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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Claudio P. v. State, Dept. of Health & Social Services, Office of Children's Services (9/20/2013) sp-6827

Claudio P. v. State, Dept. of Health & Social Services, Office of Children's Services (9/20/2013) sp-6827, 309 P3d 860

         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  



CLAUDIO P.,                                          )  

                                                     )        Supreme Court No. S-14988  

                           Appellant,                )  

                                                     )        Superior Court No. 4FA-10-00090 CN  

         v.                                          )  

                                                     )  

STATE OF ALASKA,                                     )        O P I N I O N  

DEPARTMENT OF HEALTH &                               )  

SOCIAL SERVICES, OFFICE OF                           )        No. 6827 - September 20, 2013  

CHILDREN'S SERVICES,                                 )  

                                                     )  

                           Appellee.                 )  

                                                     )  



                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Fairbanks, Michael P. McConahy,  

                  Judge.  



                  Appearances:      Olena   Kalytiak   Davis,   Anchorage,   for  

                  Appellant.        Jacqueline   G.   Schafer,   Assistant   Attorney  

                                                                       

                  General,  Anchorage,  and  Michael  C.  Geraghty,  Attorney  

                  General, Juneau, for Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                     

                  Bolger, Justices.  



                  BOLGER, Justice.  


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

I.       INTRODUCTION  



                                                                                   

                   The father in this case, Claudio P., has been incarcerated since before his  



                                             

daughter, Iris, was born and is likely to remain incarcerated for a significant portion of  

                        1  Iris was taken into State custody in June 2010 due to her mother's  

Iris's childhood.                                                                              



substance abuse and unsafe conditions in her home.  Claudio's mother requested that Iris  

                                                                                                   



be placed with her, but her lack of stable housing precluded that possibility until January  

                                  



2012  when  she  found  a  permanent  home  in  Texas.    In  October  2011  Claudio  also  



                                                                                                   

provided the name of his father, who lives in South Dakota, as another placement option.  



                                                                                    

OCS requested home studies under the Interstate Compact on the Placement of Children  

          2   for each of Claudio's parents.   Both home studies came back with positive  

(ICPC)                                                                                           



recommendations shortly before the termination trial, which was held in August 2012.  

                                                                                              



Following the trial, the trial court terminated Claudio's parental rights to Iris and noted  

                             



that Iris's permanent placement would be determined at a subsequent hearing.  



                   Claudio argues that the trial court erred by terminating his rights because  

                                                                     



OCS  should  have  taken  more  action  to  place  Iris  with  one  of  his  parents.    But  we  



                                                                                     

conclude that OCS's investigation of Claudio's placement request was reasonable and  



                                                          

timely, and that each of the trial court's challenged findings is supported by substantial  



evidence.  



II.       FACTS AND PROCEEDINGS  



         A.        Iris Is Taken Into OCS's Custody In June 2010.  



                   Claudio has twice been convicted and incarcerated for manslaughter -  



                                                                                   

from April 1994 to November 2004, and from  January  2006 to the present.  In the  



          1        Pseudonyms are used throughout to protect the privacy of the parties.  



          2        AS 47.70.010-.080.  



                                                            -2-                                                        6827  


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

                                                                3  

                                                                                       

interim he fathered a child, Iris, with Sandy.   Claudio was in prison in May 2006, when  



Iris was born.  He expects to be released in 2015 or 2016.  



                    Iris has twice been in OCS's custody.  The first time, beginning in 2008,  



        

was due to  Sandy's problems with substance abuse and her neglect of Iris.  OCS referred  



                              

Sandy to substance abuse treatment, which she successfully completed.  Iris was returned  



to Sandy in 2009, and the OCS case was closed.  

                    In early 2010 OCS began receiving reports about Sandy and her children.4  



                                                                        

In June 2010, after Sandy was arrested for DUI, she voluntarily placed Iris and Dolores  



                                                                                                    

into State custody.   At Sandy's request OCS placed the children with the Normans,  



                                                                                                      

licensed foster parents who had cared for Iris during her earlier time in OCS's custody.  



