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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Josh L. v. State, Dept. of Health & Social Services, Office of Children's Services (5/18/2012) sp-6675

Josh L. v. State, Dept. of Health & Social Services, Office of Children's Services (5/18/2012) sp-6675

        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 



JOSH L.,                                      ) 

                                              )       Supreme Court No. S-14160 

               Appellant,                     ) 

                                              )       Superior Court No. 4BE 08-00080 CP 

        v.                                    ) 

                                              )       O P I N I O N 

STATE OF ALASKA,                              ) 

DEPARTMENT OF HEALTH &                        )       No. 6675 - May 18, 2012 

SOCIAL SERVICES, OFFICE OF                    ) 

CHILDREN'S SERVICES,                          ) 

                                              ) 

               Appellee.                      ) 

                                              ) 



               Appeal   from     the  Superior    Court   of  the  State  of   Alaska, 

               Fourth Judicial District, Bethel, Marvin Hamilton, Judge. 



               Appearances:      Dianne Olsen, Law Office of Dianne Olsen, 

               Anchorage, for Appellant.        Julie Fields, Assistant Attorney 

                General, Anchorage, and John J. Burns, Attorney General, 

                Juneau, for Appellee. 



               Before:       Carpeneti,    Chief   Justice,   Fabe,   Winfree,    and 

                Stowers, Justices. [Christen, Justice, not participating.] 



               PER CURIAM.
 

               WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting.
 


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

I.      INTRODUCTION 



                A father appeals the termination of his parental rights to his daughter, an 



                                                                                         1 

Indian child within the meaning of the Indian Child Welfare Act (ICWA).                     The father 



challenges the superior court's findings that the Office of Children's Services (OCS) 



made active efforts to prevent the breakup of his Indian family, arguing that OCS failed 



to investigate placement with his extended family members and did not provide him with 



adequate visitation and remedial services.   Because we conclude that OCS made active 



efforts, we affirm. 



II.     FACTS 



        A.      Eva's Early Childhood And Special Needs 



                                    2 

                Robin and   Josh   are both enrolled members of different Alaska Native 



villages.  Eva, their daughter, was born in 1996.  Robin was often absent and Josh cared 



for Eva for the first six years of her life with help from his mother, Susan, and one of his 



sisters, Sandra.  In 2002, Eva lived with her grandmother while Josh served a two-month 



                3 

jail sentence.    Before Josh's release, Eva's grandmother sent her to live with Robin. 



                In August 2006, Eva assaulted her mother and tried to injure herself.  Eva 



was   placed    on   overnight   observation   at   the   Behavioral   Health     unit   of   the   Yukon 



Kuskokwin Correctional Center.           Through the correctional center, Eva was sent to the 



North Star Residential Treatment Center in Anchorage and admitted for treatment. In 



April 2007, North Star reported to OCS that Eva needed to be placed in an acute care 



facility but North Star could not locate Robin. OCS assisted North Star in locating Robin 



and obtaining her permission to admit Eva to the North Star Acute Care Facility.                  OCS 



        1 

                25 U.S.C.  1903(4) (2006). 



        2 

                We use pseudonyms to protect the family's privacy. 



        3 

                Josh has a history of violent criminal and sexual offenses. 



                                                  -2-                                               6675 


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

also opened an in-home case with Robin to assist her in keeping in contact with Eva and 



engaging   in   Eva's   treatment.    A   social   worker   visited   her   on   a   monthly   basis   and 



arranged for her to participate in Eva's weekly family therapy sessions by telephone, but 



Robin failed to participate consistently in the therapy sessions and often did not return 



OCS's calls.      In October 2007, Eva was transferred to a therapeutic treatment home in 



Anchorage for emotionally-disturbed and behaviorally-challenged children. Anchorage 



Community Services (ACS) became involved and developed a treatment plan for Eva. 



                Eva was diagnosed with cognitive disorders stemming from exposure to 



alcohol, post-traumatic stress disorder from exposure to physical violence and abuse, 



attention deficit hyperactivity disorder (ADHD), and major depressive disorder. She also 



experienced   delusions   and   hallucinations.      She   had   difficulty   managing   her   moods, 



would become easily agitated and frustrated, was prone to "explosive outbursts" and 



tantrums, and had trouble sleeping. She functioned best in highly structured settings and 



required lists, prompts, and coaching to complete daily activities, such as brushing her 



teeth, making her bed, and dressing herself. 



        B.      OCS Assumes Custody Of Eva And Works Towards Reunification. 



                In September 2008, ACS contacted OCS and reported that Eva was ready 



to be discharged to a therapeutic foster home but Robin could not be located.  Robin had 



not   communicated   with   Eva's   ACS   case   manager   in   over   two   months   and   had   not 



communicated with Eva in over one month.  Josh's whereabouts were also unknown at 



the time.  ACS filed a protective services report with OCS and OCS filed an emergency 



petition for temporary custody and adjudication of Eva as a child in need of aid. 



                Robin did not attend Eva's treatment plan review on September 30, 2008, 



or the initial case conference in October.          OCS located Josh at a correctional facility 



where he was incarcerated while awaiting trial on criminal charges for sexual assault and 



incest.  Josh participated in the initial case conference with his attorney, a representative 



                                                  -3-                                            6675
 


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

from   his   tribe,   and   Eva's   primary   social   worker,   Melissa   Blair.    Josh's   tribe   had 



previously provided OCS with his parents' contact information and requested that OCS 



contact them as a potential placement for Eva.            At the conference, Josh also suggested 



one of his sisters, Rachel, as a possible placement.  Blair noted she would need to consult 



Eva's therapist before scheduling visits between Eva and Josh. Josh asked to send letters 



to Eva and was told to send the letters to OCS and they would be sent on to Eva.                   Blair 



recommended that Josh obtain mental health, anger management, and substance abuse 



assessments.  He was to participate in available programs while in jail and complete the 



remaining tasks after being released. 



                OCS developed a case plan for Josh and Robin and sent copies of the plan 



to both Josh's and Robin's tribes.  The case plan stated a relative search was in progress 



and OCS was sending letters to the tribes seeking possible relative placements.  The 



permanency goal for Eva was reunification with Robin.                  Robin's objectives included 



engaging   in   Eva's   treatment,   visiting   by   phone   on   a   scheduled   basis,   and   attending 



parenting classes and counseling to understand Eva's special needs.                 Josh's objectives 



included completing assessments for mental health, anger management, and substance 



abuse; attending parenting classes and counseling to understand Eva's special needs; and 



engaging in Eva's therapy when she was ready. 



                In December 2008, OCS filed a predisposition report with the superior 



court.   According to the report, a social worker was working with Josh to coordinate 



telephonic visitation with Eva, although this was difficult due to limitations on his ability 



to   use   the   phone   at   the   correctional   facility. Social   worker   Blair   later   testified   she 



proposed arranging calls through Josh's attorney, and faxed Josh his case plan and court 



filings.   The predisposition report also stated that Eva was placed in a therapeutic foster 



home and that Robin and Josh both supported her placement there, although Josh wanted 



some of his family members to be considered for placement as well.                   The report stated 



                                                   -4-                                             6675
 


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

that a social worker would look into family members requested for placement when Eva 



was ready to be discharged from the therapeutic foster home. 



        C.      Adjudication Of Eva As A Child In Need Of Aid 



                In January 2009, Josh signed several stipulations agreeing that Eva was a 



child in need of aid under AS 47.10.011(1) (abandonment) and (2) (incarceration), that 



it would be in Eva's best interests for OCS to assume temporary custody of her, that OCS 



had made "reasonable and active efforts" to prevent the breakup of his Indian family, and 



that there was good cause to deviate from ICWA's placement preferences by placing Eva 



in a therapeutic foster home in Anchorage because of her special needs.  Based on these 



stipulations, the superior court found that Eva was a child in need of aid and awarded 



temporary custody to OCS.  The court also agreed with the stipulation that Eva's special 



needs justified deviation from ICWA's placement preferences and allowed her to remain 



in her therapeutic foster home.   The court ordered Josh to work with OCS to update his 



case   plan   and   complete   his   assigned   tasks,   to   have   no   contact   with   Eva   except   as 



arranged by OCS, and to provide OCS with the names and locations of any relatives 



willing to have Eva placed in their homes. 



        D.      OCS's Continued Reunification Efforts And Placement Investigations. 



                OCS updated the case plan in February 2009.  Blair noted that she had not 



heard from Josh but would continue to attempt to contact him.  Robin had been moving 



from home to home because she was unable to keep her trailer warm, and this was a 



concern because Eva needed a stable and consistent environment.                  The updated plan 



required Robin to "demonstrate a stable, consistent home for herself and her family" and 



provide "heat, food, and shelter."        OCS updated the case plan again in March 2009, 



changing Eva's permanency goal to adoption with family reunification as a concurrent 



goal, because neither parent had made any progress with their case plans. 



                                                 -5-                                            6675
 


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

                In June and July 2009, OCS continued to contact and meet with Robin, and 



warned her that her parental rights would be terminated if she continued to fail to make 



progress on her case plan.       In July 2009, Josh was convicted of the sexual assault and 



incest charges that had been pending since February 2008 and was sentenced to 99 years 



                     4 

of imprisonment. 



                On October 5, 2009, at a permanency hearing, the superior court found that 



Eva was still a child in need of aid, that neither parent had made substantial progress on 



remedying their conduct, and that OCS had made active efforts up to that point. 



                Also   in   October   2009,   Josh's   attorney   sent   Blair   an   email   proposing 



placement with Josh's sisters, but the email did not specify which of his six sisters Josh 



wanted OCS to consider for placement.              Blair later testified that she believed Josh's 



attorney was going to talk to Josh about the services Eva needed and identify which 



sisters could meet those needs. According to Blair, OCS had looked into placement with 



Josh's parents at that point, but she had concerns about their ability to meet Eva's special 



needs and concerns about whether adequate support services would be available to Eva 



in their village. 



