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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. David S. v. State, Dept. of Health & Social Services, Office of Children's Services (12/16/2011) sp-6628

This has been WITHDRAWN - see Opinion # 6647

David S. v. State, Dept. of Health & Social Services, Office of Children's Services (12/16/2011) sp-6628

        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, email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

DAVID S.,                                       ) 
                                                )       Supreme Court Nos. S-13874/14208 
                        Appellant,              )       (Consolidated) 
                                                ) 
        v.                                      )       Superior Court No. 1JU-08-00024 CP 
                                                ) 
STATE OF ALASKA,                                )       O P I N I O N 
DEPARTMENT OF HEALTH &                          ) 
SOCIAL SERVICES, OFFICE OF                      )       No. 6628 - December 16, 2011 
CHILDREN'S SERVICES,                            ) 
                                                ) 
                        Appellee.               ) 
                                                ) 

                Appeal from the Superior Court of the State of Alaska, First 
                Judicial District, Juneau, Philip M. Pallenberg, Judge. 

                Appearances:       Nancy   Driscoll   Stroup,   The   Law   Office   of 
                Nancy   Driscoll   Stroup,   Palmer,   for   Appellant.     Megan   R. 
                Webb, Assistant Attorney General, Anchorage, and John J. 
                Burns,   Attorney      General,   Juneau,   for   Appellee.    Dianne 
                Olsen, Law Office of Dianne Olsen, Anchorage, for Guardian 
                ad Litem. 

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

                FABE, Justice. 

----------------------- Page 2-----------------------

I.     INTRODUCTION
 

               David appeals the termination of his parental rights to his daughter Hannah, 
an Indian child.1 Hannah was taken into the custody of the Office of Children's Services 

(OCS) while David was incarcerated.        David remained in jail for the first 20 months of 

Hannah's life.    David was released from prison and was on parole for five months, 

during which time he had regular visits with Hannah.  David then became a fugitive for 

nine months, before being recaptured and reincarcerated.       While David was a fugitive, 

OCS petitioned for termination of his parental rights, and two months after David was 

returned to prison, the superior court held a termination trial.  The superior court found 

that Hannah was a child in need of aid due to David's abandonment, incarceration, and 

substance abuse.    The superior court also concluded that OCS had engaged in active 

efforts to help David's rehabilitation, as required by the Indian Child Welfare Act, and 

that it was in Hannah's best interests for David's parental rights to be terminated.  David 

appeals,    and  we   affirm  the  superior  court's  ruling  because   OCS    established  all 

requirements necessary for termination. 

               David    also  appeals   the  denial   of  his  post-judgment    Alaska    Civil 

Rule 60(b)(6) motion to set aside the judgment due to ineffective assistance of counsel. 

He argues that his attorney was overly "passive" during trial and did not adequately 

pursue David's goal of placing Hannah with his mother, Claire.  Because David did not 

overcome      the  presumption    that  his  attorney   was   competent,   and   because    the 

complained-of conduct did not affect the outcome of David's trial, we affirm the superior 

court's denial of David's 60(b)(6) motion. 

       1      We use pseudonyms to protect the privacy of those involved. 

                                             -2-                                          6628 

----------------------- Page 3-----------------------

II.     FACTS AND PROCEEDINGS 

                Before   he   turned   18,   David   had   multiple   encounters   with   the   juvenile 
justice system.2   After he turned 18, his criminal troubles continued.  Between 2002 and 

2004, he was convicted of a series of offenses, including driving offenses and forgery. 

David was imprisoned and released on October 31, 2005.               Upon his release, he moved 

in with his mother, Claire, in Juneau. 

                In May 2006 David reported to his probation officer that his girlfriend, 

Diane, was pregnant.        Diane is   a   member   of the Tlingit and Haida tribe; David has 

reported that he is part-Native but is not an official member of any tribe.  In August 2006 

David was arrested for failing to report to his probation officer during the previous 

month.  At the time of his arrest, David was in possession of methamphetamine, but he 

was released and given a court date of August 26.   David failed to appear for that court 

date.   David was arrested again on September 24, 2006, when police responded to a 

report of domestic violence between him and Diane. 

                David and Diane's daughter, Hannah, was born in November 2006.                   Just 

over   two   weeks   after   her   birth,   police   responded   to   a   report   of   domestic   violence 

between David and Diane.          David was detained, and a urine analysis test documented 

marijuana and methamphetamine in his system.  A court date was set for November 28, 

2006, but David failed to appear.         He was arrested at his residence on November 30, 

2006, and on December 6 was charged with possession of methamphetamine.                      Around 

that time, David was also charged with failure to appear. He was sentenced to four years 

        2       The record does not detail the exact number or nature of these encounters. 

Marylee Cassell-Quinto, an employee of the Department of Corrections, testified that 
David had "about" ten charges in his juvenile history. But Cassell-Quinto acknowledged 
that she did "not know the juvenile system well enough" to comment exactly. 

                                                 -3-                                              6628 

----------------------- Page 4-----------------------

of imprisonment with two years suspended on the possession offense and six months of 

imprisonment on the failure to appear charge. 

        A.      2006-2008 Imprisonment And Initial OCS Contact 

                David was imprisoned   from November 30, 2006 until August 7, 2008. 

Although      he  participated    in  RSAT,    a  substance    abuse    treatment   program,     while 

incarcerated, he was written up twice for "incidents of using drugs." 

                OCS assumed custody of Hannah and her half-brother Kevin, Diane's son 

by   another   father,   on   April   4,   2008,   while   David   was   still   incarcerated. OCS   had 

investigated the children's situation on suspicion of "substance abuse and neglect." Late 

at night on March 31, 2008, Diane called OCS, explaining that she had been kicked out 

of her sister's house, and arranged for OCS to take "emergency custody." 

                OCS spoke to the correctional facility holding David on April 28, 2008 to 

set up phone visitation.      There were a total of eight phone visits between David and 

Hannah during David's imprisonment.            At this time, Hannah was "not verbal" and the 

phone visits consisted of David speaking to Hannah, telling Hannah that he loved her, 

and asking how she was doing. 

                OCS adopted a case plan on April 18, 2008.            David signed this plan.  The 

superior   court   held   an   adjudication   hearing   on   June   19,   2008,   during   which   David 

stipulated that Hannah was in need of aid, and the superior court committed Hannah to 

OCS custody on June 23.   A case review was held on June 25.   David was contacted in 

case he wished to attend the review telephonically, but he did not request to do this. 

                The OCS caseworker, Heather Karpstein, spoke to David at Wildwood 

Correctional Center on July 17, 2008.   David stated that he felt that Diane was incapable 

of caring for the children, and that he wanted to "write off [Diane]" once he was released 

from prison.   But David acknowledged that "he and [Diane] are very dependent on each 

                                                 -4-                                            6628
 

----------------------- Page 5-----------------------

other."   Karpstein asked if David wanted to speak to Karpstein again by phone before 

he was released, but David declined. 

        B.      August 2008 Release And OCS Meetings 

                On August 7, 2008, David was released to his sister's residence.                David 

visited with the children for one hour on August 12, and OCS reported that the visit went 

well.   Later that day, Karpstein met with David at OCS offices.                Karpstein collected 

biographical      information    on   David,   and   David    discussed   his  drug   use.  Karpstein 

scheduled monthly checkup meetings with David and talked about the possibility of 

updating the case plan to include weekly visitation with the children and drug screenings. 

A new plan was not actually adopted, but Karpstein testified that "[David] and I did 

speak about what needed to be done."            OCS scheduled two hour-long visits per week 

with Hannah.  David largely attended these visits, making it to 28 of the 33 visits offered 

him.   On August 21, 2008, Karpstein drafted a letter in support of David's attempt to 

secure   housing.    David   was   nevertheless   unable   to   obtain   independent   housing   and 

continued to live with his sister Violet.  In September 2008 Karpstein contacted a Tlingit 

and Haida official to see if David could attend one of their classes on families, but David 

was unable to attend due to work.   He was employed as a cook at a university cafeteria. 

                David was present at the September 18 case review, held six months after 

OCS custody began.         After the meeting ended, Karpstein spoke with David about his 

parenting   issues.    OCS   personnel   told   David   that   three   months   later   they   would   be 

holding a planning conference to discuss whether the goal should remain reunification 

or whether it should be changed to termination. 

                Karpstein next met with David on October 6, 2008 and discussed David's 

inability to obtain independent housing.          David stated that he was attending narcotics 

anonymous       classes,   and   Karpstein    gave   him   a  sheet   to  have  signed   to  prove   his 

attendance at these meetings. 

