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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Doe v. State, Dept. of Health & Social Services, Office of Children's Services (1/13/2012) sp-6636

Doe v. State, Dept. of Health & Social Services, Office of Children's Services (1/13/2012) sp-6636

        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 

JOHN DOE,                                         ) 
                                                  )   Supreme Court No. S-14310 
                       Appellant,                 ) 
                                                  )   Superior Court No. 4BE-07-00017 CN, 
        v.                                        )   4BE-07-00018 CN, 4BE-07-00019 CN, 
                                                  )   4BE-07-00020 CN, 4BE-07-00021 CN, 
STATE OF ALASKA, DEPARTMENT                       )   4BE-07-00022 CN 
OF HEALTH & SOCIAL SERVICES,                      ) 
OFFICE OF CHILDREN'S SERVICES,                    )   O P I N I O N 
                                                  ) 
                       Appellee.                  )   No. 6636 - January 13, 2012 
                                                  ) 

               Appeal    from   the   Superior   Court   of   the  State  of   Alaska, 
               Fourth Judicial District, Bethel, Leonard Devaney III, Judge. 

               Appearances:        Olena     Kalytiak    Davis,    Anchorage,     for 
               Appellant.     Megan   R.   Webb,   Assistant   Attorney   General, 
               Anchorage, and John J. Burns, Attorney General, Juneau, for 
               Appellee. 

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

               CHRISTEN, Justice. 

I.       INTRODUCTION 

               The Bethel Superior Court entered an order terminating an incarcerated 

father's parental rights to three of his five children.  The father appeals, arguing that the 

superior court erred by finding that the State made active efforts to prevent the breakup 

of his family and finding that it was in the children's best interests for his parental rights 

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

to be terminated.  Because the superior court's active efforts and best interests findings 

were supported by the record and not clearly erroneous, we affirm the superior court's 

ruling terminating the father's parental rights. 

II.     FACTS AND PROCEEDINGS 

                John and Jane Doe are the biological parents of five minor children:  16- 

year-old Preston, 14-year-old Adam, 11-year-old Trevor, ten-year-old Mathilda, and six- 

year-old Nin.1    The family is Yup'ik, and the children are Indian children as defined by 

the Indian Child Welfare Act (ICWA).2            Both John and Jane take pride in the Yup'ik 

culture; John wants his children to remain connected to the Yup'ik community. 

        A.      John's Criminal History, Alcohol Abuse, And Incarceration 

                John   has   a   substantial   criminal   history. In   1985,   he   was   convicted   of 

second-degree murder and received an eighteen year sentence with ten years suspended. 

Between August 1998 and September 2000, John was convicted of disorderly conduct, 

assault in the fourth degree, driving while intoxicated, and indecent exposure.  In 2001, 

John   was   convicted   of   domestic   violence   assault.   In   2004,   John   was   convicted   of 

assaulting his wife, Jane, and was also convicted of misconduct involving weapons in 

the fourth degree.      Around the same time in 2004, John was convicted of attempted 

sexual abuse of a minor in the third degree and was required to register as a sex offender; 

he was later arrested for failing to register. 

                In   2006,   the   Office   of  Children's     Services   (OCS)     received    reports 

indicating that John had physically and sexually abused his stepdaughter, Nellie, who 

        1       Pseudonyms have been used to protect the identities of the parties. 

        2       25 U.S.C.  1901-1923 (2006). 

                                                  -2-                                              6636 

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

was 14 years old at the time.3      Nellie told OCS and the Alaska State Troopers that John 

had sexually abused her "more than ten times," starting when she was seven years of age. 

Nellie also stated that she told Jane, her mother, about the abuse, but her mother did not 

call the police.     John was subsequently convicted of sexual abuse of a minor in the 

second degree and sentenced to 12 years in prison, with four years suspended.                   John is 

currently serving that sentence; he is due to be released in 2014. 

                Around      the  time   Nellie's    allegations   were    being   investigated,    OCS 

conducted   a   safety   assessment   of   the   Doe   home.    A   social   worker   interviewed   the 

children, and both Nellie and Mathilda reported that John had physically abused them 

by hitting them on the back.   In a later, unrelated contact with OCS, Jane stated that she 

had   been   repeatedly   abused   by   John   over   the   years.   Jane   stated   that,   on   various 

occasions, John had pointed a gun at her head, choked her, hit her on the head, broken 

her ribs, and threatened to kill her. 

                John asserts that his trouble with the police has always been related to 

alcohol abuse.  Many of his criminal sentences included the probationary condition that 

he refrain from possessing or consuming alcohol. John completed a roughly five-month- 

long alcohol treatment program at the Ernie Turner Center in Anchorage in 2001.  John 

claims to have remained sober for "a couple years" following this treatment, but soon 

after completing the program, he was convicted of assault and ordered to report to the 

Bethel Alcohol Safety Action Program.4           It appears that alcohol played a role in some of 

John's subsequent convictions as well. 

        3       Nellie's case was separated from the other children's in 2007. 

        4       The record does not reveal whether John completed this ordered treatment. 

                                                  -3-                                               6636 

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        B.      OCS Involvement With The Doe Family 

                From 1993-2002, OCS substantiated eight reports of neglect in the Doe 

home.5    On October 12, 2002, Jane was arrested while intoxicated in a hotel room and 

placed in jail.  John was apparently not available to care for the children and OCS was 

called to find a place for Trevor and Mathilda to sleep.            The next morning, Jane was 

released, but she did not attempt to find her children.          Instead, she returned to a bar to 

continue drinking.  A relative later helped OCS reunite Jane with the children and OCS 

closed its inquiry after learning that Jane had a full-time job and did not drink daily. 