                A few days after receiving the email, Blair was transferred to a different 



OCS office.     OCS did not assign a new primary social worker to Robin and Josh until 



April 2010.  Holly Lehnhausen, one of Eva's secondary social workers, helped out with 



some of the duties of a primary social worker during this time.  Lehnhausen wrote Robin 



multiple letters but received no response.          She also wrote to Josh offering to facilitate 



communication with Eva.  Josh began sending Eva letters and pictures that she and her 



therapist would review during their therapy sessions.             Lehnhausen also sent letters to 



        4 

                Josh has appealed both his conviction and sentence. His appeal is currently 

pending before the court of appeals. 



                                                  -6-                                               6675 


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

Josh from Eva, along with pictures and schoolwork.                Lehnhausen asked Josh about 



possible    placement     with   his  family   members     and   he  again   said   his  sisters  were 



possibilities.   Lehnhausen   contacted   Blair   and   was   told   the   sisters   "were   not   viable 



placement options [because] they [were] known to have sex offenders in the home." 



                In April 2010, OCS petitioned to terminate Robin's and Josh's parental 



rights to Eva.    OCS also assigned Michelle Rogers to Eva's case as the new primary 



social worker. 



                In July 2010, OCS worked with Eva's foster parents to send a newsletter 



Eva had written about her life in Anchorage to her relatives, including Josh's mother, 



Susan, and his sister, Sandra.        OCS also mailed Susan and Sandra phone cards with 



instructions for calling in to Eva's weekly therapy sessions, but neither responded. 



                In August 2010, OCS assigned another primary social worker, Iurie Leahu, 



to Eva's case.   Leahu asked Josh's tribe about its position on the possible placement of 



Eva with Josh's family, but the tribe did not respond.           In September 2010, Leahu met 



with Susan and Sandra, who live together, about conducting an adoption study.  He 



informed them of Eva's diagnoses, her special needs, and the information they would 



need to provide as part of the adoption study.   Susan said she would like to "think about 



the placement" and requested a visit with Eva in Anchorage.  At the termination trial in 



October   2010, Leahu testified he intended to visit Susan's home as the next step in 



OCS's placement investigation, but OCS had some concerns about her ability to provide 



the supervision Eva required. Leahu also planned on investigating an Anchorage couple 



that   had   expressed    interest  in  adopting    Eva.   The    Anchorage      couple   operated    a 



therapeutic foster home similar to the one where Eva was living and had occasionally 



provided care for Eva over the years.   According to Eva's foster mother, Eva wanted to 



be adopted by this couple. 



                                                 -7-                                            6675
 


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

        E.      Termination Of Parental Rights 



                Following a four-day trial in October 2010, the superior court terminated 



both Robin's and Josh's parental rights to Eva.   The court noted that Eva's guardian ad 



litem supported termination, that Josh's tribe had taken no position regarding termination 



of his parental rights, and that the tribe had "admitted that Eva needed a lot of services 



that might not be available in the village."        The court found that: (1) Eva was a child in 



need of aid under AS 47.10.011(1) (abandonment) and (2) (incarceration); (2) Robin and 



Josh had not remedied the conduct or conditions that placed Eva at harm because Robin 



was still unwilling and unable to care for Eva, and Josh was serving a 99-year prison 



term and had failed to make adequate provisions for Eva's care; (3) OCS had satisfied 



ICWA's active efforts requirement; (4) Eva would suffer serious emotional or physical 



harm if returned to either parent's custody; and (5) terminating both Robin's and Josh's 



parental rights was in Eva's best interests. 



                Josh appeals the superior court's finding that OCS made active efforts to 



provide remedial services to prevent the breakup of his family, arguing that OCS failed 



to   investigate   placement   with   his   extended   family   members   and   provided   him   with 



limited    visitation   and  services.    He    also  appeals   the  superior    court's   finding  that 



termination of his parental rights was in Eva's best interests.           Robin has not appealed. 



III.    STANDARD OF REVIEW 



                Whether   OCS   complied   with   the   active   efforts   requirement   is   a   mixed 



                               5 

question of law and fact.         Accordingly, we review the legal issues de novo and the 



        5 

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

Servs., 222 P.3d 841, 846 (Alaska 2009) (citing T.F. v. State, Dep't of Health & Soc. 

Servs., Div. of Family & Youth Servs., 26 P.3d 1089, 1092 (Alaska 2001)). 



                                                  -8-                                               6675 


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

                                               6 

factual determinations for clear error.          A finding is clearly erroneous when a review of 



the entire record in the light most favorable to the prevailing party leaves us with a 



                                                                            7 

"definite and firm conviction" that a mistake has been made.                   "Conflicting evidence is 



generally   insufficient   to   overturn   the   superior   court,   and   we   will   not   reweigh   the 



                                                                                                      8 

evidence when the record provides clear support for the superior court's ruling." 



IV.      DISCUSSION 



                 Before terminating parental rights under AS 47.10.088, the superior court 



must first find by clear and convincing evidence that the child is a child in need of aid 



                                                                   9 

under one of the grounds set forth in AS 47.10.011.   Second, the court must find the 



parent has failed to remedy the conduct or conditions placing the child at a substantial 



                 10 

risk of harm.       Where the parent is incarcerated, however, the court may instead find 



(1) the period of incarceration during the child's minority is significant given the child's 



age and needs, (2) no other parent is willing and able to care for the child, and (3) the 



                                                                                              11 

incarcerated parent failed to make adequate provisions for the child's care.                      Third, in 



         6 

                 Id. (citing A.A. v. State, Dep't of Family & Youth Servs. , 982 P.2d 256, 259 

(Alaska 1999)). 



         7 

                 Ralph   H.   v.   State,   Dep't   of   Health   &   Soc.   Servs.,   Office   of   Children's 

Servs., 255 P.3d 1003, 1008 (Alaska 2011) (citing Jon S. v. State, Dep't of Health & Soc. 

Servs., Office of Children's Servs., 212 P.3d 756, 761 (Alaska 2009)). 



         8 

                 Id. at 1012 (citing Maisy W. v. State, Dep't of Health & Soc. Servs., Office 

of Children's Servs., 175 P.3d 1263, 1267 (Alaska 2008)). 



         9 

                 AS 47.10.088(a)(1); CINA Rule 18(c)(1)(A). 



         10 

                 AS 47.10.088(a)(2); CINA Rule 18(c)(1)(A)(i). 



         11 

                 AS 47.10.080(o); CINA Rule 18(c)(1)(B); see also Dashiell R. v. State, 

Dep't of Health & Soc. Servs., Office of Children's Servs. , 222 P.3d 841, 846 (Alaska 

2009). 



                                                     -9-                                               6675
 


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

the case of an Indian child, the superior court must find by clear and convincing evidence 



that   OCS   made   "active   efforts"   to   provide   remedial  and   rehabilitative   programs   to 



                                                  12 

prevent the breakup of the Indian family.            Fourth, the superior court must find by a 



preponderance of the evidence that termination of parental rights is in the child's best 



           13 

interests.     Finally,  in  the  case  of  an  Indian  child, the  superior  court must   find   by 



evidence beyond a reasonable doubt, including expert testimony, that continued custody 



of the child by the parent is likely to result in serious emotional or physical damage to 



           14 

the child. 



        A.       The   Superior   Court   Did   Not   Err   In   Finding   OCS   Complied   With 

                ICWA's Active Efforts Requirement. 



                The superior court had previously found that OCS made active efforts at 



the October 2009 permanency hearing, and the parties conceded at the October 2010 



termination trial that OCS had made active efforts from the time of removal in September 



2008 until October 2009.  Starting from this base, the court then examined OCS's efforts 



since October 2009, noting that Josh had no primary social worker from October 2009 



to April 2010, but during that time a secondary social worker had communicated with 



Josh and facilitated the exchange of letters and pictures between him and Eva.                 When 



Leahu took over the case in August 2010, he had no contact with Josh but he did contact 



Josh's tribe and  Josh's mother about possible placement options for Eva.                  The court 



observed: 



                In this case, [Josh] was in jail before [Eva] was taken into 

                custody, and he will still be there when [Eva] is an adult.  The 



        12 

                25 U.S.C.  1912(d) (2006); CINA Rule 18(c)(2)(B).               Active efforts are 

required even when a parent is incarcerated.  Dashiell R. , 222 P.3d at 846. 



        13 

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



        14 

                25 U.S.C.  1912(f) (2006); CINA Rule 18(c)(4). 



                                                 -10-                                           6675
 


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

                 State tried to engage [Robin], the only parent available for 

                 reunification,      but    their   efforts    failed.     Under       such 

                 circumstances,       there    is  not   much     the   State   could    do 

                 (especially for [Josh]) to prevent the family's breakup or to 

                 reunite them. 



Although       the  court   acknowledged       "OCS'[s]   efforts     were    not   perfect   in  this  case, 



especially regarding visitation and family contact for [Josh]," it found OCS's efforts 



were sufficient under these circumstances to satisfy the statutory requirements for active 



efforts.   Josh challenges this ruling on several grounds. 



                 1.      Reliance on prior findings and stipulations 



                 As a threshold matter, Josh argues that the superior court improperly relied 



on its October 2009 active efforts finding, the tribe's statement that necessary services 



might not be available in the village, and OCS's efforts on Robin's behalf.  We disagree. 



                 Josh first argues that the superior court erred in relying on its prior active 



efforts   finding   in   its   termination   order   and   in   considering   only   OCS's   efforts   since 



October 2009 in determining whether OCS had made active efforts.                          But the parties 



conceded at the termination trial that OCS made active reunification efforts through 



October 5, 2009 and agreed they were not going to contest the trial court's prior active 



                   15 

efforts  finding.       Josh   does   not   argue   that   he   was   prevented   from   challenging   that 



finding at trial or presenting evidence on OCS's reunification efforts prior to October 



         15 

                 At the October 2010 termination trial, the superior court agreed to take 

judicial notice   of its prior active efforts finding from the October 2009 permanency 

hearing.  The court then asked whether any party was going to argue OCS had not made 

active   efforts   through   October   5,   2009.     Josh's   attorney,   Robin's   attorney,   and   the 

guardian ad litem all said no.   The court then stated, "Okay . . . no one's going to contest 

that active efforts were[made] up till October 5, 2009."               None of the parties objected. 