                                                                                                                

Sandy had a close relationship with the Normans, who were present at the birth of her  



children and who had adopted a close relative of Sandy's.  



          B.	       OCS  Makes  Reunification  Efforts  Primarily  For  Sandy;  Claudio  

                    Participates In Services While Incarcerated.  



                    OCS's efforts before 2012 were directed mainly at Sandy.  OCS referred  



                                       

Sandy to Tanana Chiefs Conference Behavioral Health Service for an assessment, it  



                                                                 

referred  her  to  Ralph  Perdue  Center  and  to  Fairbanks  Native  Association  for  case  



                                                                                                           

management services, it set her up to participate in urinalysis testing, it assisted her in  



                                                                    

obtaining housing, it referred her to parenting classes at the Resource Center for Parents  



                                                                                         

and Children family reunification program, and it offered to transport her from Minto to  



Fairbanks for visits with her daughters.  



          3         Iris  is  an  Indian  child  for  purposes  of  the  Indian  Child  Welfare  Act  



(ICWA).  25 U.S.C.  1901-1963 (2006).  She and Sandy are members of the Native  

                

Village of Minto.  



          4	        In March 2010 Sandy had a second daughter, Dolores.  



                                                              -3-	                                                          6827  


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

                    OCS  did  not  offer  many  services  to  Claudio.    Social  worker  William  



Downes  testified  that  providing  services  to  Claudio  was  difficult  because  of  his  



                                                                                                                

incarceration.  Downes testified that he was unable to call Claudio or send emails to him  



in   prison.      He   stated   that   during   case   review   meetings   that   Claudio   attended  



telephonically,  he  stressed  to  Claudio  the  importance  of  communicating  with  OCS.  



However,  Claudio  never  initiated  communications.    While  incarcerated,  Claudio  



                                                               

participated in a program offered by the Department of Corrections that, according to  



Claudio, addressed anger management and thinking errors.  



                                                                      

                    OCS facilitated contact between Iris and Claudio, although actual visits did  



                                                                                     

not occur until late in the case.  Downes testified that he began contact slowly, by means  



                                                                                                              

of letters, cards, and pictures, because of bonding issues that Iris had exhibited.  He  



                     

testified  that  as  the  case  progressed  his  supervisor  directed  him  to  "get  going  on"  



                       

implementing  visitation  between  Iris  and  Claudio.    In  the  months  leading  up  to  the  



                                                                                                        

termination trial, OCS facilitated three in-person visits between Iris and Claudio at the  



                                                             

Palmer Correctional Center.  The visits, which were paid for by OCS, occurred monthly.  



                                                                      

Downes testified that arranging visits for Iris at Palmer was difficult because the visits  



                                                                                

took a full day for the child, who lived in Fairbanks, involved plane travel, and required  



that a familiar adult accompany her.  



                                                                                                           

          C.	       Claudio's Mother Requests Placement But Does Not Acquire Stable  

                    Housing Until January 2012.  



                    Claudio's mother, Celina, retired from her job and left Alaska in August  



                                            

2010.  She did not learn that Iris had been removed from Sandy's custody until October  



                                                                     

or November 2010.  In summer 2011 Celina temporarily returned to Alaska, where she  



                                                                                                     

stayed with her daughter in Fairbanks and worked in Livengood.  The record does not  



                                                                                  

indicate that she requested placement at the time, and, in any event, her daughter's home  



                                                               -4-	                                                        6827
  


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

                                                                                  5  

was not large enough to accommodate Iris and Dolores.   OCS provided Celina with in- 



                                                                        

person visits with the girls during this time but Celina's unpredictable work schedule  



made  organizing  visits  difficult.    Telephone  visits  were  not  possible  at  Celina's  



                                                                     

workplace.  At some point during the summer or fall, Celina left Alaska, moving briefly  



                                                          

to Arizona, where she house-sat, and then, in September 2011, to Texas.  In January  



2012 she bought a house in Texas.   