OCS received two additional reports that Jane was neglecting her children in late 2003 

and   early   2004;   John   may   have   been   incarcerated   at   the   time.6 The   children   were 

temporarily placed in the home of a sober relative on each of these occasions. 

                In July 2004, Jane became highly intoxicated while she was taking care of 

Trevor.    Jane was arrested and Trevor was placed in temporary care for the night.  In 

September 2004, OCS received a report that Jane went on a drinking binge and left her 

children unsupervised for days. John may have been incarcerated or engaged in criminal 

proceedings when the July and September 2004 incidents occurred.                   In June 2006, a 

medical worker reported to OCS that Nin was being neglected by John and Jane. 

                Later in 2006, OCS received the report of John's physical and sexual abuse 

of Nellie.  An OCS worker subsequently visited the Doe home and spoke with Jane.  The 

worker and Jane developed a safety plan under which John would not be allowed to 

        5       The details of these incidents are not contained in the record. 

        6       In its trial brief, OCS asserted that John was incarcerated during each of a 

series   of  instances    in  which    Jane   neglected   the   children.   This    assertion   is  not 
conclusively established by the record, although the fact that OCS was unable to place 
the children with John after removing them from Jane's custody suggests that he may 
have been incarcerated. 

                                                 -4-                                            6636
 

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return to the home and Jane would not have alcohol in the home.   John briefly returned 

to   the   home   in   January   2007,   assaulted   Jane,   and   was   arrested. After   Jane   became 

intoxicated on consecutive nights that month, the children were temporarily taken to stay 

with relatives.    Jane participated with OCS to update its safety plan after the January 

2007 incidents, promising to refrain from drinking in the home and agreeing to undergo 

substance abuse and mental health assessments. 

                In   February    2007,   OCS     was   informed    that  Jane   and   two   men   were 

intoxicated in the Doe home.          OCS removed the children; later that night, Jane was 

sexually assaulted by one of the men in her home. 

                After   the   Doe   children   were   removed   from   Jane's   care,   OCS   workers 

created a case plan to provide for the safety of the children and the reunification of the 

Doe family.   OCS discussed the plan with both John and Jane, and revised the plan twice 

between 2007 and 2008.         John's case plan required him to "request parenting classes 

through the legal system," successfully complete alcohol treatment, and successfully 

complete sex offender treatment.   John signed the case plan, indicating that he had read 

and understood it, and an OCS social worker met with him in jail to explain the plan and 

what it required him to do.       John later testified that OCS workers largely neglected to 

explain the case plan after 2007, but one worker testified that OCS had again explained 

the case plan to John in a 2009 telephone call. 

                OCS facilitated in-person contact between Jane and the children on multiple 

occasions.    OCS workers also helped Jane access multiple substance abuse treatment 

programs, mental health treatment, and parenting classes.  One worker tried to help Jane 

procure stable housing. 

                OCS communicated with John by telephone during this period and John 

met with an OCS worker in   person on one occasion.                 During 2007 and 2008, OCS 

                                                  -5-                                            6636
 

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

enabled John to have roughly weekly telephone conversations with his children.                    John 

encouraged the children to read the Bible when he spoke to them.                 He also wrote them 

letters.   After    John   was   transferred    to  a  new   prison   in  late  2008,   his  telephone 

conversations with his children occurred less frequently, although OCS continued to 

facilitate these contacts.  It appears that telephone conversations sometimes did not take 

place because an OCS worker was sick or leaving town.                In other instances, the prison 

prevented John from making calls. 

                During this period, the Doe children were transferred among many different 

living arrangements.  Preston moved between placements 14 times from February 2007 

to March 2009; Adam was in nine different placements during the same period.                      OCS 

found   relatives   to   take   custody   of   some   of   the   children   at   times,   but   these   relative 

placements were short-lived.         The relatives who took temporary custody of some the 

children included John's parents, John's cousin, Jane's sister, and other relatives of Jane. 

Some of the children severely misbehaved, and the relatives were uniformly unable or 

unwilling to assume custody for any extended period.   OCS workers investigated other 

potential placements with John's relatives.  An OCS worker contacted John's sister, but 

she declined to care for any of the children.   John's daughter from another marriage was 

suggested   as   a   potential   placement,   but   an   OCS   worker     did   not   have   her   contact 

information.7     Other relatives failed background checks and were deemed unsuitable 

placements. 

        7       At the termination trial, an OCS worker testified that she did not contact 

John's daughter, although the daughter was proposed as a potential placement for the 
Doe children.     The worker testified that she "saw that [the daughter was proposed as a 
placement] on an e-mail, but I didn't know the number so I did ask through e-mail what 
was her number but I didn't get a response back."  From this testimony, it is unclear who 
failed to respond to the worker's request: members of the Doe family or other OCS staff. 

                                                  -6-                                             6636
 

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                As of the termination trial in November 2010, the Doe children were housed 

in the following placements:        (1) Preston was living in a foster placement in Napakiak; 

(2) Adam was living in the Pathway Boys Group Home in Anchorage; (3) Trevor had 

been recently removed from a long-term foster home and was living   in a new foster 

placement; (4) Mathilda was living in a non-relative foster home where she had been 

housed since early 2009; and (5) Nin was living in a non-relative foster home where she 

had been housed since 2007. 