                                                    -11-                                              6675
 


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

       16 

2009.      Accordingly, the superior court did not err in relying on its prior finding and the 



                                              17 

parties' concession in its final order. 



                 Josh   next   argues   that   the   superior   court   erred   in   relying   on   the   tribe's 



statement that "[Eva] needed a lot of services that might not be available in the village." 



But the court merely noted this statement when describing the tribe's   position in its 



overview   of   the   case.    The   court   did   not   rely   on   the   statement   in   its   active   efforts 



analysis, which properly focused on OCS's reunification efforts. 



                 Finally, Josh argues the superior court erred in relying on OCS's efforts on 



Robin's behalf. Robin was not present at trial and her attorney orally stipulated OCS had 



made active efforts on her behalf.  Josh argues that the superior court erred by accepting 



this stipulation because it did not comply with CINA Rule 14, which   requires such 



                                                                    18 

stipulations to be in writing and signed by the parent,                and that we should not rely on 



OCS's   efforts   on   Robin's   behalf   when   reviewing   the   superior   court's   active   efforts 



finding pertaining to him.   He requests that we remand with instructions to the superior 



         16 

                 Josh acknowledges in his briefing on appeal that the evidence presented at 

trial "covered the entirety of the case, not just facts that developed after October 2009, 

including . . .   actions taken by OCS throughout the case." 



         17 

                 We reached a similar conclusion in Nicole H. v. State, Dep't of Health & 

Soc. Servs., Mem. Op. & J. No. 1246, 2006 WL 895084 (Alaska, Apr. 5, 2006), an 

unpublished opinion in which we observed that the superior court was not bound by its 

prior active efforts finding in a termination proceeding, but it was "well within the trial 

court's discretion" to treat its earlier finding as presumptively binding as long as the 

court    did   not   preclude     the  parties    from    presenting     new    evidence     or  arguments 

challenging its earlier ruling.  Id . at *6. 



         18 

                 CINA Rule 14 provides: "In the case of an Indian child, a stipulation to 

adjudication or disposition is not binding on a parent or Indian custodian unless it is in 

writing, agreed to in court (whether in person or telephonically), and signed by the parent 

or Indian custodian." 



                                                    -12-                                               6675
 


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

court   to   reconsider   its   active   efforts   finding   without   relying   on   Robin's   attorney's 



stipulation.    We reject this request. 



                 First, the superior court's order terminating Robin's parental rights did not 



rely on her attorney's oral stipulation, but summarized and relied on OCS's reunification 



efforts   on her behalf.     Second, the superior court properly considered OCS's efforts 



towards Robin in determining whether OCS made adequate efforts on Josh's behalf.  In 



                                                                          19 

Dashiell R. v. State, Department of Health & Social Services ,               we held that the superior 



court properly considered OCS's reunification efforts on the mother's behalf in finding 



that   OCS     had   made    active,   though    ultimately    unsuccessful,     efforts   to  reunify   an 



incarcerated father's family and prevent the termination of his parental rights: 



                 [T]he superior court was correct to point to efforts OCS made 

                 regarding the mother. . . .  In this case, had the children been 

                 able to stay with the mother, who was not incarcerated, there 

                 is no indication Dashiell's parental rights would have been 

                 terminated, because there would have been no need for the 

                 children to be placed elsewhere.  As the superior court noted 

                -     and   Dashiell   does   not   contest   -   the   [S]tate's   efforts 

                 regarding   the   mother   were   "very   active."   We   view   these 

                 efforts as an important aspect of the [S]tate's active efforts to 

                 keep the family together.[20] 



As in Dashiell R. , given Josh's incarceration throughout OCS's custody of Eva and his 



99-year     sentence,    OCS's     efforts   on   Robin's    behalf,   the  one   parent    available   for 



reunification, were relevant when considering OCS's efforts to reunify the family and 



prevent the termination of Josh's parental rights. 



        19 

                 222 P.3d 841 (Alaska 2009). 



        20 

                Id . at 850. 



                                                   -13-                                                6675 


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

                 2.      Placement with extended family members 



                 Josh's main argument is that OCS failed to make active efforts because it 



did not actively investigate placement with his extended family members.  He relies on 



our   opinion   in  Jon   S.   v.   State,   Department   of   Health   &   Social   Services,   Office   of 



                          21 

Children's   Services,        and   an   opinion   from   the   Minnesota   Court   of   Appeals,   In   re 



                      22 

Welfare of M.S.S. 



                 We recently rejected this argument in David S. v. State, Department of 



                                                                       23 

Health & Social Services, Office of Children's Services ,                 holding that "ordinarily the 



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



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



        21 

                 212   P.3d   756   (Alaska   2009).     In  Jon   S.   we   listed   several   actions   that 

constituted "substantial evidence" OCS had satisfied the active efforts requirement, some 

of which included placement-related actions.               Id.  at 764-66.     We did not specifically 

address or hold that OCS was required to make such placement efforts to fulfill its active 

efforts requirement. 



        22 

                 465 N.W.2d 412 (Minn. App. 1991).               In M.S.S. the Minnesota court held 

that as part of the active efforts requirement, the state was required to investigate foster 

placement with the father's brother before terminating the father's parental rights.                     Id. 

at 418-19.    The Minnesota court has since distinguished M.S.S. on the grounds that the 

father   specifically   requested   the   child   be   placed   with   his   brother,   offered   evidence 

supporting the proposed placement, and the tribe endorsed the proposed placement. See 

In re Welfare of Children of J.B. , 698 N.W.2d 160, 170 (Minn. App. 2005); In re Welfare 

of Child of Wilson, No. C6-02-1940, 2003 WL 21266612, at *2 (Minn. App., June 3, 

2003).     Here, Josh did   not make   and his tribe did not endorse a specific placement 

request, and Josh stipulated to Eva's placement in the therapeutic foster home due to her 

special needs. 



        23 

                 270 P.3d 767 (Alaska 2012). 



                                                    -14-                                              6675
 


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

a consideration of the ICWA placement preferences in the decision whether to terminate 



                   24 

parental rights." 



                We     observed     that   the  statutory    scheme     of   ICWA      supports    this 



                 25 

interpretation.     Section 1912(d) provides that any party seeking foster care placement 



or termination of parental rights regarding an Indian child "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 



                  26 

unsuccessful."       Section 1914 then provides that certain parties, including the parent, 



may challenge foster care placement or termination of parental rights by showing the 



                                                                                          27 

action "violated any provision of sections 1911, 1912, and 1913" of ICWA.                     Absent 



from this list is section 1915, which provides that in any proceeding for adoption, foster 



care, or preadoptive placement, preference must be given to placing the child with a 



relative, another member of the child's tribe, or another Indian family, unless there is 



                                                             28 

"good     cause"   to  deviate   from   these   preferences.      Under     this  statutory   scheme, 



"termination of parental rights may not be invalidated by showing a violation of ICWA 



                29 

preferences." 



        24 

                Id . at 779. We recently relied on David S. to reject a similar argument in 

Doe v. Dep't of Health & Soc. Servs., Office of Children's Servs., 272 P.3d 1014 (Alaska 

2012). 



        25 

                David S ., 270 P.3d at 779. 



        26 

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



        27 

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



        28 

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



        29 

                David S. , 270 P.3d at 779.  We also noted that we had previously reached 

a   similar   conclusion   in   decisions   holding   ICWA   does   not   require   consideration   of 

                                                                                      (continued...) 



                                                 -15-                                           6675
 


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

                We recognize that the placement preferences under section 1915 are critical 



to ICWA's goal of promoting the stability and security of Indian tribes and families. 



Section     1915   has   been   described    by   the  Supreme     Court    as  "the  most    important 



                                                                              30 

substantive requirement imposed on state courts" under ICWA.                      But as we held in 



David S. , the issue of placement is generally distinct from the issue of providing remedial 



and rehabilitative services to reunify the child's family and prevent the termination of 



parental rights. 



                In David S. we also "recognize[d] the possibility that rare 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,' " observing that "a child's 



                                                                                        31 

placement might affect a parent's ability to participate in remedial efforts."             The dissent 



hinges its conclusion on this premise, arguing that "this is exactly the kind of case in 



which OCS's placement efforts are relevant and OCS's independent duty to investigate 



ICWA-compliant placements overlays and at least informs, if not directs, its duty to 



make active efforts designed to prevent the breakup of an Indian family."                 The dissent 



explains that earlier holdings of this court indicated that incarceration alone could not 



        29 

                (...continued) 

placement   options   in   determining   whether   termination   of   parental   rights   was   in   the 

child's best interests.    See id . at 780 & n.36 (citing Lucy J. v. State, Dep't of Health & 

Soc. Servs, Office of Children's Servs., 244 P.3d 1099, 1120 (Alaska 2010); Jacob W. 

v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., Mem. Op. & J. No. 

1319, 2008 WL 5101809, at *8 (Alaska, Dec. 3, 2008)).                   Other courts addressing this 

issue have generally reached the same conclusion. See id. at 779 n.33 (collecting cases). 



        30 

                Mississippi   Band   of   Choctaw   Indians   v.   Holyfield , 490   U.S.   30,   36-37 

(1989). 



        31 

                David S. , 270 P.3d at 779. 