                                                  -5-                                            6628
 

----------------------- Page 6-----------------------

                On November 3, 2008, David tested positive for methamphetamine on a 

urine analysis test administered as part of his parole supervision.            David confessed to 

having used methamphetamine but was not remanded to prison.  Instead, a curfew was 

imposed, and David was subjected to more frequent urine analysis tests.               OCS paid for 

a substance abuse assessment at Rainforest Recovery Center. 

                Karpstein attempted to call David on November 19, 2008 about setting up 

another meeting, but was unable to reach him until November 24.  They set up a meeting 

for November 28, 2008, at which David admitted to relapsing. He also stated that he had 

been fired from his job.       He claimed that he was attending NA meetings but did not 

produce the attendance sheet Karpstein had given him.  Karpstein and David scheduled 

another meeting for December 19, 2008.            David did not show up for that meeting. 

                In December 2008 David reported to his parole officer that Diane was 

pregnant, and on December 16 David told his parole officer that Diane needed to travel 
out of town and asked for permission to go with her.3   This permission was denied, but 

David   nevertheless   accompanied   Diane   on   her   travel.     On   December   22   Karpstein 

encountered David at the Juneau airport.  She observed David and Diane exiting a plane 

that had originated   in   Seattle and had stopped in Sitka and Ketchikan.              She did not 

attempt   to   speak   to   David,   but   observed   him   and   Diane   board   a   plane   bound   for 

Anchorage. 

        C.      Fugitive Status From January 2009 To September 2009 

                Karpstein attempted to call David on January 6 but his phone had been 

disconnected.     David began to miss reports to his parole officer and did not report a 

change of address.       As a consequence, David was remanded to prison on January 8, 

        3       The record does not confirm whether Diane was in fact pregnant, and the 

record does not discuss any resulting children. 

                                                 -6-                                              6628 

----------------------- Page 7-----------------------

2009.   On January 21 he was released to a halfway house.                He remained at the halfway 

house "[n]o longer than three hours" before fleeing. 

                OCS scheduled   a case review for February 3, 2009, but neither parent 

showed up, and it was rescheduled for February 13.                David did not attend this meeting 

either.    At   the   meeting,   OCS   changed   the   permanency   goal   from   reunification   to 

adoption.  A new case plan was generated on March 19, 2009.   OCS filed a termination 

petition on April 7, 2009. 

                David was next seen in March 2009 in Juneau. An employee at Fred Meyer 

recognized   David,   called   the   police,   and   gave   them   the   license   number   of   the   Ford 

Explorer David had left in.        A police officer went to Diane's residence and found the 

vehicle there.  There were two males in the vehicle.  On the officer's request, the driver 

identified    himself    as  "Sean    Maroney"      but   told  the  officer   he  did   not  have    any 

identification.   The officer asked the driver to step out of the vehicle, but the driver put 

the car into gear and drove off.       The officer ran back to his vehicle, began pursuit, but 

almost immediately saw that the Explorer had stopped and that the driver was fleeing 

down the street.     The officer initially pursued the driver, but because other units were 

arriving on the scene, the officer returned to secure the vehicle.              Using Department of 

Corrections photos, the officer later identified the driver as David. 

                Upon returning to the Ford Explorer, the officer saw the passenger walking 

away from the vehicle carrying a black bag.   The officer pulled up behind the passenger, 

and the passenger threw the bag into a pile of snow where the officer retrieved it. 

                The police began to search the vehicle and, after finding drug paraphernalia, 

obtained      a   search    warrant.     The     bag    was    searched     and    found     to  contain 

methamphetamine and drug paraphernalia. The bag also contained a photo album which 

had pictures of David.   Police searched the Ford Explorer and found six cell phones and 

a digital scale "commonly used in drug activity." 

                                                   -7-                                             6628
 

----------------------- Page 8-----------------------

                David called Karpstein on April 6, 2009 and left a voicemail, providing a 

phone   number   and   requesting   that   she   call   him   back.   Karpstein   alerted   the   police 

because she knew that David was a fugitive.             While the police were present, Karpstein 

called the number.  David answered but hung up when Karpstein revealed who she was. 

                OCS   held   a   case   review    on   August   24,   2009.   This   was   a   regularly 

scheduled case review, held six months after the previous review in February. 

        D.      Arrest In Petersburg In September 2009 

                In September 2009 Petersburg police arrested David for stealing pallets 

from a local cannery.      David initially fled from the police and, when later confronted, 

identified himself as "Travis Collins."         He was eventually arrested in his trailer where 

he admitted to his identity and to stealing the pallets. The officer searched the trailer and 

discovered "a small marijuana grow, 10 plants or so, in his bathroom."                     David was 

returned to prison and remained in state custody through the termination trial.                Exactly 

when   he   was   released   is   unclear,   but   apparently   David   was   living   and   working   in 

Anchorage in November 2010. 

        E.      Resumed OCS Contact After September 2009 Recapture 

                On   October   1,   2009,   Karpstein   contacted   David   at   the   Petersburg   jail. 

David said that "he had nothing to say to [her] and that if [she] had any questions, [she] 

needed to speak with his lawyer."  Two weeks later, Karpstein requested phone visitation 

with Hannah for David, and his first phone visit with Hannah was on October 23.  Two 

more phone visits took place, one on October 30 and one on November 6, before the 

superior court trial began on November 9, 2009. 

                Karpstein   met   with   David   at   the   Lemon   Creek   Correctional   Center   in 

Juneau on October 26, 2009.   At the meeting Karpstein and David discussed Hannah's 

development.      On November 4, 2009, Karpstein again spoke with David, and David 

explained that he was involved with "some classes and some groups at Lemon Creek," 

                                                  -8-                                             6628
 

----------------------- Page 9-----------------------

a correctional facility. Karpstein asked if David would be willing to sign an updated case 

plan.   David agreed and returned a completed signature page.                 Though a termination 

petition   had   been   filed   and   the   trial   was   to   begin   shortly,   the   case   plan  provided 

recommendations for David to "[m]anage mental health and/or use of substances." 

        F.      Termination Trial 

                In April 2009 OCS filed a petition for termination.  Since David's location 

was unknown at that time, OCS received permission for service by publication. OCS also 

mailed David's mother, Claire, a letter asking her to pass this information along to David 

if she had contact with him.   In July 2009 Diane agreed to relinquish her parental rights 

to Hannah.  The trial was held on November 9 and 13, 2009.  At the trial, several parties 

testified:  Juneau and Petersburg police, Department of Corrections personnel, social 

workers, OCS employees, Violet, and David.   The superior court ordered termination of 

David's parental rights on April 9, 2010. 

        G.      Hannah's Foster Custody April 2008 To 2010 

                Since being taken into OCS custody in April 2008, Hannah and her half- 

brother Kevin have been in four foster placements.             In April 2008 they occupied their 

first foster home, but when those foster parents moved away, Hannah and Kevin were 

moved to a new foster placement with the Weavers, which lasted from April 25, 2008 

until June   2009.     In   June   2009   OCS   placed   Hannah   and   Kevin   with   their   maternal 

grandfather and his wife.   In October 2009, shortly before David's parental rights were 

terminated, David's mother, Claire, filed a motion seeking placement with her.  The 

record   does   not   detail   what   happened   to   this   motion,   but   presumably   it   was   denied 

because     David's    parental    rights  were    terminated    and   custody    with   the  maternal 

grandparents continued.  In January 2010 Claire sought visitation with Hannah, and the 

grandparents agreed to limited telephonic and in-person visitation.                In May 2010, six 

months after David's parental rights were terminated, OCS removed Hannah and Kevin 

                                                  -9-                                             6628
 

----------------------- Page 10-----------------------

from the grandparents and placed them once more with the Weavers.             The record does 

not reveal the reasons for this change, with OCS indicating only that the placement was 

"disrupted." 

               Hannah has an individual education plan with her school district, and she 

has been classified as having several special needs.      She has been diagnosed as having 

"fetal alcohol effects" though she "does not have the full FASD."           At the time of the 

termination trial she received "speech and language therapy" and "occupational therapy." 

       H.      October 2010 Placement Hearing 

               On June 2, 2010, after Hannah was removed from her grandparents' home, 

Claire requested that the superior court schedule a hearing on her request to have the 

children placed with her. The superior court held a hearing on this motion over four days 

in October and November 2010. Claire argued that she was an "Indian custodian" under 

ICWA and therefore entitled to appointed counsel. The superior court ruled that she was 

not.  The court also ruled against placing Hannah with Claire.   The court acknowledged 

that ICWA preferred placement with relatives over unrelated foster parents but found 

that keeping Hannah with the Weavers was in her "best interests." 