                Sometime after John   was   incarcerated for sexually abusing Nellie, Jane 

entered into a relationship with Olaf, a convicted sex offender.             Later, the couple had a 

child.  At the time of trial, Jane and Olaf lived together with their child, but Olaf did not 

want any of Jane's other children to live with them. 

        C.      Proceedings 

                OCS filed an emergency petition for adjudication of children in need of aid 

and for temporary custody in February 2007.  OCS was granted custody.  In April 2007, 

both John and Jane stipulated that their children were in need of aid and agreed to allow 

OCS to take custody of the children for up to two years. 

                A permanency hearing was held in superior court in December 2007.  The 

superior court approved OCS's plan to attempt to reunify the family, although it noted 

that neither parent had made substantial efforts to remedy their conduct.                At a second 

permanency   hearing   held   in   December   2008,   the   superior   court   approved   a   plan   to 

concurrently seek adoptive homes for the children and attempt to reunify them with their 

parents.    In February 2009, OCS petitioned to extend its custody of the children for 

another   year,   and   the   superior   court   granted   the   petition. At   the   third   permanency 

hearing, in November 2009, the superior court approved a permanent plan of adoption, 

finding that, despite OCS's active and reasonable efforts, it was not in the children's best 

                                                  -7-                                            6636
 

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

interests to return to their parents' custody.           The superior court instructed OCS to file a 

petition   to   terminate   the   parental   rights   of   both   parents   and   OCS   filed   a   petition   in 

March 2010. 

                 A    termination     trial  was   held   in  November       2010    and   January      2011. 

Representatives from the Yup'ik tribe and the village of Napakiak8 were present at the 

trial.  Six OCS workers testified regarding the agency's involvement with the Doe family 

over the years.     John opposed the termination of his parental rights and testified on his 

own behalf.     Jane opposed the termination of her parental rights but she did not testify. 

                 John admitted that he was aware of his obligations under the case plan, and 

he expressed a desire to comply with the plan and remain in contact with his children.  He 

testified that he spent a year taking care of Trevor in the early-2000s when Trevor was 

sick with pneumonia, and that he was sober and financially supporting the children during 

that   period.    And   he   testified    that   he   completed   a   life   skills/parenting   class   while 

incarcerated      and   requested     a  substance     abuse   evaluation     from    the  Department      of 

Corrections but received no response. According to John, he attempted to attend alcohol 

treatment early in his sentence, but that had been "difficult."  It was uncontested that John 

was unable to participate in treatment programs at the time of the termination trial because 

he was segregated from the general prisoner population.  John was placed in segregation 

because contraband was found in his cell.  John testified that he wanted to participate in 

treatment programs, including sex offender treatment,9 once his segregation ended. 

        8        John's parents apparently live in Napakiak; the Doe family also seems to 

have lived there intermittently. 

        9        In   2009,   John    stated   that  because    he   was   appealing     his  sex   offense 

conviction,   he   was   unwilling   to   participate   in   sex   offender   treatment.       But   at   the 
termination trial, John stated that he wanted to undergo sex offender treatment, though 
                                                                                            (continued...) 

                                                    -8-                                               6636
 

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

               On April 11, 2011, the superior court issued an order on the termination of 

John and Jane's parental rights.      The superior court ruled that OCS proved by clear and 

convincing evidence that all five children were in need of aid under AS 47.10.011(1),10 

(2),11 (8)(B)(i)-(ii),12 (9),13 (10). 14  The court also found that OCS proved by clear and 

convincing evidence that neither parent had remedied the conduct causing the children 

to be in need of aid. 

               The   court   then   ruled   that   OCS   demonstrated   by   clear   and   convincing 

evidence that it made active efforts to reunify the family.          The superior court's active 

efforts analysis centered on a discussion of OCS's interactions with Jane.            The superior 

court found that OCS:       developed "many case plans" for Jane; "provided [Jane] with 

support to work her case plan"; expended "[e]xtensive efforts and time . . . just trying to 

locate [Jane]"; attempted to place Jane in substance abuse treatment; and "provided phone 

cards and visitation between [Jane] and her children."  The superior court also found that 

there were "some concerning gaps in active efforts between July 2009 and January 2010," 

        9(...continued) 

he denied that he was a "sex offender." 

        10      Subsection (1) of the statute pertains to abandonment. 

        11      Subsection (2) pertains to parents' absence and incarceration. 

        12      Subsection (8)(B) pertains to prospective mental injury to the child. 

        13      Subsection (9) pertains to neglect. 

        14      Subsection (10) pertains to parental substance abuse. The superior court 

also ruled that the female children - but not the male children - were in need of aid 
under AS 47.10.011(7), which   relates to sexual abuse.            Finally, the court ruled that 
Preston, Adam, and Mathilda were in need of aid under AS 47.10.011(8)(A), which 
relates to actual mental injury suffered by children. 

                                                -9-                                           6636
 

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

noting that OCS "could not explain why there were no documented contacts with [Jane] 

during that timeframe."       But in consideration of OCS's overall involvement in the case 

and Jane's lack of desire to have her children back, the court ultimately found that active 

efforts had been established by clear and convincing evidence. 

                The superior court found that OCS properly focused its reunification efforts 

on Jane, given John's incarceration.           The court also identified several steps OCS had 

taken to promote reunification and provide rehabilitative services to John.                 It noted that 

OCS      had  encouraged      John   "to  take   parenting    classes   and  obtain    substance    abuse 

treatment," involved John in case plan reviews, and "provided visitation between [John] 

and his children."      The court concluded that "[b]ased on his maximum security status 

[John] created little opportunity for the State to do much more than encourage him and 

ensure he had visits with his children.        The State did this." 