                                                                                                                

                    Celina had told OCS that she did not want a home study done for Iris until  



                                                                                                                             

she acquired stable housing, but she stated that she would be willing to care for Iris.  In  



                                                                                                      

March 2012, after learning that Celina had obtained stable housing, OCS requested an  



                                                               

ICPC home study to investigate whether Iris and Dolores could safely be placed with  



her.  Texas approved the placement in July 2012 and forwarded a favorable report to  



OCS the following month, shortly before the trial on the petition to terminate Claudio's  



parental rights.  



                                                                              

          D.	       Sandy Announces Her Intention To Relinquish Her Parental Rights;  

                    Claudio Provides OCS With Suggestions For Placement.  



                    In  late  August  2011  Sandy  stated  that  she  intended  to  relinquish  her  



parental  rights  to  her  daughters.    Claudio  then  provided  his  attorney  with  names  of  



relatives,  including  his  mother  and  his  siblings,  whom  he  suggested  as  placement  



                                                                 

options.  Celina was not then available for placement, as she had yet to acquire stable  



housing.  Downes testified that when he received the names of Claudio's suggested  



placements, he contacted Claudio's sister in October 2011 and his brother in January  



2012.   



                                                                                                            

                    Claudio's father, Paulo, testified that Claudio first told him that Iris was in  



                                         

OCS's custody in October 2011.  That month, Downes contacted Paulo and he initiated  



          5  

                                          

                    OCS's policy is to place siblings together, whenever possible, in order to  

maintain their sibling bond.  



                                                              -5-	                                                          6827  


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

                                 

an ICPC home study for Paulo's family in South Dakota.  OCS had just received the  



positive result of the home study at the time the termination trial began.  



                    In addition to visits with Claudio, OCS facilitated weekly visits, initially by  



telephone and later by video conferencing, between Iris and Paulo's family.  At the time  



                                                                  

of the termination trial, OCS intended to set up an in-person visit.  It appears that OCS  



                                                                        

also intended to facilitate visits with Celina, but for reasons not apparent in the record,  



those visits did not occur.  



                                                                                 

                    At the time of the termination trial Iris's permanent placement had yet to  



                                                                   

be determined.  The trial court noted that her permanent placement would be decided in  



future proceedings.  



          E.        The Trial Court Terminates Claudio's Parental Rights To Iris.  



                         

                    In March  2012 OCS filed a petition to terminate Sandy's and Claudio's  



                                  

parental rights to Iris.  Sandy then relinquished her rights.  In August 2012 a termination  



trial  was  held  with  respect  to  Claudio's  rights.    Witnesses  included  Claudio,  Paulo,  



Celina, and Downes, as well as Cynthia Bridgman, a clinical therapist who had provided  



                                                                                                

services to Iris, and who testified as an expert in evaluating and providing therapeutic  



services to children who have experienced trauma and to children who have relationship  



and adjustment disorders.  The Native Village of Minto intervened in the case in October  



2010, and participated in the trial.  



                                                                   

                    On  November  29,  2012,  the  trial  court  issued  an  order  terminating  



                                                                                   

Claudio's parental rights.  The court found Iris to be a child in need of aid under AS  

                                                                      6  The court found that Claudio had not  

47.10.080(o) and AS 47.10.011(2), (6), and (8).                                                          



          6         AS 47.10.080(o) and AS 47.10.011(2) allow a court to find a child to be in  

                                                          

need of aid based on her parent's incarceration.  AS 47.10.011(6) allows a court to find  

                                                                                                                       

a child to be in need of aid based on the child's having been physically harmed or placed  

                                                                                

                                                                                                           (continued...)  