       I.      Ineffective Assistance Of Counsel 

               On November 26, 2010, David, now represented by attorney Nancy Stroup, 

filed a motion under Alaska Civil Rule 60(b)(6) to set aside the judgment terminating his 

parental rights.  David argued that he "was afforded ineffective assistance of counsel at 

both the [June 19, 2008] Adjudication hearing and the Termination trial."  The superior 

court   held  an  evidentiary   hearing   on  this  motion   over  four  days   in  January  and 

February 2011.     The superior court denied David's motion on April 14, 2011. 

                                              -10-                                         6628
 

----------------------- Page 11-----------------------

III.   STANDARD OF REVIEW 

              We review the factual findings supporting the termination of a parent's 
right to raise his children for clear error.1 We will find clear error only when a review 

of the entire record leaves us "with a definite and firm conviction that the superior court 
has made a mistake."2   Whether the trial court's findings satisfy the requirements of the 

child in need of aid statutes and rules is a question of law which we review de novo.3  We 

will not consider issues on appeal that were not raised below absent plain error, which 

exists "where an obvious mistake has been made which creates a high likelihood that 
injustice has resulted."4  We review ICWA's "active efforts" requirement as a mixed 

question of law and fact.5 

              "Motions for relief from judgment under Civil Rule 60(b) are committed 

to the sound discretion of the trial court; we will reverse the trial court's decision only 
for an abuse of discretion."6 

IV.    DISCUSSION 

              In order to terminate parental rights under AS 47.10.088 a trial court must 

find by clear and convincing evidence that (1) a child is in need of aid under one of the 

       1      S.H. v. State, Dep't of Health   & Social Servs., Div. of Family & Youth 

Servs., 42 P.3d 1119, 1122 (Alaska 2002) (citing M.W. v. State, Dep't of Health & Soc. 
Servs., 20 P.3d 1141, 1143 (Alaska 2001)). 

       2      Id. (citing M.W., 20 P.3d at 1143). 

       3      Id. at 1122-23 (citing M.W., 20 P.3d at 1143). 

       4      D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska 2001) (quoting Sosa v. State, 4 

P.3d 951, 953 (Alaska 2000)). 

       5      Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

204 P.3d 1013, 1018 (Alaska 2009), as amended on reh'g (Apr. 21, 2009). 

       6      Ghete v. Anchorage, 948 P.2d 973, 975 (Alaska 1997). 

                                            -11-                                      6628
 

----------------------- Page 12-----------------------

bases set forth in AS 47.10.011; (2) the parent has failed to   remedy   the conduct or 

conditions underlying the original harm or that returning the child to the parent would 

place the child at substantial risk of physical or mental injury; and, because the Indian 

Child Welfare Act applies, (3) OCS made active efforts to help the parent remedy the 
problematic behavior or conditions and those efforts were unsuccessful.7       The court must 

also find that termination is in the child's best interests.8 

       A.	     The   Superior   Court   Did   Not   Err   In   Finding   That   Hannah   Was   A 
               Child In Need Of Aid. 

               When Hannah was taken into OCS custody in April 2008, David stipulated 

that she was in need of aid.   Alaska Statute 47.10.011 provides that the trial court may 

find a child to be a child in need of aid if it finds that the child has been subjected to any 

of 12 conditions. At the termination trial the superior court determined that Hannah was 

a child in need of aid under three provisions of AS 47.10.011:        (1) (abandonment); (2) 

(incarceration); and (10) (substance abuse). David challenges all three of the superior 

court's determinations. 

               1.	    Abandonment 

               The superior court determined that David had abandoned Hannah within 

the meaning of AS 47.10.011(1).       Alaska Statute 47.10.011(1) provides that "a parent 

or guardian has abandoned the child as described in AS 47.10.013, and 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." 

               The superior court found that David's   incarceration for 20 months just 

weeks after Hannah's birth rendered him "essentially a stranger to her."         The superior 

       7       25 U.S.C.  1912(d) (2006). 

       8       AS 47.10.088(c); CINA Rule 18(c)(3). 

                                             -12-                                          6628 

----------------------- Page 13-----------------------

court determined that during the time that David lived in Juneau after being released 

from prison, from August 2008 to January 2009, he "did not take full advantage of the 

opportunity to establish a relationship with his daughter."  The superior court explained 

that   from   January    2009   until  September     2009,   when    David    was   a  fugitive,  he 

"abandoned his daughter by failing to take advantage of the visitation offered by OCS." 

The     superior   court   did   not   address   David's     behavior    since   his  recapture    in 

September 2009, but the court found that David's actions had "resulted in the destruction 

of the relationship" between David and Hannah. 

               David argues that he did not abandon his daughter within the meaning of 

AS 47.10.011(1).      He argues that he participated in visits in the form available to him. 

He points to his regular telephone visits when he was incarcerated from November 2006 

until August 2008.     He also notes that, upon his release, he was able to attend 28 of the 

33 in-person visits offered him.  David was a fugitive from January to September 2009. 

After his recapture, David argues that he "took advantage of all telephone visits that were 

offered by OCS." 

               We have "articulated a two-part test for reviewing cases of abandonment: 

'(1)   there   must   be  parental   conduct    evidencing    a  willful   disregard   for  parental 
obligations, leading to (2) the destruction of the parent-child relationship.' "9 We apply 

"an    objective   test  'to  see  if  actions  demonstrate    a  willful   disregard   of  parental 
responsibility.' "10 

        9      Sean B. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

251 P.3d 330, 335 (Alaska 2011) (quoting Rick P. v. State, Office of Children's Servs., 
109 P.3d 950, 957 (Alaska 2005)). 

        10     Id.  at 335-36 (quoting Jeff A.C., Jr. v. State, 117 P.3d 697, 704 (Alaska 

2005)). 

                                                -13-                                          6628
 

----------------------- Page 14-----------------------

                To counter the first prong, the parent must "show 'continuing interest in the 
child and [make] a genuine effort to maintain communication and association.' "11                    The 

record details several distinct periods of David's relationship with Hannah.  Hannah was 

born   in   November   2006,   and   David   was   incarcerated   from         November   2006   until 

August 2008.   Hannah was taken into OCS custody four months before David's release. 

After David was released, he was on parole for five months, but when he violated terms 

of his parole, David was remanded to state custody for two weeks and was then a fugitive 

for eight months until September 2009, when he was recaptured. 

                David was remanded to prison in January 2009 and became a fugitive later 

that month.   David asserts that he "did visit with Hannah . . . without OCS' knowledge" 

while he was a fugitive.   The record, though, contains no support for this assertion, and 

the assertion is implausible since during most of that time (January to June) Hannah was 

in the custody of foster parents unrelated to David.   David also claims that while he was 

a   fugitive   "he   had   justifiable   cause   to   not   visit   Hannah   under   the   auspices   of   OCS 

because Heather Karpstein told him he would not be allowed to visit his daughter as long 

as he was in a relationship with her mother."  But there is no record support for the claim 

that David was told that he would not be allowed to visit Hannah if David continued his 

relationship with Diane.   After David was recaptured, he had three telephonic visits with 

Hannah before the superior court trial began on November 9. 

                As for the second prong of the abandonment test, the superior court ruled 

that David's abandonment, specifically his lack of contact while a fugitive, had "resulted 

in the destruction of the relationship [David] was trying to develop in the fall of 2008. 

There is no father-daughter relationship between [David] and [Hannah]." 

        11      Id. (quoting Jeff A.C., 117 P.3d at 704). 

                                                   -14-                                               6628 

----------------------- Page 15-----------------------

                The    cases    in  which    we   have    affirmed    superior   court   findings    of 

abandonment have usually involved extended periods of no contact between the parent 
and child.12   In this case, while David may have had a relationship with his daughter 

before he absconded, Hannah was just over two years old when David disappeared for 

eight months.      His absence was nearly a third of her life up to that point.            Although 

David claims he had contact with his daughter during this period, there is no evidence 

in the record that supports his claim.  Such an extended absence so early in Hannah's life 

supports the superior court's finding that David had destroyed whatever parent-child 

relationship   existed   before   his   departure.  We   therefore   affirm   the   superior   court's 

finding that Hannah was a child in need of aid under AS 47.10.011(1). 

                2.      Incarceration 
                In two decisions, Nada A. v. State13 and A.M. v. State,14 we concluded "that 

courts could not rely on the fact of a party's incarceration alone to prove abandonment 
because it was not the type of willful act upon which abandonment may be based."15                  In 

response to these decisions, the legislature enacted legislation intended to overrule that 
holding.16    This legislation included AS 47.10.011(2), which provides that a parent's 

        12      See P.M. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth 

Servs., 42 P.3d 1127, 1134 (Alaska 2002) (six years); C.W. v. State, Dep't of Health & 
Soc. Servs., 23 P.3d 52, 56 (Alaska 2001) (three years); In the Matter of H.C., 956 P.2d 
477, 482 (Alaska 1998) (over one year). 