                The court also found that OCS made active efforts to "assist the children 

with foster homes, residential treatment, and counseling" and noted that "[s]ocial workers 

visited   with   the   children   regularly,"   and   OCS   made   "extensive   efforts   to   ensure   the 

siblings visited with each other."  Additionally, the superior court found that OCS "made 

excellent efforts to locate relative placements and continues to do so . . . . These efforts 

also go toward reunifying the family." 

                 The court ruled that OCS proved, beyond a reasonable doubt, that continued 

custody   of   the   children   by   either   parent   was   likely   to   result   in   serious   emotional   or 

physical damage to the children.          Finally, the court found, by a preponderance of the 

evidence, that the termination of John and Jane's parental rights to Trevor, Mathilda, and 

Nin was in the children's best interests.         The court entered a judgment terminating the 

parents'    rights   to  the  three  younger     children,   focusing    on  the  children's    need   for 

permanency: 

                                                  -10-                                             6636
 

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

                 These children are young, and have been in State custody for 
                 four   years.   Their   mother   cannot   have   them   in   her   home. 
                 Their   father   will   be   off   probation   in   2019.  At   that   time, 
                 [Trevor] will be age 19[,] [Mathilda] will be age 20, and [Nin] 
                 will be age 14.[15]   There is an urgent need for permanency for 

                 these children.   Terminating these parental rights is necessary 
                 to achieve a permanent home for them. 

The court found that it was not in the best interests of Preston or Adam to terminate John 

and Jane's parental rights because there was no evidence of the older boys' feelings about 

termination.  John appeals the termination of his parental rights to Trevor, Mathilda, and 

Nin.   Jane did not appeal the superior court judgment. 

III.    STANDARD OF REVIEW 

                 "In a case involving the termination of parental rights, we review a superior 
court's   findings   of   fact   for   clear   error."16 "Findings   are   clearly   erroneous   if,   after 

reviewing the record in the light most favorable to the prevailing party, we are left with 
a   'definite   and   firm   conviction     that  a  mistake    has   been   made.'    "17   Best    interest 

determinations are factual findings reviewed under a clearly erroneous standard.18                      The 

        15       During   his   five-year   probationary   period,   John   will   be   unable   to   have 

children under the age of 16 living in his household.               Contrary to the superior court's 
findings, Mathilda will be 16 years of age by 2017 and 18 years of age by 2019.  It 
appears   she   would   be   permitted   to   live   with   John   in   2017   under   the   terms   of   his 
probation. 

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

Servs., 175 P.3d 1263, 1267 (Alaska 2008). 

        17       Id. (quoting A.B. v. State, Dep't of Health & Soc. Servs., 7 P.3d 946, 950 

(Alaska 2000)). 

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

Servs., 254 P.3d 1095, 1104 (Alaska 2011). 

                                                   -11-                                               6636
 

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

sufficiency of the state's "active efforts" under ICWA presents a mixed question of law 
and fact; we review questions of law de novo.19 

IV.	    DISCUSSION 

        A.	     The Superior Court Did Not Err In Finding That OCS Engaged In 
                Active Efforts To Reunify The Doe Family. 

                John argues that the superior court erred in finding, by clear and convincing 

evidence, that OCS made active efforts to "provide remedial services to John and keep 

Trevor[,]   Mathilda,   and   Nin   in   their   Native   family."    John   focuses   on   two   alleged 

deficiencies in OCS's efforts:         (1) OCS workers' lack of contact with him during his 

incarceration; and (2) OCS's failure to attempt to find placements for the children with 

"all living adult family members" of the Doe family. 

                John argues that "ICWA has no exception for incarceration[] and requires 

active efforts even when a parent is incarcerated."  He contends that "no such effort was 

made on [his] behalf," arguing that OCS workers had "a shamefully small amount of 

contact   with   him."    OCS   responds   that   the   sum   of   its   contacts   with   the   Doe   family 

demonstrates that it made active efforts to   prevent the breakup   of the family.                  OCS 

highlights John's incarceration as a factor relevant to the sufficiency of its efforts, and 

notes   that   it   had   some   discretion   in   determining   what   efforts   to   pursue. OCS   then 

discusses     its  extensive   history   of  involvement      with   the  Doe    family,   including    its 

"concerted efforts to ensure the children could remain safely in their mother's care[] while 

their father was incarcerated."        OCS also identifies its efforts in relation to John, noting 

that workers visited John in jail, explained his case plan to him, and enabled him to have 

telephone contact with his children. 

        19	     Id. 

                                                  -12-	                                            6636 

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

                OCS      acknowledges      that   social  workers    appear    to  "have   had   minimal 

contact" with John after he was transferred to a new prison in late-2008, and concedes 

that "additional social worker contact with John may have been preferable."                    But OCS 

argues that additional contact "would not have altered the situation in any substantive 

respect.  John would still have been incarcerated, in segregation, and unable to engage in 

any services . . . ."   OCS argues that, in any case, the superior court "was also entitled to 

consider OCS's efforts with respect to Jane," and that these efforts were "consistent and 

extensive." Finally, OCS argues that its failure to find relative placements for some of the 

children is irrelevant to the active efforts analysis.  In the alternative, OCS argues that it 

made active efforts to place the Doe children with relatives. 