                                                             -6-                                                           6827  


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

                                                                                                           

remedied the conduct that placed Iris at risk of harm, that OCS had made active but  



unsuccessful efforts to provide services to prevent the breakup of the Indian family, that  



Claudio's continued custody of Iris would likely result in Iris suffering serious emotional  



                                                                                                 

or physical damage, and that termination of Claudio's parental rights was in Iris's best  



interests.  



                    Claudio appealed, challenging the trial court's findings that Iris is a child  



                                      

in need of aid, that OCS made active efforts to provide services to prevent the family's  



breakup, and that termination of his parental rights was in Iris's best interests.   



III.      STANDARD OF REVIEW  



                                                                                                                  

                    In child in need of aid cases we review a trial court's factual findings for  



                 7                                                            8  

                                                                                  

clear error.   We review questions of law de novo.                               Findings are clearly erroneous if  



                                                                                 

review of the entire record leaves us with "a definite and firm conviction that a mistake  



                          9  

has been made."   Conflicting evidence is generally insufficient to overturn the trial  



                                                                             

court, and we will not reweigh evidence when the record provides clear support for the  



                              10                                                      11 

        

trial court's ruling.             Whether a child is in need of aid                      and whether termination of  



          6(...continued)  



at risk of such harm, and AS 47.10.011(8) allows a court to find a child to be in need of  

aid based on the child's having suffered mental injury or having been placed at risk of  

                                                                                        

such injury.  



          7         Sherman B. v. State, Dep't of Health & Soc. Servs.,  290 P.3d 421, 427-28  

                                                                                                    

(Alaska 2012) (citing Christina J. v. State, Dep't of Health & Soc. Servs., 254 P.3d 1095,  

                                                    

1103 (Alaska 2011)).  



          8         Id. at 428 (citing Christina J., 254 P.3d at 1104).  



          9  

                                                                                                

                    Id. at 427-28 (quoting Barbara P. v. State, Dep't of Health & Soc. Servs. ,  

234 P.3d 1245, 1253 (Alaska 2010)).  



          10  

                          

                    Id. at 428 (quoting Maisy W. v. State, Dep't of Health & Soc. Servs. , 175  

                                                                                                               (continued...)  



                                                               -7-                                                         6827
  


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

                                                               12  

parental  rights  is  in  a  child's  best  interests              are  factual  findings.    The  trial  court's  



                                                                                                             

determination as to whether the State made active, but unsuccessful, efforts to provide  



remedial services and rehabilitative programs designed to prevent the breakup of the  

Indian family is a mixed question of fact and law.13  



IV.      DISCUSSION  



         A.        Claudio's Incarceration Rendered Iris A Child In Need Of Aid.  



                   Alaska Statute 47.10.088(a)(1) requires a trial court to find by clear and  



convincing evidence that a child has been subjected to conduct or conditions described  

                                                                                          



in AS 47.10.011 before the court may terminate a parent's parental rights.  The trial court  

                                                                                              

found that Iris was in need of aid under AS 47.10.011(2) and AS 47.10.080(o).14  



                   Alaska Statute 47.10.011(2) provides that a child may be found to be in  



need of aid if "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."  Similarly, AS 47.08.080(o) provides that a child may be  



                                                                                  

found to be in need of aid if a parent is scheduled to be incarcerated for a significant  



period  of  the  child's  minority,  no  other  parent  is  able  to  care  for  the  child,  and  the  



          10(...continued)  



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



          11       Id. (quoting Pravat P. v. State, Dep't of Health & Soc. Servs.                     , 249 P.3d 264,  



270 (Alaska 2011)).  



          12       Id. (citing Christina J., 254 P.3d at 1104).  



          13       Christina J., 254 P.3d at 1104 (citing Ben M. v. State, Dep't of Health &  



Soc. Servs., 204 P.3d 1013, 1018 (Alaska 2009)).  



          14       According to its terms, a finding under AS 47.10.080(o) qualifies as a  



finding under AS 47.10.011.  



                                                           -8-                                                     6827
  


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

incarcerated parent has not made "adequate provisions" for the child's care during the  



period of incarceration.  The  trial court found that these conditions applied to Iris's  



              15  

situation.        