        13      660 P.2d 436 (Alaska 1983). 

        14      891 P.2d 815 (Alaska 1995). 

        15      Zander P. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., Mem. Op. & J. No. 1290, 2007 WL 2745157, *3 (Alaska, Sept. 19, 2007). 

        16      Ch. 99,  1(b)(2)(B) (stating the purpose of the act is to "override the court 

                                                                                      (continued...) 

                                                 -15-                                           6628
 

----------------------- Page 16-----------------------

incarceration can be a basis for finding a child to be in need of aid if "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." 

              David argues that he "did make arrangements for Hannah's care while he 

was incarcerated by giving his mother a power of attorney over his legal affairs and his 

children's needs."    However, David did not produce this power of attorney at trial and 

it does not appear anywhere in the record.   Further, during David's incarceration Claire 

never actually had custody of the children.   They instead remained with Diane until she 

arranged for OCS to take custody, at which point they went into foster placements. 

David points to a letter that his mother sent to OCS on September 6, 2009, in which she 

stated that she wished to have custody of Hannah. The superior court did not discuss the 

possibility of David's mother caring for Hannah in its termination ruling.          Although 

while he was incarcerated David contacted OCS several times about Hannah before OCS 

took custody of the child, there does not appear to be any evidence that he attempted to 

place her with Claire.  We therefore affirm the superior court's finding that Hannah was 

a child in need of aid under AS 47.10.011(2). 

              3.      Substance abuse 

               The superior court found that David "has a polysubstance abuse addiction" 

that   rendered   Hannah   a  child  in  need  of  aid  under  AS   47.10.011(10).    Alaska 

Statute 47.10.011(10) provides that a child is in need of aid if "the parent, guardian, or 

custodian's ability to parent has been substantially impaired by the addictive or habitual 

       16(...continued) 

decisions in" A.M., Nada A., and others),  18 (amending AS 47.10.011), SLA 1998. 

                                             -16-                                         6628 

----------------------- Page 17-----------------------

use of an intoxicant, and the addictive or habitual use of the intoxicant has resulted in a 

substantial risk of harm to the child." 

                David argues that he "has received extensive treatment for his substance 

abuse     problem"     and   there  was    no  evidence     presented    at  trial  that  David   used 

methamphetamine after October 2008.             There was, however, evidence that David was 

still using illegal drugs at the time of his arrest in September 2009.            When David was 

arrested, he was growing marijuana in his trailer, and he admitted to smoking marijuana. 

And at the time of David's near capture in March 2009, he was seen driving a vehicle 

that contained a bag that was later discovered to contain methamphetamine and drug 

paraphernalia. 

                The State points to testimony by a social worker describing how drug use, 

and methamphetamine use in particular, can be harmful to children.  The social worker 

explained that using methamphetamine can compromise an individual's ability to care 

for a child.  In Stanley B. v. State, we explained that the "substantial harm" requirement 

was satisfied if a parent's addictions are "at least partially responsible for his current and 

past incarcerations, and . . . his frequent and prolonged absences while incarcerated 
substantially impair his ability to parent."17      Because David's incarceration was "at least 

partially" related to drugs, this provision is satisfied.       We therefore affirm the superior 

court's finding that Hannah was a child in need of aid under AS 47.10.011(10). 

        B.	     The Superior Court Did Not Err In Finding That David Failed To 
                Remedy The Conditions That Placed Hannah In Need Of Aid. 

                Alaska Statute 47.10.088(a)(2) provides that before parental rights can be 

terminated, the superior court must find that the parent 

                (A)     has   not   remedied   the   conduct   or   conditions   in   the 
                home that place the child at substantial risk of harm; or 

        17      93 P.3d 403, 407 (Alaska 2004). 

                                                 -17-                                              6628 

----------------------- Page 18-----------------------

                 (B)     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 . . . . 

David argues that he has made efforts in the three areas discussed above (abandonment, 

incarceration, and substance abuse).           However, there is no evidence that any of these 

behaviors has ceased or was only confined to the past. David was a fugitive until shortly 

before     the  termination     trial,  was   arrested   for   drug-related    crimes,    and   then   was 

incarcerated during the termination trial. 

        C.	      The   Superior   Court   Did   Not   Err   In   Concluding   That   The   Active 
                 Efforts Requirement Had Been Met. 

                 The Indian Child Welfare Act provides that "[a]ny 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."18  In describing what constitutes "active 

efforts," we have said: 

                 Passive efforts are where a plan is drawn up and the client 
                 must develop his or her own resources towards bringing it to 
                 fruition. Active efforts, the intent of the drafters of the Act, 
                 [occur] where the state caseworker takes the client through 
                 the steps of the plan rather than requiring that the plan be 
                performed on its own.[19] 

        18       25 U.S.C.  1912(d) (2006).          The ICWA requirements apply even when 

OCS is seeking to terminate the parental rights of a non-Indian parent. K.N. v. State, 856 
P.2d 468, 474 n.8 (Alaska 1993). 

        19      A.A. v. State, Dep't of Family & Youth Servs., 982 P.2d 256, 261 (Alaska 

1999)     (quoting    CRAIG   J.  DORSAY,  THE       INDIAN    CHILD     WELFARE      ACT     AND   LAWS 
                                                                                           (continued...) 

                                                   -18-	                                             6628
 

----------------------- Page 19-----------------------

                The superior court found that the active efforts requirements had been met, 

listing   these   efforts   as   including   "substance   abuse   treatment   and   case   management 

services provided by both the Department of Corrections and OCS, as well as OCS's 

efforts to assist with housing, to coordinate its efforts with DOC, and to provide [David] 

with opportunities to visit [Hannah]." 

                David argues that OCS failed to satisfy the active efforts requirement in two 

ways.    First, he argues that after he was recaptured in 2009 OCS "offered only three 

telephone visits" and "made no attempt to facilitate in-person visitation."                David was 

recaptured in September 2009 after being a fugitive for nine months and his termination 

trial began in November 2009.            Responding to David, OCS points to the services it 

offered    during    that  period.   David     was   arrested   on  September      28,  and   Karpstein 

contacted him on October 1.           David told Karpstein that he did not wish to speak with 

her.     Karpstein    later  arranged     three  phone    visits  with   Hannah,     on   October    30, 

November 6, and November 9, before the termination trial began.                   Karpstein met with 

David in person on October 26 and spoke with him by phone on November 5.                         David 

does not specify what other services he thinks OCS should have provided.                     We have 

previously found that telephonic visits with an incarcerated parent satisfied the active 
efforts requirement.20      And we have explained that a parent's "demonstrated lack of 

willingness to participate in treatment may be considered in determining whether the 
state has taken active efforts."21      David's refusal to speak with Karpstein on October 1 

        19(...continued) 

AFFECTING INDIAN JUVENILES MANUAL 157-58 (1984)). 

        20      Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 222 P.3d 841, 844, 850 (Alaska 2009). 

        21      Maisy   W.   v.   State,   Dep't   of   Health   &  Soc.   Servs.,   Office   of   Children's 

                                                                                        (continued...) 

                                                  -19-                                            6628
 

----------------------- Page 20-----------------------

undermines his argument that OCS should have arranged more than three visits between 

October 1 and the beginning of the termination trial in November. 

                Second, David argues that "OCS failed to meet its active efforts burden 
because it did not comply with ICWA's placement preferences."22                  Because David did 

not advance this argument at trial, we review it only for plain error.23            Plain error exists 

"where an obvious mistake has been made which creates a high likelihood that injustice 
has resulted."24 

                We have never directly decided the question whether   OCS's   failure to 

follow ICWA's placement preferences can provide a basis for deciding that OCS has 

failed to undertake active efforts.       Section 1915 of ICWA provides: 

                In   any   foster   care   or   preadoptive   placement,   a   preference 
                shall be given, in the absence of good cause to the contrary, 
                to a placement with - 

                        (i)     a member of the Indian child's extended 
                        family; 

                        (ii)    a   foster   home    licensed,   approved,     or 
                        specified by the Indian child's tribe; 

                        (iii)   an    Indian    foster    home     licensed    or 
                        approved by an authorized non-Indian licensing 
                        authority; or 

        21(...continued) 

Servs., 175 P.3d 1263, 1268 (Alaska 2008) (quoting N.A. v. State, Div. of Family & 
Youth Servs., 19 P.3d 597, 603 (Alaska 2001)). 

        22      David also incorporates his argument about placement into his ineffective 

assistance of counsel claim, arguing that his attorney's failure to raise this argument was 
part of his ineffective assistance. 

