; and
$    OCS arranged for written exchanges and telephone visits
between Dashiell and the children.
$     In  light of this record, the superior court had  a  strong
basis  for  its  conclusion that the state  made  active  efforts
targeted  at  keeping  the family together.   The  many  programs
Department  of  Corrections provided to Dashiell are  a  relevant
component of the states services.35  Moreover, there is  evidence
that  counselors from OCS worked with Dashiell and  prison  staff
regularly long before the September 2008 plan came about, and, as
admitted  in  Dashiells briefing, Dashiell anticipated  the  case
plan and acted on it well in advance.
          Further,  a  court  may take into  account  the  limits
imposed  by  a  parents   incarceration  or  the  length  of  his
sentence.36  Given that the superior court found the children were
in  need  of  stability, continuity, and safety,  the  court  was
correct,  in assessing the active efforts by the state,  to  take
into account Dashiells sentence.
          Finally,  the superior court was correct  to  point  to
efforts OCS made regarding the mother.  Again, the states efforts
to  keep the Indian family together were more comprehensive  than
just  the  September 8, 2008, case plan.  In this case,  had  the
children  been  able  to  stay  with  the  mother,  who  was  not
incarcerated,  there is no indication Dashiells  parental  rights
would have been terminated, because there would have been no need
          for the children to be placed elsewhere.  As the superior court
noted    and  Dashiell  does  not  contest   the  states  efforts
regarding the mother were very active.  We view these efforts  as
an  important  aspect of the states active efforts  to  keep  the
family together.
          In  sum,  the superior court did not err in  concluding
that the state made active and ultimately unsuccessful efforts to
reunify the family.
     A.   The  Superior  Court  Did Not Err in  Determining  that
          Termination of Dashiells Parental Rights Was in the Childrens
          Best Interests.
          Dashiell  appeals  as clear error the  superior  courts
finding  that  termination  of his parental  rights  was  in  the
childrens best interests.
          Before  terminating parental rights, a  superior  court
must  find  termination to be in the childs best interests  by  a
preponderance of the evidence.37  We  review such a  finding  for
clear error.38
          In  a brief discussion, Judge Collins found termination
of  parental rights to be in the best interests of the  children.
The  court  found  the  Rameros  to  be  exceptionally  qualified
parents,  particularly  with respect  to  children  with  special
needs.  The court then concluded that the current situation shows
promise for a stable home for the duration of Juless and Sameeras
childhoods,  and  may  even  allow the  children  to  know  their
biological parents.  The court also noted the childrens need  for
stability and permanency, and that continued custody by  Dashiell
is likely to cause serious harm to the children.
          Dashiell raises two specific contentions.  First,  that
the  children will remain with the Rameros regardless of  whether
Dashiells parental rights are terminated. Second, that if  he  is
not  released  from  jail imminently, he would  not  contest  the
Rameros  eventual adoption of the children.  These  arguments  do
not establish clear error.
          Both arguments are unpersuasive because the court found
the  need for a permanent, stable relationship now.  Even  though
the  Rameros  would  still  care for  the  children  if  Dashiell
retained parental rights, the childrens future would be  in  flux
depending on the incarceration and progress of Dashiell.  And the
court  was  extraordinarily  wary  of  Dashiells  prospects   for
success.  In other words, the court found that the children right
now  need  a  home where they have an ongoing sense of permanence
and  security,  and can bond with their care giver  during  their
formative years.  The Rameros provide that environment.   If  the
Rameros care were only temporary and the children remain with the
Rameros  now, but under the cloud of continuing uncertainty,  the
childrens need for permanence and security would not be met.
          Moreover, the court specifically found that any  future
custody  by  Dashiell  would risk serious emotional  or  physical
damage  to the children.  His contention that he might  not  take
the  children  until later does not alter the  analysis  on  this
point.
          In light of the superior courts findings,  Dashiell has
not shown that it was clear error to conclude that termination of
          Dashiells parental rights was in the childrens best interests.
V.   CONCLUSION
          Because  the  superior  court properly  considered  the
evidence in its entirety, and that evidence supported the  courts
finding, we AFFIRM its finding that the conditions harmful to the
children  remain unremedied.  Accordingly, we need not reach  the
question  whether  Dashiell  made  adequate  provisions  for  the
children  during  his incarceration.  Additionally,  because  the
active  efforts  the state must make to keep  the  Indian  family
together   are  defined  comprehensively,  and  include  programs
offered  by  both  the  Office  of  Childrens  Services  and  the
Department   of  Corrections,  we  AFFIRM  the  superior   courts
conclusion  that  the state made active efforts  to  reunify  the
family.   Finally,  because there was an adequate  basis  in  the
record  for the superior courts finding that that termination  of
parental  rights is in the childrens best  interests,  we  AFFIRM
the  superior  court on that issue.  Accordingly, we  AFFIRM  the
decision  of  the  superior court terminating Dashiells  parental
rights.

_______________________________
     1    We use pseudonyms to protect the familys privacy.

     2    25 U.S.C.  1912 (2006).

     3     These  include  burglary, domestic  violence  assault,
violating  conditions  of release, drug violations,  and  driving
while intoxicated.