                                                                                       

                    Claudio argues that the trial court's finding was clearly erroneous because  



                                                                           

he made adequate plans for Iris's care during his incarceration.  He asserts that he made  



such plans before Iris came into the State's custody by telling Sandy that if she needed  



                                                       

time away from Iris, she could take Iris to Claudio's mother or sister, and, after Iris came  



                                                                                                                      

into the State's custody, by telling OCS that he wanted one or the other of his parents to  



                           16  

care for the child.            



                    We begin our analysis by noting that for an incarcerated parent to make  



                                                                                                                      

adequate provisions for a child's care the parent must "take affirmative steps to arrange  



                                                                                                                 17  

appropriate and feasible care options independent of department action."                                             Claudio's  



          15        While these two statutory sections both involve a parent's incarceration, we  



have noted that they provide  "alternate and independent bases" for termination of a  

                                               

parent's parental rights.  Frank E. v. State, Dep't of Health & Soc. Servs. , 77 P.3d 715,  

                                                                                                                  

717 (Alaska 2003).   Both the trial court, in its decision, and Claudio, in his brief on  

                                 

appeal, conflate their analyses of whether Claudio's plans for Iris's care were "adequate"  

under these two statutory sections.  While the two sections differ in certain respects,  

                                          

those differences are not germane to the issue raised in this appeal.  We agree with the  

                                                      

trial court and Claudio that "adequate provisions" and  "adequate arrangements" are  

                                                                                       

synonymous for purposes of the statutes, and  that caselaw interpreting one of these  

                                                                         

provisions may be relevant in construing the other.  



          16        Claudio's assertion that both of his parents "were immediately available and  



                                                                                   

willing to take custody of Iris (and Dolores) and adopt her if necessary," is not supported  

            

by  the  record.    Claudio's  mother  was  unavailable  to  take  custody  of  Iris  until  she  

                                                                       

acquired housing, which did not happen until Iris had been in OCS's custody for more  

                                                                                                        

than 18 months, and Claudio's father did not emerge as a placement option until Iris had  

been in OCS's custody for 16 months.  



          17  

                                                                

                    Samuel  H.  v.  State,  Office  of  Children's  Servs.,  175  P.3d  1269,  1273  

                                                                                                                (continued...)  



                                                                -9-                                                         6827
  


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

                                                                                                     

suggestion  that  Sandy  leave  Iris  with  Celina  or  with  Claudio's  sister  if  Sandy  felt  



overwhelmed  does  not  satisfy  this  test.    Claudio  admitted  that  he  "didn't  make  any  



arrangements" with Celina to step in if Sandy became unable to care for Iris, nor does  



                                                                                                             

the record indicate that he approached his sister.  Merely suggesting to Sandy that she  



                                                                              

might leave Iris with Celina or his sister "if you feel you need some time away" does not  



rise to the level of taking "affirmative steps to arrange appropriate and feasible care  



options."  This is particularly true where Sandy did not, in fact, ask Claudio's mother or  



his sister to care for Iris, but instead voluntarily placed the children with OCS.  



                                  

                    Moving on to Claudio's parents, we begin by noting that we have never  



                                                                                                                    

decided  whether  an  incarcerated  parent's  request  that  a  child  -  already  in  OCS's  



                                                                                                     

custody  -  be  placed  with  a  particular  individual  constitutes  making  "adequate  



arrangements" or "adequate provisions" for the child's care.  Nor do we decide that  



                                                                                 

question today.  Instead, we hold that Claudio's action in waiting more than a year before  



taking  steps  to  arrange  for  Iris's  care  ultimately  rendered  the  steps  that  he  did  take  



inadequate.  