                Before parental rights may be terminated under ICWA, that statute and the 

CINA Rules require proof by "clear and convincing evidence" that "active efforts have 

been made to provide remedial services and rehabilitative programs designed to prevent 
the breakup of the Indian family and that these efforts have proved unsuccessful."20                  We 

evaluate   whether   the   active   efforts   requirement   has   been   satisfied   on   a   case-by-case 
basis;21 generally, "active efforts require that the [S]tate actually help the parent develop 

the skills required to keep custody of the children," rather than merely develop a case plan 
for the parent to follow.22     In evaluating whether the State has met this burden, "we look 

to the State's involvement in its entirety."23 

        20      25 U.S.C. 1912(d) (2011); CINA Rule 18(c)(2)(B). 

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

1999) (citingA.M. v. State, 945 P.2d 296, 306 n.12 (Alaska 1997)). 

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

Servs., 222 P.3d 841, 849 (Alaska 2009). 

        23      Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

                                                                                          (continued...) 

                                                  -13-                                             6636
 

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

                We     have   held   that   "[n]either  incarceration     nor  doubtful   prospects     for 

rehabilitation will relieve the State of its duty under ICWA to make active remedial 
efforts."24   But   "circumstances   surrounding   a   parent's   incarceration,"   including   "the 

duration of a parent's incarceration and the services possible for incarcerated parents" can 
have a "direct bearing on what active remedial efforts are possible."25               When a parent is 

incarcerated,   the   superior   court   may   consider,   in   addition   to   efforts   made   by   OCS, 
remedial programs offered by the Department of Corrections.26                 OCS's interactions with 

the non-incarcerated parent may be considered an "important aspect of the [S]tate's active 
efforts to keep the family together."27 

                The superior court considered "the State's involvement in its entirety"28 to 

find that the active efforts requirement was satisfied.   The court focused on OCS's efforts 

toward Jane, finding that OCS wrote a letter to help Jane get housing, provided telephone 

cards and visitation between Jane and the children, and actively encouraged Jane to seek 

treatment and stay in close contact with her children.               The court also found that Jane 

completed two treatment programs and that OCS set up substance abuse aftercare in her 

village, but that Jane "disappeared."  These findings were supported by the record, which 

documents numerous instances in which OCS referred Jane to treatment, enabled her to 

        23(...continued) 

212 P.3d 756, 763-64 (Alaska 2009) (quoting Maisy W. v. State, Dep't of Health & Soc. 
Servs., Office of Children's Servs., 175 P.3d 1263, 1268-69 (Alaska 2008)). 

        24      A.M. v. State, 891 P.2d 815, 827 (Alaska 1995). 

        25      Dashiell R., 222 P.3d at 849 (quoting A.M.,  891 P.2d at 827). 

        26      Id. 

        27      Id. at 850. 

        28      Jon S., 212 P.3d at 763-64. 

                                                  -14-                                              6636
 

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

have   contact   with   the   children,   and   provided   her   with   other   remedial   services.  The 

superior court did not err by focusing on these undertakings as the foundation of its active 

efforts determination; the court found that OCS fulfilled its statutory duty by attempting 
to actually help Jane develop the skills required to keep custody of the children,29 and this 

finding is supported by the record. 

                OCS's alleged failure to contact Jane for a six-month period does not change 

this analysis.    As the superior court correctly noted, the question of whether the State 
made active efforts must be evaluated "throughout the case."30               Additionally, it appears 

that OCS actually did have contact with Jane during the six-month period.  The superior 

court's    understanding      that   "there  were   no  documented       contacts   with   [Jane]"   from 

July   2009   to   January   2010   was   based   on   an   OCS   worker's   inability   to   remember 

documented contacts during that period under cross-examination.  But the documentary 

evidence showed that, in November 2009, the worker referred Jane to behavioral services 

and made travel arrangements to allow her to access those services.                   OCS's history of 

contact with Jane, considered in its entirety, is clear and   convincing evidence of the 

agency's active efforts to provide her with remedial services and reunite her with the 
children.31   These efforts are also relevant to OCS's efforts to assist John.             As our court 

explained in Dashiell R. v. State, OCS's active efforts toward a non-incarcerated parent 

        29      Dashiell R., 222 P.3d at 849. 

        30      See Jon S., 212 P.3d at 763-64 (holding that active efforts determination 

depends on "the state's involvement in its entirety"). 

        31      See, e.g. E.A. v. State, Div. of Fam. & Youth Servs.,  46   P.3d   986, 991 

(Alaska 2002) (holding that State's failure to make active efforts   over seven-month 
period was insignificant in light of extensive remedial efforts during remainder of case). 

                                                  -15-                                             6636
 

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

are important because if the children are able to stay with the non-incarcerated parent, it 
is unlikely the incarcerated parent's rights will be terminated.32 

                John does not dispute the extent of OCS's efforts toward Jane; instead, John 

argues that OCS had a "shamefully small amount of contact with him" and that, as a 

result, OCS failed to make active efforts to reunify him with his children or provide 

rehabilitative services.  John is correct that "ICWA has no exception for incarceration," 

but he neglects to acknowledge that his incarceration "significantly affects the scope of 
the active efforts that the State must make to satisfy the statutory requirement."33              OCS's 

efforts easily satisfied this narrower requirement. 

                From the outset of his incarceration in 2007 to late-2008, OCS spoke with 

John frequently by telephone and visited him in person once.                During this period, OCS 

enabled     John    to  have   roughly    weekly    telephone     conversations     with   his  children. 