     4     Static  encephalopathy  is  defined  as  permanent  or
unchanging  brain  damage. . . . [It]  can  appear  as  a  single
diagnosis, however, it is often used in conjunction with a  range
of  disabilities . . . .  Minnesota Low Incidence Project, Static
Encephalopathy  http://swsc.schoolwires.net/16331022111121927/lib
/16331022111121927/Static_Encephalpathy_Fact_Sheet.pdf      (last
visited  Nov.  25, 2009).   In Sameeras case, it  was  associated
with fetal alcohol syndrome.

     5     Frank  E.  v.  State, Dept of Health  &  Soc.  Servs.,
Division of Family & Youth Servs., 77 P.3d 715, 717 (Alaska 2003)
(quoting  G.C. v. State Dept of Health & Soc. Servs., Division of
Family & Youth Servs., 67 P.3d 648, 650 (Alaska 2003)).

     6    Id.

     7     Id. (quoting In re J.L.F. & K.W.F., 828 P.2d 166,  170
n.12 (Alaska 1992), overruled on other grounds by In re S.A., 912
P.2d 1235 (Alaska 1996)).

     8    T.F. v. State Dept of Health & Soc. Servs., Division of
Family & Youth Servs., 26 P.3d 1089, 1092 (Alaska 2001).

     9     A.A. v. State, Dept of Family & Youth Servs., 982 P.2d
256, 259 (Alaska 1999).

     10    CINA Rule 18 (referencing requirements in AS 47.10.011,
47.10.080,and   47.10.086; and providing, in the case  of  Indian
children,  protocols that comport with the Indian  Child  Welfare
Act, 25 U.S.C.  1912(d) and (f), (2006)).

     11    CINA Rule 18(c)(1).

     12    Id.

     13    AS 47.10.011(2).

     14     CINA  Rule  18(c)(1)(A)(i)(ii)  (comporting  with  AS
47.10.088(a)(2) and (b)(1)(5)).

     15     CINA  Rule 18(c)(1)(B) (referring to AS 47.10.080(o),
which provides the three prong test).

     16    CINA Rule 18(c)(2).

     17    CINA Rule 18(c)(2)(A) (referring to AS 47.10.086, which
defines reasonable efforts).

     18     CINA  Rule  18(c)(2)(B) (comporting  with  25  U.S.C.
1912(d) (2006)).  The standard of proof provided in CINA Rule  18
is  clear  and  convincing  evidence, although  preponderance  of
evidence appears in some case law.  See, e.g., A.M. v. State [I],
891 P.2d 815, 826 (Alaska 1995), affd on rehearing, A.M. v. State
[II], 945 P.2d 296, 305-06 (Alaska 1997).

     19    AS 47.10.086(c)(10).

     20    See 25 U.S.C.  1912(d).

     21    CINA Rule 18(c)(3) (comporting with AS 47.10.088(c)).

     22      CINA  Rule  18(c)(4)  (comporting  with  25   U.S.C.
1912(f)).

     23     Frank  E.  v.  State, Dept of Health &  Soc.  Servs.,
Division  of  Family  & Youth Servs., 77 P.3d  715,  717  (Alaska
2003).

     24    AS 47.10.088(b).

     25    AS 47.10.088(b)(4), (5).

     26     [T]he likelihood of returning the child to the parent
within a reasonable time based on the childs age or needs[.]   AS
47.10.088(b)(1).

     27    Although the superior court correctly analyzed the case
in  terms  of  federally  mandated active  efforts,  counsel  for
Dashiell  appeals in terms of reasonable efforts,  citing  Alaska
law.   The confusion is somewhat understandable, since the  lower
court  cited  to a decision concerning reasonable  efforts  under
Alaska statutes, not active efforts under the ICWA.

          However,  as  the state points out, active efforts  are
required  in  this case because the childrens mother was  Indian.
See  25  U.S.C.   1912(d)  (2006);  and  CINA  Rule  18(c)(2)(B).
Accordingly, we review the states efforts under that standard.

     28     See  Ben  M. v. State, Dept of Health & Soc.  Servs.,
Office  of  Childrens Servs., 204 P.3d 1013, 1018 (Alaska  2009);
A.A.  v. State, Dept of Family & Youth Servs., 982 P.2d 256,  259
(Alaska 1999).

     29    25 U.S.C.  1912(d) (requiring active efforts).

     30    Id.

     31    A.M. v. State [I], 891 P.2d 815, 827 (Alaska 1995).

     32     Id.   (also stating that [n]either incarceration  nor
doubtful  prospects for rehabilitation will relieve the State  of
its duty under ICWA to make active remedial efforts).

     33    Id.

     34     Frank  E.  v.  State, Dept of Health &  Soc.  Servs.,
Division  of  Family & Youth Servs., 77 P.3d 715, 720-21  (Alaska
2003);  T.F. v. State, Dept of Health & Soc. Servs., Division  of
Family & Youth Servs., 26 P.3d 1089, 1096 (Alaska 2001).

     35    Frank E., 77 P.3d at 720-21; T.F., 26 P.3d at 1096.

     36    A.M. [I], 891 P.2d at 827.

     37    CINA Rule 18(c)(3) (comporting with AS 47.10.088(c)).

     38    Frank E., 77 P.3d at 717.

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