                                                                                              

                    Because of Claudio's delay, more than two years elapsed between the time  



                                                                                                           

that Iris was taken into OCS's custody and the time when OCS could have placed the  



                                                                  18  

child in accordance with Claudio's wishes.                            During that interval, according to Iris's  



                                                                                                 

therapist,  Iris  bonded  with  her  foster  parents,  the  Normans,  as  her  protectors  and  



          17(...continued)  



(Alaska 2008) (citing Stanley B. v. State, Div. of Family & Youth Serv., 93 P.3d 403, 406  

                                                                         

(Alaska 2004)).  



          18        Because both Celina and Paulo live outside Alaska, OCS could not legally  

                                                                                                                   

place Iris with either of them until it received home studies approving such placements  

                                                                                          

from the states where Celina and Paulo  resided.  AS 47.70.010.  OCS received Celina's  

                                                                          

favorable home study in July 2012 and Paulo's in August 2012.  



                                                              -10-                                                         6827
  


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

            19  

                                                        

helpers.       The therapist testified that removing Iris from the Normans' care would "cause  



                                                                                                    

strong emotional problems, cognitive issues for [Iris], despite how wonderful the newly- 



                                                    

appointed caregivers would be."  She stressed the importance of the longevity of Iris's  



                                                 

relationship with the Normans, and testified that Iris displayed adverse reactions when  



                                                                                                           

confronted with suggestions that the relationship might be disrupted.  She testified that  



                                                                                                                     

if Iris were removed from the Normans's care, she would suffer trauma that would not  



be reparable.  



                                                              

                    Had Claudio worked with OCS to have Iris placed with Paulo when she  



                                                                                 

first came into OCS's custody, Iris might have been placed there before her bond with  



                                                                                              

her foster parents became too strong to disrupt, or she might at least have developed a  



relationship with Paulo and his family that could have allowed her to be safely moved  



                              20  

to his custody later.             But because Claudio delayed so long in putting OCS in contact  



with Paulo, these things did not happen, and thus his belated request that OCS place Iris  

                                                                                            



with Paulo did not constitute an "adequate" plan for Iris's care.  We affirm the trial  



                                                                                       

court's  finding  that  Iris  was  a  child  in  need  of  aid  under  AS  47.10.011(2)  and  

AS 47.10.080(o).21  



          19        The  therapist  testified  that  when  Iris  began  therapy  she  had  exhibited  



numerous issues, including difficulty sleeping, fearfulness, taking off all of her clothes  

                                           

and lying "stiff as a board" at nap time, and urinating and defecating in her clothing.  The  

                                                           

therapist testified that Iris had reportedly been sexually abused, displayed symptoms  

indicating that she may have been physically abused, and that her multiple changes in  

                                      

caregivers early in her life had disrupted her social and emotional development.  



          20        The same cannot be said of Celina because she chose to delay acquiring  



                      

housing  that  would  allow  her  to  have  custody  of  Iris  until  late  in  Iris's  CINA  

proceedings.  



          21        Our resolution of this issue means that we need not consider Claudio's  



                                                                                                              

challenges  to  the  trial  court's  findings  that  Iris  was  also  in  need  of  aid  under  AS  

                                                                                                               (continued...)  



                                                              -11-                                                         6827
  


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

          B.	       OCS Made Active But Unsuccessful Efforts To Provide Services To  

                    Prevent The Breakup Of The Indian Family.  



                                                                                              

                    25 U.S.C. 1912 (d) and Alaska Child in Need of Aid Rule 18(c)(2) require  



                    

a trial court to find, by clear and convincing evidence, that the State made active but  



                                                               

unsuccessful efforts to provide remedial services and rehabilitative programs designed  



to prevent the breakup of the Indian family before the court may terminate a parent's  



parental rights to an Indian child.  Courts review the State's reunification efforts on a  



                                                                                 

case-by-case basis because "no pat formula exists for distinguishing between active and  



                         22  

passive  efforts."             A  parent's  incarceration  does  not  relieve  the  State  of  its  duty  to  



                                                                            

provide active efforts, but it may affect the scope of the State's efforts and it may limit  



                                                  23  

                                                                     

the options available to the State.                   Services provided to a parent by the Department of  



                                                                               ,  

Corrections count as efforts provided by the State.24 



                    1.	       The trial court properly considered the State's efforts for the  

                              family as a whole.   