                                                  -16-                                            6675
 


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

constitute   abandonment   because   it   does   not   involve   willful   conduct;   however,   this 



holding was later overturned by the legislature, which determined that incarceration 



could constitute abandonment if certain factors are met, including that "the incarcerated 



parent has failed to make adequate provisions for care of the child during the period of 



                     32 

incarceration. . . ."    The dissent then challenges the superior court's finding in this case 



that "on a 'clear and convincing' basis . . . Josh had not 'made adequate arrangements' 



for Eva in light of his unavailability" because Josh "contended that he 'attempted to 



reach out to family members for assistance' in making adequate arrangements for Eva[, 



but] OCS failed to make active efforts to assist him."           The dissent concludes that it is 



OCS's failure that led to Eva's continued status as a child in need of aid, not Josh's 



actions, because "OCS has an active-efforts duty to consider, evaluate, and take action 



on an incarcerated parent's request for alternative placement under ICWA's standards." 



We disagree. 



                As we identified in David S. , there may be cases where a "child's placement 



might affect a parent's ability to participate in remedial efforts," but these cases are rare 



                              33 

and this is not such a case.     Given Josh's long-term incarceration, Eva's placement with 



one of his relatives would not have affected his ability to participate in remedial efforts 



or fulfill his case plan requirements.      In October 2008, OCS developed a case plan for 



Josh;    his  objectives    included    completing     assessments     for   mental    health,  anger 



management, and substance abuse, attending counseling to understand Eva's special 



needs, and engaging in Eva's therapy when she was ready.                In November 2008, OCS 



filed a predisposition report, where the social worker proposed arranging calls through 



Josh's attorney.     Additionally, Josh stipulated in January 2009 that there was "good 



        32 

                AS 47.10.080(o)(3). 



        33 

                David S. , 270 P.3d at 779. 



                                                 -17-                                             6675 


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

cause" to deviate from ICWA's placement preferences and allow Eva to remain in her 



therapeutic foster home in Anchorage because of her special needs.   By February 2009, 



the social worker had not heard from Josh, but was continuing to attempt to contact him. 



By the time of the October 2009 permanency hearing, the court found that Josh had still 



not made substantial progress to remedy his conduct.               During this time period, Eva's 



placement with one of Josh's relatives would not have affected Josh's ability to work on 



his   case   plan   objectives,   such   as   obtaining   an   anger   management   or   mental   health 



assessment or attending parenting classes and engaging in Eva's therapy.                   Josh did not 



begin interacting with Eva until after this October 2009 hearing, and he did not submit 



his sisters as possible placements until October 2009. Moreover, according to his social 



worker, OCS had looked into placement with Josh's parents during this time, but they 



had concerns about their ability to meet Eva's special needs.              Finally, Josh did nothing 



more     than   suggest   placement     with    his  "sisters,"  without    specifying    a  particular 



placement, and OCS found them all to be unsuitable as placements because they were 



"known to have sex offenders in the home. . . ."           Thus, it was Josh's lack of action, not 



OCS's failure to investigate Josh's preferred placements, that led to Eva's continued 



status as a child in need of aid during this time.         Under these circumstances, OCS was 



not required to actively pursue placement with Josh's relatives as part of its active efforts 



                                                              34 

to prevent the termination of Josh's parental rights. 



        34 

                Josh also challenges the superior court's best interests finding for the same 

reasons, arguing the court failed to consider whether placement with his extended family 

members was in Eva's best interests.            We reject this argument for the same reasons 

discussed above. Additionally, we have previously rejected the argument that a superior 

court must consider placement options when determining whether termination of parental 

rights is in the child's best interests.  See Lucy J., 244 P.3d at 1120 ("[N]othing in ICWA 

requires consideration of placement options in determining whether to terminate parental 

rights."   (quoting  Jacob      W. ,  2008   WL    5101809,     at  *9)  (internal   quotation    marks 

                                                                                        (continued...) 



                                                  -18-                                            6675
 


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

                 3.      Visitation and remedial services 



                 Josh   also   argues   that   OCS   failed   to   make   active   efforts   on   his   behalf 



because it did not arrange for adequate visitation between Eva and himself, made little 



effort to assist him with his case plan, and left him without a primary social worker for 



six months.     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.[35] 



No "pat formula" exists for distinguishing between active and passive efforts, and we 



                                                                                     36 

have adopted a case-by-case approach for the active efforts analysis. 



                 Although a parent's incarceration does not relieve OCS of its duty to make 



active efforts, it "significantly affects the scope of the active efforts" OCS must make to 



                              37 

satisfy the requirement.          We have stated "the practical circumstances surrounding a 



parent's incarceration - the difficulty of providing resources to inmates generally, the 



        34 

                 (...continued) 

omitted)).       Josh   does   not   otherwise     challenge    the  superior    court's    findings    that 

termination of his parental rights was in Eva's best interests because she "needs a calm, 

solid and reliable environment," a home "equipped to care for her considerable needs," 

and that, given Josh's lengthy sentence, "[a]doption offers the best hope for stable and 

consistent parenting" for Eva. 



        35 

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

1999). 



        36 

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

Servs., 249 P.3d 264, 271 (Alaska 2011) (quoting Dale H. v. State, Dep't of Health & 

Soc. Servs., Office of Children's Servs., 235 P.3d 203, 213 (Alaska 2010)). 



        37 

                A.A. , 982 P.2d at 261. 



                                                   -19-                                              6675
 


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

unavailability of specific resources, and the length of incarceration - may have a direct 



                                                                     38 

bearing   on   what   active   remedial   efforts   are   possible."     Additionally,   as   discussed 



above,   OCS's   reunification   efforts   on   behalf   of   the   non-incarcerated   parent   are   an 



                                                                                    39 

"important aspect" of OCS's efforts towards the incarcerated parent. 



                The dissent believes that OCS's active efforts included a "duty to actually 



help Josh remedy the conditions that caused Eva to be a child in need of aid. . . . [and] 



help him make 'adequate arrangements' for Eva."                 Moreover, the dissent argues that 



"once it became clear that remedial efforts with Robin would not be successful - which 



occurred by July 2009 . . . - OCS's active efforts should have turned to assisting Josh 



make adequate arrangement for Eva by investigating placement with Josh's family."  The 



dissent   acknowledges   the   superior   court's   finding   that   Josh   did   not   make   adequate 



arrangements to meet Eva's needs, but that "the reality is that Josh could only fulfill this 



responsibility through and with the help of OCS."  The dissent contends that once Josh 



requested OCS to consider placement with his relatives, "OCS's active efforts obligation 



required it to contact Josh's family to determine willingness, to undergo home studies, 



and to assess his family's ability to address Eva's needs." 



                We disagree because the dissent's analysis confuses the obligations of the 



incarcerated parent and OCS.  While we agree with the superior court's observation that 



OCS's      efforts  in  this  case   were   "not   perfect,"   we   cannot   conclude,   given     Josh's 



incarceration throughout OCS's custody of Eva and the significant length of his current 



        38 

                Id .; see also Dashiell R. v. State, Dep't of Health & Soc. Servs., Office of 

Children's      Servs.,   222   P.3d    841,   849   (Alaska     2009)    (stating  the   circumstances 

surrounding a parent's incarceration "may have a direct bearing on what active remedial 

efforts   are   possible,"   and   these   circumstances   include   "the   duration   of   the   parent's 

incarceration and the services possible for incarcerated parents"). 



        39 

                Dashiell R. , 222 P.3d at 843-44, 850. 



                                                   -20-                                             6675
 


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

sentence, that the court's active efforts finding is clearly erroneous. As the superior court 



noted, Josh agreed OCS had made active efforts through October 5, 2009.  Although he 



did not have a primary social worker for six months from October 2009 through April 



2010, a secondary social worker communicated with Josh during that time and facilitated 



the   exchange   of   letters   and   pictures   between   him   and   Eva.    During   that   time,   the 



secondary case worker asked Josh about placement with his family and he identified his 



sisters as possibilities; however, after speaking with his former case worker, she was 



informed   his   sisters   were   not   viable   options   because   they   were   known   to   have   sex 



offenders in the home.  OCS also developed a case plan for Josh during this period and 



kept him informed by sending him updates and court filings. The initial case conference 



notes indicate Josh was to participate in available programs while in jail and complete 



his remaining tasks after being released.            Josh was never released   from jail but was 



instead sentenced to 99 years of imprisonment. And OCS has no authority to require the 



Department   of   Corrections   to   provide   any   assessments,   treatments,   or   classes   to   an 



inmate. 



                Throughout this time, however, OCS made active efforts to facilitate Eva's 



reunification   with   Robin,   "the   only   parent   available   for   reunification."    The   dissent 



argues that once it became clear that Robin was not an option, OCS had a duty to contact 



Josh's family to determine their willingness and ability to meet Eva's needs.  However, 



the record indicates OCS did do that before the termination trial in October 2010.  By 



October 2009, OCS case workers already had doubts about Susan's ability to meet Eva's 



special needs and whether Eva could obtain adequate support services in her native 



village.   In   July   2010,   OCS   attempted   to   facilitate   contact   between   Eva   and   Josh's 



family; it sent a newsletter from Eva and phone cards to Josh's mother and sister so they 



could call into her therapy sessions.          However, neither relative responded.           In August 



2010, OCS asked Josh's tribe about possible placements with family members; again, 



                                                   -21-                                             6675
 


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

they received no response.      Since 2008, Josh expressed his desires to have Eva placed 



with   family   members;   notably,   none     of   these  family  members    came   forward    and 



expressed their willingness to care for Eva.        In fact, when OCS asked Josh's mother, 



Susan, about adoption in September 2010, she said "she would like to think about the 



placement. . . ."   But she never agreed to adopt Eva.        Josh had the obligation to make 



"adequate arrangements" for Eva's care, which means he must identify placements with 



                                                             40 

people that are willing and able to meet Eva's needs.           In this case, he failed to do so. 



He did nothing more than suggest relative placements, none of whom were suitable and 



many of whom did not even respond to OCS's overtures. Under these circumstances, we 



cannot say it was clearly erroneous for the superior court to conclude that OCS satisfied 



its duty to make active efforts to prevent the breakup of Josh's family and the termination 



of his parental rights. 