Although these telephone contacts occurred less frequently after John was transferred in 

late-2008, the infrequency was partially related to the difficulties of making telephone 

calls to him in prison.     The record supports the finding that OCS actively promoted the 

Doe family's reunification by facilitating John's continued interaction with his children. 

                OCS also helped John access remedial services to the extent it was capable 

of doing so.  OCS explained John's case plan to him in person after he was incarcerated, 

and explained the plan again by telephone in 2009.             John admitted that he was aware of 

his obligations under the plan throughout his incarceration.  While housed in the general 

prison    population    -    where    he  was   eligible   to  receive   treatment   services    -   John 

completed   a   life   skills   class,   and   attempted   substance   abuse   treatment   but   did   not 

        32      Dashiell R., 222 P.3d at 850. 

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

1999). 

                                                  -16-                                             6636 

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

complete it because "it was difficult."         In 2009, John was unwilling to participate in sex 

offender treatment; at trial, he expressed a willingness to attend sex offender treatment 

even though he was appealing his conviction and did not consider himself to be a sex 

offender.  But John's misconduct in prison made him ineligible to receive any treatment 

until mid-to-late 2011. DOC's treatment offerings can satisfy OCS's remedial obligations 
to incarcerated parents,34  and if not for his own misconduct, John would have remained 

eligible for these programs. But John was reluctant or unwilling to participate even when 

eligible for remedial services in prison, and his recalcitrance further limited OCS's active 
efforts obligation.35 

                Finally, John argues that the superior court erred in finding that OCS made 

"excellent efforts" to find relative placements for the children.            OCS counters that "the 

question of whether OCS was diligent in locating adult family members . . . willing to 

care for children in its custody is not relevant to the question of whether OCS made active 

efforts." 

                In David S. v. State, Department of Health & Social Services, Office of 

Children's      Services,   we   recognized     that,  under    limited   circumstances,      "a  child's 

placement might affect a parent's ability to participate in remedial efforts" and might 
therefore be relevant to the active efforts analysis.36      But we explained that "ordinarily the 

question whether a placement decision complies with ICWA's placement preferences will 

        34      A.A., 982 P.2d at 263. 

        35      See, e.g., N.A. v. State, 19 P.3d 597, 603 (Alaska 2001) (holding "parent's 

demonstrated   lack   of   willingness   to   participate   in   treatment"   may   be   considered   in 
determining whether the State has made active efforts). 

        36      ___P.3d___ at *10, 2011 WL 6347722 (Alaska, Dec. 16, 2011). 

                                                  -17-                                            6636
 

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

not be germane to the elements of termination."37 In this case, OCS's placement efforts 

were not germane to its active efforts; John made no showing that the placement of the 

children had any bearing on his ability to participate in remedial efforts. Further, because 

it   did   not   have   guidance   from   our   since-issued   decision   in  David   S.,   the   trial   court 

considered OCS's placement efforts as a part of its active efforts analysis and found that 

OCS made "excellent efforts to locate relative placements."                  These findings were not 

clearly erroneous. 

                 OCS contacted John's sister, but she refused to take custody of the children. 

OCS succeeded at placing the children, temporarily, with John's aunt, John's parents, and 

some of Jane's relatives.  These relatives were uniformly unable or unwilling to care for 

the children for any extended period.   Other relatives failed background checks and were 

deemed unsuitable placements.            Although the record leaves open the possibilities that 
OCS did not follow through on contacting John's daughter38 or brother, this uncertainty 

does not cause us to disregard OCS's otherwise extensive relative search. 

                 OCS developed a case plan, explained it twice, enabled John to remain in 

touch with his children, and attempted to secure relative placements for the children.  We 

agree with the superior court that OCS had "little opportunity . . . to do much more than 

encourage   [John]   and   ensure   he   had   visits   with   his   children."    These   measures,   in 

conjunction with OCS's considerable efforts to help Jane, demonstrate that OCS actively 

attempted to prevent the breakup of the Doe family. 

        37      Id. 

        38      See supra note 7. 

                                                   -18-                                              6636 

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

        B.	     The Superior Court Did Not Commit Clear Error By Finding That The 
                Termination Of John's Parental Rights Was In His Children's Best 
                Interests. 

                John    argues   that  the  superior    court  clearly   erred   by  finding   that  the 

termination of his parental rights was in the best interests of his three youngest children. 

John notes that the superior court did not terminate his parental rights to his oldest sons 

and argues that this "clearly casts doubt regarding the termination of John's rights to 

Trevor,   who   is   only   three   years   younger   than   Adam."   John   also   contends   that   the 

superior   court   "failed   to  consider    [John's]   strong   determination    to  continue    in  his 

relationship with all his children, which it was obligated to do."  Finally, John argues that 

the superior court "ignor[ed] ICWA's very important overarching best interests standard 

that the children should remain either with their extended family or inside the tribe." John 

concludes that the superior court "simply did not have enough evidence" to terminate his 

parental rights. 

                OCS     responds    that   the  superior  court's   reasons   for  preserving    John's 

parental rights to his oldest sons were not transferable to the younger children and argues 

that the superior court properly focused on the younger children's need for permanency 

because "if termination were denied, the children could very well remain in OCS custody 

for over a decade."  OCS notes that Nin is housed in a pre-adoptive placement and argues 

that while Trevor and Mathilda are not currently in pre-adoptive placements, this "does 

not preclude the court from finding that termination of parental rights is in the children's 

best interest."    OCS also disputes John's claim regarding ICWA's "overarching best 

interests standard," arguing that ICWA's placement preferences are "irrelevant to the 

question . . . of whether termination of parental rights is in a child's best interests." 