        23      D.J. v. P.C., 36 P.3d 663 (Alaska 2001). 

        24      Id. at 667-68 (quoting Sosa v. State, 4 P.3d 951, 953 (Alaska 2000)). 

                                                  -20-                                            6628
 

----------------------- Page 21-----------------------

                        (iv)    an institution for children approved by an 
                        Indian      tribe   or    operated     by    an   Indian 
                        organization   which has a program suitable to 
                        meet the Indian child's needs.[25] 

CINA Rule 10.1(b) requires that at 

                each   hearing   at   which   the   court   is   authorizing   an   Indian 
                child's removal from the child's parent or Indian custodian 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). 

                David argues that OCS's placement decision did not conform to ICWA's 

placement preferences and that this failure means that OCS did not meet its burden of 

taking active efforts.     We disagree. 

                We recognize the possibility that cases may exist in which OCS's early 

placement decisions may directly impact the ability of parents to fulfill the requirements 

of their case plans and thus may be part of OCS's active efforts "designed to prevent the 

break up of the Indian family."   Resolving the question whether OCS has met its burden 

of making active efforts to provide remedial services and rehabilitative programs in a 

particular case requires a fact-intensive inquiry.           For example, we have concluded that 

items as basic as helping a mother acquire a bus pass and day care are relevant to the 
active   efforts   analysis,26  for   in   a   particular   case,   the   lack   of   a   bus   pass   or   day   care 

        25      25 U.S.C.  1915(b) (2006).
 

        26      See Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's
 

                                                                                         (continued...) 

                                                  -21-                                               6628 

----------------------- Page 22-----------------------

assistance   could   impede   a   parent's   ability   to   access   remedial   services.  Similarly,   a 

child's placement might affect a parent's ability to participate in remedial efforts.  But 

ordinarily the question whether a placement decision complies with ICWA's placement 

preferences will not be germane to the elements of termination because nothing in ICWA 

requires a consideration of the ICWA placement preferences in the decision whether to 
terminate parental rights.27 

                The statutory scheme of ICWA supports this interpretation.  Section 1914 

of ICWA provides that any Indian child, parent, Indian custodian, or Indian child's tribe 

may challenge a termination of parental rights or foster care placement "upon a showing 
that such action violated any provision of sections 1911, 1912, and 1913" of ICWA.28 

The active efforts requirement falls under  1912.           Placement preferences, however, are 

under  1915, and therefore do not fall within the scope of ICWA's remedial provision. 

Under ICWA, then, a termination of parental rights may not be invalidated by showing 

a violation of the ICWA placement preferences.               Other courts that have addressed the 

        26(...continued) 

Servs., 244 P.3d 1099, 1115 (Alaska 2010). 

        27      Before   a   parent   of   an   Indian   child   may   have   his   or   her   parental   rights 

terminated, the State must prove: (1) by clear and convincing evidence that the child is 
in need of aid (CINA Rule 18(c)(1)(A)); (2) by clear and convincing evidence that the 
parent has not remedied the conditions that placed the child in need of aid (CINA Rule 
18(c)(1)(A)(i)-(ii)); (3) "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" (25 U.S.C.  1912(d) (2006)); (4) "beyond a 
reasonable doubt, including testimony of qualified expert witnesses, that the continued 
custody   of   the   child   by   the   parent   or   Indian   custodian   is   likely   to   result   in   serious 
emotional or physical damage to the child" (Id.  1912(f)); and (5) "by a preponderance 
of the evidence that termination of parental rights is in the best interests of the child[.]" 
(CINA Rule 18(c)(3)). 

        28      25 U.S.C.  1914 (2006). 

                                                  -22-                                             6628
 

----------------------- Page 23-----------------------

question whether a failure to follow placement preferences invalidates termination have 
generally reached the same conclusion.29 

                  We reached a similar conclusion in Jacob W. v. State, Department of 

Health & Social Services, Office of Children's Services, an unpublished decision, where 

        29      See Doe v. Mann, 285 F. Supp. 2d 1229, 1240 (N.D. Cal. 2003) (finding 

that  1915 did not provide a cause of action for challenging termination decisions); 
Navajo Nation v. Superior Court of The State of Wash. for Yakima Cnty., 47 F. Supp. 2d 
1233, 1242-43 (E.D. Wash. 1999),aff'd on other grounds, 331 F.3d 1041 (9th Cir. 2003) 
(same); In the Matter of Appeal in Maricopa Cnty. Juvenile Action No. JS-7359, 766 
P.2d 105, 108 (Ariz. App. 1988) ("Even if the Indian Child Welfare Act applied and the 
preferred placements were ignored, this is immaterial to the question whether termination 
based   on   a   failure   to   remedy   the   condition   which   made   the   out-of-home   placement 
necessary is appropriate."); In re Vincent M ., 2010 WL 2557188, *8 (Cal. App. 2010) 
("[A]ctive efforts and placement [a]re two separate, distinguishable issues."); In re A.A., 
84 Cal. Rptr. 3d 841, 863 (Cal. App. 2008) ("ICWA and . . . California's statutory law 
address the issue of an Indian child's   placement separately from the issue of active 
efforts.   Following their lead, we distinguish the issue of placement from that of active 
efforts.") (internal citations omitted); In the Interest of J.W., 528 N.W.2d 657, 662 (Iowa 
App. 1995) ("The remedial provisions of section 1914 do not apply to violations of 
section 1915"); B.R.T. v. Exec. Dir. of Soc. Serv. Bd., 391 N.W.2d 594, 601 (N.D. 1986) 
("[I]nvalidation of a parental rights termination may not be accomplished by showing a 
violation of the placement preferences in a proceeding brought pursuant to [section] 
1914.");State ex rel. Juvenile Dep't of Multnomah Cnty. v. Woodruff, 816 P.2d 623, 625 
(Or.   App.   1991)   ("Failure   to   comply   with   the   foster   care   placement   preferences   in 
 1915(b) is not a basis for invalidating a court order terminating parental rights."). But 
see   In   re   K.B.,   93   Cal.   Rptr.   3d   751,   764-65   (Cal.   App.   2009)   (assuming   without 
deciding that placement could be a part of active efforts, but finding that the state had 
made active efforts to satisfy ICWA's placement preferences); In re L.N.W., 457 N.W.2d 
17, 20 (Iowa App. 1990) (same); In the Matter of Welfare of M.S.S., 465 N.W.2d 412, 
419 (Minn. App. 1991) (finding that the state had not proved active efforts beyond a 
reasonable doubt because it had not considered placing the child with the father's brother 
and sister-in-law following an explicit request from the child's father that had been 
endorsed   by   the   tribe);  but   see   also  In  re   Welfare   of   Child  of   Wilson,   2003   WL 
21266612, at *2 (Minn. App. June 3, 2003) (limiting M.S.S. to cases in which the parents 
make a specific placement request that is endorsed by the child's tribe). 

                                                  -23-                                             6628
 

----------------------- Page 24-----------------------

a parent argued that ICWA placement preferences ought to be considered in whether 
termination of parental rights was in a child's best interest.30          We rejected that argument, 

observing      that  "nothing    in  ICWA      requires    consideration     of  placement     options    in 

determining whether to terminate parental rights.               The relevant issue was whether [the 

parents'] parental rights should be terminated in the best interests of the children, not 
what would happen to the children after termination of those parental rights."31                       We 

subsequently faced the same argument inLucy J. v. State, Department of Health & Social 
Services and summarily rejected it, quoting Jacob W . with approval.32 

                 We recognize that active efforts may involve employing available family 

resources to shape a case plan and assist parents in carrying out that plan.                  Indeed, the 

Bureau   of   Indian   Affairs   (BIA)   has   promulgated   guidelines   that   provide   that   state 

agencies "shall take into account the prevailing social and cultural conditions and way 

of   life   of   the   Indian   child's   tribe,"   and   that   "[t]hey   shall   also   involve   and   use   the 

available resources of the extended family, the tribe, Indian social service agencies and 
individual Indian care givers."33        But placement decisions present a separate analytical 

        30       Mem. Op. & J. No. 1319, 2008 WL 5101809, at *8 (Alaska, Dec. 3, 2008). 

        31      Id. at *9. 

        32      Lucy J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

244   P.3d   1099,   1120   (Alaska   2010)   (quoting Jacob   W.   at   *9)   ("In   an   unpublished 
memorandum opinion, we held that while 'ICWA requires that preference be given - 
in absence of good cause to the contrary - to members of the child's extended family 
or to someone otherwise affiliated with the child's Indian tribe. . . . [T]his specifically 
applies to placement of an Indian child; nothing in ICWA requires consideration of 
placement options in determining whether to terminate parental rights.' "). 

        33       Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. 