IV.     CONCLUSION 



               For these reasons, we AFFIRM in all respects the superior court's order 



terminating Josh's parental rights. 



        40 

                 See AS 47.10.080(o). 



                                               -22-                                            6675 


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

WINFREE, Justice, with whom STOWERS, Justice, joins, dissenting. 



                 I   respectfully   disagree   with   the   court's   decision   to   affirm   the   superior 



court's finding that the State of Alaska, Department of Health and Social Services, Office 



of Children's Services (OCS) made active efforts to help Josh L. remedy the conditions 



leaving Eva a child in need of aid and to keep this Indian family intact.   I would reverse 



the superior court's decision terminating Josh's parental rights to Eva. 



                 We recently recognized in David S. v. State, Department of Health & Social 



Services, Office of Children's Services "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 



                                                          1 

to prevent the break up of the Indian family.' "            Today the court states "this is not such 



a case" because "Eva's placement with one of [Josh's] relatives would not have affected 



                                                                                                        2 

his ability to participate in remedial efforts or fulfill his case plan requirements."                     I 



disagree - this is exactly the kind of case in which OCS's placement efforts are relevant 



and OCS's independent duty to investigate ICWA-compliant placements overlays and 



at least informs, if not directs, its duty to make active efforts designed to prevent the 



breakup of an Indian family. 



                 I   begin   with   the   fundamental   notion   that   OCS's   active   efforts   must   be 



tailored to the basis for finding a child in need of aid.              We "identify the problem that 



caused the [child] to be in need of aid and then determine whether OCS's efforts were 



                                                                    3 

reasonable in light of the surrounding circumstances."                This makes abundant sense - 



        1 

                 270 P.3d 767, 779 (Alaska 2012) (quoting 25 U.S.C.  1912(d) (2006)). 



        2 

                 Per Curiam Draft Op. at 17. 



        3 

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

                                                                                           (continued...) 



                                                    -23-                                              6675
 


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

it is not sufficient when terminating parental rights for a court to find only that (1) an 



Indian child is in need of aid and (2) the parent failed to remedy the condition that led 



                                                 4 

to the Indian child being in need of aid.           There also must be a finding, by clear and 



                         5 

convincing evidence,       that OCS made active efforts to assist the parent in remedying the 



conditions that led to finding the child in need of aid, and that those active efforts were 



                                                                            6 

specifically designed to prevent the breakup of the Indian family.            This necessary bridge 



between a need of aid finding and a failure to remedy finding is a critical component 



                                                                           7 

when taking the drastic measure of terminating parental rights. 



        3 

                (...continued) 

Servs., 234 P.3d 1245, 1262 (Alaska 2010) (citing Burke v. State, Dep't of Health & Soc. 

Servs., Office of Children's Servs ., 162 P.3d 1239, 1245 (Alaska 2007)). 



        4 

                See CINA Rule 18(c) (listing these two findings as merely the first of four 

procedural steps in terminating the parent's rights to an Indian child). 



        5 

                Clear and convincing evidence is evidence producing "a firm   belief or 

conviction about the existence of a fact to be proved."            In re Johnstone , 2 P.3d 1226, 

1234 (Alaska 2000) (quoting Buster v. Gale , 866 P.2d 837, 844 (Alaska 1994)). 



        6 

                CINA Rule 18(c)(2)(B) (comporting with 25 U.S.C.  1912(d)); see also 

Jon S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 212 P.3d 756, 

763 (Alaska 2009) ("[A]ctive efforts require taking a parent through the steps of a plan 

and helping the parent develop the resources to succeed; drawing up a case plan and 

leaving the client to satisfy it are merely passive efforts." (citing A.A. v. State, Dep't of 

Family & Youth Servs. , 982 P.2d 256, 261 (Alaska 1994))). 



        7 

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

Servs.,    254   P.3d  1095,    1104   (Alaska    2011)   ("We    bear   in  mind   at  all  times  that 

terminating parental rights is a drastic measure." (quoting           Martin N. v. State, Dep't of 

Health & Soc. Servs., Div. of Family & Youth Servs. , 79 P.3d 50, 53 (Alaska 2003))). 



                                                 -24-                                            6675
 


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

                OCS took custody of Eva in September 2008 when Josh was in jail awaiting 



trial on serious criminal charges.  As to Josh, Eva was adjudicated a child in need of aid 



under AS 47.10.011(1) and (2), which provide that a child may be found to be in need 



of aid if: 



                        (1) 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;[8 ] [or] 



                        (2) a parent, guardian, or custodian is incarcerated, the 

                other parent is absent or has committed conduct or created 

                conditions that cause the child to be a child in need of aid 

                under this chapter, and the incarcerated parent has not made 

                adequate arrangements for the child[.] 



Josh was convicted and in July 2009 was sentenced to serve 99 years.                   At the October 



2010 termination trial the superior court found, with respect to Josh, that Eva was still 



a child in need of aid under AS 47.10.011(1) and (2). 



                Before examining the superior court's termination findings, it is useful to 



review the interplay between incarceration and abandonment under AS 47.10.011(1). 



                       9                      10 

In Nada A. v. State   and A.M. v. State          we determined that incarceration cannot itself 



        8 

                AS 47.10.011(1)'s incorporation of abandonment under AS 47.10.013(a) 

requires a finding of a parent's "conscious disregard of parental responsibilities toward 

the child by failing to provide reasonable support, maintain regular contact, or provide 

normal supervision, considering the child's age and need for care by an adult."  The 

statute    also  sets  out   several   specific  circumstances     that   would,   in  the  absence    of 

justifiable cause, constitute abandonment.          AS 47.10.013(a)(1)-(8). 



        9 

                660 P.2d 436 (Alaska 1983). 



        10 

                891 P.2d 815 (Alaska 1995). 



                                                  -25-                                            6675
 


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

                                                                                 11 

constitute abandonment because it does not involve willful conduct.                 After A.M. , the 



legislature   enacted    a  statutory   change    to  provide   that   incarceration  can   constitute 



abandonment if the incarceration is a for a significant period of time and other factors are 



           12 

satisfied: 



                        For purposes of terminating a parent's parental rights 

                . . . the court may determine that incarceration of the parent 

                is sufficient grounds for determining that a child is a child in 

                need of aid . . . and that the parental rights of the incarcerated 

                parent should be terminated if the court finds, based on clear 

                and convincing evidence, that 



                        (1)   the  period   of  incarceration    that  the   parent   is 

                scheduled to serve during the child's minority is significant 

                considering the child's age and the child's need for an adult's 

                care and supervision; 



                        (2) there is not another parent willing and able to care 

                for the child; and 



                        (3) the incarcerated parent has failed to make adequate 

                provisions     for  care   of  the   child  during    the   period   of 

                incarceration that will be during the child's minority.[13] 



                The legislature added AS 47.10.011(2) in 1998, "making clear that the 



                                                                 14 

change was intended to 'override [A.M. and Nada ].' "               We subsequently stated that 



AS 47.10.011(2) is an additional ground OCS may rely on to terminate rights if the 



        11 

                See id. at 823-24; Nada A., 660 P.2d at 439. 



        12 

                Ch. 89, SLA 1996; see also Zander P. v. State, Dep't of Health & Soc. 

Servs., Office of Children's Servs., 2007 WL 2745157, at *3 (Alaska 2007) (describing 

history of AS 47.10.080(o)). 



        13 

                AS 47.10.080(o). 



        14 

                Zander P., 2007 WL 2745157, at *3 (quoting ch. 99,  1(b)(2)(B), 18, 

SLA 1998 (expressly overriding A.M. and Nada)). 



                                                 -26-                                           6675
 


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

parent's   incarceration   itself   is   likely   to   injure   the   child   in   the   future,   but   does   not 



supplant AS 47.10.011(1) as a ground for terminating the rights of a parent who has 



                                                                                                           15 

willfully disregarded parental obligations before, during, or after that incarceration. 



We have also continued to consider a parent's actions while incarcerated as potential 



                                                                                            16 

grounds supporting an abandonment theory despite the statutory change. 



                 It is against this legal backdrop that I consider the superior court's express 



findings on Eva's child in need of aid status after the termination trial: 



                         At trial, [Josh] conceded that [Eva] is a child in need 

                 of   aid   because   [Eva's]   mother   abandoned   her   and   he   was 

                                                    17 

                 absent.   AS 47.10.011(1)[.][
       ] 



                 . . . .
 



                         [OCS] also claimed that [Eva] was a child in need of 

                 aid because her father was incarcerated, her mother engaged 



         15 

                 Rick P. v. State, OCS , 109 P.3d 950, 957 (Alaska 2005); see also Zander 

P., 2007 WL 2745157, at *3. 



         16 

                 See, e.g., Rick P., 109 P.3d at 957 (affirming abandonment finding based 

on father's pre-incarceration activities, but noting that father's actions during and after 

incarceration      also   demonstrated      "  'willful   disregard'     of  his  parental    obligations," 

pointing specifically to father's negative reaction to OCS's case plan while in prison and 

the "tone of [his] response ('I think you and your office has caused me enough stress and 

abuse by kidnaping my son')" as evidence that he was "not interested in participating in 

the case plan, and by extension, not interested in visiting his daughter"). 



         17 

                 The superior court overstated Josh's concession. Josh conceded that Robin 

had abandoned Eva and that he was absent.  Josh did not concede that he had abandoned 

Eva under AS 47.10.013 or that Eva was a child in need of aid under AS 47.10.011(1). 



                 The superior court failed to recognize that in the context of incarceration, 

abandonment   under         AS    47.10.011(1)      requires   an   additional   finding,   by    clear   and 

convincing        evidence,     of   a   "conscious      disregard     of   parental     responsibilities." 

AS 47.10.013.       No such finding was made. 