                To prevail in a proceeding seeking the termination of parental rights, OCS 

must prove "by a preponderance of the evidence that termination of parental rights is in 

                                                 -19-	                                           6636
 

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

the best interests of the child."39      A superior court may consider "any fact relating to the 

best interests of the child" in its best interests analysis.40        A superior court's best interests 

determinations   are   findings   of   fact,   which   we   review   under   the   "clearly   erroneous" 
standard.41 

                 1.	     The superior court's decision to terminate John's parental rights 
                         to some, but not all, of the children does not suggest clear error. 

                 John argues that it was clear error for the superior court to terminate his 

parental   rights   to   Trevor,   Mathilda,   and   Nin   while   preserving   his   parental   rights   to 

Preston and Adam.  But the superior court's distinction between the older boys and their 

younger siblings was adequately supported by the record. 

                 OCS's purpose in seeking the termination of parental rights was to free the 
children for adoption;42 from the record, it appears that neither Preston nor Adam was 

likely to be adopted.      Preston was 16 at the time of trial and he was transferred between 

many   different   placements   after   OCS   took   custody.        Preston   experienced   significant 

challenges:  he was hospitalized for psychiatric problems, he was detained for allegedly 

molesting a young girl, and he experienced conflict with caregivers.   Adam, who was 14 

at the time of trial, had been similarly unable to remain in placements for long and had 

psychiatric issues. Based on these factors, the termination of John's parental rights would 

likely   have   had   little   tangible   effect   on   achieving   permanency   for   the   two   boys.   In 

contrast,   Trevor,   Mathilda,   and   Nin   had   better   chances,   by   virtue   of   their   ages   and 

        39	      CINA Rule 18(c)(3); see also AS 47.10.088(c). 

        40       AS 47.10.088(b). 

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

Servs., 254 P.3d 1095, 1104 (Alaska 2011). 

        42       AS 47.10.088(a). 

                                                   -20-	                                             6636
 

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

histories, of finding permanent placements in adoptive homes.43               John's argument that it 

was illogical to terminate his rights to the younger children while preserving his rights to 

Preston and Adam is unpersuasive. 

                2.	     The superior court did not commit clear error by terminating 
                        John's rights to Trevor and Mathilda despite the children's lack 
                        of pre-adoptive placements. 

                John also argues that because Trevor and Mathilda were not housed in pre- 

adoptive placements at the time of the trial, the termination of John's parental rights was 

not in their best interests.    We have considered the effect a child's lack of pre-adoptive 

placement has on the best interests determination in several cases.   The general rule that 

emerges from these cases is accurately summarized by OCS in its brief:   "While the lack 

of a pre-adoptive placement for Trevor and Mathilda may be relevant to a best-interests 

finding, it does not preclude the court from finding that termination of parental rights is 

in the children's best interest[s]."  In Karrie B. v. Catherine J., we determined, as a matter 

of law, that the lack of a pre-adoptive placement could be relevant to the best interests 
analysis.44   But in Carl N. v. State, Department of Health & Social Services, we affirmed 

the termination of a father's parental rights despite the lack of a pre-adoptive placement, 

observing that the child's temporary foster placement had agreed to retain custody until 

        43      John argues that the superior court had no reason to distinguish Trevor's 

best   interests   from   Adam's,   given   that   Trevor   was   "only   three   years   younger   than 
Adam," and that "John has a special relationship with Trevor."  But there are significant 
developmental differences between an 11-year-old boy and a 14-year-old boy, and it is 
reasonable to assume that Trevor had a better chance of finding an adoptive placement. 
The fact that John cared for Trevor when the boy had pneumonia in 2000 does not 
change this calculus; the superior court's distinction between Trevor and Adam was not 
clear error. 

        44      181 P.3d 177, 185 (Alaska 2008). 

                                                  -21-	                                           6636
 

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

the   child   reached   18.45  Similarly,   in  G.C.   v.   State,   Department   of   Health   &   Social 

Services, Division of Family & Youth Services, we affirmed the termination of a father's 
parental rights although his child was not in pre-adoptive placement at the time.46 

                Here, OCS's lack of success in finding pre-adoptive placements for Trevor 

and Mathilda is troubling, but it does not follow that it is in the children's best interests 

for John to retain his parental rights.        The superior court found that the children were 

young, had already been in state custody for four years, and had "an urgent need for 

permanency."  The court further noted that Jane had moved in with another man and was 

unwilling to house the children, while John would be unable to provide a home for most 
of   them   until   at   least   2019.47 These   findings   are   amply   supported      by  the   record: 

(1) John's incarceration and probation will extend until 2019; (2) at the time of trial, Jane 

was living with a sex offender who did not want Jane's children to reside with them; and 

(3) Jane had stopped attending visitation with the younger children by the end of trial. 

                Although OCS had not identified pre-adoptive placements for Trevor and 

Mathilda by the time of trial, the termination of John's and Jane's parental rights triggered 
the agency's legal duty to find adoptive placements for the children.48                It was not clear 

error for the superior court to find that it was in the children's best interests to have the 

opportunity to be adopted rather than live in temporary custody for, at a minimum, several 

more years. 

        45      102 P.3d 932, 937 (Alaska 2004). 

        46      67 P.3d 648, 655 (Alaska 2003). 