Reg. 67,584, 67,592 (Nov. 26, 1979). 

                                                   -24-                                              6628
 

----------------------- Page 25-----------------------

question from termination decisions.           There is no support in ICWA for an attempt to 

graft  1915's placement preferences onto  1912. 

                We     recognize    the   importance     of  early   placement     decisions   that   are 

compliant with ICWA.          To that end, CINA Rule 10.1(b) requires courts to determine 

"[a]t each hearing at which the court is authorizing an Indian child's removal" from the 

home whether OCS complied with ICWA placement preferences.  But that rule further 

provides that a failure to follow those preferences "is not in itself a ground for restoring 

the child to the parent or Indian custodian or dismissing a petition and does not affect the 
court's ability to proceed to adjudication."34          And although Rule 10.1(b) specifically 

provides   that   "the   court   cannot   enter   a   disposition   order   if   the   court   finds   that   the 

requirements of 25 U.S.C.  1912(d) (active efforts) have not been met," it does not 

preclude     a  termination     disposition    when    there   is  a  failure  to  follow    placement 
preferences.35    Accordingly, it was not plain error for the superior court to find that OCS 

made active efforts. 

                We also note that in this case OCS did comply with ICWA's placement 

preferences.  The record demonstrates that OCS attempted to follow ICWA's placement 

preferences by exploring placement options with such family members as Claire, the 

maternal     grandparents,      and   David's    sister  Violet.    In    communication       with   the 

grandparents, OCS indicated that "OCS would like to transition the children back to 

        34      CINA Rule 10.1(b)(2). 

        35      Id.   As    far  as  remedial   provisions     for  a  failure  to  follow   placement 

preferences, the rule provides that "[o]n motion of a party or on its own motion, the court 
may order the Department to comply with 25 U.S.C.  . . .1915(b) within a reasonable 
time. If the Department fails to comply with this order, the court may impose appropriate 
sanctions."    Id.   But that the rule gives courts discretion   to   issue orders and impose 
sanctions does not in any way suggest that a failure to follow placement preferences 
invalidates a termination disposition. 

                                                  -25-                                            6628
 

----------------------- Page 26-----------------------

family as soon as possible."       OCS records include numerous communications with the 

grandparents about their suitability and availability for placement.            Violet, Claire, and 

the grandparents all at various points indicated that they probably would not be able to 

take Hannah.   OCS eventually selected the grandparents for placement and sent a letter 

to Claire explaining that decision. 

                OCS also made considerable efforts to place Hannah with Claire, David's 

mother and preferred placement. OCS spoke to Claire soon after the children were taken 

into custody. Claire was then living with her daughter and son-in-law and explained that 

she also needed to talk to her husband about taking the children.              Claire said that she 

needed to "get back" to OCS, but she never did.             Two months later, in June 2008, at a 

case   review,   Claire   again   expressed   interest   in   taking   Hannah.  She   was   given   "a 

licensing packet" but did not complete it until "mid-2009."               The OCS case worker, 

Heather Karpstein, had several concerns about Claire as a placement option.  Claire had 

"shown inconsistency" by setting up "scheduled visitations . . . and then cancel[ing] at 

the last minute."  Her housing was also uncertain, as she was "thinking about moving to 

Point Baker and living on a houseboat."          Claire also told Hannah's foster mother that 

Claire "was planning to let [David] take care of [Hannah] once he was released from 

incarceration."  In an April 2009 meeting with Karpstein, Claire again expressed interest 

in taking Hannah, but she explained that she was not interested in a "long-term adoptive 

placement."  When Karpstein explained that she was looking for permanent placement, 

Claire responded that she was "ready to take [Hannah] until mom and dad can get their 

act together." 

                Because Claire had never completed the appropriate custody paperwork, 

among other reasons, OCS elected to place Hannah with the grandparents, Diane's father 

and stepmother, in June 2009.   However, OCS removed Hannah from the grandparents' 

home in May 2010.         In July and August 2010, OCS again explored   placement with 

                                                 -26-                                           6628
 

----------------------- Page 27-----------------------

Claire, contracting for a home study of her home.             This study was completed in mid- 

October.  But several concerns resulted in the study not recommending placement with 

Claire.   Among these were the expressed concern that Claire and her husband were 

unprepared   to   handle   Hannah's   special   needs   and   the   fear   that   Claire   would   return 

Hannah to Diane's or David's care. 

                In   the  Matter   of   Adoption   of   F.H.,   we  discussed    ICWA's     placement 

requirements and the meaning of ICWA's statement that the preferences are controlling 
"in the absence of good cause."36      We noted that ICWA does not define "good cause" but 

that the BIA has issued guidelines on the meaning of the term.37               The BIA guidelines 

expressly state that "they are not published as regulations because they are not intended 
to have binding legislative effect,"38 but as we explained in F.H., we "ha[ve] looked to 

them for guidance."39      The BIA guidelines include a provision explaining the meaning 

of good cause: 

                F.3. Good Cause To Modify Preferences 

                (a)     For purposes of foster care, preadoptive or adoptive 
                placement, a determination of good cause not to follow the 
                order of preference set out above shall be based on one or 
                more of the following considerations: 

                        (i)     The   request   of   the   biological   parents   or   the 
                        child when the child is of sufficient age. 

        36      851 P.2d 1361, 1364 (Alaska 1993). 

        37      Id.; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,594. 

        38      Indian Child Custody Proceedings, 44 Fed. Reg. at 67,584. 

        39      851 P.2d at 1364 (citing In re L.A.M., 727 P.2d 1057, 1060 n.6 (Alaska 

1986)). 

                                                 -27-                                            6628
 

----------------------- Page 28-----------------------

                         (ii)    The extraordinary physical or emotional needs 
                         of the child as established by testimony of a qualified 
                         expert witness. 

                         (iii)   The     unavailability     of   suitable   families    for 
                         placement after a diligent search has been completed 
                         for families meeting the preference criteria. 

                 (b)     The burden of establishing the existence of good cause 
                not to follow the order of preferences . . . shall be on the party 
                urging that the preferences not be followed.[40] 

Section (a)(iii) includes the "unavailability of suitable families" as one example of good 

cause.    Because OCS did explore the availability of "suitable families," this case fits 

within this "good cause" exception. 

        D.	      The   Superior   Court   Did   Not   Err   In   Finding   That   Hannah   Would 
                 Likely Suffer Serious Harm If Returned To David's Care. 

                Under   ICWA,   the   trial   court   must   find,   based   on   "evidence   beyond   a 

reasonable doubt, 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."41    We   have   held   that   proof   may   be   shown   "through   expert 

testimony alone or through aggregating expert testimony with other evidence," including 
lay witness testimony.42 

                At   trial,   OCS   relied   on   the   expert   testimony   of   two   witnesses:   Shelly 

Gomez, an OCS supervisor who was qualified as an expert in social work, and Samantha 

Abernathy, a licensed clinical social worker and addiction counselor who was qualified 

        40       Indian Child Custody Proceedings, 44 Fed. Reg. at 67,594. 

        41       25 U.S.C.  1912(f) (2006). 

        42      Ben M. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

204 P.3d 1013, 1020 (Alaska 2009). 

                                                   -28-	                                             6628
 

----------------------- Page 29-----------------------

as an expert in chemical dependency treatment.      The superior court found that David's 

substance    abuse,  including   his  recent  history  of  relapse,  demonstrated   beyond   a 

reasonable doubt that placing Hannah with her father "would put her at high risk of 

serious   emotional    or  physical  damage."    On   appeal,  David    challenges   Gomez's 

qualifications as an expert, but he does not challenge Abernathy's.       David argues that 

Gomez possesses only "normal social worker qualifications," which are insufficient 
under ICWA to render her an expert.43     But even were David right that Gomez is not an 

expert   under   ICWA,44   Abernathy's   unchallenged   expert   testimony,   combined   with 

evidence of David's continuing substance abuse, support the superior court's finding 

beyond a reasonable doubt that Hannah was likely to suffer harm if returned   to her 

father's care. We therefore conclude that the superior court did not err in concluding that 

Hannah would likely suffer serious harm if returned to David. 

       E.	    The Superior Court Did Not Err In Finding That Termination Was In 
              Hannah's Best Interests. 

              Under AS 47.10.088(c), a court is required to consider the best interests of 

the   child  in  making   a  termination   of  parental   rights  determination   and   CINA 

Rule 18(c)(3) similarly provides that the court must find by a preponderance of the 

evidence that termination is in the best interests of the child.  The superior court found 

that the "best interests of the child will be promoted by terminating [David's] parental 

rights."   It found that David could not provide Hannah with a "stable" and "permanent" 

home.    David notes that the superior court found that it would be in Hannah's best 

       43     See Marcia V. v. State, 201 P.3d 496, 504 (Alaska 2009) ("ICWA  1912(f) 

heightens the requirements for an expert's qualifications beyond those normally required 
to qualify an expert."). 