                                                    -27-                                               6675
 


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

                 in CINA-worthy behaviors, and [Josh] did not make adequate 

                 arrangements for her care.        AS 47.10.011(2). 



                         [Josh] testified that he wanted OCS to place [Eva] with 

                 his   family,    but   it  does   not   appear    that   he   made    any 

                 arrangements to meet [Eva's] needs. 



                         To be sure, [Josh] may not have had much power to act 

                 once he was incarcerated. . . . 



                         Still, other than sending a few letters, attempting a few 

                phone calls and talking to his attorney, there is no evidence 

                 that   [Josh]    -    who    knew     first-hand    that   [Robin]    had 

                 abandoned   [Eva]   "quite   a   few   times"   in   the   past   -    did 

                 anything to [e]nsure [Eva's] well-being. 



                         As a result, the Court finds, by clear and convincing 

                 evidence,   that   [Eva]   is   a   child   in  need  of   aid   under   the 

                 "incarceration" subsection as well.         (Footnotes omitted.) 



                 For its "failure to remedy" findings, the superior court stated: 



                 [Robin] has still abandoned [Eva] and [Josh] is still in jail. 

                Nothing has changed. 



                         In addition, [OCS] has shown, by clear and convincing 

                 evidence, that (a) the period of incarceration (99 years) is 

                 significant given [Eva's] age (14) and her needs (which are 

                pressing and substantial), (b) [Robin] is not willing or able to 

                 care    of  [Eva],   and    (c)  [Josh]   failed   to  make     adequate 

                provisions      for   [Eva's]    care.    CINA       Rule   18(c)(1)(B); 

                 AS 47.10.080(o). 



                 There can be no dispute that at the time of trial Robin was out of the picture 



and Josh was in jail for the rest of Eva's minority, so to the extent these findings relate 



to   Josh's   being   absent   and   incarcerated,   they   certainly   are   correct.   But   something 



beyond incarceration is required for abandonment under AS 47.10.011(1), and the only 



factor addressed by the superior court on a "clear and convincing" basis was that Josh 



had   not   "made   adequate   arrangements"   for   Eva   in   light   of   his   unavailability.    Josh 



                                                   -28-                                              6675
 


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

contended that he "attempted to reach out to family members for assistance" in making 



adequate arrangements for Eva and that OCS failed to make active efforts to assist him. 



                  Three previous cases help frame the issue.               Stanley B. v. State of Alaska, 



                                                  18 

Division of Family & Youth Services ,                presented a similar situation in a non-ICWA 



context.     In that case Stanley's children were taken into state custody when he was 



                                                                  19 

evading arrest for violations of release from prison.                He was caught, returned to prison, 



and essentially remained there for the duration of the child in need of aid proceedings 



                   20 

(and  beyond).          Stanley's      "case    plan   directed    Stanley    to  provide     the  names     and 



                                                                                                               21 

addresses of any person he wished [DFYS] to consider for placement of the children." 



He did so, but DFYS denied all of Stanley's initial placement preferences and placed the 



                                             22 

children with a preadoptive family.             Stanley's parental rights were terminated under the 



incarceration provisions of AS 47.10.080(o) and AS 47.10.011(2) because he had failed 



to "make adequate arrangements" for his children in light of his significant period of 



                                                                                23 

incarceration and the unavailability of the children's mother.                      On appeal, we stated: 



                          The        superior        court      correctly        interpreted 

                  AS 47.10.080(o)(3).         The statute obligates the incarcerated 

                 parent     -    not   the   state  -    to  arrange     for  the   children's 

                  care. . . . 



                          Stanley   provided   DFYS   with   the   names   of   several 

                 relatives   and     friends   with   whom       he   wanted   the   children 



         18 

                  93 P.3d 403 (Alaska 2004). 



         19 

                 Id . at 405. 



         20 

                 Id . 



         21 

                 Id . 



         22 

                 Id . 



         23 

                 Id . at 406-07. 



                                                      -29-                                                 6675
 


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

                 placed. The superior court found that DFYS had made "more 

                 than     reasonable      efforts"    to   consider     Stanley's     stated 

                 preferences. Having reviewed the record, we agree. Because 

                 none of Stanley's placement options was facially "adequate," 

                 the conditions for termination under AS 47.10.080(o) were 

                 met. 



                 . . . . 



                         The     superior    court   [also]   found   the   evidence     that 

                 supported         termination        of    parental       rights     under 

                 AS     47.10.080(o)       (the   significant     period     of   Stanley's 

                 incarceration,        the    mother's      unavailability,       and     the 

                 unsuitability of Stanley's placement proposals) was clear and 

                 convincing evidence that Sean and Sarah were children in 

                 need of aid for purposes of AS 47.10.011(2).  These findings 

                 were not clearly erroneous.[24] 



                 In    a   later   unpublished       decision     involving      the   same     non-ICWA 



                   25 

circumstances,        we stated that Stanley B. did not actually decide whether OCS has a 



duty to make reasonable efforts to consider a parent's placement proposals: 



                 Although   we   mentioned   the   superior   court's   finding   that 

                 DFYS had made "reasonable efforts" to consider Stanley's 

                 preferences and stated that we agreed with it, we did not hold 

                 or state that such a finding is a prerequisite to terminating 

                 parental rights under AS 47.10.080(o).            Stanley B. therefore 

                 did not decide whether [DFYS] must make reasonable efforts 

                 to   consider     a  parent's    placement      proposals     before     the 

                 superior court can terminate parental rights.[26] 



        24 

                 Id. 



        25 

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

Servs., 2005 WL 3006601 (Alaska, Oct. 19, 2005). 



        26 

                 Id . at *4 (footnotes omitted).  We did not decide the question in that case, 

either,   stating   that   if   the   state   had   such   a   duty,   it   was   fulfilled   given   the   parent's 

                                                                                            (continued...) 



                                                    -30-                                               6675
 


----------------------- Page 31-----------------------

                 The final non-ICWA case with similar circumstances is Samuel H. v. State, 



                                      27 

Office of Children's Services.            In that case we said "Stanley B. requires incarcerated 



parents     to  take   affirmative    steps   to  arrange    appropriate     and   feasible    care   options 



                                             28 

independent of department action."               But we also stated: 



                 We decline to hold that "adequate arrangements" under AS 

                 47.10.080(c) includes the requirement that an incarcerated 

                 parent     must    follow    a  formal    procedure     to  initiate   legal 

                 proceedings to formalize arrangements made for the child and 

                 make   alternative   plans   merely   because   the   parent's   plans 

                 overlap     with    OCS's     arrangements.        An    arrangement       is 

                 adequate if, when followed, it will provide for the care of the 

                 child.[29] 



Because the incarcerated parent had testified at the termination trial as to his attempt to 



arrange placement with the child's grandmother and his testimony was not rebutted, we 



remanded to the superior court for factual findings on the parent's credibility and efforts 



                                                                              30 

to place the child, without comment on OCS's potential duty. 



                 Although   we   do   not   need   to   decide   the   question   here,   it   is  difficult   to 



believe that in the non-ICWA context OCS's reasonable efforts duty does not include 



assisting an incarcerated parent in remedying the lack of an alternative placement for a 



child when the parent provides the names of potential placements.  OCS and the superior 



         26 

                 (...continued) 

unsuitable placement preference.  Id . 



         27 

                 175 P.3d 1269 (Alaska 2008). 



         28 

                 Id . at 1273. 



         29 

                 Id . at 1274. 



         30 

                 Id . at 1274-75. 



                                                     -31-                                               6675
 


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

                                                                      31 

court certainly thought there was such a duty in Stanley B.               This makes sense - OCS 



has legal custody of the child and cannot simply hand the child over to whomever the 



incarcerated parent arranges to come get the child for informal placement during the 



child's minority.       What can an incarcerated parent do other than propose names for 



OCS's consideration? If OCS determines the proposed placements are unacceptable and, 



if necessary, proves that at trial, then the parent has not made adequate arrangements. 



If OCS finds a proposed placement acceptable, the CINA proceedings may be over. 



                This, however, is an ICWA case, and the standard is not reasonable efforts 



to reunite a family.  OCS is required to make active efforts to prevent the breakup of an 



                 32 

Indian family.       In my view OCS has an active-efforts duty to consider, evaluate, and 



take action on an incarcerated parent's request for alternative placement under ICWA's 



standards.    This may remedy the child in need of aid condition that the parent has not 



made "adequate arrangements" for the child during the parent's incarceration.  My view 



is buttressed by the fact that OCS already has a separate and independent ICWA duty to 



give   a   placement   preference,   not   only   for   adoptive   but   also   for   any   foster   care   or 



preadoptive placement, first to "a member of the Indian child's extended family," and 



                                          33 

then to other specified placements.          Moreover, "[w]here appropriate, the preference of 



        31 

                93 P.3d 403, 406-07 (Alaska 2004) (recognizing that OCS "should not 

disadvantage       an  incarcerated     parent   by   blocking    his  efforts   to  make    'adequate' 

provisions for his children"). 



        32 

                Compare   CINA         Rule   18(c)(2)(A)     (requiring    reasonable     reunification 

efforts), with  CINA Rule 18(c)(2)(B) (requiring active reunification efforts in Indian 

child cases). 



        33 

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



                Under ICWA, the law or custom of the Indian child's tribe 

                defines the extended family member.   In the absence of tribal 

                                                                                         (continued...) 



                                                  -32-                                             6675
 


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

                                            34 

. . . the parent shall be considered";         and "[t]he standards to be applied in meeting the 



preference   requirements   of   this   section       shall   be   the   prevailing  social   and   cultural 



standards of the Indian community in which the parent or extended family resides or with 



                                                                                                    35 

which the parent or extended family members maintain social and cultural ties."                        The 



United States Supreme Court has characterized placement preferences as "[t]he most 



                                                                           36 

important substantive requirement imposed on state courts." 