                    ICWA requires the State to make efforts to provide services designed to  



                                                              25  

                                                                                                        

prevent the breakup of the Indian family.                         In finding that the State met its burden, the  



                                                                          

trial court focused, first, on the efforts provided to the family as a whole.  Those efforts  



          21(...continued)  



47.10.011(6) and (8).  See Alyssa B. v. State, Dep't of Health & Soc. Servs ., 165 P.3d  

605, 618 (Alaska 2007).  



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



1999) (quoting A.M. v. State , 945 P.2d 296, 306                              (Alaska 1997)) (internal quotation  

marks omitted).  



          23  

                                                                                                      

                    T.F. v. State, Dep't of Health & Soc. Servs., 26 P.3d 1089, 1096 (Alaska  

2001) (quoting A.A. , 982 P.2d at 261).  



          24        Id. (citing A.M. , 945 P.2d at 305; A.A. , 982 P.2d at 263).  



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



                                                              -12-	                                                        6827
  


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

included referrals for Sandy to Tanana Chiefs Conference Behavioral Health Service,  



Ralph Perdue Center, Resource Center for Parents and Children, Pichette Counseling,  



and  Fairbanks  Native  Association;  arrangements  for  urinalysis  testing;  assistance  in  



obtaining housing; and assistance with transportation to facilitate family contact.  The  



efforts also included facilitating  family contact with other family members via in-person,  



telephone, and video-conference visits and providing therapy for Iris.  



                                                        

                   The trial court properly found that these services could be considered in  



evaluating efforts made on Claudio's behalf "because if [Sandy] had succeeded in her  



                             

case plan, the State would not be moving to terminate [Claudio's] parental rights."  This  



                                                                                              

finding is in line with our caselaw.  As we have stated, "OCS's active efforts toward a  



                                                                                                                   

non-incarcerated parent are important because if the children are able to stay with the  



non-incarcerated   parent,   it   is   unlikely   the   incarcerated   parent's   rights   will   be  



                  26  

terminated."          



                   2.        The services provided to Claudio were adequate.   



                   With  respect  to  Claudio,  OCS's  efforts  consisted  of  paternity  testing,  



                                                                                         

facilitating Claudio's ability to send Iris cards and letters, and providing in-person visits.  



The Department of Corrections provided Claudio with services designed to address,  



                                                               

among other issues, his anger management problem.  The trial court noted that the State's  



efforts  for  Claudio  were  "not  perfect  by  any  means,"  but  that  because  Claudio's  



                                                        

incarceration meant that Iris could not be placed in his custody within a reasonable time,  



the State's efforts toward him "were active and reasonable under the circumstances."  



          26  

                               

                   Doe v. State, Dep't of Health & Soc. Servs. , 272 P.3d 1014, 1021 (Alaska  

                        

2012); see also Dashiell R. v. State, Dep't of Health & Soc. Servs. , 222 P.3d 841, 850  

(Alaska 2009).  



                                                            -13-                                                          6827  


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

                    Claudio concedes that OCS was limited in the services it could offer him,  

                                                                                                          



but he argues that OCS "failed miserably" in two areas where it could make efforts -  

                                     



visitation and effectuating Claudio's desires for Iris's placement.  



                                                                             

                    As to visitation, Claudio asserts that OCS basically had no contact with  



                                                                                                          

him.  The record substantially supports Claudio's position for much of the time Iris was  



                                                 

in custody.  But Claudio was at least partly responsible for the lack of communication.  



More importantly, Claudio has no answer for the trial court's observation that "additional  



contact  between  [Iris]  and  [Claudio]  would  not  have  altered  the  situation  in  any  



                                                                                      

substantive respect . . . .  No matter what the Department does, [Iris] cannot be returned  



                                                               

to [Claudio] in a reasonable time for him to parent her."  We agree with the trial court.  