       44     And given Gomez's high degree of experience and previous qualification 

as an expert, it seems most unlikely that she would not qualify. 

                                            -29-	                                       6628
 

----------------------- Page 30-----------------------

interests   to   be   placed   in   a   permanent   home,   but   that   placement   with   the   maternal 

grandfather "has not worked out." 

                At the   time of termination, Hannah had been placed with her maternal 

grandfather and his wife, but about six months later OCS ended this placement.                    OCS 

argues    that   such  "subsequent   events      .   .   .   cannot  be  used  to  undermine  a  court's 

substantive decisions." Appellate Rule 210(a) provides that "the record does not include 

documents or exhibits filed after . . . the filing date of the notice of appeal."             In other 

words, the disruption in Hannah's placement following trial is no basis for upsetting the 

trial court's finding.    In any event, David's main argument is that Hannah should have 

been placed with his mother, Claire, but OCS thoroughly explored the option of placing 

Hannah with Claire before deciding it was not appropriate in this case.  The evidence in 

this case amply supports OCS's determination. 

        F.	     It Was Not Plain Error For The Superior Court To Find That Claire 
                Is Not An Indian Custodian. 

                David     argues   that  the   superior   court   should   have    determined     at  the 

beginning of the case whether to designate Claire as Hannah's Indian custodian. "Indian 

custodian" is a term of art under ICWA, defined as "any Indian person who has legal 

custody of an Indian child under tribal law or custom or under State law or to whom 

temporary physical care, custody, and control has been transferred by the parent of such 
child."45  ICWA grants "Indian custodians" several rights, including the right to notice 

of termination proceedings46 and the opportunity to participate in them.47 

        45      25 U.S.C.  1903(6) (2006). 

        46      Id.  1912(a). 

        47      Id.  1911(c). 

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                David acknowledges that "[t]his issue was not raised below as it should 

have been by the State and David's attorney" but argues that we should reverse the 

superior court for plain error.  David argues that, had Claire been properly treated as an 

Indian custodian, the State would have had the burden of showing that placement with 

Claire would be harmful to Hannah.   David also contends that the State would have had 
to make "active efforts" on behalf of Claire.48        David argues that "if Hannah was placed 

with her [paternal] grandmother while her father was incarcerated, the course of events 

in this case may have been different." 

                The State responds that Claire is not an "Indian custodian" because she is 

not a "custodian" and she is not an "Indian."          David argues that Claire was a custodian 

because he gave "his mother a power of attorney over his legal affairs and his children's 

needs." 
                ICWA requires that an "Indian custodian" be an "Indian person."49              ICWA 

defines "Indian" as "any person who is a member of an Indian tribe, or who is an Alaska 
Native and a member of a Regional Corporation as defined in section 1606 of Title 43."50 

                Claire   is   not   an   Indian   as   defined   by   ICWA. At   the   2010   placement 

hearing, Claire acknowledged that she was not an enrolled member of any tribe but 

        48      In a separate hearing, Claire argued that she was an "Indian custodian." 

After Hannah was removed from the grandparents' residence in May 2010, a placement 
hearing was held in October and November 2010. At this hearing, Claire argued that she 
was an "Indian custodian" and thereby entitled to appointed counsel.                   We note that 
ICWA does not explicitly state that active efforts must be made on behalf of Indian 
custodians, and we do not express an opinion on the matter. 

        49      25 U.S.C.  1903(6). 

        50      Id.  1903(3). 

                                                 -31-                                            6628
 

----------------------- Page 32-----------------------

argued that she had Chippewa and Sioux heritage.                Claire claimed that she was in the 

process of investigating her eligibility. 

                Being a member of an Indian tribe is a formal status. Tribes determine their 
own membership, and membership rolls are compiled by the BIA.51                  In Bruce L. v. W.E., 

we discussed what it means to be a "member" of an Indian tribe.52                    We quoted BIA 

guidelines which state that "determination by a tribe that a child is or is not a member of 

. . . or . . . eligible for membership in that tribe, or that the biological parent is or is not 
a member of that tribe is conclusive."53        In this case, it is undisputed that Claire was not 

a member of any Indian tribe at the time of the   trial court proceedings.                  Therefore, 

ICWA's requirement that an Indian custodian be a "member" of an Indian tribe precludes 

a determination that she was an Indian custodian. 

        G.	     The Superior Court Did Not Err In Finding That David's Counsel 
                Was Not Ineffective. 

                On November 30, 2010, David, now represented by a different attorney, 

filed   a   motion   under   Civil   Rule   60(b)(6)   to   set   aside   the   judgment   terminating   his 

parental   rights.   David   alleged   various   failings   by   his   trial   attorney,   including   the 

attorney's   failure    to  prepare   adequately     for  trial   and  failure  to  ensure  that   David 

understood his rights. The superior court held an evidentiary hearing on this motion over 

five days in January and February 2011.            The superior court denied David's motion on 

February 10, 2011.       The superior court found that, although trial counsel "could and 

        51      25 C.F.R.  61.2 (2011). 

        52      247 P.3d 966, 975 n.22 (Alaska 2011). 

        53      Id. (quoting Guidelines for State Courts; Indian Child Custody Proceedings, 

44 Fed. Reg. 67,584, 67,586 (Nov. 26, 1979)). 

                                                  -32-	                                           6628
 

----------------------- Page 33-----------------------

should have done more," the "factual findings upon which termination was premised in 

2009 are largely undisputed." 

                1.      Standard for ineffective assistance claims in CINA cases 

                In   the Matter   of   K.L.J.,   we   held   that   indigent   parents   in   a   termination 
proceeding have a constitutional right to appointed counsel.54             In  V.F. v. State, we held 

that "the effective assistance of counsel is also constitutionally required."55            In  V.F. we 

applied the standard for ineffective assistance set out in the criminal context in Risher v. 
State.56  In Risher we "promulgat[ed] a two-pronged test": 

                Before reversal will result, there must first be a finding that 
                counsel's conduct either generally throughout the trial or in 
                one    or  more    specific   instances    did  not   conform     to  the 
                standard      of   competence       which    we    have    enunciated. 
                Secondly,      there   must    be   a  showing      that  the   lack   of 
                competency contributed to the conviction.   If the first burden 
                has been met, all that is required additionally is to create a 
                reasonable doubt that the incompetence contributed to the 
                outcome.[57] 

In State v. Jones, the Alaska Court of Appeals elaborated as follows: 

                In evaluating trial counsel's conduct, the court must apply a 
                strong presumption of competence.            An integral component 
                of the presumption of competence is the further presumption 
                that trial counsel's actions were motivated by sound tactical 
                considerations. The duty of rebutting this presumption is part 

        54      813 P.2d 276, 283 n.6 (Alaska 1991). 

        55      666 P.2d 42, 45 (Alaska 1983). 

        56      Id. at 46; see also   S.B. v. State, Dep't of Health & Soc. Servs., Div. of 

Family & Youth Servs., 61 P.3d 6, 15-16 (Alaska 2002) (applying Risher standard);P.M. 
v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 42 P.3d 1127, 
1131 (Alaska 2002) (applying Risher standard). 

        57      523 P.2d 421, 425 (Alaska 1974). 

                                                  -33-                                            6628
 

----------------------- Page 34-----------------------

                and     parcel   of  the   accused's     burden    of   proof:    "[T]he 
                defendant   must   overcome   the   presumption   that,   under   the 
                circumstances,   the   challenged   action   might   be   considered 
                sound trial strategy."[58] 

We have applied the Risher standard in two parental termination cases decided after V.F.: 
in S.B. v. State59 and in P.M. v. State.60 

                David   invites   us   to   abandon   or   alter   the  Risher  standard   for   parental 

termination   cases.     David   "suggests   that   this   court   establish   a   new   standard   for   the 

effective assistance of counsel which is specific to Child in Need of Aid Proceedings." 

David urges us to look to other jurisdictions, such as Oregon, which have done just that. 

We decline to do so.  In V.F., we adopted the Risher standard as the appropriate standard 
for CINA cases.61       We have stated that "we will overrule a prior decision only when 

clearly convinced that the rule was originally erroneous or is no longer sound because 

of changed conditions, and that more good than harm would result from a departure from 
precedent."62    David fails to make any argument that we should overrule our controlling 

precedent under this standard, and we perceive no reason to do so. 

        58      759 P.2d 558, 569 (Alaska App. 1988) (quoting Strickland v. Washington, 

466 U.S. 668, 689 (1984)) (internal citations omitted). 

        59      61 P.3d at 15-16. 