                 A primary objective of section 1915(d) is to prohibit state 

                 courts from imposing value judgments on proposed foster 

                 care placements based on the prevailing social and cultural 

                 standards of the non-Indian community, much in the same 

                 way     state  courts    are   prohibited     from   removing      Indian 



        33	 

                 (...continued) 

                 law or custom, "extended family member" is defined as a 

                 person who has reached the age of eighteen and who is the 

                 Indian child's grandparent, aunt or uncle, brother or sister, 

                 brother-in-law      or  sister-in-law,   niece    or  nephew,     first   or 

                 second   cousin,   or   stepparent.      25   U.S.C.      1903(2).     By 

                 rejecting the limited nuclear family of state law as the group 

                 of   persons   eligible   for   child   custody,   the   extended   Indian 

                 family definition remedies the cultural gap between tribes and 

                 non-Indians that was evident during the legislative process. 

                 H. R. Rep. No. 95-1386, 95th Cong., 2d Sess. 10, 11, 20, 24 

                 (1978). 



COHEN 'S HANDBOOK OF  FEDERAL  INDIAN  LAW                    11.05[2], at 842 n.168 (Nell Jessup 

Newton ed., 2005 ed.) (hereinafter COHEN 'S HANDBOOK). 



        34 

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



        35 

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



        36 

                 Miss. Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 36 (1989). 



                                                    -33-	                                             6675
 


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

                children   from   their   homes   based   on   the   prevailing   child- 

                rearing norms in the non-Indian community.[37] 



In this vein, ICWA preferences may even control over state law standards for child 



placements: 



                In certain circumstances, a relative who is otherwise entitled 

                to    a  placement      preference     under    the   ICWA      may    be 

                disqualified   under   state   law   because   of   a   prior   history   of 

                neglect or abuse toward another child.   At least one court has 

                held,   however,   that   the   ICWA   preferences   may        override 

                some     state  disqualification     if  the  relative  placement     can 

                demonstrate no harm would befall the child.[38] 



                In   this   context,   then,   OCS's   ICWA-placement   duty   overlays   its   active 



efforts duty; the court is wrong to   say that OCS's ICWA-placement duties have no 



relevance to its active efforts duties when lack of adequate placement is itself the basis 



for finding a child in need of aid.         In evaluating OCS's active efforts to prevent the 



breakup of this Indian family, we must ask:  Given that Josh was incarcerated and Robin 



was unavailable to parent Eva, what did OCS do to assist Josh with an appropriate case 



plan to make other "adequate arrangements" for Eva so she would no longer be a child 



        37 

                B.J. JONES, MARK TILDEN , & KELLY GAINES -STONER , THE INDIAN CHILD 

WELFARE ACT HANDBOOK 135 (2d ed. 2008). 



        38 

                Id. at 137 (citing In re Jullian B ., 99 Cal. Rptr. 2d 241 (Cal. App. 2000)) 

(footnote omitted); see also COHEN 'S HANDBOOK  11.05[2], at 843 ("ICWA preferences 

replace preferences under state law, which tend to be more subjective and variable."). 



                ICWA also requires that OCS make a record of its Indian child placements, 

"evidencing the efforts to comply with" ICWA's placement preferences.                      25 U.S.C.  

1915(e)   (2006); see   State   ex   rel.   C.D.,   200   P.3d   194,   212   n.31   (Utah   App.   2008) 

("ICWA expressly requires that a record be created that documents the attempts to place 

the children in compliance with the ICWA preferences.").                 And at each hearing where 

the court authorizes the initial or continued removal of an Indian child from the child's 

parent, the superior court "shall inquire into and determine" whether OCS has complied 

with ICWA's placement preferences.             CINA Rule 10.1(b). 



                                                  -34-                                             6675
 


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

in need of aid and the case could be resolved without terminating Josh's parental rights? 



In my view the answer is:        Nothing.     Why does it matter?        Because if OCS had made 



active efforts to contact and consider the small universe of Josh's parents and six sisters, 



as he repeatedly requested, as OCS repeatedly obligated itself to do in its case plans, and 



as   OCS     was   otherwise     obligated    to  do  under    ICWA's      placement     provisions,    a 



satisfactory placement might have been made for Eva's normal supervision that would 



                                                                       39 

have satisfied Josh's "adequate arrangements" obligation.                   Contrary to the court's 



suggestion, Eva then would no longer have been a child in need of aid and there would 



                                                                                                      40 

have been no basis to terminate Josh's parental rights and break up this Indian family. 



                The facts of this case are that OCS took emergency temporary  custody of 



Eva   in   late   September   2008,   when   Josh   was   incarcerated   awaiting   trial   on   serious 



criminal charges.      Josh's initial case conference with OCS was on October 14.               OCS's 



conference      record   reflects  that:   Josh's    tribe  had  already    provided    the  name    and 



telephone number of a possible placement; the social worker had found that number did 



not work; and Josh provided a correct number and also suggested a sister as a possible 



placement.     A few days later Josh's tribe intervened and formally requested that OCS 



        39 

                OCS's      remedial    efforts  "need    not  be  limited   to  formal    programs     of 

treatment.  For example, a proposal to place a child with an extended family member can 

be a remedial and rehabilitative measure."             COHEN 'S  HANDBOOK  11.05[1], at 841 

(citing In re Welfare of M.S.S. , 465 N.W.2d 412 (Minn. App. 1991)); see also Samuel 

H. , 175 P.3d at 1274-75 (discussing adequacy of arrangements made by an incarcerated 

parent). 



        40 

                Had Josh's parents or his sisters been willing and capable of adopting Eva, 

then Josh may have been able to reserve some parental rights in the process rather than 

having all of his parental rights terminated at trial.  See AS 47.10.089 (providing that in 

a voluntary relinquishment of parental rights a parent may retain some privileges with 

regard to the child, including visitation and communication). 



                                                  -35-                                            6675
 


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

contact   Josh's   parents   as  a  potential   placement   for  Eva;   their  names   and   contact 



information were provided to OCS. 



                OCS's October case plan, setting family reunification as Eva's permanency 



goal, reflected that a "relative search is in progress" and the social worker "is sending 



letters to the tribe asking for family [placements]."         Josh's duties under the case plan 



included completing mental health, anger management, and substance abuse assessments 



and   following   the   recommendations.       He   was   tasked   with   receiving   sexual   abuse 



counseling and treatment.       Because of Josh's limited contact with Eva and his lack of 



understanding regarding her special needs, he also had a duty to engage in counseling 



and parenting classes to understand Eva's needs and to engage in her therapy when she 



was ready for his participation. 



                OCS's November predisposition report stated that Eva's current placement 



was not ICWA-compliant but that good cause existed for the deviation as Eva was in a 



therapeutic foster home with Robin's consent.          OCS stated that the social worker "will 



be speaking with relatives that are named by either parent . . . to consider them as a 



possible    placement."    OCS     stated   its  awareness   that   Josh's  parents  wanted    to  be 



considered for placement, but that the social worker was "looking into some history on 



them" and obtaining documents regarding concerns.               OCS stated   that although Josh 



supported Eva's current placement because of her needs, he "also wants some of his 



family   considered"   for   placement.     OCS   also   noted   that the   social worker   "will   be 



looking into family requested when [Eva] is ready to be discharged from the therapeutic 



foster home." 



                OCS's February 2009 case plan contained the exact same wording as the 



October case plan with respect to considering Josh's family members for placement - 



a "relative search is in progress" and the social worker "is sending letters . . . asking for 



                                                -36-                                          6675
 


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

family."     It  also  stated   that  the  social  worker    "is  continuing    to  look   for  family 



placement."     The case plan contained no changes to Josh's duties and objectives. 



                OCS's March 2009 case plan changed Eva's permanency goal to adoption 



with family reunification as a concurrent goal.  That plan also contained the exact same 



wording as the October and February case plans with respect to the social worker's 



efforts to contact and consider Josh's family members as possible placements: a "relative 



search is in progress," the social worker "is sending letters . . . asking for family," and 



the social worker "is continuing to look for family placement."            The case plan listed no 



duties or objectives for Josh to complete.        In fact, Josh was eliminated as a participant 



in this case plan.   To the extent Josh had a case plan, it was the February 2009 case plan; 



no later case plan for Josh can be found in the record. 



                In June 2009 the social worker warned Robin that her parental rights would 



be terminated if she failed to make progress on her case plan, indicating OCS was "no 



closer to bringing [Eva] home." Again in July 2009 the social worker warned Robin that 



"time [was] running out" because she had not made progress on her case plan and had 



not been in contact with Eva. 



                Also    in  July  Josh   was   sentenced    to  serve  99   years   for  his  criminal 



conviction, but OCS made no changes to his February 2009 case plan.  In October 2009 



Josh's attorney sent the social worker an email regarding relative placement with Josh's 



six sisters. 



                At trial the initial primary social worker stated that by October 2009 she 



had only investigated placement with Josh's parents, testifying generally that she "had 



some concerns about their ability to parent [Eva] with her special needs in the village, 



and I just didn't think that they   would be able to take care of it."            No testimony or 



contemporaneous   evidence   was   offered   indicating   the   extent   of   the   investigation   of 



                                                 -37-                                           6675
 


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

                                                                       41 

Josh's parents or the specific nature of OCS's concerns.                  Also in October 2009, the 



social worker learned that one of Josh's parents planned to travel to Anchorage and 



wished to visit Eva.  The social worker acknowledged at trial this visit could have been 



used to assess placement with Josh's parents, but she was not sure if the visit occurred. 



That   social   worker   transferred   to   a   different   OCS   office   a   few   days   later   without 



following up on placement with Josh's parents or sisters. 



                No primary social worker was assigned to Josh for six months until April 



2010.    A   secondary   social   worker   wrote   to   Josh   several   times   offering   a   chance   to 



communicate with Eva.          Josh wrote back and began sending Eva letters and pictures. 



The secondary social worker also sent Josh letters from Eva, pictures of her, and some 



of her recent schoolwork. 