        47      The superior court's finding in   this   regard was inaccurate; John would 

technically be permitted to house Mathilda starting in 2017.  See supra note 15.  But this 
small error has no bearing on the overall accuracy of the trial court's findings. 

        48      AS 47.10.088(i). 

                                                  -22-                                             6636
 

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

                 3.	     The   superior   court   did   not   commit   clear   error   by   failing to 
                         explicitly consider John's desire to continue his relationship with 
                         the children. 

                 John also contends that the superior court "failed to consider John's strong 

determination to continue in his relationship with all his children, which it was obligated 

to do."   As proof of his determination, John notes that he spoke with his children on the 

telephone frequently during his incarceration.             In its best interests analysis, the superior 

court   did   not   specifically   mention   John's   desire   to   maintain   a   relationship   with   his 

children. 

                 We can find no support in the law for the proposition that a superior court 

is obligated to enter findings articulating its consideration of a parent's desire to continue 

parenting his children as a component of its best interests analysis.  One of the statutory 

factors relevant to the best interests determination is "the amount of effort by the parent 
to remedy the conduct or the conditions in the home";49 John apparently relies on this 

factor for his assertion that the superior court "was obligated" to consider his telephone 
communications with the children.50            But the factors outlined in AS 47.10.088 are non- 

exclusive, and there is no requirement that superior courts "accord a particular weight to 
any given factor."51     All of the statutory factors - including the amount of remedial effort 

expended by John - indicate that the termination of John's parental rights was in the best 

        49	      AS 47.10.088(b)(2). 

        50       John cites Barbara P. v. State, 234 P.3d 1245, 1263-64 (Alaska 2010) for 

his assertion that the superior court failed to comply with a legal obligation.  Barbara P. 
is actually adverse authority for John.            In that case, we held that despite the parents' 
professed   "determination   to   change,"   the   superior   court   did   not   err   in   finding   that 
termination was in the children's best interests because it was entitled to give weight to 
the children's need for permanency.  Id. 

        51       Id. at 1263. 

                                                   -23-	                                              6636
 

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

interests of his children.      Further, the `record makes it clear that the superior court was 

well aware of John's desire to parent his children; John testified at length in opposition 

to OCS's petition. 

                 4.	     The     superior     court    was    not   required     to   consider ICWA's 
                         placement       preferences      as  a  component        of  its  best   interests 
                         analysis. 

                 John further argues that the superior court erred in its best interests analysis 

by failing to account for ICWA's placement preferences.                   He asserts that the superior 

court: 

                 did not address the children's need for sibling contact, as well 
                 as   contact   with   their  extended     family   and   tribe,   as  such, 
                 ignoring ICWA's very important overarching best interests 
                 standard   that   the   children   should   remain   either   with   their 
                 extended family or inside the tribe.  Given the impossibility of 
                 finding    any   adoptive     home    that  could    keep   the  children 
                 together, maintaining their identity and connection through 
                 their   father   is   very   important   and   should   have   been   given 
                 thought and weight in the analysis. 

In support of this argument, John identifies an Arizona case stating that "[ICWA] is based 

on   the   fundamental   assumption   that   it   is   in   the   Indian   child's   best   interests   that   its 
relationship to the tribe be protected."52         He argues that ICWA is therefore "inarguably 

part of the best interests analysis of any Alaska [N]ative child." 

                 OCS argues that John fails to support the foregoing argument with "any 

legal authority or provision . . . most likely because there isn't any."                OCS argues that 

"ICWA does not . . . require a determination that termination is in the child's best interest 

- a requirement established solely under state law."                   OCS concludes by citing to a 

memorandum          opinion    of   this  court   for   the  proposition     that   ICWA's      placement 

        52      Matter of Appeal in Pima Cnty. Juvenile Action No. S-903, 635 P.2d 187, 

189 (Ariz. App. 1981). 

                                                   -24-	                                             6636 

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

preferences are "irrelevant to the question, under state law, of whether termination of 

parental rights is in a child's best interests." 

                 InJacob W. v. State (an unpublished memorandum opinion), we rejected the 

appellant's     argument      that  the  superior    court   erred   by   failing  to  consider    ICWA's 

placement preferences as a component of its best interests analysis.                 We wrote: 

                 In placing an Indian child in foster care or an adoptive home, 
                 ICWA requires that preference be given . . . to members of the 
                 child's   extended   family   or   to   someone   otherwise   affiliated 
                 with the child's Indian tribe.       But this specifically applies to 
                 placement      of  an  Indian    child;  nothing    in  ICWA      requires 
                 consideration of placement options in determining whether to 
                 terminate parental rights.  The relevant issue was whether . . . 
                 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.[53] 

                 In  Lucy   J.   v.   State,   Department   of   Health   &   Social   Services,   Office   of 

Children's Services, we held that ICWA's placement preferences are not a part of the best 
interests   inquiry   in   a   termination   proceeding.54     We   see   no   reason   to   disregard   this 

precedent here.55 

V.      CONCLUSION 

                 For    the   foregoing     reasons,    we   AFFIRM        the   superior    court's   order 

terminating John's parental rights to Trevor, Mathilda, and Nin. 

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

Servs., 2008 WL 5101809 at *9 (Alaska, Dec. 3, 2008). 

        54       244 P.3d 1099, 1120 (Alaska 2010). 

        55       The    superior    court   also   observed     that  OCS    did    try  to  find  relative 

placements. In its active efforts findings, the court determined that OCS "made excellent 
efforts to locate relative placements and continues to do so."  This finding was supported 
by the record. 

                                                   -25-                                               6636 
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