Even if Claudio's social worker should have made greater efforts to maintain contact  



                                                                                         

with him, and even if OCS should have arranged visitation sooner, it is beyond dispute  



                                            

that no amount of contact or visitation would have altered Claudio's situation to allow  



him to act as Iris's parent before his release from prison, which is still several years in  



               27  

the future.         Claudio, not OCS, is responsible for that situation.  



                    Finally,  we  reject  Claudio's  argument  that  OCS  should  have  made  



additional efforts to place Iris with one of his parents.  Leaving aside the question of  

                 



whether OCS's placement decisions may be relevant in determining whether the State  

has made active efforts on behalf of an incarcerated parent,28 it is clear that here OCS  



made all the efforts it reasonably could have been expected to make to place Iris with  

                                  



Claudio's parents.  Specifically, Claudio's mother was without adequate housing to allow  



                                                                              

placement with her until 2012, and Claudio's father did not become a placement option  



          27        Claudio concedes that he will remain incarcerated for a "significant period"     



of Iris's life.  



          28        See Josh L. v. State, Dep't of Health & Soc. Servs., 276 P.3d 457, 464-66  

                                                                                                  

(Alaska 2012) (per curiam) (2-2 decision).  



                                                             -14-                                                            6827  


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

until October 2011.   As discussed above, OCS's investigation into both of these homes  



was appropriate and timely, considering the circumstances.  



                                                                                                        

                    We thus affirm the trial court's finding that OCS made active efforts to  



provide programs and services to prevent the breakup of the Indian family.  



          C.        Termination Of Claudio's Parental Rights Was In Iris's Best Interests.  



                    Before a court may terminate a parent's parental rights, AS 47.10.088(c)  



                                            

requires the court to consider the best interests of the child.  Alaska Child in Need of Aid  



Rule  18(c)(3)  requires  the  court  to  find  by  a  preponderance  of  the  evidence  that  



                                                                                            

termination is in the child's best interests.  Here, the trial court found that termination of  



                                                                                                  

Claudio's parental rights would serve Iris's best interests because Claudio will "not be  



            

able to parent [Iris] until she is well into her teen years."  The court found that stability  



                          

and permanency were crucial to Iris's health, and it concluded that Iris's "future should  



                                                                                                                    

not be in flux depending on [Claudio's] incarceration and personal progress."  The trial  



court's  finding  was  supported  by  Claudio's  testimony  about  his  expected  period  of  



                                                                

incarceration and his plans after his release and by Downes's and Bridgman's testimony  



about Iris's fragility and attachment issues.  



                                                 

                    The main thrust of Claudio's challenge to this finding is his assertion that  



OCS should have remedied Iris's status as a child in need of aid by placing her with one  



of his parents.  But this argument misses the point, as the question for the trial court was  



                                                                                                                         

not whether OCS should have done something differently in the past, but whether, at the  



                          

time of the trial, termination of Claudio's parental rights was in Iris's best interests in  



                                                                                             29  

                                                                                                 Nor does Claudio's  

order to free Iris for adoption or  other  permanent placement. 



                                                                                                      

argument address the gravamen of the trial court's finding, which is that wherever Iris  



ends up being placed, her placement must be permanent and stable, and must free her  



          29        AS 47.10.088(a).  



                                                             -15-                                                          6827  


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

from the uncertainties inherent in the possibility that Claudio might someday reenter her            



life as her parent.  Such permanency, stability, and certainty can only come about if  



                                                                         

Claudio's parental rights to Iris are terminated.  We affirm the trial court's finding that  



termination of Claudio's parental rights is in Iris's best interests.  



V.        CONCLUSION  



                    Based  on  the  foregoing  discussion  the  trial  court's  order  terminating  



Claudio's parental rights to Iris is AFFIRMED.  



                                                              -16-                                                        6827
  

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