                 In   April   2010   the   secondary   social   worker   asked   Josh   about   possible 



relative placements for Eva and he again identified several sisters. The secondary social 



worker testified at trial that she had contacted the former primary social worker and was 



told the sisters were not viable placement options because "they [had] previously been 



known to have sex offenders in the home."               But the record contains neither evidence 



indicating a basis for the former social worker's statements, nor any contemporaneous 



                                                                 42 

evidence of placement investigations of Josh's sisters;             in fact, the former primary social 



worker testified at trial that she had not followed up with Josh's request to have his 



                                         43 

sisters considered for placement. 



        41 

                 Cf. 25 U.S.C.  1915(e) (requiring OCS to make a record "evidencing the 

efforts to comply with" ICWA's placement preferences). 



        42 

                Id. 



        43 

                 The court nonetheless maintains that none of the sisters "were suitable" for 

placement. 



                                                   -38-                                              6675
 


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

                Also in April 2010 Josh was assigned a new primary social worker, but 



there is no record of any communication between her and Josh or of any placement 



investigations by this social worker.          That same month, OCS petitioned to terminate 



Josh's parental rights.     In August 2010 a different primary social worker was assigned 



to Josh.  This primary social worker also had no contact with Josh.  In September 2010, 



the month preceding the termination trial, this social worker met with Josh's mother and 



a sister about conducting an adoption study. But by the time of the trial, a home visit had 



not been arranged to determine whether the mother or sister could adequately provide 



for Eva's needs. 



                Trial   was   held   in   October   2010.   The   record   is   indisputable   that   from 



October 2009 until the termination trial no primary social worker communicated with 



Josh.  No evidence in the record documents that:   (1) OCS actually attempted to meet its 



stated dispositional and case plan duties to "send letters" regarding family placement or 



"speak[]   with   relatives   .   .   .   named   by   [Josh]   .   .   .   to  consider   them   as   a   possible 



placement"; (2) OCS made any effort to contact or consider Josh's parents for placement 



until shortly before the termination trial; (3) OCS actually had any "concerns" about 



placement with Josh's parents; or (4) OCS ever made any effort to contact Josh's sisters 



                                   44 

for placement consideration.          Despite these facts, the superior court found by clear and 



convincing evidence that OCS had satisfied ICWA's active-efforts requirement: 



                         In this case, [Josh] was in jail before [Eva] was taken 

                into custody, and he will still be there when [Eva] is an adult. 

                 [OCS] tried to engage [Robin], the only parent available for 

                reunification, but their efforts failed. 



                        Under such circumstances, there is not much [OCS] 

                could do (especially for [Josh]) to prevent the family's break- 

                up or to re-unite them. 



        44 

                Id. 



                                                   -39-                                               6675 


----------------------- Page 40-----------------------

                         OCS' efforts were not perfect in this case, especially 

                regarding visitation and family contact for [Josh]. 



                         The Court still finds, however, by clear and convincing 

                evidence, that OCS efforts were active enough to meet the 

                statutory requirements. 



                The superior court did not even address placement until its "best interest" 



finding: 



                         [Josh] does not want to lose [h]is daughter, and claims 

                that it is not in [Eva's] best interests to terminate his parental 

                rights.   He wants [Eva] to be with his family in the village 

                (not with someone else in Anchorage).             [Josh] fears that his 

                voice will be lost if his parental rights are terminated. 



                         This argument, however, goes more to placement than 

                termination.     [Josh] was in jail when OCS took [Eva].  He 

                will remain in jail far into her adulthood.  [Josh] knows that, 

                no matter how well he cared for her when she was young or 

                how much he still loves his daughter, it is now impossible for 

                him to parent his own child. 



                Given the facts and circumstances of this case, I must conclude that the 



superior court misapplied ICWA and that its active efforts finding was clearly erroneous. 



I   conclude   that   OCS's   efforts,   in   their   entirety,   failed   to   fulfill   its   statutory   duty   to 



actually help Josh remedy the conditions that caused Eva to be a child in need of aid.  In 



short, OCS failed to meet its own case plan responsibilities to consider Josh's family 



members for placement, failed to create a relevant case plan for Josh after July 2009, 



failed to have a primary social worker even assigned to Josh for six months, failed to 



have a primary social worker contact Josh for a year, and failed to investigate placement 



                                                                                     45 

with Josh's family to help him make "adequate arrangements" for Eva.                    Although OCS 



        45 

                I fail to see how developing and sending a limited number of case plans that 

OCS itself failed to follow is anything but passive, as opposed to active, efforts.                  And 

                                                                                          (continued...) 



                                                  -40-                                                6675 


----------------------- Page 41-----------------------

                                                                                46 

properly directed its initial efforts towards reunifying Eva with Robin,          once it became 



clear that remedial efforts with Robin would not be successful - which occurred by July 



2009 and near the same time it became clear Josh would be incarcerated for the duration 



of Eva's minority - OCS's active efforts should have turned to assisting Josh make 



adequate arrangements for Eva by investigating placement with Josh's family. 



               The superior court stated that although Josh "wanted OCS to place [Eva] 



with his family,     . . . it does not appear that he made any arrangements to meet [Eva's] 



needs." This reasoning confuses both the burden and extent of efforts required by ICWA 



where one parent is incarcerated and the other has abandoned the child.            Josh certainly 



had the ultimate responsibility to make adequate arrangements for Eva's care.              But the 



reality is that Josh could only fulfill this responsibility through and with the help of OCS. 



OCS had custody of Eva and any possible family placement would require either OCS's 



approval or a court order overriding OCS's objection.  Josh requested that OCS consider 



placement with his parents and sisters.        OCS obligated itself in its own case plans to 



consider these placement proposals.        Having made these requests, there was little else 



Josh could do - OCS's active efforts obligation required it to contact Josh's family to 



determine willingness, to undergo home studies, and to assess his family's ability to 



        45 

               (...continued) 

there is a clear disconnect between OCS's failure to create a relevant, placement-oriented 

case plan for Josh after July 2009 and the court's conclusion that placement efforts 

would     not   have   been   relevant    to  "fulfill[ing]  his  [February     2009]   case   plan 

requirements," when that plan consisted of no longer relevant parenting-oriented duties. 



        46 

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

Servs., 222 P.3d 841, 850 (Alaska 2009) (holding superior court's active-efforts finding 

as to the father properly considered OCS's reunification efforts with the mother because 

the father was incarcerated and had their efforts with the mother been successful "there 

would have been no need for the children to be placed elsewhere"). 



                                               -41-                                           6675
 


----------------------- Page 42-----------------------

                         47 

address Eva's needs.         To conclude otherwise lowers OCS's burden to merely requiring 



                   48 

passive efforts,      and completely ignores OCS's independent, but overlaying, duty to 



investigate ICWA-compliant placements.               Here both the tribe and Josh requested that 



OCS consider Josh's family members for placement and OCS was required by ICWA 



to do so. 



                 Placement with a family member would have satisfied Josh's requirement 



to make adequate arrangements for Eva's care, eliminating                   Eva's status as a child in 



need of aid and possibly saving  Josh's parental rights from termination.  But OCS made 



no effort, let alone active efforts, to consider and evaluate Eva's placement with Josh's 



                     49 

family members. 



        47 

                 In distinguishing In re Welfare of M.S.S. , 465 N.W.2d 412, 418-19 (Minn. 

App.   1991),   the   court   suggests   Josh   was   not   sufficiently   specific   in   his   placement 

request.    The Minnesota court in M.S.S. held that the state was required as part of the 

active-efforts requirement to investigate placement with the father's brother.                   Id.  The 

court should not excuse OCS's failure to consider and investigate Josh's parents and six 

sisters   after   Josh   and   his   tribe   made   repeated   requests   and   OCS   obligated   itself   to 

perform the investigations. 



        48 

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

Servs.,   212   P.3d   756,   763   (Alaska   2009)   ("[A]ctive   efforts   require   taking   a   parent 

through the steps of a plan and helping the parent develop the resources to succeed; 

drawing up a case plan and leaving the client to satisfy it are merely passive efforts."). 



        49 

                 The court supports its decision in part with Josh's January 2009 stipulation 

that there was "good cause" to deviate from ICWA's placement preferences and allow 

Eva to remain in her Anchorage therapeutic foster home.                  This argument is flawed for 

two reasons.     First, we have stated in an unpublished decision that: 



                 When a parent participating in the pre-termination phases of 

                 a CINA proceeding stipulates to accept as established . . . an 

                 element of the state's case, it does not seem fair to assume 

                 that this willingness to go along for the time being was meant 

                                                                                           (continued...) 



                                                   -42-                                              6675
 


----------------------- Page 43-----------------------

                 I would reverse the superior court's termination order and remand for OCS 



to make active efforts to assist Josh in making adequate arrangements for Eva's care by 



investigating placement with his family members, as he had repeatedly requested.                             If 



those efforts determine that none of Josh's family members are willing, qualified, or 



capable   of   caring   for   Eva,   then   OCS   could   initiate   proceedings   to   terminate   Josh's 



parental rights because he has failed to make adequate arrangements for her care. 



         49	 

                 (...continued) 

                 to   preclude   the   parent   from   contesting   the   issue   if   it   later 

                 becomes   important   at   a   termination   hearing   -   a   stage   of 

                 proceedings when the ultimate threat of permanently losing 

                 parental ties is directly raised. 



Nicole H. v. Dep't of Health & Soc. Servs., Office of Children's Servs. , No. S-11974, 

2006 WL 895084, at *6, (Alaska, Apr. 5, 2006).                  Second, and more importantly, OCS 

had   noted   that   despite   Josh's   stipulation   he   still   wanted   his   family   considered   for 

placement and OCS had obligated itself to do so.                    Josh's stipulation and reliance on 

OCS's unfulfilled promise should not now be a factor held against him. 



                                                     -43-	                                                 6675 

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