        60      42 P.3d at 1131. 

        61      666 P.2d at 46. 

        62      State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 

(Alaska 2003) (citing Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1176 
(Alaska 1993)) (internal quotation marks omitted). 

                                                   -34-                                             6628
 

----------------------- Page 35-----------------------

                2.	     David's counsel did not provide ineffective assistance. 

                        a.	     The performance of David's attorney before and during 
                                trial 

                David first argues that his attorney underperformed at trial, detailing a 

variety of alleged failings.   David argues that his attorney did not meet with him enough 

before trial and that their first in-person meeting was focused on whether David would 

relinquish his parental rights.       At the hearing on David's Civil Rule 60(b)(6) motion, it 

was explained that this choice was strategic because with relinquishment David would 

retain some visitation rights while with termination he would have none.                 The attorney 

explained that he had spoken with David numerous times by phone and had even tried 

to   contact   David   while   David   was   a   fugitive.  The   attorney   explained   that   he   was 

available to speak with David whenever David wished to call and would have met in 

person had David wanted that. 

                David also argues that his trial attorney should have performed a "dry run" 

of David's testimony.        Although there was testimony at the Rule 60(b) hearing that 

rehearsal of the client's testimony is standard, the State maintains that David "had a full 

opportunity to present whatever testimony he felt should have been presented at the 

termination trial." 

                David     also   argues   that  his  attorney   was    overly   passive   during    trial, 

declining to ask questions of some witnesses or asking inconsequential questions.  The 

State counters that trial counsel's   decisions were strategic, explaining that "it is not 

sound strategy to cross-examine a witness whose answers may not be beneficial to your 

client."  Although David's expert witness testified that she had never participated in a 

termination trial with so few questions, the State responds that David has not established 

any prejudice and "simply summarizes who testified at the termination trial and whether 

[his attorney] cross-examined that person." 

                                                  -35-	                                           6628
 

----------------------- Page 36-----------------------

                 David also challenges the adequacy of his attorney's closing argument.  The 

attorney's closing argument was short, stating in its entirety: 

                         I   have   just   a   few   brief   comments. We   believe   that 
                 [David], if given the opportunity, would be a suitable parent 
                 for   his   child. And   he's   been   struggling,   rightly,   with   his 
                 addictions and he'd usually do - he often does fairly well, 
                 and we think with more effort, that he could be a suitable 
                parent. 

David's expert testified that the brevity of this closing argument was "shocking."  But 

the State's closing argument was not long either, addressing only the required elements 

and findings needed to support termination of parental rights under AS 47.10.011(1), (2), 

and (10). 

                 The first prong of the Risher test calls for evaluating the standard of the 

attorney's     performance       at  the  termination     trial.   It  asks   whether     the   attorney's 
performance was at a level that "no reasonably competent attorney would provide."63 

We have reviewed the question whether counsel's performance fell below minimally 
acceptable standards in several previous decisions.64              V.F. v. State is the only case we 

have decided that bears any factual resemblance to this one.                  In that case, V.F. made 

three    arguments     to  support    her   claim   that  her   attorney   did   not  provide    effective 
assistance.65    First, she argued that she misunderstood the attorney's role and did not 

realize until shortly before the hearing that he represented her.66             But we found that she 

        63      Jones, 759 P.2d at 568 (citing Brown v. State, 601 P.2d 221, 234 (Alaska 

1979)). 

        64       V.F., 666 P.2d at 45; S.B., 61 P.3d at 15; P.M., 42 P.3d at 1131-32. 

        65       666 P.2d at 46. 

        66      Id. 

                                                   -36-                                              6628
 

----------------------- Page 37-----------------------

"was informed of the appointment."67             Second, V.F. argued that her attorney "failed to 

argue that the proceeding should have been governed by the Indian Child Welfare Act."68 

We concluded that this would "not have contributed to the outcome of the hearing" as 
the proceedings did substantially comply with ICWA.69                     Third, V.F. argued that her 

attorney failed to call her boyfriend as a witness, who arguably could have established 
that V.F. could provide a "good, stable environment for her children."70                   We concluded 

that   the   failure   to   subpoena   this   witness   was   a   "strategic   decision"   that   did   not   fall 

"outside     of  the   range   of   reasonable     actions   which    might    have    been   taken    by  an 
attorney."71 

                 In this case, trial counsel demonstrated a willingness to work with David 

and respond to his concerns.            He offered strategic reasons for his trial decisions, and 

David   did   not   prove   otherwise.      Although   the   superior   court   found   that   counsel's 

performance was substandard insofar as he did not conduct a run-through of David's 

testimony prior to his taking the stand, it is unclear that this mistake "fell outside of the 

range of reasonable actions which might have been taken by an attorney skilled in the 
. . . law." 72 

                 Perhaps more importantly, David did not show how an improved or more 

aggressive performance would have made a difference in the outcome of his case. At the 

        67       Id. 

        68       Id.
 

        69       Id. at 46-47.
 

        70
      Id. at 47. 

        71       Id. (quoting Risher v. State, 523 P.2d 421, 424 (Alaska 1974)) (internal 

quotation marks omitted). 

        72       Id. 

                                                    -37-                                               6628
 

----------------------- Page 38-----------------------

conclusion of closing arguments, the superior court noted:              "This is in my view not a 

close case." Nonetheless, David argues that his "trial counsel could have raised the issue 

that David [] had an adequate plan in place for Hannah's care during his incarceration." 

But incarceration was only one of the three grounds on which the superior court found 

Hannah to be a child in need of aid.   And David did not dispute the factual bases for the 

superior court's rulings on the other two grounds: abandonment based on his nine-month 

flight   from   the   authorities   and   substance   abuse   based   on   his   methamphetamine   and 

marijuana use.     In In re M.B., the Vermont Supreme Court declined to find ineffective 

assistance in a termination case because the parent "fail[ed] to specify what additional, 
relevant   evidence     would    have   been   provided"    had   counsel   been   more   effective.73 

Similarly, David does not specify how he thinks the trial would have been different if his 

counsel had taken a different approach.   As such, he has not met the prejudice prong of 
the Risher test.74 

                        b.      David's desire to place Hannah with Claire 

                David makes a series of arguments related to his desire to have Hannah 

placed with his mother, Claire.        David argues that an attorney in a CINA case acts as 

"both an advocate for and a counselor to a client" and that his attorney failed in this latter 

role.  David contends that his attorney should not have advised him to stipulate that 

Hannah was a child in need of aid in April 2008 when she was taken into custody by the 

State. David also argues that his counsel "failed to advocate for the placement of Hannah 

with her paternal grandmother, Claire."          David relies on his expert witness's statement 

        73      In re M.B., 647 A.2d 1001, 1005 (Vt. 1994). 

        74      523 P.2d at 424 (for a finding of ineffective assistance, "[t]he conduct of 

counsel must have contributed to the eventual conviction"). 

                                                 -38-                                              6628 

----------------------- Page 39-----------------------

that "[the] attorney's failure to advocate for placement adequately with Claire [] fell 

below the standards of representation." 

                The State responds that OCS "actively pursued placement with Claire" and 

that it is therefore inconsequential whether David's attorney "should have done more to 

ensure that Hannah was placed with Claire." The State concentrates its arguments on the 

prejudice prong of the Risher test. 

                Even if trial counsel did fail to pursue placement with Claire, that is not 

relevant   to   a   claim   that   he   provided  ineffective   assistance   in  David's   termination 

proceedings. Further, OCS undertook considerable efforts to place Hannah with Claire. 

David does not specify what else his attorney might have argued that OCS should have 

done.    The   opportunity   to   place   Hannah   with   Claire   seems   to   have   been   robustly 

explored,     and   it  is  unclear  what   additional    advocacy     for  this  option   would    have 

accomplished.      Accordingly, David's argument does not satisfy the prejudice prong of 

the Risher test. 

                Finally, David argues that his attorney "failed to recognize that Claire [] 

may have standing as an Indian Custodian."             David claims that Diane's delegation of 

parental rights to Claire via a power of attorney was "consistent with tribal practice and 

custom   and   is   exactly   the   type   of   issue   that   ICWA   is   designed   to   protect." But   as 

discussed above, this argument also fails the prejudice prong of the Risher test because 

Claire does not, in fact, have standing as an Indian custodian.             Because Claire was not 

an "Indian custodian," it could not have benefitted David to argue that she was. 

V.      CONCLUSION 

                For the reasons described above, we AFFIRM in all respects the superior 

court's order terminating parental rights and the superior court's order denying David's 

Civil Rule 60(b)(6) motion to set aside judgment due to ineffective assistance of counsel. 

                                                  -39-                                            6628
 
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